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Ayshea Megyery summarises recent cases and research in respect of the impact of COVID-19 in the family courts

Contents:

  1. Re P [2020] EWFC 32
  2. Re A [2020] EWCA Civ 583
  3. Re B [2020] EWCA Civ 584
  4. Re Q [2020] EWHC 1109
  5. A Local Authority v Mother [2020] EWHC 1086 Fam
  6. Research Published by the Nuffield Family Justice Observatory (NFJO)

Re P [2020] EWFC 32, dated 16/04/20 (The President)

Summary

Whether a case proceeds by remote hearing must be decided on the sometimes competing factors of the individual case.  However, pushing forward to achieve remote hearings must not be at the expense of a fair and just process. The decision of the President distils a number of key principles to be borne in mind. Just because a matter can be heard remotely does not mean it must be. In this case the delay in proceedings was outweighed by the fact that the hearing could not be properly or fairly conducted without the physical presence of the mother before the judge in the courtroom.  [29] As a result of that decision, the President re-listed the matter until such time that the restrictions relating to Covid-19 are lifted.

Procedural History

  • Proceedings were issued in April 2019, in respect of a girl now aged 7.  However, as the President noted that private proceedings had been going on for a ‘good deal longer than that.’ [1]
  • Since April 2019, the child had been living with a friend of her mother’s however, this was recognised as a holding position and not a suitable long term placement.
  • The matter was listed for a 15-day composite hearing of finding of fact and fixing of the final care plan to be heard by a Deputy High Court Judge sitting in the Family Court in Guildford beginning Monday 20 April 2020.  The issue was Fabricated or Induced Illness (FII) alleged by the Local Authority against the mother.  The allegations were fully contested with evidence required from Paediatrician, Psychologist and Psychiatrist.
  • A final hearing had to be aborted in 2019 so this was the second time the child had been told that a judge was imminently to determine her future care arrangements.
  • At A CMH on 13 March 2020 the ‘lockdown’ had not yet commenced, and the possibility of a remote hearing was not considered.
  • At the PTR on 3 April 2020, the parties, along with the judge, accepted that the hearing would now go ahead remotely having been influenced by MacDonald J’s ‘The Remote Access Family Court’ document which gave accounts of early successful remote hearings. That document had been taken as establishing that hearings must be conducted remotely. The President commented ‘MacDonald J’s document is firmly aimed at the mechanics of the process; it does not offer guidance, let alone give direction, on the wholly different issue of whether any particular hearing should, or should not, be conducted remotely. Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.’ [8]
  • Having been alerted to this case, on 16 April 2020, the President of the Family Division convened a short hearing to consider the merits of the matter proceeding remotely.

The Parties’ Positions

The Local Authority opposed an adjournment on the following basis:

  • Despite the complex nature of the allegations it was nonetheless ‘a hearing that can be properly undertaken over the remote system’ [14].  It was argued that the witnesses, save for the parents, were professionals whom often give evidence by video link in any event.
  • A further delay would only serve to prolong and further the harm suffered by the child left in limbo as to their future care and, as a result, the matter ‘must be heard now to meet her welfare needs’[15].
  • In the event that the Court did not support that view and remained concerned about the Mother’s participation throughout the hearing, it was submitted that the Court could hear the professional witnesses now and convene a hearing at a later date for the lay parties or, again in the alternative, have a split hearing [16].

The Father supported the Local Authority position, albeit he was not involved in the FII part of this case. The Father ‘remained concerned for his daughter’s welfare and wished[d] for the determination to be made now.’ [17].

The Children’s Guardian, supported the Local Authority including their idea that the hearing could be split or reconvened for the lay parties to give their evidence [18]

The Mother opposed the Local Authority. Mother’s inability to effectively participate within the proceedings (due to an unstable internet connection and her ability to receive advice and to give instructions throughout the hearing), that ‘this is a case that falls outside the category of hearing that could be contemplated as being able to be concluded over a remote platform in a manner that meets the requirements of fairness and justice.’ [19]

The President made note that some judges have allowed the attendance of lay parties, and their representative, to attend court to give evidence however this was not deemed appropriate in this matter due to the Mother’s suspected infection with Covid-19. [20]

