Informing family justice and Court of Protection recovery plans post-pandemic – Law Society response

The consultation

The Nuffield Family Justice Observatory (NFJO) is undertaking another rapid consultation to evaluate the role of remote hearings in the family justice system and in the Court of Protection.

This was sent out as a survey for as many of those engaged in these proceedings, to provide feedback, including parties, judges and advocates.

The results of the consultation will inform how the President of the Family Division sets out how to move forward with remote aspects of hearings.

Our view

Remote hearings have certainly found their place within the family justice system and Court of Protection, with many solicitors preferring them to in-person hearings.

We are hearing that they are more time and cost effective and have allowed for better work/life balance.

These are all important consequences and must be considered in taking remote hearings forward. We anticipate that this will be the position for barristers and judges, as well.

However, in the interest of upholding access to justice for all parties, there are some instances where remote hearings may not be the best format.

This is particularly the case in public law cases where a party has limited access to technology or where parties require an intermediary or a translator.

Members have also reported that remote hearings are not always appropriate for final hearings, particularly where there are complex issues at play or where cross-examination of lay witnesses is required.

Overall, based on member feedback, we consider it appropriate the remote hearings could be the default for simple administrative hearings with minimal parties attending, but that other, more complex hearings should be considered on a case-by-case basis.

We have also used this opportunity to put forward our views on the collection of data by HMCTS.

This data, in particular, should capture the impact remote hearings have had on outcomes in cases and any impediments to access to justice.

The court backlogs must also be considered in pressing forward with any plans to move out of the pandemic and the formulation of any strategies in implementing remote hearings long term.

Next steps

The NFJO will report on its findings in the coming months.

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