Naomi McLoughlin discusses the recent decision in A Local Authority v the Mother & Ors [2020] EWHC 1233 (Fam)

A Local Authority v the Mother & Ors [2020] EWHC 1233 (Fam)

Williams J applies the guidance from recent cases and the President’s Guidance in a decision handed down at 4.30pm on 15 May 2020. The full judgment can be found here.

The judgment addresses the question of whether a fact-finding hearing should continue either remotely or semi-remotely or whether the case should be adjourned until an in-person hearing of pre-Covid 19 format can take place.

Ayesha Megyery has summarised the recent cases and research in respect of the impact of COVID-19 in the family courts. This can be found here.

The case involved four children, the fifth child a 3 year old girl died in hospital and test results indicated that her death was consistent with cocaine ingestion. This had led to a finding of fact hearing within the care proceedings. At a pre-trial review all parties agreed that the case should continue to be listed and should be heard remotely. Williams J approved the use of Zoom on the basis there was a pressing business need for that platform to be used. Arrangements had been made for the trial bundle which totalled around 7500 pages to be provided digitally by Caseline.

The expert evidence was heard remotely over the course of 7 days by Zoom and included the assistance of an interpreter. No party required any oral evidence from the social work witnesses. By 1 May 2020, the hearing had therefore reached the close of the oral evidence save for the mother, the father, and the maternal and paternal grandmothers.

In relation to the expert evidence the judgment notes the following:

• It was difficult for the lay parties to follow due to the inability to have immediate interchanges with their lawyers. This meant they were unable to follow fully and understand fully the evidence.
• It is essential that the lay parties understand the nature of the expert evidence and its consequences.
• The ability to ask questions or to have difficult concepts explained in simple language is much harder to achieve remotely.
• The remote hearing process is also more tiring than a face to face hearing.
• Technical issues did not prevent the parties participating as they had intended albeit the difficulties in discussing the evidence face to face became clear as the case progressed.
• Due to the distressing nature of the evidence being given by the experts, the parties had at times elected to leave the hearing. Although had this been a face to face hearing, it is likely that this would have been the case in any event.

The issue was then how the hearing could proceed given oral evidence was required from the Mother, Father, Paternal Grandmother and Maternal Grandmother.

The Mother had a laptop and suitable internet connection enabling her to participate and join the hearing remotely if required. The Paternal Grandmother had been provided with a tablet to enable her to participate in the hearing. The Maternal Grandmother could give her evidence via Zoom telephone.

The Father was shielding himself as he believed he was in the category of individuals who were considered to be clinically extremely vulnerable. He had not received a letter from his GP confirming this, but it was a view he had taken himself. He was not prepared to leave his home to attend Court. The Father suffered from dyslexia and had been hampered by difficulties with his own technology during the hearing.

The Maternal Grandmother had symptoms of Covid-19 and had been diagnosed with the condition by the GP via a telephone consultation. The Mother had contact with the maternal grandmother around 27 April and so could not attend Court prior to 11 May. Additionally, the Mother was represented by leading counsel who had to remain shielded until 30 June.

Following the conclusion of the oral expert evidence, the Local Authority filed an amended threshold which no longer included the maternal grandmother however she was still a potential witness. Following this, the parties’ positions were as follows:

• The Local Authority considered that the hearing should continue, and the fact find hearing completed. As an alternative, they submitted that the necessary evidence to enable the assessments to be concluded should be heard. A further ‘rolled up’ hearing could then be listed to decide the remaining issues of fact and the welfare decisions. It was suggested the remainder of the finding of fact hearing could be heard remotely or in a hybrid hearing.
• The Children’s Guardian considered that the finding of fact hearing should conclude as soon as possible to enable the assessment to commence. It was considered that the children were all suffering harm as a result of the delay in the proceedings. As a fallback, the Children’s Guardian supported that discrete issues of fact could be deferred until a later ‘rolled up’ hearing. It was also submitted this case was exceptional and appropriate arrangements could be made for an in person hearing to take place whilst observing social distancing.
• The Mother considered that a fair hearing could only take place if she could attend Court in person to give evidence and the evidence of others could only be tested fairly if such evidence was given in person. Additionally, she wished to see her legal team face to face prior to giving evidence and this was essential in order to do justice in her case. She proposed to adjourn the case until the first available date after 30 June 2020.
• The Father was not prepared to leave his home to attend Court as he was shielding himself. He did not consider that a fair assessment of the evidence could take place by anything other than a face to face hearing. It was confirmed he would feel safe to attend Court by the end of June. It was considered essential for him to meet with his legal team face to face before he gave evidence. It was submitted that a trial which did not take the usual face-to-face format, and which was not preceded by a face to face conference could not be a fair one.
• The Paternal Grandmother wished to proceed. She had been provided with a tablet to enable her to participate in the hearing. She considered it is essential that she gives evidence in person to the court and that she is able to engage face to face with her legal team in advance and to be supported through the process. She also wished to be able to liaise directly with her legal team when the mother and father are giving their evidence. Subject to confirmation of safe arrangements the paternal grandmother and her legal team were prepared to attend at the RCJ to enable her to give evidence and to be present whilst the mother and father gave evidence.
• The Maternal Grandmother supported the Mother’s application for an adjournment.

