Rapid consultation on remote hearings in the family courts – Law Society response

The consultation 

The president of the Family Division, Sir Andrew McFarlane, asked the National Family Justice Observatory to carry out a rapid consultation on remote hearings in the family courts. This was a response to the disruption caused to hearings in the wake of the coronavirus (COVID-19) crisis.

Responses from this consultation are to be compiled into a report for consideration by the president, potentially being pulled into national guidance.

Our view

We welcomed the opportunity to respond to this consultation, as the speed at which the family justice system had to adapt to the crisis left little room for evaluation.

We consider that now is a good time to take stock of what is working and what is not working in remote family proceedings.

Access to justice and the rule of law must be upheld while the pandemic continues to impact in-person hearings.

Some forms of technology have enabled hearings to adequately continue, while others are proving a poor facsimile to in-person hearings and are making it difficult for some parties to access justice.

Where access to justice and the rule of law are jeopardised, hearings should not go ahead. However, consideration must also be given to the fact that hearings may be postponed indefinitely.

Our main concerns are:

• the use of remote hearings, particularly telephone, in contested hearings
• the inconsistency in how these cases are being handled from court to court and from judge to judge
• the ability for members to take instruction from clients before, during and after hearings
• cross-examination of lay witnesses via remote methods
• the ability for litigants in person to engage fully in remote hearings
• the issues arising for parties requiring interpreters

The president’s engagement with the profession throughout the lockdown period has been exceptional.

We're grateful that he's taking the time to undertake such work and listen to the concerns of all those involved in family proceedings.

Next steps

The consultation closed on 28 April.

The results of the consultation have been compiled into a report by the Family Justice Observatory.