Civil justice system - pandemic response: research findings

4. Family law hearings

Key points

• For substantive family law cases, and in particular Child Welfare Hearings (CWHs), there was a strong consensus among professionals that remote hearings did not work well and were not appropriate.
• Where remote hearings were used, there was a clear preference across professionals for video over telephone. However, there was less agreement among parties, whose preferences tended to be based on their experiences at hearings more generally rather than on the specific mode used.
• Parties who had access to suitable technology, were IT proficient and had the right home set-up felt more positive about remote hearings generally although, for some of those dealing with issues of domestic abuse, intrusion into their home setting was problematic.
• Professionals expressed ongoing concerns around digital exclusion, particularly in respect of party litigants.
• The availability of clerks varied across different court settings, with some sheriffs expressing a lack of support with managing technology during hearings.
• Parties' views on their ability to participate in remote (telephone or video) and in-person hearings varied, with some finding it difficult to communicate in remote hearings compared to in person and others finding it easier.
• Represented parties noted difficulties in communicating effectively with their solicitors in remote hearings.
• Sheriffs felt that good personal interaction, including non-verbal communication, was essential in CWHs due to their problem-solving nature.
• Professional groups agreed that formality and the authority of the judge aided compliance with the outcomes of hearings and thought that this was easier to achieve in person.
• Although it was recognised that remote hearings could aid efficiency in some contexts, any assessment of efficiency must take account of other factors including the objectives of the system and different needs and perspectives of all those involved.

Overview of family law actions and the use of remote hearings

Defining family law

As noted by a sheriff interviewed for this research, "when people say family, the first thing is to be clear what we mean by family". 'Family actions' are those which fall within Chapter 33, Ordinary Cause Rules (OCR) which govern procedure in the Sheriff Courts^[76] and rule 49.1 of the Rules of the Court of Session (RCS).^[77] For the purposes of civil justice statistics, however, Scottish Government defines family law in slightly broader terms as covering "a wide range of areas related to families, couples and children".^[78] The latter specifically include adoption and permanence, which do not fall within Chapters 33 or 49 of court rules.

Family disputes are often complex and may cross legal and conceptual boundaries, for example, the boundaries between private and public law, the latter including the statutory frameworks for regulating child protection and children's hearings. How individuals experience personal and relationship issues will not necessarily or consistently align with professional classifications or court categorisation. The focus of this research is principally on private family law and actions which would fall within Chapter 33, OCR or Chapter 49, RCS. However, it is important to keep in mind that while these are distinctions clearly drawn in court procedure, they are not always so clearly experienced in family life, or by participants interviewed for this research. Child Welfare Hearings (CWHs) were the particular type of hearing discussed most often by both parties and professionals, perhaps reflecting the distinctive nature of these hearings.

The Civil Justice Statistics in Scotland for the first full year of the pandemic, 2020-21, report a 41% decrease in all civil cases (43,632) initiated in that period, as compared to the previous year, with a 14% decrease in family law cases from 12,251 in 2019-20 to 10,546 in 2020-21. However, the total number of civil cases initiated rebounded in 2021-22, up 23% on the previous year (although still lower compared with 2019-20). Family law cases also increased 17% between 2020-21 and 2021-22.^[79] With civil justice statistics reflecting the principal cause of action, family law cases made up 22% of the total in 2021-22. Within family law itself, actions for divorce and dissolution of civil partnership accounted for 74% and those relating to parental responsibilities and rights (PRR) made up 20%^[80]: with the proportions remaining broadly similar to those of 2019-20 at 72% and 21% respectively.^[81]

Remote hearings in family actions

There were some limited pre-pandemic examples of a move away from the physical courts for family cases. It has been reported, for example, that "case management hearings in family actions in Glasgow Sheriff Court have been conducted by telephone since 2017".^[82] However, in interviews for this research, sheriff clerks indicated that remote hearings had not been used commonly, or at all, for family actions prior to the Covid-19 pandemic.

