Courtroom

Family justice in a time of national crisis

Published: 29/05/2020

Author: Hannah Scott

The impact of COVID-19 on the family court. This blog reflects on the implications of coronavirus (COVID-19) upon the family court and the strengths and difficulties that have so far arisen.

Following the restrictions from COVID-19, the President of the Family Division issued guidance on the Remote Access Family Court and in April 2020, identified a need for evidence to inform guidance on the use of remote hearings.

One difficultly in the remote courtroom, is ensuring a fair hearing for those appearing as litigants in person (unrepresented by a legal advocate), which have greatly increased since the reduction of legal aid funding in 2012. Since the outcomes of these hearings have significant implications, it is essential that time and consideration is taken in explaining the process. This includes not only listening to what people say but carefully observing their body language, something that is more difficult in a remote hearing.

Whilst there is guidance on circumstances in which a court based hearing is the only suitable option, the Family Justice Observatory (FJO) review reported that following lockdown, remote hearings across all courts have significantly increased. However some cases such as, Re P, have been postponed until restrictions are lifted, and referral rates to social care have dropped, which raises concern of a possible influx in referrals or rise in court applications once children increase contact with supporting services and education.

The current challenges led to the President requesting a review by the FJO. The consultation took place in April 2020 and received over 1,000 responses from judges, professionals and family members discussing both public and private law cases from across England and Wales. Whilst there were both positive and negative experiences, many felt that remote hearings were justified in the current circumstances, although many expressed serious concerns.

Key findings

Difficulties from lack of face-to-face contact 

  • Judges ability to conduct hearings with level of empathy needed; parties giving instructions during the hearing; and professionals’ ability to provide support to parties before, during and after a hearing.

Difficulties in ensuring the full participation of parties

  • Many parents do not have suitable technology for a remote hearing, including Wi-Fi, credit and devices. This was not just limited to parents but other parties and judges.
  • Lay parties’ understanding of what was happening due to difficulties in receiving information or giving instructions.
  • Hearing all parties when there is a poor connectivity, particularly when there is any communication difficulty, and in effectively using an interpreter.
  • Using intermediaries due to availability and them fulfilling their role remotely, although there were some positive examples through intermediaries being in the same physical room as the party or the use of virtual separate rooms on Zoom.

Positive feedback

  • Some parents reported that they found a virtual hearing less daunting and actually preferred this, with one stating their preference as no childcare arrangements were needed to attend (though this raises the question of the whereabouts of the child(ren) while the case was underway). Some parties were relieved to be able to conclude ongoing proceedings and finish their evidence, and did not feel this impacted on fairness.

Domestic abuse

  • A lack of attention to digital process which left some parties distressed, by the case taking place in their own home and through waiting for a hearing to start alone, with just the perpetrator on the line. Positives included some victims finding a remote hearing better than attending court, especially for the process of non-molestation orders.

Confidentiality and privacy

  • It can be difficult to monitor who is present during a remote hearing and if anyone else is listening or recording. There have also been concerns that confidentiality could be inadvertently breached by someone not party to proceedings dialing in.
  • Confidentiality issues can overlap with safety issues, children may need to be in another room unsupervised for hours as the case proceeds. A key issue is that of parents in distress and without support at the end of a hearing, particularly for hearings where the decision is being made whether to remove a child whilst the children are in the house. Some professionals are also managing child care in the home.

The urgent removal of newborn babies

  • Particular concerns have included new mothers having to attend virtual hearings from a side room in a hospital, without the face-to-face support of an advocate and poor phone signal. Hospitals are also trying to limit the time spent on wards, which can create additional urgencies for a court decision if mother and baby are ready for discharge.

Other factors affecting fairness

  • Social distancing has created difficulty in assessments and observations being carried out. It has also limited support from drug, alcohol, mental health, domestic abuse and learning disability services, where face to face contact plays an important role. There are also fewer placements available, especially in mother and baby units.