General principles

  • ‘The Remote Access Family Court’ written by MacDonald J ‘does not offer guidance or give direction’as to whether a hearing should be heard remotely. The document, in the President’s words, is ‘aimed firmly at the mechanics’ [8] of remote hearings. ‘Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.’ [8] (emphasis added by the President).
  • FII is a type of child abuse which requires ‘exquisite sensitivity and skill on the part of the court.’ Furthermore, it is an ‘extremely unusual disorder’ and investigation of the same is ‘incredibly challenging.’ [11]  The President considered, in matters of FII, it crucial ‘for the judge to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined-in-chief and cross-examined, but equally when they are sitting in the well of the court reacting…‘  [12]
  • The letter issued by the ‘Presidents’ to judges on 9 April 2020 does not give guidance and should be considered as setting parameters which may assist the Court in determining whether or not a remote hearing should proceed. The following 3 factors were identified as being of particular relevance to family cases:
    • Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted remotely;
    • Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;
    • In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”
  • Parties are reminded of the President’s guidance issued on the 27 March 2020:

‘…we must not lose sight of our primary purpose as a Family Justice System, which is to enable the courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r1.1 ‘the overriding objective], part of which is to ensure that parties are ‘on an equal footing’ [FPR 2010, r1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.’ [23] (emphasis added by author)

  • In deciding whether to proceed, the Court and the parties may consider a range of factors including, the seriousness of the case, available facilities, the party’s available technology, personalities and expectations of participants and the tribunal’s experience of remote working to name but some. That is why, says the President ‘…that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance.’  [24]
  • The impact on professional diaries of vacating hearings cannot be a factor which weighs very significantly when deciding whether to proceed with a remote hearing. [25]
  • The Court should be mindful, even where all parties appear to consent to proceed by way of remote hearing, whether any particular case can proceed properly or fairly without the physical presence of a lay party in the courtroom. [29]

See the judgment here.

Re A [2020] EWCA Civ 583, dated 30/04/20 (The President, Lord Justice Peter Jackson, Lady Justice Nicola Davies)

Summary

This was an appeal from the decision of the court to hold a ‘hybrid’ final hearing where the proposed final care plans included adoption.  The parents would be afforded the facility to attend court to give evidence with representative attending remotely. The other witnesses who were all professionals would give evidence remotely.  The appeal was successful on 3 headlines:

  1. Mr A’s (father) inability to engage adequately with remote evidence (either at home or in the courtroom);
  2. The imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the judge
  3. The need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing. [49]

The court took the opportunity to restate guidelines for remote cases.

Procedural History

This case was the first appeal in a case relating to the welfare of children to reach the Court of Appeal on the issue of remote hearings during the COVID 19 pandemic. The appeal was heard on 22 April 2020. The appeal arises in care proceedings originally issued on 15 March 2019 in respect of 6 children. the appeal concerned the final hearing which will determine the long-term plans for their care. The local authority’s plan for the 3rd and 4th oldest, who are aged 11 and 8 years respectively, is for them to remain in long-term foster care. The plan for the youngest two, one aged 3 years 10 months and the other aged 20 months, was adoption.

Mr A is the father of all six children. Ms B is the mother of the oldest 4 children and Mrs A is the mother of the 2 youngest children [initials chosen at random]. The local authority’s concerns related to emotional and physical harm through exposure to domestic violence, coercive and controlling behaviour, instability, conflict, and volatility. Threshold included instances of neglect and poor supervision (arising from parental alcohol misuse), and lack of parental honesty.

The case had been listed for a final hearing for 5 days in the Family Court sitting in Carlisle commencing 30 March 2020. That hearing was vacated by the Designated Family Judge, HHJ Forrester, at the start of the COVID crisis and listed for further consideration once the status of the public health emergency became clearer, at a hearing which took place before HHJ Dodd on 3 April 2020.

Hearing 3.4.20

The Local Authority and the Guardian urged the court to proceed given the urgency of the adoption applications. The parents Mr and Mrs A opposed the hearing firstly on the ground that they were reluctant to leave their home during the current lockdown, secondly that a remote or hybrid hearing would not be sufficiently fair to meet the requirements of ECHR Articles 6 and 8, and thirdly that it was oppressive to expect their counsel to travel each day from Merseyside to Carlisle (as there were no hotels currently available in Carlisle for an overnight stay).