With the first national lockdown, family court business, in line with other civil business, was initially paused. The Lord President issued a short statement of Guidance on Compliance with Court Orders Relating to Parental Responsibilities and Rights, designed to offer general guidance to parents or carers in respect of children who were subject to court orders in respect of Parental Responsibilities and Rights. In it he stressed that parents were free to agree their own modification of whatever orders were in place in order to adapt arrangements relating to, for example, residence and contact, to the current Coronavirus regulations. Specifically it was stated that:

"No non-urgent business is currently being dealt with in court. For the avoidance of doubt, non-urgent child welfare hearings are not proceeding in court. In urgent cases, the court will consider an application for one to be fixed but will have to be satisfied that it is essential."^[83]

This Guidance was updated in July 2020, and the position in respect of court hearings was stated as follows:

"Urgent and non-urgent business is now being dealt with by the court. … Procedural and substantive hearings will be conducted remotely. … Cases involving children will be given priority. For the avoidance of doubt, all child welfare hearings are proceeding by way of remote means and parties are not required to attend court buildings for child welfare hearings unless directed to do so by a sheriff."^[84]

In July 2022, following the lifting of all restrictions on physical distancing, sheriffs principal issued joint Guidance for Court Users: Child Welfare Hearings in the Sheriff Court^,[85] intended to ensure consistency across all Sheriff Courts. It provided, at 2.1, that:

"In respect of all family actions which commence on or after 13 July 2022 and in which a party seeks a crave for an order in terms of section 11 of the Children (Scotland) Act 1995, the interlocutor will direct that the first child welfare hearing will call in person."

In actions which commenced prior to 13 July 2022,

"at the next scheduled child welfare hearing calling after 13 July 2022, the sheriff will discuss the mode of hearing for any further child welfare hearings with parties. Further child welfare hearings will be conducted in person unless otherwise directed by the sheriff."

In interviews with sheriff clerks for this research, it was reported that, following the suspension of most in-person hearings, there was an initial move to telephone hearings, followed by, from mid to late 2020, the adoption of videoconferencing across all courts. However, as discussed in the previous chapter, video hearings were never adopted on a widespread basis in Glasgow, except for proofs during the pandemic. It was also reported that Glasgow Sheriff Court reverted to in-person hearings for both proofs and Child Welfare Hearings (CWHs) in advance of formal central guidance to this effect being issued. At the time this research was conducted (late 2022), Glasgow was still using telephone hearings to deal with some procedural elements of family law cases, and not using video hearings at all, except in exceptional circumstances (for example, where one party did not live in Scotland). Clerks from other courts who participated in this study reported continuing to use the videoconferencing platform for procedural hearings but having returned to in person for other family hearings (including CWHs). However, an advocacy organisation noted that they thought some Sheriff Courts were continuing to hold CWHs remotely in early 2023, contrary to the guidance recommending they be face-to-face.

The Court of Session followed a similar pattern. While a video link had been available for witnesses joining from outwith Scotland pre-pandemic, fully remote hearings had not been used for family hearings prior to 2020. The Court of Session initially moved to telephone hearings in mid-2020, and were routinely using video hearings by late 2020/early 2021. As of late 2022, they were following the guidance recommending that procedural hearings use the videoconferencing platform and substantive hearings be face-to-face. It was noted that any party can make a submission to move away from this default position (in either direction – so to request a face-to-face hearing rather than video, or a video hearing rather than a face-to-face one). As was the case for commercial hearings, such requests were, however, reported to be rare.

Existing evidence on remote hearings in family law actions

Family courts in England and Wales were quick to adjust to the pandemic and "rapidly adapted to using telephone and video hearings".^[86] The speed, significance and timing of this shift led to the President of the Family Division asking "the Nuffield Family Justice Observatory to undertake a rapid consultation on the use of remote hearings in the family court. The consultation ran for a two-week period from 14 to 28 April 2020 and well over 1,000 people responded."^[87] A further consultation was conducted between 10 and 30 September 2020.^[88] This research generally shows an improvement, for parties and professionals, in the use of remote options during those early months.