Key points of good practice and suggestions for future practice

  • IT training for remote hearings. Tips for using technology effectively included, using the waiting room, room lock, screen share and chat functions; participants to be muted when not speaking; using password and recording hearings; and doing a ‘dry run’ to test the technology; HM Courts & Tribunals Service providing a picture of a court room to be used a virtual backdrop.
  • Regular breaks to be incorporated into hearings.
  • Interpreters translating after a person has spoken rather than simultaneously.
  • Several courts have used a “hybrid” approach, using rooms in court or other buildings for some parties and others joining remotely, which also allows for that person to be supported.
  • The respondents ask for a clear set of guidelines due to the volume of different guidance to-date.
  • Directions and case management hearings are generally most suitable for a remote hearing and in some cases a more effective use of time than face-to-face, with some encouragement for this to continue post-pandemic as they have a set time and also saves travel time. The process for non-molestation orders in remote hearings was generally found to be less intimidating and more empowering, with request for this to be utilised on a permanent basis.
  • Most respondents felt that contested final hearings and hearings requiring any cross-examination were not suitable for a remote hearing, with some exception to cases that had already started in court and had already spent days in front of the Judge, or only professionals are giving evidence.

What does this mean for practitioners?

Managing privacy for professionals

When I was in practice, even if I did not always achieve it, I was mindful to limit how much I brought work into my own home through catching up on paperwork or thinking about cases. Now social workers are mainly home based, where they hold virtual visits to families, providing a view into their own home. The FJO review raises the issues of a lack of privacy for professionals. This can be managed by sitting in front of a neutral background, or putting a visual background on through some chat facilities. Some workers may still feel uncomfortable with this, but it is an interesting point of reflection in considering the privilege we are given to access family homes as we do, and the power and relationship dynamics when many families face poverty and poor standard housing, whilst professionals are less likely to have these personal challenges.

Self-care

The Lord Chief Justice, Master of the Rolls and President of the Family Division stated ‘using technology to conduct hearings was unusually tiring.’ They raised issues of participants not always treating a remote hearing with the respect of a physical hearing.

When I think back to the most challenging court cases I faced as a social worker, the wind down after the hearing was an important part. This is more difficult after a remote hearing, so try and plan a discussion with your advocate or manager following the hearing, a call to the family to check in with them if the hearing had difficult outcome, and then a non-work activity to help wind down such as a walk.

CAFCASS have this advice on balancing effective remote working and a busy home life.

Confidentiality and support

During COVID-19, carers, families and professionals, are not only having to manage caring for their child(ren) in the house whilst attending a remote hearing, but have to carry on straight after hearing a potentially difficult outcome. It is important for workers to provide as much support as possible in these situations to ensure confidentially and support. For example, some local authorities have been able to hold the remote hearing in an office with support for the children so that they are not listening to the hearing. A parent may need support including planning how they will tell children the outcome. Prior to the hearing, discuss and plan this with the family, such as their social worker supporting parents or leading this over a video call.

Workers must also ensure the remote hearing is confidential in their own home and not overheard or interrupted by other household members.

Future practice – the new normal?

The Lord Chief Justice has stated that the courts will never again operate as it did prior to the pandemic. He reported that Cloud Video will soon be available across all civil and family court, but that continuing investment for the court is vital. The FJO consultation shows the positives of remote hearings in matters such as case management for effective use of time, and some young people have preferred building relationships with their social worker through a more familiar virtual world, so some of these changes may be staying as part of our practice.

Other helpful links

Nuffield FJO provide a brief overview of how other countries have managed court cases during the Covid-19 pandemic.

The latest guidance and advice for all courts can be found on the Courts and Tribunals Judiciary.

The Transparency Project writes of a positive experience of attending an open remote hearing in the Court of Protection for a vulnerable 18 year old who was subject to an urgent application for protective orders and had been deprived of her liberty.

The Family Rights Group has guidance on delivering Family Group Conferences during the COVID-19 crisis.

Research in Practice provide monthly case summaries from cases from the court of appeal. The March special edition summarises practical guidance for workers attending any type of court hearing during COVID-19 restrictions, April’s edition includes a judgment regarding suitability for a remote hearing. The President of the Family Division summarised the current guidance surrounding remote hearings when he recently sat in the Court of Appeal. Read the latest summary for May.

There have also been changes to laws affecting adult social care which are discussed in this Research in Practice blog.

It is important for workers to not feel overwhelmed by court cases during COVID-19 and many of the process remain the same, Research in Practice have many tools on social work practice in the family court.

Hannah Scott

Hannah is a Research and Development officer for children and families services. Hannah has worked in child protection roles as a registered social worker and is also a systemic practitioner.