The judge considered that the case was sufficiently urgent to justify listing it in April/May for a hybrid hearing on the following basis:

  • The option of adoption would become less achievable with the passage of every month
  • As the children would have to move from their present placement in any event, it was necessary for the hearing to take place now, rather than waiting for the current restrictions on movement to be lifted
  • It was reasonable to expect the parents, in common with essential workers and others, to leave their home and come to the court building in Carlisle where it would be possible to maintain safe social distancing. He made it plain that the proposal that they should attend court was an offer of a facility, rather than a compulsory requirement.
  • The judge considered that the suggestion that a remote or hybrid hearing would breach the fair trial requirements of Article 6 as unarguable and that it was commonplace for witnesses to give evidence over a video link and it would be no detriment to the parents and the court would get the full flavour of their evidence by their physical attendance.
  • It was a matter for counsel whether they attended court in person or remotely.
  • Travel or accommodation difficulties were not a reason for not proceeding with the hearing.

HHJ Dodd gave directions for the final hearing to go ahead in “hybrid” form, over seven days in late April and early May. Mr and Mrs A were to attend in person to give evidence. In addition, in the light of Mr A’s concern about being unable to access a remote hearing due to dyslexia and a lack of suitable technology in the home, the judge directed that Mr A could attend for the entire hearing in person in a courtroom in front of the judge if he was unable to engage remotely. At that stage, it was also envisaged that his counsel would physically attend with him.

Review Hearing 17.4.20

This case was relisted before HHJ Dodd in order to give the court the opportunity to review the listing decision in the light of the LCJ’s message of 9 April. The Local authority now opposed the ‘hybrid’ hearing in light of the LCJ’s guidance. hearing However, the judge maintained the decision to conduct the hearing as a “hybrid” It was accepted that their counsel would join the proceedings remotely. The court maintained the option of Mr A attending the court throughout the hearing if he was unable to engage with the process remotely.  The judge noted that the LCJ’s message indicated that final care proceedings which were contested and in which the parents were expected to give evidence would not normally be suitable for a remote hearing. The judge drew a distinction, however, between a fully remote hearing, and the ‘hybrid’ hearing.  A key part of HHJ Dodd’s reasoning was ‘The main concern is the effect further delay may have on the chances of a successful adoption for X and Y – X will be 5 in June and research shows that the chances of an adoption being successful decrease significantly around that age.”[24] In fact X was due to turn 4 in June not 5.

Appeal

The court set out the following principles:

‘We wish to stress the following cardinal points with the utmost emphasis’:[3]

  1. The decision whether to conduct a remote hearing, and the means by which each individual case may be heard, are a matter for the judge or magistrate who is to conduct the hearing. It is a case management decision over which the first instance court will have a wide discretion, based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children. An appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong.
  2. Guidance or indications issued by the senior judiciary as to those cases which might, or might not, be suitable for a remote hearing are no more than that, namely guidance or illustrations aimed at supporting the judge or magistrates in deciding whether or not to conduct a remote hearing in a particular case.
  • The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might, or might not, have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa. For example, it is the common experience of many judges that remote hearings take longer to set up and undertake than normal face-to-face hearings; consequently, courts are now listing fewer cases each day than was the case some weeks ago. On the other hand, some court buildings remain fully open and have been set up for safe, socially isolated, hearings and it may now be possible to consider that a case may be heard safely in those courts when that was not the case in the early days of ‘lockdown’.

‘The President’s Guidance on Remote Hearings issued on 19 March 2020 lists the types of hearing which may be considered to be suitable for a remote hearing at paragraph 8. The list includes ‘All directions and case management hearings’ and, with respect to Public Law Children cases, the following three categories:[4]

  1. Emergency Protection Orders
  2. Interim Care Orders
  3. Issue Resolution Hearings.

Paragraph 10 of the 19 March Guidance goes on to state:

“10. It is possible that other cases may also be suitable to be dealt with remotely. As the current situation is changing so rapidly, and as the circumstances that will impact upon this decision are likely to differ from court to court and from day to day, the question of whether any particular case is heard remotely must be determined on a case-by-case basis.” [4]

As paragraph 3.3 of MacDonald J’s remote hearing manual records, on 25 March 2020 the President clarified the position concerning attended hearings by stating that:

“… live court-based hearings should now be confined only to exceptional circumstances where a remote hearing is not possible and yet the hearing is sufficiently urgent to mean that it must take place with those involved attending court in a manner which meets the social distancing requirements.” [5]

On 9 April 2020, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division sent a message to all circuit judges and district judges concerning remote working during the ‘lockdown’ [‘the LCJ’s message’]. That message included this guidance:

“Generally:

