HM Courts and Tribunals Service have recently published statistics about the number of hearings conducted remotely, ie by audio, video or on paper, compared with physical in-person hearings, over the course of the coronavirus lockdown. The statistics cover civil and criminal cases as well as family law cases, but it is possible to extract from them a picture of how the family justice system, in particular, has responded.
The publication of these figures appears to be a new development, and goes some way to answering a Freedom Of Information request I made last year (which was refused).
Previously, the quarterly statistics published by HMCTS about family law cases have captured data on the type of subject matter, whether they involved children, were public or private law cases, whether parties were represented etc. But not whether the hearing was a remote one. Although some weekly management information was published in February 2021 about the workload in the courts during 2020, this did not include the method by which hearings were being conducted. Moreover, it came with a warning about “data quality issues”:
Late reporting of cases and regular updating of case details, which can lead to the figures being updated to manage the case – more recent weekly figures are therefore subject to larger revisions and should be treated with greater care and considered provisional.
Remote hearing statistics
My FOI request was addressed to the Ministry of Justice in July last year, and asked (among other things)
“whether any statistical record is routinely kept of the number of remote hearings that have taken place using (a) Teleconferencing or (b) Videoconferencing; and how many remote hearings have taken place during the months of April, May and June 2020 in
(a) County Courts (including the Family Court), (b) The High Court (all divisions) (c) The Court of Appeal (both divisions).”
The response from the Disclosure Team at the MoJ explained that “currently the data requested in not considered to be robust or accurate enough to release into the public domain as a FOIA response. We do not hold the information to answer your questions.” It went on to say that, anyway, the data was exempt from disclosure at that time, but “will be a subset of MoJ statistics data held in its final form which we routinely publish. Information including the period in question is planned for publication later in 2020.”
In the end we had to wait until May 2021, but the statistics published go up to the end of April, which is pretty good. This information also comes with a warning: the data was collected by way of a daily return completed by operational staff, but has not always been collected for all courts and tribunals. Thus, for courts in London the proportion returning data could vary from 25% to 89%. For the Midlands the figure ranges from 51% to 98%. For Wales it is from 32% to 97%. So we are warned that the figures given may “under-count” the true position. Nevertheless, even if the actual numbers may be unreliable, it is interesting to see what proportion of hearings were conducted either by video or by audio link rather than in person, and how this has changed over time.
Unsurprisingly, at the beginning of the lockdown, in late April 2020, only 10% of hearings in all jurisdictions (ie including civil, crime, family and tribunal) were conducted in person, while 33% were conducted by video, 45% by audio, and the remaining 12% on paper. However, the number of hearings overall was low, for obvious reasons. The lockdown imposed a dramatic obstacle to the conduct of physical hearings and, despite official assertions to the contrary, the courts were ill-prepared for the management of remote hearings at scale.
You can get a sense of how dependent the judiciary were on the advice and support of legal professionals when it came to managing remote hearings by reading some of our early posts on the matter, and indeed the Transparency Project was one of the organisations contributing to that support, notably the guidance on remote access issued by Mr Justice MacDonald: see The Remote Family Court – where does transparency fit in?
See also, more generally:
- Remote hearings: a gulf between lawyers and lay parties?
- Covid-19, the UK’s Coronavirus Bill and emergency ‘remote’ court hearings: what does it mean for open justice?
- Remote hearings and inclusive justice
- COVID-19 and family courts: Links in one place to new arrangements.
By mid-May, the proportion of video hearings in all jurisdictions had increased to 45%, audio hearings fallen to 40%, but the numbers involved had increased dramatically. While face to face hearings fell slightly, from 1,870 to 1,755, the number of video hearings almost doubled, from 5,932 to 10,804, and audio hearings increased from 8.132 to 9,789.
A month later, in mid-June 2020, while the proportion of video hearings had dropped to 30%, and audio to 32%, the numbers of hearings taking place had again increased, so face to face hearings were up to 3,924, video hearings up to 13,033, and audio to 10,585. Interestingly, the number of ‘other’ hearings, ie mainly on the papers, having initially fallen from 12% in April to 8% in mid-May, now increased to 18% in mid-June.