In May 2021, in Scotland, the Judicial Institute organised a Civil Justice Conference "to provide a forum for discussion amongst interested parties about how Court of Session and Sheriff Court civil business might be conducted once the pandemic is over or manageable and a return to in person hearings is feasible." While family law was not the sole focus of any contribution, it was highlighted by several speakers. Sheriff Wendy Sheehan noted that:

"Sheriffs often preside over problem-solving courts. This involves skilled interaction with agents and parties, the use of mediation skills and emotionally intelligent, well- timed interventions. This is very challenging on a digital platform."^[89]

Lady Wise highlighted the personal and often sensitive nature of family law, and the adverse impact which dealing with such matters remotely might have on both "parties and decision makers". She referred to a particularly harrowing account involving "the judge being asked by the mother, a litigant in person: Are you going to take my child away from me on an iPad?'"^[90] The personal and sensitive nature of family law was a point further stressed by Sheriff Sheehan with particular reference to adoption, permanence decisions and parental orders.^[91]

Overall attitudes to remote hearings in family law actions

The online survey of professionals conducted for this study included responses from 153 professionals with experience of family hearings (see chapter 1 for breakdown by profession). Echoing findings from early surveys of solicitors and advocates in Scotland, discussed in chapter 2, this shows a clear split in attitudes to the use of remote for evidential and procedural hearings.^[92] For example, 81% of respondents with experience of attending family law hearings thought video hearings could work very or fairly well for procedural hearings in Sheriff Courts, but only 31% thought they worked well for evidential hearings (Annex A, Table A.1a). Of the different options for remote, video was clearly preferred to telephone for family hearings – while 81% felt video could work well for procedural family law hearings in Sheriff Courts, 49% said the same for telephone hearings. Overall views on remote hearings were similar among the smaller group of respondents with experience of family law hearings in the Court of Session.

Qualitative interviews for this study included 15 parties to family law cases, and 14 professionals with family law experience, including four members of the judiciary, five Sheriff Court clerks and a Court of Session clerk, representatives of three organisations that work closely with parents likely to be involved in family law cases, and a family law solicitor. It should be noted that the sample was not gender balanced, with more male parties and more female professionals.

In terms of remote hearings, as in the survey there was a clear preference across participants for video over telephone. Concerns about not being able to see who was 'in the room' with telephone hearings were particularly evident in the context of family law cases. Telephone hearings were time-consuming for clerks to set up and a sheriff looking back on early experience of telephone hearings described it as "truly desperate".

The dominant view among clerks (both Sheriff Court and Court of Session) was that remote hearings work well for procedural hearings, but not for substantive business. There was some dissent from this view but that appeared in part, to be linked to how hearings were scheduled in a particular court. Video procedural hearings were generally viewed by clerks as a more efficient use of everyone's time, and as making it easier for parties to join (something which, it was noted, happened less often when procedural hearings were held in person). In interviews with sheriffs, there was general recognition that for procedural business, particularly where parties were represented, video hearings could work reasonably well and were convenient, particularly for solicitors. For party litigants, however, they were less appropriate.

For substantive family law cases, and in particular CWHs, there was a strong consensus among professionals that remote hearings did not work well and were not appropriate. The detrimental impact of making and delivering decisions, remotely, about fundamental family matters, the particular needs of party litigants and the perceived benefits of 'being in the room' for the problem-solving work of family courts were highlighted as key reasons.

While there was broad consensus among clerks, professionals and advocacy organisations around the telephone/video and the procedural / substantive splits, the views of family law parties were much less consistently divided. Whereas professionals were looking at their caseload across phases of the pandemic or broad types of business, and were more able to distinguish between different types of hearing and different formats, unsurprisingly, for parties, it was their case and they tended to see the whole process in a more holistic sense. Parties did not always, or often, distinguish between their experience in various hearings as either 'procedural' or 'substantive'. For some, whether remote worked well or not was linked to the experience of a particular occasion: "I found it extremely helpful to have this kind of option. But then obviously it has gone wrong a couple of times …". For another, the categorisation was neither procedural or substantive but rather: "For all nonserious civil cases, should be remote".

Perceived impacts on access to justice

Access to the formal legal system and to a fair and effective hearing

Joining hearings: technology, location, support

As with commercial actions, technical barriers to joining remote hearings was a key theme in the survey of family law professionals:

• 69% said it was at least fairly common for parties to experience technical issues with joining video hearings. It was less common in telephone hearings, at 39%
• 59% said it was common for parties to struggle to join because their device was not well suited to video-conferencing
• 46% said that it was very or fairly common for parties to be unable to join video hearings due to lacking a device (See Annex A, Table A.2a for detail).