  1. If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing; if parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the ‘green light’ to conduct a hearing in this way;
  2. Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely;
  3. Video/Skype hearings are likely to be more effective than telephone. Unless the case is an emergency, court staff should set up the remote hearing.
  4. Parties should be told in plain terms at the start of the hearing that it is a court hearing and they must behave accordingly.[6]

In Family Cases in particular:

  1. Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted remotely;
  2. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;
  3. In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.” [6]

It follows, applying the principles set out above and the guidance that has been given, that:

  1. Final hearings in contested Public Law care or placement for adoption applications are not hearings which are as a category deemed to be suitable for remote hearing; it is, however, possible that a particular final care or placement for adoption case may be heard remotely;
  2. The task of determining whether or not a particular remote hearing should take place is one for the judge or magistrate to whom the case has been allocated, but regard should be had to the above principles and guidance, as amplified below;
  • The requirement for ‘exceptional circumstances’ applies to live, attended hearings while the current ‘lockdown’ continues.[8]

The factors that are likely to influence the decision on whether to proceed with a remote hearing will vary from case to case, court to court and judge to judge. We consider that they will include:

  1. The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
  2. Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;
  • Whether the parties are legally represented;
  1. The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;
  2. Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
  3. The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;
  • The scope and scale of the proposed hearing. How long is the hearing expected to last?
  • The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;
  1. The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
  2. Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates. [9]

Finally, and more generally, we would draw attention to, and endorse, the steer given in the LCJ’s message of 9 April at sub paragraph (a): ‘If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing’. Whilst in the present case it is true that the Children’s Guardian did not oppose proceeding with the planned hearing, all of the other parties, including the local authority, did. In such circumstances, when the applicant local authority itself does not support a remote contested final hearing, a court will require clear and cogent reasons for taking the contrary view and proceeding to hold one.[61]

It was further stated that in this particular case:

  • one important and potentially determinative factor was the ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair.
  • Another element, and one that is likely to be important in every case, is the age of the children and the degree of urgency that applies to the particular decision before the court. [10]
  • We wish to state with total clarity that our decision does not mean that there can be no remote final hearings on an application for a care order or a placement for adoption order. Neither is our decision to be taken as holding that there should be no ‘hybrid’ hearings, where one or more party physically attends at a courtroom in front of a judge [11]
  • Most importantly, the local authority does not support the judge’s conclusion that the adoption ‘window’ will imminently close for X and that it is necessary to determine his future immediately. This professional social work opinion, coupled with the information that the family finding process is on hold until the current COVID restrictions have been lifted, does not support the judge’s conclusion on timing.[60]

 See the judgment here.

Re B [2020] EWCA Civ 584, dated 30/04/20 (The President, Lord Justice Peter Jackson, Lady Justice Nicola Davies)

Summary

This case concerned an interim order and was the second appeal in a case relating to the welfare of children to reach the Court of Appeal on the issue of remote hearings during the COVID 19 pandemic. The appeal was heard on 23 April 2020. The appeal was allowed, and an interim care order made at a telephone hearing in the family court on 3.4.20 was set aside. The appeal concerned a 9-year-old boy, Sam (not his real name). As a result of the order he had been removed from the care of his grandmother and placed in foster care. The order should not have been made and Sam was returned home.

Procedural History

The case concerned two children, Sam and his sister Samantha.  Their mother was a drug user with a criminal record and their father, who died in 2019, was also a prolific drug user. When they were young, the local authority took care proceedings and in July 2013, their maternal grandmother, who is now aged 65, became their special guardian. The children were then aged 5 and 2. Unfortunately, there were ongoing concerns including the grandmother’s ability to cope, interventions by the children’s mother, and the actions of a maternal aunt and uncle, who was also a drug user and has on a number of occasions behaved in a highly inappropriate way towards the children. Allegations have from time to time been made by Samantha of physical abuse by the uncle and the aunt. In September 2019 the children were placed on child protection plans.

The catalyst for the proceedings was an incident on 20 March, when police were called to the home, where Samantha was outside, screaming. She said that she had been hit by her aunt. Samantha was placed in foster care. Sam remained with his Grandmother. On 23.3.20 Grandmother signed a section 20 agreement for Samantha.  However, on 1.4.20 Grandmother stated that she wanted Samantha back by 3.4.20. On 2.4.20 the Local Authority issued proceedings for an interim care order for Samantha and an interim supervision order for Sam. The case was heard before Recorder McCarthy QC on 3.4.20

During the course of the morning the Recorder received a continuous stream of bundles, documents and position statements in the other two cases. These included the Guardian’s position statement in the present case at 11.01. The significance of that document was that it led to a change in the local authority’s care plan in respect of Sam, which it announced to the other parties at around 11.30. The Guardian supported interim care orders in respect of both children. Part of the Guardian’s reasoning was the concern that under the current circumstances of the pandemic that the safety of Sam could not be monitored.

