Remote Family Law Court Hearings - can witness evidence be heard fairly?
In the time of the Covid-19 Pandemic, family law courts are looking to improve safety through remote hearings. But can witness evidence still be heard effectively, fairly and reliably? We seek to reassure clients that fair and satisfactory outcomes can be maintained.
With the advent of the Covid-19 pandemic, the courts and legal system are examining the best and safest ways to continue to operate. As it becomes necessary to maintain social distancing and prevent unnecessary travel, how can family law, and in particular court hearings, continue to operate in Kent, London, Surrey and throughout the UK?
At Kent and Surrey Family Resolution, we offer services including Family Law, Family Mediation and Family Arbitration. We understand that any delay to resolution of a client case could cause additional stress and pain, at what is already an anxious and uncertain time.
One solution is to have “remote” court rooms. Remote services are being used by many industries and services in the UK for business continuity during the Covid-19 pandemic. Many of our clients will be using them to maintain their business or employment and will be familiar with the technology.
Remote operation as applied to family law would mean conducting the court process through video calls, an example is Skype. This could help prevent extended delays and keep the court service running; in turn bringing speedy resolution to families and clients in family law cases.
However, clients may have concerns over using remote courtrooms.
When giving evidence, a witness is required and deserves to be heard clearly and impartially: to be listened to without prejudice. How can this be guaranteed in a remote courtroom? Will witness evidence be heard fairly? What will the potential impact be on witness evidence and what is known as “witness demeanour”. What would the effect be on family law? How will it impact cases with children involved?
Witness demeanour is defined as the appearance and behaviour of a witness in giving spoken evidence*. This is distinct to the content of the evidence. Does this translate well in a remote court setting and how important is it anyway?
The evidence suggests that our fears are likely unfounded.
Reassuringly, recent case law suggests that witness demeanour is not a major factor**. It is important that a judge, in hearing a case, avoids being influenced by personal bias, prejudice or opinion in their decision-making. Discerning the truth of any testimony must be distinct from the form in which it is given, which may include the way a witness speaks, their language, tone, gestures, behaviour and appearance. To ensure justice, a judge must instead focus on the content of the evidence. This will maintain an objective and reliable approach in the family law court.
A judge considers whether the evidence is:
Plausible;
Consistent with other evidence (including evidence of what the witness has said on other occasions);
And consistent with known or probable facts (objectively verifiable information).
Hence, we can safely assume that remote hearings can indeed be fair and just hearings. We can take reassurance from the statement by Gordon Exall, Barrister at Kings Chamber Leeds, Manchester and Birmingham on 2nd April 2020: “Fairly soon, I am sure, the holding of hearings remotely will become such a commonplace that they will pass without comment***”.
References With thanks and credit to:
Updates and Commentary on Civil Procedure, by Gordon Exall, Barrister, Kings Chambers, Leeds, Manchester & Birmingham. Hardwicke, London Including the following website links retrieved 04/04/2020.
**https://www.civillitigationbrief.com/2020/03/29/remote-hearings-but-what-about-witness-demeanour/
*** https://www.civillitigationbrief.com/2020/04/02/court-of-appeal-hear-case-by-videoconferencing/