Introduction
Part of the landscape now
Covid-19 and lockdowns happened. However, courts and tribunals in the UK had to continue to function as the rule of law must be upheld, and the administration of justice must continue.
As it was essential to minimise footfall in courts, remote court hearings were introduced to keep the wheels turning, and it has now become part of the judicial landscape. It is expected that remote hearings will continue in the future, as they have advantages. However, the important thing is that justice is delivered optimally, despite the hearing being conducted online or via telephone.
What can you expect of a remote court hearing? This article aims to explain.
What is a remote court hearing?
There, but virtual
A remote court hearing uses technology rather than the parties being physically inside the courtroom. It is a virtual hearing, and participants join via telephone or video call.
Current UK guidelines call for the option that all parties should be able to stay at home and attend a family court hearing remotely. It is possible for almost all family law hearings.
Should you be unable to participate or struggle due to internet access, for example, the court will assist you and try to solve your problems. You would have to let them know!
Only the judge can decide whether the hearing should instead be conducted in person. If you don’t attend, the judge can continue with the case and make decisions without your input.
‘An evaluation of a remote court hearing’
The serving of justice
In December 2021, HM Courts and Tribunals Service assessed remote hearings and addressed concerns, specifically those from the UK Law Society.
They found that remote hearings work well in hearings where the parties are sophisticated – such as in the English and Welsh commercial courts. It also works in directions or case management hearings, technical hearings, and administrative dealings.
However, remote hearings become challenging in cases where live evidence is needed or if it is controversial. The HM Court highlighted some considerations. They are: age, disability, English as a second language, trauma, lack of equipment, poor digital skills, and socio-economic conditions.
Therefore, judges should evaluate remote hearings on a case-by-case basis, and they can only happen if justice can be served effectively. The nature of the proceedings, the type of parties to the proceedings, and whether there is legal representation can all play a role.
P (A Child: Remote Hearing), Re (Rev 3) [2020] EWFC 32 (16 April 2020)
In this case, the issue was if a child who was abused should be returned to her mother’s care or placed in foster care. The girl was seven years old, but the issues about her care had been going on for a long time. It was suspected that the mother was fabricating illnesses and even making the girl sick.
The court had to hear expert evidence from psychiatrists, a paediatrician, and a psychologist. The final care plan for the girl had to be fixed in this hearing.
The court date (20 April 2020) was fixed months ahead, and then lockdown happened due to the Covid-19 pandemic (from 23 March.)
Most family court hearings in the UK had to be undertaken remotely via telephone or video platform. At a hearing on the 3rd of April, the judge and other parties accepted that the case had to be heard remotely.
However, the parties to the case were uninformed that remote hearings were optional and not all hearings should now proceed as remote hearings. Arrangements at the time, however, were made for a remote hearing, and all was set for a Skype hearing.
Sir Andrew McFarlane (the President of the Family Division) eventually argued here that when the welfare of a child is involved, a hearing should be able to move forward seamlessly and in person.
He stated that the personalities and expectations of the essential family members, the available technology, the local facilities, and the judge’s experience in remote hearings could all be at odds with the child having a ‘fair’ trial. Therefore, he made it clear that this hearing had to be adjourned and rescheduled when hearings could take place in person.
He said because this was a final hearing, the judge needed to be able to see all witnesses, especially the mother, in the courtroom. There were many factual details concerning the mother’s actions over three or four years. Sir Andrew stated that the hearing could only be heard fairly if the mother was physically present before a judge in the courtroom. The case had to be relisted once the UK government had lifted restrictions.
Preparing for my remote court hearing
So, what can you expect?
First, a remote hearing is not much different from a regular court proceeding. The same rules will apply. Just follow the instructions given and remember that you are not allowed to eat or drink anything (other than water) while the proceedings are live. Dress smartly – at least waist up! – as other parties to the hearing will be able to see you, and impressions still count.
Log on to the video hearing as per the details provided to you by the judge’s clerk. You will be able to see the judge and counsel on screen, but court staff, other solicitors, witnesses and sometimes even the public will be in the background, some logging in from their respective homes.
Be sure to take note of these things:
- Charge your laptop and phone so that the devices are fully functional for the duration of your hearing.
- It would be best if you weren’t interrupted while the hearing occurs. Find a quiet space in your home where you won’t be disturbed and where, ideally, you can sit in front of a plain wall. Make arrangements for pets and children.
- Your solicitor will send you all the relevant documents by email (sometimes called a ‘bundle’) before the hearings. Make sure you can find and refer to it as needed.
- Some people might need a second screen for viewing documents or a separate microphone for better audio quality. A preliminary test of the system is ideal and should help identify problems.
- It is against the law to record a hearing. Make sure that your recording devices are off.
- Try to speak clearly and be sure to tell the other parties if you can’t hear or understand them.
- If the judge does not address the issue of technology failure during the hearing, you should ask what you should do if it happens. Do this at the beginning of the hearing.
You must contact the court or tribunal without avail if you are worried about the hearing or if you’ve got any questions or problems. For example, perhaps you need to take frequent breaks, or you want extra support during your hearing. Of course, one cannot foresee all issues, but at least one can dispel most concerns ahead of time with good preparation.
The future
Remote hearings are here to stay
One judge recently said that courts should make long-term use of what they learned and deliver more cost-effective and quicker justice. We have the technology – why not use it?
Remote hearings reduce our carbon footprint by avoiding the costs of long-distance travel. Court cases without substantive issues can be efficiently dealt with. E-bundles minimise paper waste.
However, in intellectual property matters or highly technical patent litigation, a fully remote hearing might not be practical, and much may get lost in a video call. It is possible, though, but challenging.
Conclusion
You can ask for a face-to-face hearing
You might not want a remote hearing if it makes you overtly anxious if you have a disability or another medical condition. Perhaps you don’t have an internet connection or a good phone line.
At Robertsons Family Law, we can help if you want to ask the court not to have a remote hearing. There are some things to consider, though, as to how long your case will be postponed if you must wait for a face-to-face hearing. What effect will a delay have on you and your family’s life?
Do you have any questions about your remote court case? Our family law team will be happy to help.