The case was called on at 12.31 and at 12.49 it was adjourned until later in the afternoon. During that hearing Mr Lue for Grandmother asked for an adjournment to another day so that he could take instructions about the change in the local authority’s case. The Recorder said he would consider that when the hearing resumed.

At 16.22 the present case restarted. At 17.52 he refused Mr Lue’s application for permission to appeal and scheduled a further hearing for 21 April. At 17.57 the hearing concluded with the interim care orders granted in respect of both children.

Appeal

  • By the time the Recorder reached the case in the afternoon the court of appeal observed that he had been working, almost continuously and mainly on the telephone, for 10½ hours. It was concluded ‘although we have found the decision in this case to have been unquestionably wrong, the nature of the workload faced by the Recorder, experienced as he is, was surely a contributory factor.’ [20]
  • There were concerns about the lack of enquiries made by the Guardian. ‘She had no time to make inquiries, beyond reading the papers and having one conversation with the social worker at about 9 am. In cases of real urgency that may be unavoidable, but in this case it is, to put it at its lowest, surprising that she and the children’s solicitor felt it appropriate to make such a bold recommendation from such a low knowledge base.’ [22]
  • The Guardian was also unavailable for the hearing in the afternoon therefore, unable to reflect on opposing arguments.
  • The Guardian’s analysis was unbalanced without reference to the emotional detriment to Sam in being removed from his only parental figure without notice or preparation.
  • There was no credible explanation for why there had to be an emergency decision.
  • The Local Authority decision was undocumented and the change of plan unreasoned. There was no evidence about it and no care plan to underpin it.
  • We also firmly dismiss the proposition that the current ‘lockdown’ provides a reason for the removal of a child where none would otherwise exist. It is possible to envisage a case at the margins where face-to-face supervision is so important that a child would not be safe without it, but this case and most others like it fall nowhere near that category.[23]
  • The application for permission to appeal was refused. Mr Lue on behalf of the Grandmother did not seek a stay as he might have done.
  • In this case the central concern related to emotional harm stretching back for years. On the information then before the court it could not be plausibly argued that something had now happened to make Sam’s removal that evening necessary.
  • An adjournment would have enabled the parties and the court to have all the necessary information. As it was, crucial information was lacking, and its absence was overlooked by the court.
  • There is a qualitative difference between a remote hearing conducted over the telephone and one undertaken via a video platform. If the application for an interim care order for Sam had been adjourned, it may well have been possible for the adjourned hearing to have been conducted over a video link and that single factor might, of itself, have justified an adjournment in a case which, in our view, plainly was not so urgent that it needed to be determined on 3 April.
  • Grandmother was at home giving instructions to Mr Lue as best she could. She speaks English but it is not her first language. They were ‘meeting’ for the first time, and only by telephone. She had expected that the hearing would concern Samantha, only to find during the course of the day that it had turned into a hearing about Sam. She had no opportunity to file any evidence or even to properly consider the evidence filed by others. At 6 pm she was faced with an order that she had no chance of challenging and within an hour Sam was taken into foster care. It must have been utterly bewildering for them both. [36]

 See the judgment here.

Re Q [2020] EWHC 1109, dated 06/05/2020 (The President)

Summary
The parents had been separated for a number of years. The child’s mother, of European origin and requiring the assistance of an interpreter during the proceedings, had been Q’s primary carer. Q’s father, who is English, was seeing Q regularly until October 2018 when all contact stopped after Q’s mother made allegations that he had sexually abused their daughter. Contact was restarted on a supervised basis in July 2019. In October 2019 DDJ O’Leary conducted a seven day fact finding hearing in which she concluded that there had been no sexual impropriety. Restrictions on contact were relaxed and the case was adjourned for a psychological assessment of the child’s parents, which ultimately recommended in immediate change of Q’s residence from mother to father. Upon receipt of the report the Court directed increased contact such that the child should spend one week with each parent, which continued in the Covid-19 lockdown. In December 2019 the case was listed for a final hearing before DDJ O’Leary on 22 April 2020.

