Martin Partington: Spotlight on the Justice System

In an earlier blog, Covid 19 and the English Legal System (8): guidance on new working practices, published on 3 July 2020, I drew attention to a resource from the Judiciary, setting out guidance to different courts and tribunals on how to manage cases in the current Covid 19 environment.

This note draws attention to just one of the documents that is to be found on that website. The Remote Access Family Court, (version 5), written by one of the Family Court judges, Mr Justice MacDonald, is a detailed statement of the ways in which in the context of the work of the Family Court, remote access hearings may be conducted, the sorts of proceedings for which remote hearings might be appropriate; the considerations to be taken into account when deciding whether a case should proceed remotely or not.

The primary impetus for the production of the document is the need to keep the business of the family courts going, particularly where matters must be dealt with urgently. The document acknowledges that the continuing need for social distancing is likely to mean that the practices and procedures considered in this report are like to retain their relevance, at least for some months ahead.

However, while acknowledging that aspects of the practices and procedures currently being used may be retained once the problems associated with the Covid 19 pandemic have eased, it states in terms that it should not be assumed that changes currently being adopted will necessarily be retained into the future.

What is clearly needed is for HMCTS to gather robust evidence about how innovations in practice and procedure are working, which takes into account not only the views of judges and lawyers, but also – crucially – the views of parties to proceedings who have experienced the new procedures in operation. New ways of working which work well should be retained; those which do not should be altered or abandoned.

A very first attempt to gather evidence about the new system in operation was made in April 2020, when the Nuffield Family Justice Observatory was asked to undertake a rapid consultation on the use of remote hearings in the family justice system. This produced some preliminary information which helped consideration of when remote hearings might be possible and when remote access should not be used. For example, there was a general feeling that video hearings are more satisfactory than telephone hearings. There was also worry about some of the difficulties associated with the use of different technologies. But these findings are acknowledged to be only preliminary. Much more work needs to be done before a rounded assessment can be made, on which future policy may be based.

What the pandemic has done – and this comment applies to the whole of the justice system, not just family justice – has created the conditions in which new ways of working can be tested. It would be really disappointing if positive lessons learned from these experiences cannot be captured by a proper research programme, which would help the development of future policies for dispute resolution in courts and tribunals.

The report by Mr Justice MacDonald is at https://www.judiciary.uk/announcements/updated-version-of-the-remote-family-access-court-released/

The Nuffield Family Justice Observatory consultation is at https://www.nuffieldfjo.org.uk/coronavirus-family-justice-system/family-courts