Sarah Lilley: The ins and outs of family court cases over video call



Sarah Lilley

Sarah Lilley reflects on her crash course in online lawyering precipitated by the first lockdown last March.

In early March 2020 I walked out of Inverness Sheriff Court to make my way back to the office following a morning of court hearings. Inverness Castle, in which the sheriff court was housed for over 180 years was, later that month, due to close its doors for the last time and all court business would move to the Justice Centre on Longman Road. While I knew that my appearances in early March would be some of my final appearances in that building, little did I realise that the following week we would all be working from home and I would not set foot in a court for over a year. Neither I, nor any of my fellow practitioners, had an opportunity to properly bid farewell to the castle, nor indeed welcome the move to the long-awaited Justice Centre. Further, none of us had ever conducted a court hearing over telephone or video call.

Fast forward 12 months and in March this year, I participated in the first family law proof (evidential hearing) to be conducted over WebEx in Inverness Sheriff Court. Over five days, I represented a parent who was involved in a high conflict child residence and contact dispute. A year ago, I could never have anticipated an evidential hearing being conducted over video call. Yet here I was, sitting at my own desk, in my own home, presenting evidence and conducting proceedings of the utmost complexity, seriousness and sensitivity, all through a computer screen.

In September 2020 I wrote about rural courts and how, especially in the Highlands of Scotland, we should be embracing the switch to remote courtrooms. At the time I suggested that a possible disadvantage of a virtual courtroom would be the inability for a sheriff to properly assess those giving evidence. Now though, I believe it is, certainly in some cases, possible to assess credibility of witnesses over video call.

For trainee and junior lawyers too, it’s still possible to be involved in court proceedings, albeit in a different way. In my particular case, a trainee was present throughout the proof, from her home in a different part of Scotland. She helped with the preparation and sharing of documents and evidence on-screen and while her first experience of a proof differed vastly to my own initial such experience 12 years ago it was, nonetheless, valuable. Indeed, if remote hearings become a permanent fixture, this will likely become a standard part of the training process for all lawyers.

Some clients and witnesses may feel nervous at the thought of appearing in court remotely, especially if they’re not particularly tech-savvy, but the support given by the Sheriff Clerk and IT team of the Scottish Court Service is excellent. A few days before the proof the Sheriff Clerk arranged for us to ‘test’ the system and practice sharing our productions over the screen. Given that, in my case, one party was not represented by a lawyer, a member of the SCTS IT team ‘sat in’ throughout most of the hearing, to assist that person with the sharing of video and audio productions, as well as to provide support where any technical or IT challenges arose for participants.

I am hopeful that online family court hearings continue to be an option going forward. While I’m as keen as any of my fellow family lawyers to get back into a ‘real’ court there is, in my view, definitely a place for remote hearings, particularly for situations where the matter is of a procedural nature or taking place in a court that is not within the locality of the lawyers or clients involved. I think it is particularly well-suited to the Highlands of Scotland, given the rural and remote locations of some clients and courts.

If we work together to facilitate the administration of family law justice, we can continue to make this option work in a way that benefits children and families across Scotland.

Sarah Lilley is a senior associate at Brodies LLP