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Remote hearings – How courts dealt with COVID

As Middlesbrough is announced as one of ten Nightingale courts working throughout the UK, director Stacey Phoenix talks about the changes that took place over lockdown to ensure justice was still served.

“One day we were all at court, advocating for our clients in the normal way and the next the doors were closed. This was the case across workplaces and many industries when lockdown was imposed on 23 March 2020, but the impact on the justice system in the UK was unparalleled and something that we simply had not experienced before.

“From family cases, to civil cases to criminal cases the court is a highly populated building. Cases that were listed in the coming days quickly had to be evaluated and overnight the use of telephone hearings were implemented here on Teesside. Covering seven local authority boroughs, the size of the workload at the Combined Court Centre cannot be underestimated.

“During the lockdown period we have had hearings taking place by electronic means, telephone initially and now more regularly by way of video hearings. In the two-week period between 23 March and 6 April 2020, audio hearings across all courts and tribunals in England and Wales (not only in family courts) increased by over 500%, and video hearings by 340%.

“We are now increasing seeing the introduction of video hearings – this initiative follows the implementation of the Cloud Video Platform (CVP) across 60 crown courts and 93 magistrates’ courts. The technology has been used in some 3,600 crown court hearings and more than 7,000 overnight remand cases heard by magistrates.
“CVP can be accessed by any device that has a camera and a microphone – such as a mobile phone or tablet. HM Courts & Tribunals Service (HMCTS) says that anyone can join easily and securely through a web browser, and sessions can be locked to make sure only appropriate parties join. Training rooms can also be set up so that sessions may be rehearsed before they go live.
“Extending it to civil and family proceedings means that all courts in England and Wales will have the technology needed to hold remote hearings – giving users a safer, reliable, and more accessible service, while ensuring justice continues to be delivered.

“Overall, the effectiveness of the local judiciary and local solicitors has made, in family proceedings, the intensity of this new working life much easier to manage but it has undoubtedly had its challenges. Whilst solicitors, barristers and judges have had to adapt to a different way of presenting or dealing with a case, the impact on families cannot be overlooked. Parties who are representing themselves have also needed to adapt to this new way of working and the emotive nature of many cases within the family court arena makes this an even more challenging task.

“As part of the consideration of this, the President of the Family Division asked the Nuffield Family Justice Observatory to undertake a rapid consultation on the use of remote hearings in the family court. More than 1,000 parents, carers and professionals in the family justice system across England and Wales responded to the rapid consultation (14 to 28 April 2020) on remote hearings in the family court, which have been introduced in the light of the COVID-19 pandemic and associated social distancing measures.

“The report highlighted that there was an even balance in positive and negative responses to remote hearings. This reflected the fact that many respondents felt that remote hearings were justified in some cases in the current circumstances, even when they raised serious concerns about remote hearings in relation to other types of cases.

“Many respondents noted that it is extremely difficult to conduct the hearings with the level of empathy and humanity that a majority of those responding thought was an essential element of the family justice system. Respondents also reported that it is difficult, if not impossible, to ensure that parties to proceedings receive the level of support before, during and after hearings that they would normally get if they are legally represented or involved in public law proceedings.

“My own experiences of remote hearings have been varied. It cannot be understated that this situation was thrust upon us overnight and it was always going to be the case that teething problems would initially arise. As an advocate, dealing with suddenly conducting a complex contested hearing from your home instead of within a formal court room brings with it its own challenges of managing the separation between home life and work. If someone tells you that they have never had a Zoom meeting be interrupted by a dog barking, the postman arriving or the children needing something to eat, then don’t believe them.

“For me, the technology worked well but the increased volume of emails was unprecedented. From an already admin heavy workload to more than 100 emails per day minimum, it has been difficult but, whilst overwhelming at the outset, it is now strangely the norm.

“From the position of the children and the families that we work with this has been more challenging. Many cases are manageable for remote hearings and for many families, the benefits of having a remote hearing outweigh the downfalls of delay if the hearing had not taken place.

“It still remains, however, that some cases are just not suitable for remote hearings, this is something the judiciary and the court have acknowledged from the outset. Separation of children from a parents care when a hearing is taking place remotely and the children are still within the home of parents who are understandably emotional and unable to obtain direct reassurance and support from their legal representative, makes this even more challenging in a role where we are also there to support our clients not just represent their views.

“Cases where final decisions are being made about permanence outside of the family are cases that require a level of face to face consultation and fair access to full justice. The delay that these cases have suffered as a result of lockdown is prevalent, but now the court moves forward to address how these hearings can now take place and further delays can be prevented. The introduction of CVP hearings, hybrid hearings and attended hearings in these cases is effective and will now start to slowly put the judicial system back on an even keel with the backlog of cases that have arisen.

“The recent announcement that Middlesbrough is also an area of one of the ten Nightingale Courts will only seek to help reduce this delay in cases.

“Whilst COVID-19 certainly enforced remote hearings into our normal working life, we can now see in many cases, remote hearings do work, can be effective and allow a fair access to justice. We do not know what the next few months will bring but, at this stage, the system that is in place is working well as a whole.

“Whilst life returns to further normality, it would seem that remote working does have its own place within the judicial system – perhaps it just came earlier than we all expected.”