While parties reported a range of experiences and preferences around remote hearings, generally, those that had appropriate technology, were confident in their IT skills and had the right home set-up, felt more positive about them. As in the previous chapter on commercial actions, where parties joined using a phone this was viewed as putting them at a disadvantage because the screen was not big enough to see the rest of the people involved clearly. Other examples included parties having laptops too old to support the videoconferencing platform, or having no suitable device and having to join from their solicitor's office or a friend's house.

In these cases, parties reported additional stress, not least because, instead of investing the time preparing the hearings, they had to invest it in looking for a device or making alternative arrangements to join. And as in the previous chapter, even where suitable equipment was available, there could be problems of connectivity. These technical issues could have significant consequences, with parties interviewed for this study describing family law hearings being postponed or the party missing part or all of hearings as a result. Receiving access details for remote hearings very late in the day had also created difficulties in joining for family law parties.

The views of parties as to the level of technical support they were offered were mixed. While some of these differences in experience may reflect recall issues, there was clearly a perception – particularly among those who were less confident in their IT skills – that parties would have benefited from more active technical support and information.

Not all parties had a quiet or suitable space from which they could join the call privately. Having an appropriate setting made a difference to how comfortable and confident parties were during hearings, with some parties reporting that they felt stressed about being distracted. This was reflected in the professionals survey: 40% of family law respondents said it was at least fairly common for parties to experience issues relating to lack of privacy or interruptions during video hearings (31% for telephone hearings).

For parties who had experienced domestic abuse, feeling the hearing took place in a 'safe space' was key. However, the different experiences of two women interviewed for this study highlight that there is no straightforward answer as to whether remote hearings help or hinder in this regard. One participant felt it was "very very important" not to have to be in the same physical room as her abuser so the remote element had removed much of the stress of the court process; another described feeling exposed, via a computer screen, to intrusion by their former partner into their domestic space.

Family law professionals interviewed for this study, and in particular sheriffs, highlighted serious concerns around digital exclusion, particularly in respect of party litigants. For sheriffs, privacy and suitable space for parties was also a key concern, with frequent examples of parties joining from unsuitable locations including supermarkets, cars, public places, bed and even a crane cab. In the latter example, as the sheriff commented, "aside from the obvious health and safety concerns, there was a significant 'access to justice' point."

Despite sheriffs beginning by setting the ground rules and reminding parties that they should be alone, particularly in CWHs which are private, they had no way of 'policing' this. There were reports of "unsuitable people" being present for family law hearings, such as a child or a "new wife". There were also concerns expressed (and at least one actual example cited), by parties and professionals, about remote hearings being inappropriately recorded.

Technical issues were not only viewed as a barrier to joining for parties but affected sheriffs too. Dialling everyone onto the call could take so long that there was little time left to deal with the business of the court. This was a particular concern in the context of 'bulk' procedural family courts where there could be 50-60 'black boxes' on the screen. For sheriffs, the move from telephone to video was a significant improvement and, with time and experience, the videoconferencing platform itself became easier although it was noted that there had been little, if any, training and that it was largely a case of trial and error. A key factor was the availability of clerks to provide support and, in this respect, there was evidence of difference in practice in different courts. At worst, sheriffs felt that they had become "call centre sheriffs". Even for those who had, or had developed, considerable technical competence, there was a strong sense that managing the technology took precious time and attention away from what they should be doing.

For sheriffs, their own technical set up was important. All described working from the court building, some with a clerk beside them or at least in the building. It is "the responsible thing to do", to be "in an environment where I can get help". Some described a set up of two screens, with documents on one and the videoconferencing platform on another and, for another, there were three. In the middle is a laptop with a camera, to the left a screen with ICMS showing the list of cases, to the right a third screen, open on email to communicate with the clerk. While this might be seen as the ideal set-up from a technical perspective, there was again a sense of multi-tasking:

"I'm looking at the three at the same time, with also a pen and paper to hand… it's quite intense." (FLJ03, Sheriff)

Participation and representation

The survey found that around 4 in 10 professionals working in family law hearings felt parties commonly experienced difficulties understanding the questions asked (37% said this was fairly common in video hearings, 40% in telephone hearings).

