Inappropriate use of remote hearings may impede justice and the rule of law in family courts

Access to justice must be the principle consideration when deciding if remote hearings in family courts and the Court of Protection are appropriate, the Law Society of England and Wales has warned in its response to a consultation by the Nuffield Family Justice Observatory (NFJO).

“The family courts and Court of Protection make monumental decisions on the fundamental human rights of the parties, who are often vulnerable. It is important to ensure that access to justice and the rule of law are upheld in these cases,” said Law Society president I. Stephanie Boyce.

“Remote hearings have generally found a suitable place in the family justice system and the Court of Protection. In some instances, they have removed family tensions, made emergency hearings simpler to attend and been more convenient and efficient for advocates, parties and judges.

“However, the biggest factor in deciding whether a hearing should be remote or in person must be any potential impediment to access to justice. If parties feel they can’t fully participate and understand what’s happening, in-person hearings should be the default format.

“We must fully analyse via research and central data the impact of remote hearings on access to justice and justice outcomes before any decision on the longer-term use of remote hearings is made by HM Courts and Tribunals Service.

“Parties who lack the appropriate technology (such as good WiFi or relevant hardware), aren’t technologically literate or who need an intermediary or translator may struggle to feel fully involved in remote hearings. This is particularly relevant to public law proceedings.

“Some litigants in person – parties without legal representation – are also struggling with remote hearings, especially when they are complex. This causes difficulties in accessing justice and being able to fully participate, which also causes delays to hearings.

“A compromise may be hybrid hearings. However, our members have said these can be much longer and the technology isn’t always adequate. If they are used in future, ways of improving their effectiveness should be analysed and implemented.

“Many lessons have been learnt over the past year, with remote formats nestling very well in courts. We’re grateful to those in family justice who have worked so hard to keep the wheels of justice turning.”

Notes to editors

Read our response in full to the Nuffield Family Justice Observatory’s (NFJO) rapid consultation

The NFJO’s consultation is intended to inform how the family courts and Court of Protection should operate during the court ‘recovery’ period following the pandemic.

It’s examining what aspects of remote working should be retained, the continued problems and the experience of legal professionals, judges and parties attending court in person. We have now published our response.

The NFJO supports better outcomes for children in the family justice system in England and Wales by improving the use of data and research evidence in decision-making.

Find out more about the NFJO's work

Read about the NFJO’s 2020 rapid consultations

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