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'Children coming in and out of the room' during remote family hearings

Report highlighting concerns prompts President of Family Court to consider further guidance

Sir Andrew McFarlane, President of the Family Court
Sir Andrew McFarlane, President of the Family Court

Professional Social Work magazine - 7 May, 2020

The President of the Family Court is considering whether to issue additional guidance on remote hearings in response to concerns raised by professionals and parents.

Sir Andrew McFarlane spoke following a study that consulted more than 1,000 parents, carers and those working in the family justice system which, he said, highlighted “some very worrying descriptions”.

It comes in the wake of a case in which a father with dyslexia won a case at the Court of Appeal not to have a final hearing to decide if four of his children should be taken into care conducted remotely.

The report by the Nuffield Family Justice Observatory, found “wide variation” in the kind of cases proceeding or being adjourned and support available. It said this suggested national guidance would be valuable.

A key concern made by judges and barristers was the lack of face-to-face contact making it difficult to “communicate in a humane and sensitive way” with those involved in family court proceedings.

Issues around confidentiality were raised, along with concerns specific to certain cases including those involving domestic abuse, people with disabilities and where an interpreter is needed.

The reduced “human” element, with an absence of being able to read body language and provide comfort to those involved in hearings was one of the biggest issues raised.

One judge said: “Remote hearings are not suitable for the vast majority of family cases because they prevent vital human connections.”

Another said: “Remote hearings are impersonal and transactional rather than humane.”

A barrister commented being “in a room” with a person was the value of family law, adding: “This human connection is a vital part of what we do and is not something that can be readily replaced with technology.”

Parents attending remotely were disadvantaged by not being able to speak to their advocate during hearings and found meeting barristers for the first time on screen difficult.

One solicitor said: “I am concerned that the only effective way I can ensure my clients are able to communicate with me during hearings is to use WhatsApp as a back up channel which is not secure…”

The study highlighted stresses faced by parents tying to attend court at home with family members present during lockdown.

“Examples were given of children coming in and out of the room while a hearing was progressing and of parents being distressed at the end of hearings which was immediately evident to their children.”

In one case a mother who was at risk of having her four children removed was forced to evidence “by telephone from her garden shed as there was nowhere else private she could go”.

Issues around supervision of children when parents are taking part in hearings over several days were also highlighted.

Survivors of domestic abuse expressed both negative and positive views on remote hearings. One worried about perpetrators filming them on screen. However, another participant with post-traumatic stress disorder as a result of domestic abuse preferred remote hearing adding: “I think in all difficult family cases and domestic violence cases this should be how it is dealt with.”

Another parent said they preferred attending remotely because they “found it less daunting than being in court”.

She added: “I am a single parent, so I didn't have to worry about childcare, which I don't have! I would prefer to complete all future hearings remotely.”

Of particular concern was cases involving the removal of newborn babies with some mothers attending hearings in hospitals.

One judge said: “For a hearing which will effectively change the course of a mother an baby’s lives to be condensed into a phone call does not seem right in a modern society.”

Technical issues were also highlighted in the report, both for clients and professionals. The report said: “There were examples of hearings where the social workers had not been connected to the hearing or where parents had not taken part at all.

“Those who gave examples of parents losing the connection described them feeling uninvolved and unimportant as well as unheard as a result.”

Remote hearings were found to be more tiring and requiring greater levels of concentration. One barrister said: “I personally have found the process of remote working far more stressful than I had anticipated. It is riven with anxiety and so if I as a professional experience this it must be amplified for the parents whom I represent.”

Video links were found to be better than telephone communication, with Zoom being the preferred platform.

The report listed suggestions for good practice including:

  • Professionals having a pre-hearing discussion with clients
  • Checking if clients are alone with a camera sweep of the room
  • Regular breaks to reduce tiredness and allow communication with clients
  • Ensure parties taking part can give instructions to clients during hearings and pause if necessary

It also outlined areas where greater guidance is needed including managing risk, support to children and families and ensuring confidentiality with remote working.

Responding to the report McFarlane said: “It is my intention to use the period of the next ten days or so, following publication of the report, to discuss widely with judges, the profession and others whether there is a need for any further national ‘guidance’ on remote hearings in the Family Court at this time.

“I understand that some believe that further guidance will be issued. I need to manage expectations by saying that I will only issue further formal guidance if I am satisfied that there is a need to do so.”

He warned imposing consistency could only be achieved by “deploying a very blunt instrument, which would not take account of any variations from case to case or court to court”.

This article is published by Professional Social work magazine which provides a platform for a range of perspectives across the social work sector. It does not necessarily reflect the views of the British Association of Social Workers.