What emerged most strongly from interviews was a range of different expectations around 'participation'. For parties, the focus was often on their own personal participation, for example, their ability to speak out, to ask questions, to "have their say"; whereas for sheriffs their concern was for 'effective' participation and a 'fair' hearing. What parties expect or want from their family law hearing may be very different from what lawyers, clerks or members of the judiciary consider appropriate or effective. These are complex and contested notions which go far beyond the scope of this study but it is interesting the extent to which remote hearings disrupt long-established norms and exacerbate pre-existing differences in perception.

Professionals, and in particular sheriffs, were clear that there was a key distinction between party litigants and those who were legally represented, and there was a strong concern around the impact of remote hearings on the ability of party litigants to participate effectively. Sheriffs were clear that party litigants were the most affected by remote hearings. While in some courts, they were reported to be relatively rare, in others there were "loads of party litigants". There was a sense among sheriffs that party litigants have increased in number, with "perhaps more during the pandemic". It is difficult to assess the actual number of party litigants in family actions, not only because of the absence of available statistics (noted in chapter 1) but because the situation may frequently change in the course of the process, with parties being represented at the outset but becoming self-represented later, or vice versa.

Some of the challenges facing party litigants clearly go beyond remote hearings, with unrepresented parties "not being given advice, not being given the opportunity to discuss strengths and weaknesses". However, there was a strong perception that these problems are exacerbated when combined with issues of digital poverty. One point on which all sheriffs were agreed, and which transcended the procedural / substantive divide, was that, "the minute you start to have party litigants, it should be in person". While recognising that there could be exceptions, particularly where the party had good IT equipment and experience of online platforms in other contexts, for example work, there was a general sense that "party litigants do not understand what is happening. They don't understand the procedure. They tend not to have high connectivity". All of that was viewed as having a significant impact on their effective participation.

For parties themselves, however, the picture was much less consistent. For some parties, communication was more unnatural and disjointed in remote hearings compared to face-to-face, while for others it was easier to command attention with everyone looking at a screen because "when you are talking, the focus is on you". Being legally represented or not did not appear to have a clear impact on parties' perceptions of remote hearings. A point stressed by sheriffs is that parties may be represented or not at different stages in the process of their action and that may be a factor. Although views varied, there were examples of party litigants expressing a strong preference for remote hearings, which stand in contrast to the views of legal professionals and the judiciary that they were almost always less appropriate for party litigants:

"If you were to take me to court on a civil matter and it was [a video hearing], I'll be delighted … if anything it would be better because you don't have to attend court, you don't have to get up earlier, it is little things, like if you have to go to an interview, if you are doing an interview at home, you don't have to be worried to get there and be worried about traffic and all that." (FLP04 Family law party litigant)

Where parties had legal representation in remote hearings, that could affect their perception of the extent to which they were directly able to participate, particularly where they felt unable to communicate effectively with their solicitor. Parties felt especially frustrated when they thought that their solicitor missed an opportunity to challenge something that was said and they could not point it out to them. As in the previous chapter, solutions to this included: joining from the same room as the solicitor; text messages to the solicitor's personal phone; and exchanging emails right before the hearing with some key points. However, text messages were not always useful because the hearings are short, and parties might not have the time to write a message while paying attention to what is being said. For one party, there was a contrast between previous experience of in-person hearings, where it was possible "to get my point across" by turning round and speaking to the solicitor, and in remote hearings, where the party felt "shut down" by the sheriff who "would not allow" them to speak because they were represented:

"you sort of feel helpless, what is the point of being here if I can't articulate or react to something that is a dynamic situation?" (FLP03, Family law represented party)

Over half of family law respondents to the professionals survey reported that these types of issues, where parties experience difficulties speaking to their representative, were at least fairly common (55% for video hearings, 51% for telephone hearings). Clerks and sheriffs noted that, while it was technically possible to put parties and their solicitors into a breakout room using the videoconferencing platform, time constraints on court business and limited functionality meant this option was little used. The limited evidence which was reported of use of breakout rooms (for example, for brief discussions between parties and solicitors) did, however, suggest there was scope for development.

One potentially positive impact of remote hearings that was mentioned by professionals, support organisations and parties was improved access to legal representation and legal aid firms, since parties could potentially be represented from elsewhere in the country. However, one interviewee from an advocacy organisation, held the view that some firms had capitalised on the possibility of representing people remotely to provide what the interviewee viewed as an inadequate service to a larger number of clients across Scotland.

