Since the onset of the Covid-19 pandemic life as we used to know it has definitely changed, and we all, family law solicitors and clients alike, have got used to the “new normal”. Over the past 18 months, the majority of hearings listed in the Family Court have taken place on a remote basis, such as via Cloud Video Platform or telephone conference call, with a very limited number of hearings taking place in person. With nearly all categories of family law cases being deemed suitable for remote hearing, most parties have been able to remain in the comfort of their own homes, instead of huddling in court corridors with their lawyers, on their respective hearing dates. However, we have now reached a stage where there is a noticeable increase in the volume of cases being heard in person. Therefore, many are asking whether, or to what extent, there is a role for remote hearings in a post-pandemic family law landscape. On 10 November 2021, Sir Andrew McFarlane, President of the Family Division, issued an Address confirming the current position in this respect.
For the time being, the Family Division has refrained from issuing any firm direction or guidance. It will be at the discretion of judges and magistrates to decide, on a case-by-case basis, whether to list for a remote or in person hearing – the rationale being that the past 18 months have shown that the judiciary can and should be trusted to make such decisions, rather than being restricted by national guidance. Moreover, whether it is practical or proportionate to conduct an in person hearing could vary depending on various geographical factors, such as a party’s distance from the court, the availability of public transport and so on. These factors are to be considered, together with any health related issues raised by a party or professional in the case.
Sir Andrew McFarlane has indicated that this will continue to be the case going forward and that there will not be a return to the “status quo” of working practices that existed prior to the pandemic. Whilst the Covid-19 outbreak has further strained a justice system that was struggling prior to February 2020, it has somewhat propelled the Family Court towards more efficient working practices with enhanced IT, which is more conducive to remote hearings. As such, remote hearings are likely to continue to be the mode of choice in many Family Court cases. This is notwithstanding that legal practitioners generally agree that, where the circumstances are particularly complex and where an important decision is to be made, the parties and their legal representatives should appear before the judiciary in person. Furthermore, it is considered by most to be sensible for expert evidence to be provided remotely (indeed, hybrid hearings are now commonplace).
There are, of course, clear pros and cons of remote hearings in the Family Court and perhaps they could be the subject of a separate blog post. However, with remote hearings, in the right circumstances, seemingly being here to stay in the Family Court, it is important to remember that remote hearings do not warrant any less formality or respect for the court process, nor does a case being listed for a remote hearing mean that the judiciary hold it in any lower regard than a case listed for an in person hearing. There is simply a balance to be struck and, as professionals and clients know too well, limited resources to meet the demands on the justice system.
The Address by Sir Andrew McFarlane is intended to be a “steer” on what to expect for the future of remote hearings in the Family Court. Certainly, no one should expect a return to the status quo of in person hearings. Yet, how often the judiciary will deem it practical or proportionate to list remote hearings moving into a post-pandemic legal landscape remains to be seen.
