Charlotte Kelly reflects on the adoption of 'telehearings' in family courts during the pandemic and makes the case for the reforms that are needed.
The impact of Covid-19 on family justice fell into a perfect storm of chronic underfunding of the justice system and cuts to legal aid, coupled with a marked increase in children entering the case system as a result of underfunding of services intended to provide support to maintain vulnerable families.
The pandemic has revealed the pressures on all elements of the child protection and public child law system, for social workers, solicitors, barristers, judges, court staff, medical professionals and those at the heart of the system, families struggling to cope and children who are at risk of harm. But within this, I want to focus particularly on one element of this much wider picture: how to ensure fairness for lay (non-legal) participants during the legal process of hearings involving decisions about child protection, care and adoption. These lay participants are most likely birth parents but may also be other family members, other care givers, foster parents, adoptive parents and older children themselves.
The courts initially responded to the first Covid lockdown in 2020 by moving to almost exclusively telehearings. This meant that in a typical case where say a final decision was being made about whether children would be adopted, the judge, barristers and any witnesses would all be connecting to each other using an online video platform such as Zoom. If birth parents wanted to be part of the proceedings, they also needed to connect via a video-enabled device connected to the internet. Yet this was based on expectations about life circumstances of parents which were not realistic - many did not have access to devices for tele-hearings, reliable internet connections or the space within the home to participate in court proceedings in private and without interruption. Barristers interviewed spoke of parents trying to connect via a mobile phone with very small pictures of all involved, using expensive data and sometimes in a crowded house surrounded by other children in the family.
Practices have evolved and adapted since May 2020, and there have been attempts to address the substantial barriers to justice identified by the Nuffield Family Justice Observatory reports. Various schemes have been established to ensure that parents have access to suitable technology to allow them to participate, for instance by loaning a tablet with data dongle, but such schemes have been largely ad hoc, more commonly organised by solicitors than the court itself. As lockdown has lifted, so different family courts have organised hearings in different variations. Hybrid hearings have become common, where there is a combination of some people appearing in person in court- typically the judge and the person giving evidence- whilst other parties are connected via video conferencing.
But the problems are far from resolved. Parents when interviewed have consistently identified telephone hearings as the most problematic, because it is difficult for them to communicate with their barristers and hard to follow who is speaking without being able to see the different lawyers. As one barrister interviewed put it, there is something crucial about a vulnerable mother who is possibly about to see her children enter care being able to look the judge in the eye, hear the reasons for the judge’s decision, and then be able to discuss the impact with her barrister. Whilst those barristers interviewed who practiced in London and the South East were more confident that if there was a case where the parents wanted to be present then they would ensure that there was a hearing in person, there is still marked regional variation. During an interview with a group of child law barristers, one major Northern court centre was revealed by a barrister to be only using telephone hearings, and making no use of any form of video hearings.
Yet a return to the system as it existed pre-pandemic is also not the answer. The disruption caused by Covid has caused some lawyers to reflect on the practical difficulties experienced by their clients attending court day after day. Under the Coalition and Conservative government 17 of 185 family courts have closed, and parents reliant on public transport face longer journeys. Some parents who would otherwise not have attended court can now attend via video link, if appropriate technology is provided. Even more importantly, lay participants report feeling more comfortable talking about intimate matters such as sexual abuse in the security of their own home, rather than from a room within the court building for vulnerable witnesses with a video link to the court itself.
We can learn from listening to those who have been through the public family law process during Covid the importance of support. Support comes in many forms. The first form of support is simply technological. Even over a year since Covid lockdown began, the third Nuffield report shows that over 90 per cent of parents still report being given no help to take part by video or phone, and there are remaining problems, particularly for parents who lack technological literacy, in connecting to the hearing.
The second form of support is the overarching support which is provided by professionals in the court process, most obviously the legal support of an advocate, but also the emotional support which may be provided by a barrister or solicitor, or specific support provided by an interpreter. One judge interviewed said that she now commonly had to halt her judgment, because a parent attending the hearing remotely was crying inconsolably at home alone. Solicitors pointed out that it was much easier to build relationships of trust with parents when working face-to-face, and that parents were more likely to feel that a decision, whether interim or final, was unfair or unclear when solicitors had to explain it via video conferencing after the judgment. The best solutions with parents connecting via video occurred in situations where the parents were accompanied in person by the professionals needed to support them, and in a place where there was a reliable connection for video conferencing. Such places were most commonly in solicitors’ offices, but also took place in barristers’ chambers and sometimes in civic buildings, such as local authority buildings.
Yet use of barristers’ chambers and solicitors’ offices cannot become the norm, because these building do not have the capacity, and it is the role of the government, as Her Majesty’s Courts and Tribunal Service (HMCTS), to finance the places for cases to take place. The existing physical structure of many courts however, is dire. Lawyers and lay people had stories of courts without heating, or courts with persistent leaks and buckets, or courts in which there were so few private rooms that clients were forced to discuss sexual abuse of which they had been victim crouching down behind seats with their barristers in public foyer areas. Common practice pre-Covid of expecting witnesses to wait all day in court waiting areas without access to food or even hot drinks, possibly in close proximity to other family members with whom they had had abusive relationships, only for cases to run on longer than expected and witnesses be asked to return the next day, now seems archaic. HMCTS cannot use a new post-Covid way of working to justify evading their responsibility to provide decent court buildings, but the lessons learnt about the benefits of telehearings, when done correctly, should be incorporated into the future plan for justice.
One promising possible option is the use of “justice hubs”- physical civic spaces which would eliminate the technological obstacles which exist for parents, taking place somewhere where there is a secure internet connection to the court which is being managed. There are already promising pilot studies using a physical space as a physical jury hub for online criminal trials. Such hubs would allow some or all of the legal and supportive “team” for the parent to be physically present, ensuring that the client is not left emotionally vulnerable and alone, and has access to services such as interpretation which can only be effectively achieved face to face. Yet such spaces would also bring the advantages of telehearings and would address the distance parents are required to travel to court by being found in all major centres, and offer a less threatening environment than a court. Such hubs would be able to connect up in a virtual courtroom space with a judge and other lawyers. Those parts of the case which were purely administrative, and which did not involve the parents, could be managed entirely by telehearing, speeding up proceedings greatly from the situation pre-Covid where barristers might have to drive for two hours only to attend an administrative hearing lasting only twenty minutes fixing a timetable for a case. Thus the efficiency gains of telehearings are retained, but never at the cost of excluding parents from being able to play a full role in a case. In a hub setting, parents can confer with their lawyers face-to-face, without the intimidating or inadequate surroundings of a court, and have the full opportunity to communicate. This is the very least which they deserve in cases such as these which can have such momentous effects of the lives of both parents and children.
This blog is a summary of a longer report by Charlotte Kelly which will be published in the upcoming Young Labour Lawyer/Young Fabian pamphlet on legal reform.