A pre-trial review took place on 24.3.20. It was conducted remotely, and the case was set down for a remote three day final hearing commencing on 22.4.20. The case was subsequently adjourned, and father appealed. The appeal was allowed in part and the matter remitted to the deputy district judge to redetermine the question of how and when the final hearing was to take place.

Procedural History

On 15.4.20 the Designated Family Judge for the Central Family Court, HHJ Tolson QC, in the course of a paper review of pending trials unilaterally directed that the planned hearing should be vacated. That decision was reviewed at a further remote hearing before the trial judge on 20.4.20, prior to which a Guardian had been appointed to represent Q, who had filed a report accepting the expert opinion of the psychologist. On 20.4.20 Mother’s counsel applied for an adjournment on the basis that the matter could not be determined fairly at a remote hearing. The application was refused. The judge drew attention to her close connection to the case and concluding that she is ‘certain’ that a fair hearing can and should take place on 22.4.20; that Q needs finality and that in the present lockdown Q is displaying evidence of emotional harm.

Re P (A Child: Remote Hearings) [2020] EWFC 32 was handed down on 21 April 2020, it being the first reported case concerning remote hearings. On the same day DDJ O’Leary engaged in email correspondence with HHJ Tolson QC over the question of whether the remote hearing planned the following day should take place. A position statement was filed on behalf of Father on 21 April 2020 ready for the final hearing. Whilst this document was based upon evidence that was already before the Court, it contained a list of detailed criticism of the mother’s care of Q. At the start of the hearing the trial judge indicated that she had been reviewing the decision to proceed having reviewed Re P. After submissions from all parties the court decided to adjourn the hearing and re-list for a face to face hearing in due course.

Appeal
Q’s father appealed the decision to adjourn, for which permission was granted by DDJ O’Leary, on the following grounds:

(1)The judge misapplied the judgment in Re P;
(2) There had been no material change in circumstances between the two hearings and, insofar as the judge relied upon matters referred to in father’s position statement these arose from evidence that was already before the court on 20 April 2020, and the judge did not raise this issue with the parties in order for it to be dealt with in submissions;
(3) Insufficient weight was afforded to Q’s welfare; and
(4) Insufficient regard was given to the overriding objective in FPR 1.1.

  • The President was clear that the point made in this appeal is ‘purely one of fairness and process.’ The President was persuaded that the DDJ fell into error with respect to two matters which are at the centre of this appeal (i) Father’s position statement and (ii) the approach to Q’s welfare.
  • In relation Father’s position statement, the President notes that this did not contain any new material and further that the Father’s position remained that he did not seek to cross-examine the Mother at the final hearing. The President concludes that it is clear that DDJ considered that the way that the case for the father was now being put would, or least might, entail hearing ‘what the mother has to say about her care of the child’ and that, were she to agree with the submissions made by Father’s counsel, the mother is ‘very likely to feel a great sense of injustice and would probably choose to challenge a decision’. In the circumstances the DDJ should have bottomed out this issue in submissions, rather than raising it for the first time in her judgment. That constituted a material error in the fair conduct of the proceedings. Therefore, the appeal succeeded on this basis.[31]
  • As to the welfare point, the President found the decisions on 22 April and 20 April difficult to reconcile. On 20 April the decision to conduct an immediate hearing conducted remotely was, in part, on the basis that Q needed finality and the potential for emotional harm must come to an end. On 22 April the judgment concludes that W’s welfare was currently being maintained by the present arrangements. No explanation was given for this apparent judicial change of approach to the issue of welfare. Again, the Judge fell into error in this respect and the appeal succeeded on this basis also.
  • The appeal did not succeed on the basis that the case of Re P was misapplied. ‘The decision in Re P is expressly tied to the small number of cases in which allegations of Factitious or Induced Illness [‘FII’] are made. Paragraph 24 in Re P is of more general, obiter, application and the judge was correct in referring to it.’ [33]
  • Each judge or magistrate must consider the individual case before the court and determine whether or not it should proceed remotely in whole or in part. It is to be accepted that a consequence of this approach is that different courts may take a different view on similar cases and that this may inevitably give rise to some inconsistency from court to court, or even from judge to judge. The Family Justice Observatory’s speedy research into remote hearings in the Family Court will inform a review of the current situation and indicate whether the present guidance needs to be revised. It is not therefore the place to add to the learning on remote hearings in this judgment. The decision in the present case should be seen as an ordinary appeal, where the issue happens to be a remote hearing, but where the appeal has turned upon a failure of process and an error in approaching the issue of welfare. [34]

See the judgment here.

