Remote Hearings – Unfair?

Sarah Clubley of Williamsons Solicitors and all family solicitors in their offices in Hull, Driffield, Bridlington and Beverley have undertaken remote hearings during the pandemic.

Sarah has undertaken remote hearings where new mothers have had their babies taken into care during remote video and telephone hearings from hospitals.

Parents are joining online proceedings from home often without adequate technology or support, when life-changing decisions are made about their children.  Almost half of the parents and relatives involved in Family Court hearings during the crisis said they did not understand well what was happening.

There have been instances where litigants have appeared remotely in their pyjamas or whilst still in bed.

A recent report by the Nuffield Family Justice Observatory concluded that even before the pandemic struck in March there was a debate about whether remote hearings delivered justice.  Cuts to legal aid mean that since 2013 many litigants are no longer represented in family courts.

The report says problems experienced included ‘parents taking part in hearings remotely, alone and from their homes, lack of communication between parties and their legal representatives’ and communication difficulties during hearings.

Most parents joined by phone rather than video link.  Those who needed an interpreter or who had disabilities faced particularly severe challenges.

The most difficult cases were those in which social services believed babies needed to be taken into care under an interim order shortly after birth.  They on occasions involved a mother joining the hearing by a phone from hospital.  Previously they were likely to have been represented by a solicitor in court.

‘There is nothing fair about a remote hearing which requires you to remove a newborn baby from its mother’.  ‘Remote hearings do not enable you to show empathy’.

The report says ‘mothers have frequently not been able to have any physical contact with their babies following their removal’ during the pandemic because of fears over infection.

One Judge expressed significant reservations about remote hearings for such sensitive cases.  ‘Removing children and making major decisions can have lifelong consequences.  Notwithstanding everyone’s best efforts, remote parties cannot sometimes be adequately engaged.  I have real misgivings about how fair it is and how fair it is felt and seen to be’.

Another remarked ‘I worry about making orders which may be very distressing to a participant, e.g. the removal of their child.  In court they’d at least have a lawyer with whom they could grieve, rant, consider appeal and have support.  By phone or video, they may be in their bedroom, alone and in despair, perhaps with the child and now awaiting a visit from a social worker’.

Among other responses was one from a Judge who said ‘My morale has massively improved since I started doing [physical] hearings again’.  Upholding the authority of the family court was also considered harder to sustain online.  One Magistrate heard a case where a litigant was plastering.

There was some more positive reactions, in particular the fact that hearings are now subject to a time slot and finish in that time slot is welcome and the days of sitting at court all day waiting to get on for 5 minutes appear to be over.

The President of the Family Division of the High Court, said ‘This emergency is without precedent.  Judges and others (solicitors and the courts) have worked tirelessly, and continue to do so, so that the family courts have continued to function without a break since the start of lockdown.

Sarah says anyone who is given notice of a remote hearing should contact the offices of Williamsons Solicitors on 01482 323697.