Body language and non-verbal cues

Family law parties expressed strong views on the perceived impacts of remote hearings in relation to body language and non-verbal cues. For some, their concern was more about how they might be perceived: "In the cold, procedural, impersonal interaction" online, the sheriff might not be able to see their "real personality", "how they behave and react". They were concerned that remote hearings did not give them the opportunity to dress smartly, to behave well, and to make a good impression. For others, the concern was more that, in remote hearings, others might not see that they "are struggling" whereas in person, they would "see the white of people's eyes" and "might back off". A common theme was the exacerbation of parties' feeling of power imbalance between themselves and legal participants. Several parties commented that, in person, they were better able to "interject", put their hand up or "use non-verbal communication to speak to the sheriff".

"[in face to face hearings] you are able to interject or put your hand up or you are able to use non-verbal communication to speak to the sheriff … The sheriff might, on occasion, direct a question towards me in the [face to face] courtroom and I was able to respond appropriately but that was never the case in the remote hearings, it was always to my representative" (FLP03, Family law represented party)

However, there were also examples of both represented parties and party litigants who felt the opposite – that it was easier to participate, communicate or interject in a video hearing compared with in-person:

"Virtually, I think because there is that kind of once removed stage, it is easier to talk or to be heard as well, because when you are talking the focus is on you. … I definitely think it is easier to be involved and to be, what is the word, like effectively involved, you know, not just being present." (FLP13, Family law represented party)

"(It's) easier to interrupt a screen than an in-person sheriff". (FLP04, Family law party litigant)

Issues relating to body language, personal interaction and behaviour were also raised by sheriffs in the specific context of CWHs. As noted above, the intention is that there will be an element of mediation in a CWH; that while the sheriff will direct it, it will be more of a discussion. However, it was reported that, by telephone, a CWH was "not even a CWH" but "more like opposed motion hearings" with parties often not joining the call and, where they did, not speaking. CWHs are not intended to be "too intimidating" but for sheriffs the opportunity to be "quite stern at the beginning" was seen as important in "steering them in the right direction". While it was recognised that there might be limited circumstances where it would be appropriate to conduct a CWH remotely, for example where there are concerns of domestic abuse and parties were at a distance, and that there was an ongoing place for video technology, there was consensus that CWHs by telephone were not appropriate. Good personal interaction, including through body language and non-visual cues, was seen by sheriffs as essential to CWHs because of their particular problem-solving nature:

"You don't get to the core unless you can actually connect with people." (FLJ03, Sheriff)

The behaviour of parties in family law cases was also a concern for sheriffs more generally. While parties might feel more in their "comfort zone" at home, and better able to contribute to constructive discussion that could sometimes lead to "shouting and aggression". For sheriffs, managing behaviour and maintaining the solemnity of the court, in the remote context, was a significant challenge, particularly when these are held by telephone. They have to begin by explaining the ground rules, including that "you have no right to interrupt". It was recognised that "people do get upset, they want to have a rant and a rave" and that is not always a bad thing but, in order to maintain the effectiveness of a hearing, it needs to be managed. To facilitate effective participation and, for the reasons discussed below relating to maintaining the gravity of the process and ensuring compliance, it was commented that parties "need the trappings of court". There was some recognition of the need for general guidance on behaviour from parties too, with a request for:

"Some orchestration like explanation of how one behaves in a court room, because frankly, most people, it is new to most people and you need to be…certain things need to be explained, you know." (FLP17, Family law represented party)

Access to a decision and an outcome

Clerks and sheriffs did not believe that hearings being remote affected the substance of outcomes, but there was a perception that it might negatively impact on the speed of decisions by removing opportunities to resolve issues in informal discussions between solicitors. This was a view echoed by an advocacy organisation, commenting that: "quarter an hour before the court hearing is often a time when you can actually resolve the issue". The impact on timing was felt particularly in the context of CWHs where issues would come back to court more frequently. There was some evidence of sheriffs using breakout rooms, and there was recognition of the potential to do this more to facilitate settlement.

A common theme, raised frequently by sheriffs, and endorsed by an advocacy organisation, was not about the decision making itself but about compliance and here professionals, including an advocacy organisation, highlighted the "formal surroundings of a court" with the "power or authority of the sheriff" as being "more likely" to result in compliance with decisions in family cases than a decision delivered by telephone or on video.

