The findings of the survey show that remote hearings are better than not having any hearings but are not yet able to deliver access to justice. Several indicators of access to justice – fairness, participation, accessibility, inclusion, timeliness – are not evident in the experiences of the survey respondents and the administration of justice is seen by many as being let down by the technology in the court system.
In September 2020, the authors of the survey ran a webinar on remote justice in family proceedings in Northern Ireland. Over 100 attendees joined the webinar at which five speakers outlined their experience of family proceedings since the March 2020 lockdown: the Chief Operating Officer of the Northern Ireland Courts and Tribunals Service, a High Court judge, a litigant in person, the Head of the Family Solicitors Association and the outgoing Chair of the Family Bar Association.
Following this webinar, the Nuffield Foundation provided funding to enable a rapid survey to be conducted to understand the impact of COVID-19 on family proceedings in Northern Ireland. The survey ran from 23 October to 11 November 2020. Online questionnaires were completed by 63 litigants and 125 practitioners. Key findings from the survey include:
· Over two-thirds of the litigant respondents (69%) said their case was not being dealt with fairly. In contrast, two-thirds of the practitioner respondents (65%) felt cases were being dealt with fairly but they saw remote hearings as a poor substitute for face-to-face hearings.
· Remote hearings were seen as inhibiting participation because of difficulties in replicating the interaction that would normally take place at face-to-face hearings.
· Practitioners were concerned about being able to support clients during remote hearings, to help them understand the proceedings or to deal with the consequences of the judge’s decisions.
· For litigants in person, who are likely to already find court proceedings difficult to follow, further confusion in remote hearings was caused by not being able to tell who was speaking during the hearing and struggling to hear what was being said.
· The ability to access remote hearings required being able to get the correct link to the right hearing, having reliable internet or phone connections, and having the space at home to focus on the hearing.
· Practitioner respondents reported that it was difficult or impossible to take client instructions during remote hearings and that this was also difficult in physically distanced face-to-face hearings. Practitioners were concerned that this not only meant they might not be acting in their client’s best interests but that the inability to enable client participation had a negative impact on the fairness of the case outcome.
· Two-thirds (63%) of our litigant respondents stated that their case hearing was adjourned for more than three months, with a quarter (25%) having had their hearing delayed for eight months.
· The technology, while it is now more familiar to many, remains problematic: connectivity, sound and vision problems, time delays, and getting locked out of hearings were issues reported by both litigant and practitioner respondents. This led respondents to state that courts were being let down by poor technology.
Professor Gráinne McKeever commented:
“Gathering the views and experiences of both litigants and practitioners, our report published today highlights the extent of the impact of the pandemic on the family courts in Northern Ireland.
The move to remote justice was a necessity rather than a choice and many of the limitations summarised are a product of the need to make urgent changes to manage the impact of COVID-19. This survey reviews the effect of these measures in maintaining the ability of family courts in Northern Ireland to function effectively through the pandemic, building on existing work in England and Wales.
Our results highlight the challenges of enabling effective participation in remote hearings. Ten months into the COVID-19 pandemic, we should now be past the watershed point of unreliable technology. The focus should no longer be on how to ensure access to a hearing, but on how the courts can deliver access to justice in the current circumstances.”