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The Family Court in COVID – justice means access to justice?

Access to justice and the wellbeing of the people we support remains at the heart of our work at Crown Chambers. While the COVID-19 pandemic has had an impact on many aspects of life, supporting families and children in the legal space remains a continuing area of great concern.

Prior to the pandemic arriving on English soil, efforts were already in place to increase the use of technology and reduce paperwork in the family law field. However, the presence and role of the Courts in resolving delicate matters such as family law were prevalent, particularly in supporting the vulnerable and children.

The lockdown of March 2020 brought an extreme change to the handling of cases and supporting families, lending directly to the use of technology – a way for the continuation of the system had to be found.

Concerns as to this continuation were immediate and the Association of Lawyers for Children and The Law Society and The Bar Council worked together with Family Law Bar Association to consider all areas of practice to ensure that cases could be progressed, and the most complex situations were able to be dealt with. This was followed by a survey by the Nuffield Family Justice Observatory who made recommendations to refine the system further. While the outcomes of the survey and working together have been well implemented, some seven months later, there have been a number of areas which remain a focal point and area of concern:

The human touch

There has been extensive writing on the need for human interaction in handling delicate family law cases. Many Barristers and Solicitors have experienced a gap in being able to support their clients on a personal level which is always essential in cases involving difficult decisions about children and families and when representing the most vulnerable people. There is still a great deal to learn from understanding the perspective of the lay parties involved to consider their experiences and ensure the protection of those who need it.

When is technology appropriate

In addition to missing human interaction, the use of technology has not been without its downfalls and the systems have their own limitations. There have been questions raised about the shortcomings of handling hearings online. These include considering the confidence of those lay parties in using technology, how they access hearings online, and how are those with mental health issues or the most vulnerable are supported through such a process? The reality of managing family life under lockdown restrictions and working from home brings its own complications and distractions and many have raised whether it is appropriate for major decisions in cases to be made remotely. The reality however is that if remote technology is not utilised families and children face significant and life-changing delays in decisions not being made.

The argument for efficiency

Positives outcomes have been identified in the use of technology.  Having a hearing online can mean more flexibility in attendance and speed of resolution for Barristers and Solicitors and often, for clients. Reductions in travel time and commuting can also be beneficial. However, the preparation required for a remote hearing to run successfully is key and creates additional work and time which has to be managed. Cases often take longer than they would if held in person, and technology issues frequently cause delays. There is an associated impact on wellbeing – the court lists are full, and practitioners are spending many hours in front of computer screens. There is a delicate balance to be argued in the efficiency gains versus the physical presence required in this field. Digital contact also can provide an immediate solution and can be less formal which may assist in facilitating developing relationships in some cases.

The Road Ahead

‘The Road Ahead’ provided much-needed recommendations and subsequent updates as to the best practice to manage cases in the absence of a fully functioning court. While hybrid hearings and in-person hearings are on the increase, the second wave of COVID-19 in England is already bringing yet further challenges which will last for some time to come as lockdown restrictions become more prevalent again. This coupled with the additional pressures upon the legal system of trying to manage a backlog of cases alongside changes to practitioners’ own domestic lives and wellbeing as a consequence of COVID remains an ongoing concern that is likely to be around for the near future.

There remains much left to be done. The remote hearing has become the ‘new normal’ and we will all have to continue to adapt to ensure that good practice remains the key focus to secure the very best outcome for children and families during these uncertain times.

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