Looked at in isolation, these figures probably don’t tell us a huge amount, especially given the warnings about the consistency of logging data; but what they do perhaps show is that as the lockdown continued, and as court staff, judges and practitioners became more accustomed to remote hearings, the system’s capacity increased overall.
Looking at the figures for later in the year, however, there seems to have been a gradual resumption of face to face hearings, which increased from 12% in mid-June to 30% in mid-July (when video hearings dropped to 26% and audio to 25%, with paper remaining steady at 19%) and then to 36% in early September (with video, audio and paper dropping slightly) and then 41% in mid-October. Face to face hearings continued to rise into the new year, reaching 45% in early January 2021, before dropping slightly to 35% by the end of January, presumably in response to the third (very severe) lockdown, when video hearings rose again to a new peak of 31%.
The weekly number of hearings in each category had by then also increased massively. So face to face hearings increased from 3,924 in mid-June to 11,930 in mid-July, 12,916 in early September, and up to 19,636 in mid-October. They reached a peak at the end of December, with 21,079, before dropping again and remaining around the 14,000 to 15,000 mark. For most of the early part of this year, the numbers and percentages have remained relatively similar, as the graphs which I have generated from the MOJ data appear to show.
The figures for family courts show a very different picture.
One of the sets of figures released by the MOJ lists the number of hearings of each type reported each week from each area of the country for each type of court (described as Combined, County, Crown, Family, Magistrates, Tribunal). There were no overall totals for, say, family cases of each type across the whole country in a particular week. However, it was possible somewhat laboriously to copy the relevant figures for family cases for each week into a new spreadsheet (see appendix below) and generate percentages of the different hearing types.
These figures only begin in May 2020, which is perhaps when the record keeping settled down (albeit with the data quality warnings noted above). What they show is that, for family court cases, the vast majority in the early part of the lockdown took place by audio (peaking at 86% in late May 2020) but over time the proportion of audio gradually fell as the proportion of video hearings increased, from around 10% in late May 2020 to a peak of 70% in mid-April 2021. The lines cross over around the New Year, with both around the 40% mark, as audio drops and video continues to rise. Meanwhile both physical and “other” (ie mainly paper) hearings hovered below the 10% for most of the time, with physical hearings occasionally going above that but never more than 14%, and then only between September and December 2020, before the third lockdown kicked in.
In terms of volume, after an initial drop at the beginning of the first lockdown, the weekly numbers remain for most of the rest of 2020 around the 2,500 mark, dropping occasionally to 2,000, and tending to drop off in the early months of 2021, to more like 2,000 a week. (We should ignore short seasonal gaps like the quiet period around Christmas and the New Year, or Easter, which show as a dramatic chasms on the graph.)
The comparison with the more general picture is dramatic, the main point of difference being the very low number of physical hearings in family cases that has continued throughout the pandemic, as compared with other jurisdictions. Massive efforts have been made in criminal cases to increase the number of hearings, notably by requisitioning other public buildings to act as “Nightingale” courts (with rather more actual usage than the much-vaunted but barely used Nightingale hospitals) and the introduction of covid-safe measures such as Perspex screens and social distancing within existing court rooms. Civil and tribunal cases have been less dependent on physical hearings, but they may account for some of the increase in their use, whereas it is clear that in family cases the number has remained extremely low.
The other point to note is the massive preponderance of audio hearings in family cases in the early part of the pandemic, as compared to the overall picture of video hearings being more common than audio, particularly in civil and tribunal cases. (For crime, video hearings would be restricted to pre-trial hearings and sentencing rather than trials themselves, though some low level magistrates’ cases are decided on the papers.)
Continued uncertainty over the easing of the lockdown, owing to the unpredictable effect of coronavirus variants, and despite the success of the vaccine rollout, means that the existing pattern of remote hearings may continue rather longer than was expected in judicial planning earlier in the year. Now that they have published these figures, however, we hope that HMCTS and the MoJ will take steps both to improve the consistency of their collection and to keep them regularly updated.
Appendix: the extracted figures
The following are the numbers I extracted from the MOJ statistics, showing the different types of hearing across family cases in all parts of England and Wales as recorded at the end of each week:
|Week ending||Face to face||Video||Audio||Other||Total|
The following are the percentages derived from those figures:
|Face to face||Video||Audio||Other|
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