Remote proceedings: efficiency but at what expense? - Guest post by Sylvie Armstrong

Image: Public Domain, via Piqsels

In June 2020, President of the Family Division Sir Andrew McFarlane published a document entitled ‘The Family Court and COVID 19: The Road Ahead’. Largely oriented around how practitioners might adjust to their new, necessarily remote style of working, the document gave the impression of being a contingency plan. Written at the time where hopes of a prompt return to normal had ‘evaporated’, it nonetheless leaves the reader with an impression that, whilst it may be a ‘long road’ of social distancing ahead, the changes and signposts outlined - including the dramatic rise in the use of remote proceedings - would be a temporary measure.

Six months later, though of course still very much dealing with the realities of an ongoing pandemic, it is difficult to avoid a feeling that people have begun to look forward to past the crisis. The start of vaccine distribution; a new year - there is a flicker of hope to which, of course, legal practitioners are not immune.  As they dare to imagine the future, however, there appears to be some reluctance to leave remote proceedings behind. On the contrary, the time and money that is saved by shifting proceedings online appears to be one of the very few perks of the pandemic which they would be keen to see continue. Increasingly, however, evidence appears to emphasise the need for caution before accepting these new features as permanent.

Of course, there are significant benefits to remote proceedings. In particular, the focus of Sir Andrew McFarlane appears to be their efficiency - likely to remain a selling point long after the pandemic. It is no secret that legal aid in general, but for family law in particular, has been slashed in recent years. The system has struggled to cope - yet as we potentially face another economic crisis, the chances of this being changed for the better any time soon seem negligible. It is understandable that all involved would jump at ways to make the system quicker and less costly. Critical, however, is the potentially enormous human cost of this is not overlooked. 

Perhaps more so than any other area, family law is a practice characterised by compassion. This is a necessary consequence of both the frequent vulnerability of the parties involved and the sensitivity of what is at stake: people potentially stand to lose their children. Though the lawyer-client relationship is necessarily a professional one, therefore, it also demands an additional layer of emotional sensitivity; humanism. Indeed, it is not unreasonable to suggest that this is what gives it a unique appeal to many of its students and practitioners. Without giving real consideration to how this might be maintained in a virtual world, however, this risks being lost - a harmful disconnect which, despite being financially unquantifiable, has the potential to be significant. 

This much is evident from the two Nuffield Family Justice Observatory rapid consultations (initial and the follow up published last month). These drew attention to the reduced support parties are receiving when proceedings take a remote format - not only during, but perhaps even more importantly after. Sometimes this support is needed for instrumental reasons, for instance where parties struggle with a language barrier (whether this be literal or jargon). Particularly significant, however, is the non-instrumental need for such support when potentially disastrous personal news is delivered. It is difficult to imagine that this can be provided through a screen - much less once the red button to terminate the call has been pressed. The findings of these consultations appear to confirm as much. 

It is also important to note that this reduced client contact is unlikely to reduce the burden on family lawyers themselves. Rather, far more likely is that this is simply channelled into the additional challenges of remote working - which themselves should not be ‘invisibilised’ or overlooked. Several of these are picked up on in the reports themselves, in particular the risk of technological failure or eye strain. It is also easy to imagine other challenges. The loss of brief and informal yet productive interactions with colleagues in a physical workplace, for instance, has been widely lamented - it being suggested that more time is spent on phone calls or meetings that would have previously been a mere ‘watercooler conversation’. Though such lost time is not as immediately obvious as a daily commute it can nonetheless add up - potentially creating a system that is as isolating for its professionals as those it purports to serve. 

Admittedly, such a permanent lurch from a system of compassion to ‘robotisation’ is unlikely. Whilst the clear focus of Sir Andrew McFarlane on promoting efficiency in this short term is understandable given the enormous backlog that Covid-19 has created, there has been no indication that all family law proceedings will remain permanently remote. Far more likely, the question will be to what extent should these procedures be used in the future. It is easy to see how, now there has been such adjustment to working from home, returning to early morning schleps around the courts of the country may not be obviously appealing to professionals. Even more significant are likely to be the arguments in favour of efficiency. Yet as the rise of technology in recent decades has shown in countless sectors, the savings in cost that these can bring often comes at the expense of humanism. In few other practices, however, is so much at stake. At the risk of adding yet more gloom to 2020, therefore, caution must be exercised before concretising the role of remote proceedings for family law in the future. Otherwise, more costs may be simply being stored for the future - professional, financial, and human. 

Sylvie Armstrong is a PhD Candidate in the Department of Law at the European University Institute. For more information about her, see here.