A LOCAL AUTHORITY v Mother [2020] EWHC 1086 fam Lieven J dated 5.5.20

Summary

This case concerned the local authority’s application for a care order in respect of SX.  In April 2019, his two-month-old sister, AX, had died at home of unknown causes. It was subsequently established that AX had sustained 65 fractures to various parts of her body. The local authority were granted an interim care order and SX has been living with foster carers since then.  The Local Authority alleged that the injuries were inflicted by one or both of the parents and that each parent knew that the other had caused injury or was likely to have caused injury to AX. The mother did not challenge the medical evidence but denied causing the injuries and thus they could only have been caused by the father. The hearing commenced with 5 days of medical evidence remotely using the zoom platform.  The father made an application for an adjournment on the grounds of ill health (rather than on the grounds of this being a remote hearing) A psychiatric report was obtained regarding father’s mental ill health – he stated that he was feeling suicidal.  The Psychiatric report recommended that father should give evidence by video and was otherwise capable of participating in the hearing. The Judge heard submissions and determined that this was a hearing that was suitable to continue remotely and that the parents’ evidence should be heard over zoom. However, Mrs Justice Lieven stressed that she would keep the situation under continual review.

Judgement

  • Mrs Justice Lieven said she did not think that it was possible to say as a generality that a remote hearing was less good at getting to the truth than one in a courtroom. “I am aware that the Nuffield Foundation are currently carrying out research into remote hearings and it may be that this will cast more light on this topic. However, I do not feel it is appropriate to adjourn for this research to be produced. I would be very surprised if it was sufficiently definitive as to give one correct course.”
  • The judge then applied the ten factors from A (Children) (Remote Hearing: Care and Placement Orders)to the present case. She found:
    • The importance and nature of the issue to be determined.“This is a final fact finding hearing and the subject matter could not be more important. However, the fact that this case is of the utmost gravity does not mean that it is in a category of case that cannot go on remotely. It is clear from Re A that in every case there is an individual decision to be made, the importance and nature of the issue is but one factor.”
    • The need for urgency.On the facts of this case that was “a complicated factor”, she said. SX might be said to be at a particularly crucial age, as he was due to start school in September, if she made any findings then a welfare hearing would follow delaying the final decision even further “but one could probably put forward a serious argument on urgency in most Children Act proceedings”. Mrs Justice Lieven said she was conscious that in both Re A and Re B the first instance judges considered the cases to be urgent. If the case was adjourned at this point then it would be by no means straightforward for it to be re-listed quickly. “This again is a factor which is going to arise in a very large proportion of the cases being adjourned because of Covid 19. Particularly important was the position of the mother, who had asthma and had indicated that she was not prepared to leave home and come to court at the present time. Mrs Justice Lieven thought it was reasonable to assume that if she did adjourn the case she might well be adjourning it for many months.
    • The question of legal representation. All parties in this case were represented by highly experienced and highly competent QCs. Mrs Justice Lieven had not the slightest doubt that the parents were getting the best possible advice and that their interests would be fully protected at all times.
    • The ability of the parents to engage with the proceedings.Both parents were native English speakers, neither had any language or communication problems and were of normal intelligence. The mother had access to two screens, although one was her phone, but she had been able to find documents in the electronic bundle and had felt fully engaged with the hearing. The position of the father had listened to the evidence and had been able to follow it. Initially he only had access to the hearing via a phone, but he had been able to borrow a computer. “I made clear that I would not proceed if the parents could only follow proceedings via a phone. The hearing is too lengthy and too complex for that to be an appropriate course.”
    • This was not a case proceeding on submissions alone.
    • The issue now involves lay evidence of fact.That evidence was strongly contested and both parents would be subject to cross examination from three QCs. The impact of the nature of the evidence on the decision as to whether a remote hearing was appropriate was “perhaps the most complicated element of the assessment”, Mrs Justice Lieven said. As long as the lay parties could follow the evidence, which they could in this case, Mrs Justice Lieven was entirely satisfied that it was fair to all concerned and met principles of natural justice to proceed with the professional evidence. In respect of the lay evidence the first and most important must be whether it was just to the parties to proceed with them giving their evidence remotely. “They must be able to follow the questions and be able to give their best in the answers. If the technology works, and they are in a position to understand the documents, then in principle a remote hearing is capable of being fair.” It had been pointed out by two of the QCs that vulnerable witnesses routinely gave evidence remotely in the family and criminal courts. “Subject to all the protection in PD3AA, the assumption must be that such a process is capable of being fair and meets the requirements of Article 6.” A judge would have to be astute in a remote hearing to ensure the witness was following the question and where appropriate had the relevant document, Mrs Justice Lieven said. “It is easier to do this in a live hearing because one can see more easily what the witness has in front of them, and sometimes tell by their body language if they are completely lost. However, it is perfectly possible with a little sensitivity to do the same task remotely.” She was, however, concerned about whether the father would be able to follow references to documents in cross examination. However, it had already been agreed that all documentary references will be read out to him.
    • The length of the hearing.This hearing was listed for nearly 15 days. The mother and father were both likely to be giving evidence for at least a day. If they gave evidence remotely it would undoubtedly be necessary to give a number of breaks, Mrs Justice Lieven said. “This will be a gruelling process, and I have little doubt that they will both find it difficult. It is important however to bear in mind that parents being accused of very seriously harming their child are likely to find giving evidence in the courtroom also intensely gruelling.” She was, however, very concerned about the father potentially not having support if giving evidence remotely, particularly during a time of lockdown. “I would describe this as the humanity of the situation, being somewhat different from the consideration of a fair trial.. He is isolating on his own, but I am told is receiving support from his mother.” However, she concluded that the father was likely to find the whole process intensely stressful whatever course was undertaken. Mrs Justice Lieven noted the Court of Appeal’s concern in Re A and Re B about the increased strain placed on the court by remote as opposed to courtroom hearings, however, she did not consider this case as being as stressful as that of the Judge in Re B “who had to face some 10 hours of different hearings, and a very urgent case with multiple late papers”.
    • The hearing is being conducted via Zoom.The technology had worked well over five days of evidence All participants have largely retained connection and the quality of video and sound has been very good. Courtroom hearings have their own logistical problems. The technology had not impeded a fair trial. Overall, she considered the technology to be capable of providing a satisfactory hearing.
    • The ability of the court and the participants to manage the technology. There is an overly large electronic bundle (over 5000 pages. “The ability of the parents to manage the technology whilst giving evidence has not yet been fully tested. The only way to deal with this is to be astute to the potential for difficulties and to be prepared to review the situation as the hearing continues.”
    • Whether there were any safe alternatives that would allow some parts of the evidence to be heard in court.This was Mrs Justice Lieven’s initial preferred approach. However, the mother had asthma, no access to a car and was unwilling to come to court, even with precautions in place. An adjournment could mean many months of delay.

