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COVID-19 and the Family Court: Justice at our Fingertips

Young girl sitting at a desk using a laptop

This blog is written by Allison Wolfreys, a Lecturer in Law in The Open University's Law School.

On 1 February of this year the Deputy Head of International Family Justice for England and Wales, the Honourable Mr Justice MacDonald in his keynote speech at the Four Jurisdictions Family Law Conference1 reflected on family law as the “cut glass prism through which society comes to view so many of the seminal social, scientific, philosophical and religious issues of our age”.

Six weeks later, on 23 March a lockdown was imposed by the Westminster Government due to the COVID-19 pandemic. Our responses at executive, parliamentary and individual levels will be interpreted and analysed for years to come. At this early stage we see evidence of a desire for individual connectivity and community whilst simultaneously testing the capacity of our institutions to continue to function effectively.

The family court’s response to this test was a proactive one. On the same day that the lockdown was announced, detailed guidance was issued by Mr Justice MacDonald entitled the “The Remote Access Family Court”2.

This detailed report comprehensively addressed the many possibilities and practicalities to ensure that the family court could continue its important function remotely. It identified and concluded that for now, there would be a “smorgasbord” of different platforms for hearings including Zoom, Skype for Business, Microsoft Teams, Lifesize, pending the roll out of the more secure CVP court platform.

This speedy response was taken to ensure that the family court continued its work. An experiment to test the capabilities of the system and personnel would never have been taken on this scale, but for the necessity that COVID-19 presented.  

Furthermore, following this expedited roll out, no time was lost in assessing how things have been working. Sir Andrew MacFarlane, the Head of the Family Division, commissioned the recent Nuffield Family Justice Observatory Report for a consultation report in order to gain feedback and exploratory data.

Over 1,000 family justice users took part including Cafcass officers and Judges over the two-week consultation period.  Overall, most participants saw benefits as well as challenges to family proceedings being conducted online.  Some highlighted security concerns, others wi-fi and access to computing equipment and set up problems. There was some muddling over who should manage the practical arrangements.

Judges, who represented 15% of the participant cohort, also reported that it was difficult to identify nuances and body language, but equally identified ideas for best practice including the use of pauses to check understanding. Things took longer online in some respects, but training in the use of technology was key, particularly when using facilities such as shared screens. Although many judges reported the difficulties, it was recorded as a benefit that hearings generally took place on time. Many practical suggestions for best practice and the advantages were also identified.  

It is hoped that this experiment in the expansion of technology in the courts will provide increased opportunities for judges to engage directly with children3.

The report records a comment by a young person via the National Youth Advocacy Service who welcomed the remote hearing by Zoom:

The young person who met the judge over Zoom indicated at the end of the meeting that she felt it had been positive and that she was pleased have been able to see the judge.

Overall this was a rapid response consultation and the engagement with the project was high.

There are many practical suggestions for best practice, however as the Nuffield Family Justice Observatory Report records:

Further work is required to ensure that the impact of remote hearings during the pandemic can be researched effectively in order to inform future practice.

One area deserving of further research here would be the possibility for children to use platforms such as Zoom4, that are already familiar to them to meet the judge deciding their case, particularly in international child abduction cases5.

Using a familiar platform such as Zoom or Skype may prove to be a more effective environment for children to participate in these proceedings and relate far more to their lived experience.

Returning to the Four Jurisdictions keynote speech, there was clear optimism of  the family law system’s ability to accommodate change.

The opportunity for change presented by the COVID-19 crisis and the acceleration of the use of technology in courts to facilitate participation, may indeed “locate children properly in the context of their own era and develop strategies that recognise the realities of the children’s experiences in their own time

Children’s participatory rights have been debated and discussed for many years. It looks like the tools to accelerate this change are at our fingertips.

Notes

  1. Four Jurisdictions Family Law Conference, an Annual Conference bringing together family practitioners and the judiciary across England, Scotland, Northern Ireland and the Republic of Ireland to share cross jurisdictional developments.
  2. Since this first version there have been subsequent updates, the latest version was produced on 26 June 2020. Also see the Appendix One – The Protocol for Remote Hearings in the Family Court and Family Division of the High Court.
  3. Children’s participatory rights are recognised at an international level in Art 12 of the United Nations Convention on the Rights of the Child 1989  (UNCRC). Domestically, the Children Act 1989 is celebrated within the Four Jurisdictions speech as being a legislative success in terms of adaptability and relevance to changes that have taken place in our society. S 1 (3) recognises the importance of considering the views of the child in light of their age and understanding. There continues to be debate around the participation of children as well as their agency and autonomy. The writer is particularly interested in the interplay  between international obligations to make return orders under the Hague Child Abduction Convention 1980 and children’s participatory rights.
  4. Zoom is currently used by parties in the proceedings by inviting the judge to participate. Several platforms are currently used but Skype for Business and Microsoft Teams are licensed for use by HMCT. A range of IT problems have been identified. The use of “off the shelf” platforms is to continue pending the successful roll out of the CVP.
  5. Where for example the “child objection” defence is raised.