Substantial minorities of family law respondents to the survey also felt that it was fairly common for parties to experience difficulties understanding the decisions made during video (27%) and telephone (32%) hearings. This was also a concern highlighted by sheriffs, particularly in respect of party litigants:

"they are plunged into nothingness at the end of the hearing. What just happened? What happens next?" (FLJ03, Sheriff)

In contrast with professionals, there was a belief among family law parties that mode of hearing might impact on the substantive outcome. Where this view was held, it was either linked to the difficulties they had experienced giving instruction to their solicitor during a remote hearing (discussed above), or to their perceptions of the impact that not being able to see body language might have had on the sheriffs' decisions:

"100%, definitely, yes, I think things would have been different if I had been able to discuss with my solicitor at a point when there was a chance to challenge the other side and challenge the report, things would have been different." (FLP16, Family law represented party)

"Yeah, I do [think the fact that the hearings were held remotely impacted on the outcome], in our case, I feel that, I just feel, because there was that lack of ability to see genuine reactions in person body language, the way you are talking and being able to be more natural with your responses, I think that did impact it" (FLP14, Family law represented party)

Other perceived impacts of remote hearings

Impact on transparency

There was no clear consensus among family law respondents to the survey over whether members of the public would find it easier to attend hearings remotely or face-to-face: while 37% felt the public would find it easier to attend face-to-face than by video, 24% thought they would find it easier to attend by video, 20% felt it would be just as easy for the public to attend either way, and 19% were unsure one way or the other (Annex A, Table A.5). Slightly more respondents felt it would be easier for the public to attend by telephone (31%, vs. 24% for video), but again there was no consensus on telephone versus face-to-face in terms of access to hearings for the general public.

Many substantive family actions, including CWHs, are private and therefore the issue of transparency was not deemed relevant. Concerns were more about preserving the appropriate privacy of substantive family business rather than about any lack of public transparency. In the survey, meanwhile, around 1 in 8 professionals expressed concerns about potential recording or sharing of family law hearings; a concern which was endorsed by some parties, sheriffs and support organisations, including, as noted, real examples of recordings having been shared online.

Impact on efficiency

Family law professionals were, on balance, more likely to say that video hearings and, in particular, hybrid hearings took longer than face-to-face hearings:

• 41% felt video hearings took longer than face-to-face, while 26% said they took less time (18% felt they were about the same and 15% said it varied too much to say or were unsure)
• 56% said hybrid hearings took longer, while just 11% felt they took less time.

Views were more divided on telephone hearings – 38% said they took comparatively longer than face-to-face hearings, but the same proportion felt they took less time (Annex A, Table A.6).

As discussed in the previous chapter, any assessment of efficiency must take account of the objectives of the system and the different needs and perspectives of those involved. While some elements of the system might seem more 'efficient', the costs and inefficiencies may simply have been moved elsewhere. For example, where sheriffs are themselves taking on more administrative tasks (as was reported by sheriffs dealing with both family law and commercial actions), such as dialling-in participants, printing off documents, managing the 'mute' function or breakout rooms, calling solicitors or parties who have switched off their camera during a procedural court – "wakey, wakey, we are calling your case" – costs and workload are simply being displaced and to those who are paid at a much higher level: "it's just a poor use of resources". In assessing efficiency and "what works", there is also a need to be clear about the purpose of the system and its outcomes. As a sheriff commented:

"It's not about whether it is easier for me to sit at home on a laptop, it's about what gives parties a good experience and a fair hearing." (FLJ03, Sheriff)

From the perspective of family law parties, there was general recognition of the benefits in terms of travel time and costs for both themselves and, importantly, their witnesses – one party litigant noted their main witness would have been unlikely to be able to attend an in-person hearing. Benefits in terms of being able to fit remote hearings around childcare responsibilities were also noted. However, these benefits in terms of time and cost did not always outweigh parties' preferences for in-person hearings, where they felt that these were preferable on participation and access to justice grounds discussed above.

