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New mothers are caring for their babies during remote video and phone hearings from the hospital, according to a report on justice during the coronavirus pandemic.
Parents are also joining online proceedings from home, often without the proper technology or support, when making life-changing decisions for their children, reveals the study commissioned by the president of the superior court family division. , Sir Andrew McFarlane.
Nearly half of parents and family members who participated in virtual family court hearings during the crisis said they did not fully understand what was happening, the Nuffield Family Justice Observatory analysis concluded. However, most practitioners believed that the system worked smoothly while providing fairness and justice.
The report is designed to show a determination to be transparent about how family courts have adapted to remote work even in the most sensitive cases, including child custody and domestic abuse. It records the cases of a mother who self-injures during hearings, litigants who appear remotely in pajamas or while still in bed, and a judge who receives a home delivery.
Even before the Covid pandemic struck in March, there was a debate over whether remote hearings, which were rare in family courts, offered justice. Deep cuts in free legal aid mean that, since 2013, many litigants are no longer represented in family courts. Heavy workloads were compounded by the closing of the courts for months.
The report says that the problems experienced included “the participation of parents in the hearings remotely, alone and from their homes, the lack of communication between the parties and their legal representatives” and communication difficulties during the hearings.
Most parents joined by phone rather than video link. Those who needed an interpreter or who had disabilities faced particularly severe challenges.
The most difficult cases were those in which social services believed that babies should be cared for under an interim order shortly after birth. They usually involved a mother who joined the hearing by phone from the hospital. Previously, they were more likely to be represented by an attorney in court.
“There is nothing fair about a remote hearing that requires you to separate a newborn baby from its mother,” commented a judge. “Remote audiences don’t allow you to show empathy.”
A lawyer told investigators: “I was asked to represent a mother who was in hospital having given birth where expulsion was requested. He had no support and participated by phone ”.
The report says that “mothers have often been unable to have any physical contact with their babies after their extraction” during the pandemic due to fear of infection.
One judge expressed significant reservations about remote hearings for such sensitive cases. “Taking children out and making important decisions, for example, in contact, can have… consequences for life. Despite everyone’s best efforts, remote parties sometimes can’t get involved properly … I have real doubts about how fair it is and how fair it feels and looks to be. “
Another commented: “I am concerned about giving orders that can be very distressing for a participant, for example the removal of their child. In court, they would at least have a lawyer with whom they could cry, rant, consider an appeal, and have support. By phone or video, they can be in their room, alone and desperate, perhaps with the child and now waiting for a visit from a social worker ”.
Among other responses, there was one from a judge who said: “My morale has improved tremendously since I started doing [physical] hearings again. ”Defending the authority of the family court was also found to be more difficult to keep online. A magistrate heard a case in which a litigant was in a cast.
There were more positive reactions, with some attorneys believing that the geographic separation between disputed parents helped. One attorney observed: “It has been easier to unite parties and advocates who are geographically distant from each other without the need for extensive travel or exposure to potential Covid-19.”
Another said: “The fact that the hearings are now on a schedule and end on that schedule is welcome. The days of sitting in court all day waiting for five minutes, I hope, are over. “
McFarlane, who has been president of the superior court family division since 2018, said: “This emergency is unprecedented. The judges and others have worked tirelessly, and continue to do so, so that the family court continues to function without interruption from the beginning of the confinement… We have adjusted, developed and adapted our working methods as the crisis has persisted. Much of the work of the family court cannot be put on hold, as many cases, involving the welfare of children and adults, are urgent. “
He added: “It is encouraging that most professionals, including judges, lawyers, attorneys, Cafcass [Children and Family Court Advisory and Support Service] workers, court staff, and social workers felt that the courts were generally now working more efficiently and that there were even some benefits for everyone to working remotely.
“However… there are clearly circumstances where more support is required to enable parents and youth to participate effectively in remote hearings. It is concerning that some parents report that they have not fully understood or felt part of the remote court process.
“While technology is improving, it is clear that there is still work to be done to improve the delivery of family justice through remote means. I am very alert to the concerns raised in this report and will work with the judiciary and the professions to develop solutions.
