Covid-19 and the Courts (Constitution Committee Report)

Baroness Drake Excerpts

Wednesday 23rd March 2022 Grand Committee

[Baroness Drake (Lab)]

My Lords, the Constitution Committee applauded the “monumental effort” of those working in the courts to maintain a functioning system during the pandemic, but equally recognised that those efforts could not obscure the scale of the challenge faced. As others have said, the courts system was already struggling with major pre-existing weaknesses so, when Covid hit, rendering courts reliant on remote technologies, those vulnerabilities were exposed. The urgent need for major investment was laid bare.

The 21% decline in court funding over the preceding decade and the failure to deliver a modernisation programme exposed the weakened resilience of the system. Remote proceedings have the potential to enhance access to justice by increasing the number of hearings that can take place, but the delay in the modernisation programme meant that new case-management systems had not been rolled out, common IT systems had not been implemented, the digitisation of court forms was delayed and court data was stored on a range of legacy systems. The courts were ill prepared for the scale of the shift to remote hearings.

That sudden shift was also uneven in its impact. Senior courts and those dealing with commercial cases adapted relatively well. The lower courts, particularly those dealing with criminal and family cases, had a much more difficult time. The evidence revealed the practical challenges facing ordinary people in virtual hearings, including—among other things—limited broadband access, phones or iPads shared between users in a household, no private space, dependency on pay-as-you-go phones and expensive data packages, sensory impairments and limited digital literacy.

The evidence we heard indicated that remote hearings can make it difficult for lawyers and their clients to communicate, frustrate users if they cannot see or understand what is going on and undermine the ability of litigants to engage. On the other hand, there was evidence that court users can benefit from remote proceedings and the speedier conclusion of cases. As has been mentioned, some women who would be frightened of giving evidence in a court where their abuser was also present may prefer the security of a remote hearing. I learned recently of a case of a young mother whose baby was facing end of life. She wanted to be in court when she gave evidence as she wanted people to know that she had done everything she could to protect her child, but wanted to participate remotely on other days so that she did not have to spend time travelling away from the hospital.

It is important to ensure that courts function in an innovative way to meet the demand on the system and deliver speedy and effective justice. However, as a solicitor specialising in children’s law who gave evidence to the Committee commented:

“We need to ensure that there is consultation on good practice for remote hearings to allow the courts that remain open, to hear those cases which for a number of very good reasons may need to be heard in person.”


I look to the Minister on the point that people are looking for assurances that such essential consultation will take place, and that efficiency will not by default trump access to justice.

The Lord Chief Justice described the rapid adoption of new technology during the pandemic as

“the biggest pilot project that the justice system has ever seen”

and an opportunity to

“take the best of this new way of working”.

However, the information to support that opportunity was

“just not available”.

As the Government have acknowledged, the long-standing absence of quality data in the court systems meant that important questions about access and the efficiency of the courts remained partially unanswered. They include questions about the effects of digital technology on non-professional court users and where access to justice is most at risk when remote hearings are deployed. In 2019, the Legal Education Foundation published its report by Dr Byrom, Digital Justice: HMCTS Data Strategy and Delivering Access to Justice. The majority of its recommendations were accepted by the Government. What recent action has been taken to build excellent data systems and what is the timetable for achieving that objective?

During the pandemic, pre-existing backlogs of cases increased to record levels. This month, in his message, “A View from the President’s Chambers”, the President of the Family Division of the High Court, Sir Andrew McFarlane, commented that

“work in the Family Court is at an all-time high”;

that agencies and law firms had to ration their use of resources as demand in some areas has exceeded the capacity to deliver; and that

“there is unacceptable delay in listing cases.”

That resonated with recent evidence taken in a study by the APPG on Kinship Care that some local authorities are now having to prioritise the cases for which they bring childcare proceedings because they know that the courts do not have the capacity to handle all their potential cases, and that those that do are taking longer to complete. Given such rationing in terms of unmet need, the “family court backlog” must be an understatement.

Sir Andrew’s message had the ring of a cri de cœur. The family courts deal with vulnerable children. As the public advisory group of the Family Justice Board observed:

“For children who remain stuck in the middle of the court system, the detriment to them is immeasurable.”


The life of the child goes on while they are stuck, and they may have further negative experiences. Sir Andrew observed on their impacts:

“Backlog and delay in the Family Court are not … static … they have the potential to feed on themselves and grow the longer cases are left without a final resolution.”


The number of children in care is rising. A key driver is children staying in care for longer and not leaving. Children’s social care is inadequately funded and in need of radical reform. Domestic abuse is increasing. A report by the Competition and Markets Authority published just two weeks ago found that some large private providers of fostering services and children’s homes were generating excessive profits. It added:

“The UK has sleepwalked into a dysfunctional children’s social care market … some children are not getting the right care from their placement. Some children are also being placed too far away from where they previously lived or in placements that require them to be separated from their siblings.”


That overstrained care system is now having to operate alongside a family justice system that is far from robust.

I have another example: kinship carers are grandparents, aunts, uncles, siblings and family friends who voluntarily take on the care of nearly 200,000 vulnerable children who might otherwise be taken into looked-after care. They often take on the children at very short notice following a proverbial knock on the door by a police officer or social worker. Largely unsupported financially or legally, they produce better outcomes for children and save the state millions in costs. I have heard so many of their stories, and many are heroic. But aspects of the justice system reveal a bias against them. During public law care proceedings, kinship carers are often not joined as parties to proceedings, so they can struggle to follow what is happening and understand their options. Many kinship care cases are private law cases, and legal advice and support is even more limited. Carers struggle to get legal aid. They struggle to get access to guidance and advice so that they can make the right court application for the protection of the children, and there appears now to be even less time in the court diary for private law cases.

The backlog of cases is exacerbating that bias to the detriment of children’s interests. Sir Andrew observed that there was

“no single, let alone simple”

answer to the question,

“what is to be done?”,

which is evidently true. But it is sometimes said that we judge the quality of a society by how it treats its old people and its vulnerable children. We have a way to go before our vulnerable children get the access to justice and the care that they deserve.

There are many on the committee and who are following this debate who will want to know what the Government’s commitment is to increasing resources, pushing ahead with the modernisation programme and building in innovation to the court system so that we do not face the problems that were reported in this report in future. Finally, I acknowledge my noble friend Lady Taylor’s excellent chairing of the Constitution Committee in bringing this informed report to the House.