"If the Scottish government's reasoning is that it gets quicker and it costs less money that is not a reason for it to work, because it is not about shortness and money, it is about the quality of interactions and the quality of the outcome for the wellbeing of the child." (FLP16, Family law represented party)

Impact on wellbeing and work-life balance

Overall, as with commercial professionals, family law professionals were more positive than negative about the impact of remote hearings on their personal work-life balance: 43% felt it had a positive impact on their work-life balance, compared with 30% who felt the impact had been negative (30% felt it had not made any difference either way). However, this picture was reversed when asked about the impact on their wellbeing – 41% felt remote hearings had a negative impact on their wellbeing, compared with 31% who felt it had been positive (Annex A, Table A.9).

Even where individual family law professionals might have experienced an improvement in workload or work-life balance, there were wider and longer term changes in working practices which were viewed as having had, or being likely to have a detrimental impact on wellbeing. As with commercial work, frequent reference was made to the lack of opportunity for solicitors and advocates to benefit from the normal social interaction that occurs around court and a growing recognition of its importance in balancing the intense and often distressing nature of their work in family cases.

In general, the message from sheriffs was of an increase in workload and a shift in the nature of that work, which combined is likely to impact negatively on wellbeing. For them and – in the view of sheriffs – for the clerks, the harm caused by cumulative impact and a longer term normalisation of increased workload was noted. What started off as "crisis management" has simply carried on, meaning that "a lot of us are just tired …". In addition to generic effects of remote working, particular examples were highlighted of a lack of adjustment to individual needs, including in relation to eye health. There was a sense of lip service being paid to the protection of professional wellbeing.

However, similar to solicitors in commercial actions, family law solicitors were identified, by themselves, by other advocacy organisations and by sheriffs, as potentially benefitting in terms of less travel and more efficient use of time, particularly in the context of the procedural family hearings which operated by video.

Other perceived impacts

A theme which emerged from interviews with various professionals was not only a higher workload but a shift in roles. These might be subtle but, over time, significant.

There was often an expectation that clerks would manage the technology needed for remote hearings, not only setting up the courts and sending out the links, but also offering support to parties and professionals. While some of this might be viewed as a different way of doing the same role, there was evidence of their role becoming 'enhanced' and a shift in responsibility, as this example shows:

"the issue with chasing for email addresses, telephone numbers, invites for [video hearings] is it takes the onus off the person on their responsibility to show up at court at the date and time in which they have been appointed to do so and puts it on us. ... we're holding hands of people who should be within the court process and are failing on their end. ... it's making you into an email monkey. .... So yeah, it changes a wee bit the function of our role as a sheriff clerk." (Sheriff Court Clerk)

Clerks also observed that the use of remote hearings, particularly for substantive hearings, could make it more difficult for members of the judiciary to carry out their role: a point reflected too by sheriffs. For sheriffs, there were frequent references to the challenge of going from call handler, to managing the technology, to keeping control and ultimately exercising their authority. Not only did this amount to added work but it was part of a perceived shift in authority and an erosion of "respect for the court".

Sheriffs made similar comments to those discussed in respect of commercial actions about family law parties' changing understanding of the nature of the court and judicial system. Referring to a financial provision on divorce proof on the videoconferencing platform, one sheriff described it as the parties having the opportunity to appear on screen and "have your say". But, as the sheriff commented, "that's not really what a proof is about." Another commented on parties "referring to being in a meeting" but they were not in "a meeting", it is a court.

Views on other current and potential adaptations

The principal example of other adaptions discussed in interviews about family law cases was electronic documents generally and specifically the Integrated Case Management System (ICMS).

40% of professionals with experience of family law hearings felt parties commonly had difficulties reading documents on screen. Parties reported that, even if they had access to relevant electronic documents during remote hearings, they were not always able to look at them or follow them effectively. This was due to a variety of factors, sometimes in combination: lack of suitable screen or laptop, poor connectivity, limited understanding of procedure and the relevance of particular documents, and pressure of time and fear of distraction. There was little comparative insight into whether they were better able to follow documentation during face-to-face hearings but it was suggested that at least in person, for represented parties, their solicitor would be able to point out relevant information.

Relying on electronic documents, during remote hearings rather than having them printed off, was also highlighted by sheriffs as "taking up huge time and mental energy". This was particularly the case in high volume, specialist family procedural courts. It was acknowledged that there had been significant improvements in ICMS and that what was previously just a list of separate documents was now presented as "virtual processes". While that generally works well, for many it still takes longer than flicking through a folder of papers and takes no account of individual needs or impact on eyesight.