On 16 October 2021, The President of the Family Division, Sir Andrew McFarlane, considered some of the issues that are of current interest in the Family Justice System in an address at the FLBA National Conference in Manchester. A summary of the President’s views relating to the issue of remote working and whether it is ‘here to stay’ is set out below.
The Future of Remote Hearings
- The President and Baker LJ (who is overseeing ‘recovery’ in the Family Court and Court of Protection) remain firmly of the view that the circumstances around each case and each local court centre vary to such a degree that any firm ‘black-letter’ direction or guidance would be inappropriate. The decision as to the format for each hearing should be taken by the Judge in charge of the case.
- The President acknowledged the desire of those who work in the Family Court to know what is now expected in general terms with respect to remote working. He set out some broad parameters within which judicial discretion will continue to be applied and to describe the general direction of travel which courts should expect to follow, depending on the individual circumstances as they apply in each case and other local factors.
- The central theme running through the President’s approach was that the parties and their lawyers should normally be physically present at court on those occasions when an important decision may be taken. A balance has to be struck in each case, but generally that balance should come down in favour of the parties and their lawyers attending all hearings where an important decision in the case may be taken.
- There are a number of positives about remote hearings, but one clear negative is the absence of that time outside court, when the presence of ‘the court door’ and the proximity of the other parties and their lawyers will not infrequently lead to a focussing of issues or even settlement. He stressed it is important that this valuable opportunity for advice, negotiation and possible settlement is regained. Also it is clear that, at least some lay parties afford less respect to the court process, and the outcome of it in terms of any order, when the hearing is online or by phone. Remote is not necessarily more efficient and quicker and it is possible to process more cases at court than it is to do so remotely.
- The obvious benefits of an attended, in court, process before a judge or magistrates who make an important decision in a family case do not need to be stated. Remote platforms are good for undertaking transactional communications, but there is more to a Family Court hearing than simply transacting business. Much that goes on has a ‘human’ perspective, which can often be lost online, but is fully present in a court room.
- There are clear detriments to attended hearings in terms of travel time and the inability to attend to other cases at other centres during the extended time needed for physical attendance. There are also unwelcome collateral consequences in terms of additional expense, carbon foot-print and other factors. Remote hearings, for the right case, are here to stay.
- As to different types of proceedings:
- in public law children cases, the hearings where an important decision may be made are likely to include the first CMH, ICO hearings, the IRH and final hearings;
- in private law children cases, those hearings are likely to include the FHDRA, fact-finding, DRAs and final hearings;
- in the FRC, they are likely to include FDRs and final hearings; and
- in all three categories of work, a straight-forward directions or case management hearing is likely to be appropriate for a remote hearing.
- Further, he considered that:
- although the granting of an injunction is obviously an important decision, the benefit of conducting Family Law Act cases remotely, or at a hybrid hearing, are likely to outweigh the need for an attended hearing;
- a fact-finding hearing in a FAA case is likely to require attendance; and
- whilst an important decision will normally be taken at the end of an appeal hearing, the question of whether an appeal is heard remotely or in person may turn upon the issues to be raised and whether both parties are represented or in person. The format of an appeal hearing is therefore a matter for judicial discretion in each case.
- The President noted that there is a common view that it is beneficial for expert evidence to be given remotely and, subject to individual factors in any particular case, this is now likely to be the default position.
- As to attendance of professionals, the President considered that:
- CAFCASS and local authority social services are currently under extreme pressure and that judges and magistrates will take these matters into account when deciding whether a CAFCASS officer or local authority social worker should attend an in-person hearing remotely and, if so, whether they need to attend for all or only part of it; and
- when deciding whether or not to hear a case remotely, judges and magistrates should take account of health related issues raised by a party or professional. Such issues may not be determinative in the choice of format, but must be taken into account in the exercise of judicial discretion.