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iFLG Partner Stuart Clark believes that the shorter-term focus of the rapid consultation on remote hearings may have been a missed opportunity for longer-term lessons to be learned and for future practice to be informed by the rapid acceleration of the use of remote hearings during the lockdown. Whilst there have been inevitable teething problems, these must not stand in the way of progress. He sets out the recommendations of The International Family Law Group LLP and urges a conservative and cautious profession to use this crisis to innovate and to develop.

The Remote Hearing Consultation: Rapid Changes and Mixed Experiences

The last six weeks have seen a monumental shift in how family justice operates. Through necessity, remote hearings are now commonplace. There has been a rapid short-term change in the culture of court hearings, but with potential long-term ramifications. As supporters of a move toward the increased use of remote hearings generally (in certain circumstances), my firm and I are hopeful that the Family Court will build upon these accelerated changes going forward toward the greater use of technology and harnessing the potential advantages of remote hearings for the future once the coronavirus crisis has passed.

However, I fear that some short-term bad experiences of remote hearings, perhaps borne out of the initial use of unfamiliar technology, will stymy the longer-term move toward more remote hearings in the Family Court. There have been plenty of well-publicised stories about the negative experiences of remote hearings, teething problems exacerbated by the speed at which the profession and the Courts have had to adapt.  These short-term problems should not stand in the way of progress.

On 14 April 2020, the President of the Family Division and the Nuffield Family Justice Observatory (NFJO) announced a rapid consultation on the use of remote hearings in the Family Justice System. Responses were requested from across family justice to the use of remote hearings in light of the rapidly changing circumstances following the coronavirus outbreak and the resultant measures for social distancing.  The consultation was concluded on 28 April 2020 and on 6 May 2020 the NFJO published its report here. Huge credit is due to the family justice professionals for the incredible response and to the NFJO for the very fast turnaround of analysis and for the report itself.

The report was a mixed bag of positive and negative reviews of the use of remote hearings. The focus was seemingly on the short term and there is an acknowledgement that further work is required to improve the experience of remote hearings. The Law Society Gazette unfortunately chose to focus its headline on a singular and unfortunate quote from one respondent out of 932 in a 51 page report with its reporting on the negative aspects of remote hearings here.

Nobody could ever have anticipated the sudden and rapid need for remote hearings. Developments were ad hoc. The Smörgåsbord approach propounded in Mr. Justice MacDonald’s guidance held sway and whilst well-intentioned and flexible, it led to some confusion. It has been somewhat of a mixed bag and there is definitely room for improvement in how remote hearings are conducted. But this would inevitably be the case where there was such a fast catch-up by the entire family justice profession, lawyers, judges and court officials, with a radically new way of working for most.

The tenor of the report and of subsequent reporting is therefore understandable in light of the mixed experiences and the steep learning curve. However, these short-term experiences cannot stand in the way of good progress. They must be heard and brought into consideration for future remote hearings, but they should not hold them back in appropriate cases. The response to the consultation touches only briefly on how these experiences can inform future practice.

I do not wish at all to diminish the excellent and rapid work of the NFJO in compiling its report. It is an invaluable resource in modelling the use of remote hearings. That said, it would have been advantageous for the consultation response to go beyond the short term and to have looked in more detail at the longer-term use of remote hearings. Certainly, there have been some problems with remote hearings, including inevitable teething troubles, but there have also been many success stories. Lawyers have quickly adapted and have learned to make it work well and efficiently. And these experiences should be an opportunity to learn and to develop for the future.

I am heartened that the latest View from the President’s [Remote] Chambers for May 2020 here which refers to the plan for ‘Recovery.’ Amidst the considerations for this recovery, I urge discussion of the viability of remote hearings outside of crisis-conditions and the plans for how remote hearings will operate.

Our Response to the NFJO Consultation

The International Family Law Group LLP were one of 932 respondents to the consultation. I chaired the authorship of our response alongside fellow partner David Hodson OBE MCIArb and assisted by Trainee Solicitor, Feriha Tayfur.  I will not replicate our lengthily response here, which drew on our experiences as a firm generally, the individual experiences of my colleagues of many remote hearings since 23 March 2020 and incorporated the experiences of our international colleagues in Singapore, Malaysia, Australia and New Zealand.

