Image Description: Socially distanced judges in courtroom
At the start of 2022, as we approach nearly two years of family courts operating under the twin pressures of decades of under-funding and the impact of Covid-19, there is a clear need to consider how to design the future of public family law hearings, particularly child protection cases. Such cases in the family courts have a particular importance because of the potential to sever the relationship between a birth parent and child, “a momentous step, not only for [the child], but for her whole family, and for the local authority which does so”.
A particular difficulty has arisen regarding how to ensure fairness for lay participants during the legal process of hearings involving decisions about child protection, care and adoption. These lay participants are often birth parents (hereafter termed “parents”) but may also be other family members, caregivers, foster parents, and adoptive parents. The approach taken by the courts has been makeshift. It is essential now that we ensure the new system protects the human rights of parents, particularly those set out in article 6 – right to a fair hearing in civil matters – and article 8 – right to respect for private and family life – of the European Convention on Human Rights.
The first Covid lockdown in March 2020 presented sudden problems of unprecedented scope. The courts responded by moving almost exclusively to remote hearings, initially using telephone hearings, and later video conferencing. If parents wanted to be part of the proceedings, they needed to connect via a video-enabled device connected to the internet. Yet this was based on expectations about life circumstances of parents which were often not realistic – many did not have access to devices for tele-hearings, reliable internet connections, or private space within the home to participate in court proceedings without interruption. The Nuffield Family Observatory published reports in May and September 2020 which noted that “it is clear that, for some parents at least, the experience of remote hearings may fall below what is acceptable in terms of fairness and justice.”
In early cases during the pandemic, judges were keen to confine their decisions to specific facts. In Re A (Children) the list of factors when deciding whether to continue with a remote hearing focused on two elements: the nature of the hearing (whether it was a final hearing or preliminary; would there be experts; was it urgent), and the vulnerabilities of the lay party: would they be able to meaningfully participate and were they legally represented, amongst other relevant factors.
In A Local Authority v Mother and Others the wider human rights implications were considered by Mr Justice Williams where the mother and father sought a delay to proceedings until they were able to attend in person. He observed that there was“no perfect solution” to the “clash” of rights between the parties, focusing on articles 6 and 8.
We are now at the stage where decisions are being made about the use of remote hearings in family law as “the new normal”. The most recent advice comes from an address by Sir Andrew MacFarlane, President of the Family Division in October 2021. He again reiterated the principle that each case management decision must be made by the judge based on the specific facts of the case. However, he also stressed the benefits that remote hearings could facilitate in expediting hearings dealing with administrative matters by conducting these without requiring counsel to be physically present. There has been a consistent failure to meet the 26 week time limit for care proceedings introduced in the Children and Families Act 2014. Excessively long proceedings are not only psychologically harmful for children but also potentially breach the parents’ article 6 rights to a hearing “within a reasonable time.”
Yet barristers whom I interviewed in July to September last year remained apprehensive. They welcomed the increased efficiency of video conferencing for hearings which were purely administrative. However, they were concerned that, despite the guidance, decisions were still being made based upon practicalities about counsel availability and whether the court building could be made “Covid-proof” rather than a nuanced assessment. Where, as appears to be the case in certain court centres, blanket decisions are made that all cases will be dealt with remotely due to resource constraints, then the potential breach of the parent’s article 6 rights is critical.