Covid-19 and the ‘new normal’

How quickly we all had to adjust to the ‘new normal’. Gone were the boardroom meetings and the informal discussions huddled around the printer. Suddenly ‘to Zoom’ and ‘to Teams’ became some of our most used verbs; we learned what books our colleagues’ shelves are stacked with and how high maintenance their dog is. We learned how to mute ourselves, how to unmute ourselves, how to tell somebody, delicately and with no discernible impatience, to unmute themselves.

The adjustment was easier for some than others. If you haven’t seen the video of the US judge with a cat filter yet, click this link and thank me later.

The Family Courts too, of course, had to adapt rapidly to the Covid-19 crisis, which posed an unprecedented challenge to the delivery of core public services. The ‘virtualisation’ of family court has been no easy feat, facing an obvious access to justice problem amidst pervasive technological difficulties. Despite this, remote hearings very quickly became the ‘new normal’ for the majority of cases in the family court. Whilst some hearings, particular those with witness evidence, took place in person where possible, most hearings took place over the court’s newly developed Cloud Video Platform (CVP), over telephone or on other video conferencing platforms like Zoom.

The future of remote hearings

As we emerged from the pandemic, we wondered what role, if any, remote hearings would play in the future. It is fair to say that even before the pandemic the court system was less than perfect. Many court buildings have long been deserving of a makeover. Having to advise clients in a crowded corridor due to lack of sufficient rooms for private chats, or waiting hours to be called into the court room due to a saturated court list, were everyday occurrences. It is little surprise that many of our clients in financial proceedings opt for their Financial Dispute Resolution hearing (FDR) to be heard privately, despite the additional cost of the private judge. A comfortable setting, decent food and drink facilities, and a dedicated judge with no other cases competing for their time that day, go a long way towards promoting settlement.      

We now know that remote hearings are here to stay – at least to some extent. On 20 October, the Farquhar Committee published guidance on the future use of remote hearings in the family court. In short, hearings where no evidence is to be given should by default by listed for remote hearings via video link, with the exception of appeal hearings, FDRs and enforcement hearing where a person’s liberty is at risk. Courts will also hear final hearings in person, as well as applications for interim maintenance or a legal services order.

Pros and cons of remote hearings

In considering whether to keep remote hearings, the Committee considered the many advantages that have become apparent over the last year and a half. Amongst them, avoiding the time and costs of travel, avoiding waiting time at court and improving access for litigants and practitioners with caring responsibilities or disabilities. Interestingly, many practitioners felt that remote hearings were less anxiety-inducing for clients. Logging on remotely creates a degree of separation that many people found helpful.

Yet the Committee recognised that remote hearings cannot and should not replace in person hearings as a rule. In person hearings have many advantages. They remove the odds of technological difficulties causing disruption, allow for clients to be with their legal teams as default and allow for judges to assess credibility better when evidence is given. There is also something to be said for the solemnity of court being lost when reduced to a screen. Often the family court is involved in important, life-changing decisions. It seems only right that such decisions are made in person.

Remote and in person - a happy medium?

Whether the way forward is a happy medium remains to be seen. When it comes to remote hearings, it is realistic to assume that from time to time poor Wi-Fi connections, feedback and other IT hiccups will cause some disruption – such is the nature of the beast. Practitioners have learned how best to limit these risks. For example, one option when a remote hearing is listed is for the client to come physically into their solicitor’s office, or into counsel’s chambers and then all log onto a hearing remotely from the same room. Not only does this limit the potential for somebody’s IT having a meltdown at the wrong moment but, crucially, clients can get the in person support they need from their legal advisors and communication channels are much faster and easier. I often suggest this to clients who may want to feel more supported on the day of the hearing than via a screen.

On the bright side, this brave new world of both remote and in person hearings can be seen as a move towards efficiency; no longer will litigants and their legal teams need to journey to court for the class of hearings that can be expeditiously dealt with remotely and where little could be gained from both sides being in the same room together. Most practitioners agree this is a good thing. Similarly experts, when appointed, will be able to give their evidence with more ease over video link.

Judges’ discretion

Of course, remote hearings will not be suitable for everyone. Judges will have discretion to change a hearing which would otherwise be remote to an in-person hearing at court, where a formal application is made. The Farquhar Committee report suggested that persuasive reasons may be where one party lacks access to IT facilities, needs an interpreter or has a disability which makes remote attendance more difficult. We hope that judges will use their discretion widely to ensure fair access to justice in all cases.