We recommended various short-term changes during the current crisis. Crucially, we also recommended that the short-term acceleration of the use of remote hearings should be used as a springboard to greater use and as an exercise in self-reflection.

We felt that the gremlins in the system were just that, gremlins. The last few weeks have been a live beta test of remote hearings under extraordinary circumstances. Practitioners, court staff, litigants and the judiciary have had to learn and adapt on their feet. It has not always been satisfactory. That is the nature of beta testing. But hence the negative press.  

The positives must be allowed to shine through. These are well known and range from the cost savings to the client, to the efficiencies created for judicial time (so long as the remote hearing technology works, an issue which we said needs to be addressed).

Once the positives of the increased use of remote hearings with proper technology, used by appropriately trained lawyers, judges and court staff, has been fully recognised, those involved in the leadership of the family justice system must review how remote hearings can be most appropriately utilised going forward and, in so utilising, what can we learn and what can be set down as a ‘blue print’ for the future.

With this in mind, and by way of our contribution to that debate, I set out here an abridged version of our recommendations in response to the NFJO consultation, covering the short and the long term and as now pertinent to the longer-term:

  1. Comprehensive guidance must be prepared soon as to which hearings will continue to take place during the period of the lockdown and during any later continued social distancing period.
  2. Remote hearings should continue following the relaxation of the lockdown measures, particularly in relation to directions and similar hearings and there should be no immediate reversion to all hearings being physically in court when the lockdown ceases.
  3. However, remote hearings should be avoided for some hearings, including those involving the giving of live oral evidence. We support the various commentaries to this effect and appreciate the limitations of remote hearings for certain aspects.
  4. Crucially in our recommendations, for both short-term and in the longer term, there must be a uniformity of approach as to medium (i.e. telephone vs video hearings) and of platform (i.e. Zoom vs Skype for Business or similar).
  5. The preference of medium must be video hearings.
  6. The HMCTS-led Kinly Cloud Video Platform (CVP) should be rolled out and implemented as soon as possible as the platform for video hearings on the basis that CVP matches the technical capabilities required for the proper administration of justice through video hearings. It must be comparable or superior to commercially available platforms. A platform which does not deliver the amenities with which lawyers and judges have quickly become familiar during these months of the lockdown will be highly unsatisfactory and a retrograde step in the advance of family justice in this jurisdiction.
  7. If that is not possible, then a commercially available platform must be selected and used uniformly across the Family Court.
  8. In that instance, we recommended Zoom as the platform, particularly given the recent improved security provisions.
  9. The guidance and policies rolled out must be adhered to uniformly throughout the Family Court. There can be no derivation by individual venues of the Family Court or by individual Judges.
  10. Training must be implemented across the judiciary on the selected mediums and platforms such that the vagaries of IT literacy by the judiciary does not lead to derivation.

Conclusion

The family justice system in England and Wales has had three or four months of progress thrust upon it in the space of a little over six weeks. Despite the inevitable teething problems and remote hearings going ahead when they were perhaps inappropriate, it has been successful.

There will be plenty more to consider. But parts of the profession will not now want to return to the previous diet of all hearings taking place in court and face-to-face. The natural conservatism of the legal profession must not hold back the developments which have taken place in other jurisdictions and which should take place here.

I hope that in placing our previously private recommendations in the public domain we, as a family law profession, can engage in the debate and can get some traction toward longer-term changes in the culture of remote hearings so that they will be viable beyond the end of the current crisis.

We must ensure that family justice is properly administered during the current lockdown and social distancing measures, but we should also look the longer term.

Without diminishing the incredible work so far to make sure the wheels of family justice continue to turn, what can we learn and maintain and consolidate for the longer-term from our experiences of this time?

Stuart Clark
stuart.clark@iflg.uk.com
The International Family Law Group LLP
www.iflg.uk.com
© May 2020