In his last blog for 2021, family law blogger John Bolch looks back (and forward to the future) at court hearings, working from home and what next for the profession in a post Covid-19-Omicron world…
Going to the office to work, going to court for a hearing. It was always the way that lawyers did things whilst I was practising and, indeed, had been the way that things were done since time immemorial.
True, since the advent of the internet there had been some discussion about court hearings being conducted remotely, and there had even been the odd experiment. But, despite the optimistic prophesies of the futurists, progress was slow, and it seemed that significant use of remote hearings in the field of family law was still some years away.
Of course all that changed with the arrival of Covid-19, and the resultant social distancing measures of the first lockdown in March last year. Both the office and the court building were no longer considered to be safe environments.
Home and remote working
As far as the office was concerned, working from home became the norm, made possible of course by the fact that most firms of solicitors had long since converted from paper to electronic files, accessible from home via the internet (barristers also use digital instructions, rather than the old paper brief tied up with pink tape).
But that still left a problem: how do you take instructions from your client, when you can’t meet with them in your office? The answer of course was to do so over the telephone, or via face-to-face internet-based methods, such as Skype or Zoom video conferencing.
But the biggest issue was the court. It simply had to keep working, or the justice system would collapse. A few hearings continued to take place, but most courts were shut. Thankfully, judges, court staff, lawyers and others rose to the task. In an incredibly short time most hearings were taking place remotely, or as ‘hybrid’ hearings, whereby some parties attended court and others attended the hearing remotely via video conferencing.
As we will see in a moment, these dramatic changes in working practices were not without their problems, but at least the system kept working. Indeed, remote hearings were such a success that by October 2020 the President of the Family Division was reporting that, thanks to remote working, some courts had cleared their backlog of cases.
And as we hopefully approach the end of the pandemic, the question that is being asked is: will we ever go back to the old ways?
Advantages and disadvantages
Working from home has obvious advantages and disadvantages. Saving the time and expense of commuting and being able to work when you want are clear advantages. Lack of camaraderie and the imposition of work on the ‘home space’ are clear disadvantages.
As for the court, the changes have been closely monitored, in particular in two consultations carried out by the Nuffield Family Justice Observatory (‘NFJO’), at the request of the President.
I will come to the second consultation in a moment, but the first consultation found that most professionals who took part felt that things were working more smoothly, and some reported benefits to working remotely, for both parties and themselves.
They shared concerns about the difficulties of being sufficiently empathetic, supportive and attuned to lay parties when conducting hearings remotely, but more than three quarters felt that fairness and justice had been achieved in the cases they were involved with most or all of the time.
However, a majority of parents and relatives reported having concerns about the way their case was dealt with, and two thirds felt that their case had not been dealt with well. Two in five said they had not understood what had happened during the hearing.
Unsurprisingly, there were concerns about technical problems related to connectivity, and the difficulty in some parties obtaining access to the technology.
Other common problems highlighted included a lack of communication between lay parties and their legal representatives before hearings and difficulties with communication during hearings because of the need to use more than one device or to adjourn the hearing.
The future
As social distancing measures eased law firms reopened their offices, and began to see clients face to face again.
But that does not mean that there will be a complete return to the old ways. The genie is out of the bottle: the possible advantages of home working are clear, both for employees and employers.
Employees and employers
For employees the realisation that they can work from home, at least for part of the week, opens up the obvious possibility of saving time and money on commuting.
And for employers there is the tempting possibility of home working reducing the need for expensive office space.
Obviously, what happens will depend upon the approach of employees, but my suspicion is that many firms will continue to allow their employees to work from home, at least some of the time.
As to the court, the second NFJO consultation looked at the issue of remote hearings post-pandemic. It found that the majority of professionals who took part in the consultation saw a continuing role for certain types of remote hearing, although many felt that the decision should be made on a case-by-case basis.
Interim care or contact orders, or final hearings
Overall, there was support for remote ‘administrative’ hearings, such as case management hearings, at which the court gives directions as to how the case should proceed. However, there was much less support for remote fact-finding hearings, hearings involving contested applications for interim care or contact orders, or final hearings.
This does seem to be the way that the future of remote hearings will play out post-pandemic. They will continue to be used, but only generally for the less ‘important’ hearings, and whether they will be used at all will be decided by the judge in each case.
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