Read about the case here.

Research Published by the Nuffield Family Justice Observatory (NFJO)

President of the Family Division, Sir Andrew McFarlane asked the Nuffield Family Justice Observatory to carry out the study three weeks ago to examine views after some hearings during the crisis have moved to be held online rather than face to face. The NFJO is an independent organisation which is committed to improving life for children and families by putting data and evidence at the heart of the family justice system.

Submissions were gathered from families with children and all professionals working in the family justice system, including judges, barristers, solicitors, Cafcass workers, court staff and social workers.  Input was gathered via virtual meetings and events and includes responses from over 1,000 participants. Further work is required to ensure that the impact of remote hearings during the pandemic can been researched effectively in order to inform future practice.

  • Respondents were evenly balanced in terms of positive and negative reactions to remote hearings.
  • Concerns raised about fairness in certain circumstances:
    • Difficult to read reactions and communicate in a humane and sensitive way
    • Ensuring a party’s full participation
    • Issues of confidentiality and privacy
    • Specific cases of domestic abuse
    • parties with a disability or cognitive impairment
    • Parties requiring intermediary or interpreter.
  • A wide variation in the cases going ahead or being adjourned therefore national guidance would be valuable
  • Variety of platforms used. Phones being most common, but video hearings felt to be more effective
  • Concerns about access to appropriate technology
  • Concerns about roles and responsibilities in administration of hearings
  • Concerns about varying technical abilities and limited IT support and training.
  • Remote working having a negative impact on health and well-being of professionals. Although for some was more efficient.
  • Good practice and suggestions for the future which largely related to management of the process, preparation and running of the hearings and making the most effective use of technology.
  • Feedback gained about the type of cases which should or should not be heard remotely.

Read about it here.

Mrs Ayshea Megyery

PSQB

12th May 2020

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