The future of remote court hearings

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At the Family Law Bar Association National Conference, recently held in Manchester, Sir Andrew McFarlane, the President of the Family Division, set out some of his priorities for the remainder of his term.

Within his speech, the President raised the future of remote court hearings in the Family Court and the Court of Protection (CoP).

Since the start of the Covid 19 pandemic, the majority of court hearings that we have been involved with have been held remotely, either by video or telephone conference. This is what Sir Andrew McFarlane had to say about the future of remote hearings.

“We have now reached a stage in the playing out of the pandemic when it is possible to contemplate a gradual increase in the volume of cases that are heard in person in court, as opposed to remotely or at a hybrid hearing. Thus far, Baker LJ (as the judge overseeing ‘recovery’ in the Family Court and the COP) and I have decided against issuing any national guidance, let alone any Practice Direction, on this topic. It has been, and remains, our firm view that the circumstances around each case and each local court centre will vary to such a degree that any firm ‘black-letter’ direction or guidance would be inappropriate. The experience of the past 18 months has shown that judges and magistrates can and should be trusted to exercise their discretion on a case-by-case basis, within broad parameters, rather than being subject to unnecessarily restrictive and clunky national guidance.

It follows that, moving forward, it is not my intention to issue any formal Practice Direction or Presidential Guidance (with a capital ‘D’ or ‘G’) setting out firm categories of case that should, or should not, continue to be heard remotely.

The primary reason for not doing so is that I continue to believe that the decision as to the format for each hearing should be taken by the judge in charge of the case, unfettered by any prescriptive diktat from on high. From the start of the pandemic I have trusted the judiciary to exercise discretion in these matters. I consider that my trust has been well placed and there is no reason to change that approach now.

A second factor, amongst many others, is geographical. Whether it is necessary or proportionate to conduct an in person hearing, or a remote one, may well vary depending upon the distance from court, availability of public transport and other factors. National guidance that is unduly prescriptive might land well in the big urban conurbations, yet cause real difficulties in places such as Cornwall (where I conducted my first post-Covid court visit this week) or Cumbria.”

It is clear that that going forward, it will be the Judges who will exercise their discretion in deciding whether a particular court hearing will be attended or remote.

For Sir Andrew McFarlane speech, click here.

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