The case was adjourned to allow the parties to consider the amended threshold and also to consider the announcement of the review of the covid-19 restrictions which was due on 10 May 2020 from the Prime Minister.

The announcement made on Sunday, 10 May and the subsequent 50-page guidance issued on Monday 11 May did not bring much greater clarity to the position that the parties and the court faced. Within the guidance there was a tacit recognition that for those in the clinically extremely vulnerable category it was likely that they would be required to shield beyond 30 June. However, the relaxation of the restrictions to encourage the resumption of work supported the possibility of more flexibility in terms of in-person hearings; subject of course to appropriate risk assessments and the implementation of proper safety measures.

On 11 May 2020, the Mother informed the Court that she felt obliged to assist the maternal grandmother with her medical equipment on 8 May 2020. This meant the Mother ought to self-isolate for 14 days from 8 May 2020. The Judge was also able to liaise with HMCTS facilities and IT staff to see what technology, staff structures and protocols could be put in place to enable a Covid-19 safe hearing to take place in two courts in the RCJ.

Submissions resumed on the issue of how a hearing could take place and it emerged that some if not all of the parties contemplated an attended hearing taking place in the last week of June. The options for the Court were to continue the hearing remotely, adjourn the hearing until the last week of June or adjourn the hearing until September where the prospect of an in-person hearing was more likely. The parties’ positions were as follows:

• The Local Authority resisted any adjournment to September given the implications for the children and the lack of progress that could be made in assessments. They accepted it would be difficult to delimitate matters of evidence and all factual maters should be heard together.
• The Mother would be able to attend in person, however her leading counsel would not so the Mother did not support this proposal. The Mother’s article 6 right was emphasised and submitted the guidance indicated that the starting point was that remote hearings were unlikely to be appropriate in welfare cases or cases where parents were to be called to give evidence.
• The Father opposed the resumption of the hearing. It was accepted the process to date had been fair but that the giving of evidence from the lay parties was a different matter and a fair hearing could not be provided in circumstances where the mother could not be cross examined in person.
• The Paternal Grandmother wished for the hearing to be resolved as quickly as possible and her willingness to attend court in person with her legal team in order to resume the hearing.
• The Children’s Guardian preferred option was to resume the hearing and hear evidence from the mother remotely and evidence from the father and paternal grandmother in person if they wished. It was submitted this was an exceptional case which could properly proceed in a hybrid hearing rather than awaiting the resumption of normal service. The need to show adaptability was emphasised and it was submitted hat fair hearings could be provided by various means other than traditional. As a default, the Children’s Guardian urged the court to proceed in June.

The Court considered the guidance from 27 March 2020 and 9 April 2020 as well as the recently reported cases.

Williams J agreed with the view expressed by Leggat LJ which is referenced in A Local Authority v M and F [2020] EWHC 1086 (Fam) in that the credibility of a witness and the truthfulness of their account in the vast majority of cases is reliant principally upon the evaluation of the content of their evidence rather than the evaluation of their demeanour. Additionally, it is a rare case where a judge is left without any contemporaneous evidence from the witness as most witnesses have recorded their evidence in written or recorded form on one or more occasions prior to giving it in court. There will also be evidence from other sources such as digital or other records. the evaluation of the credibility of a witness’ account will usually take place against a backdrop where consistency can be judged against earlier accounts, against contemporaneous evidence and against the evidence of others.

The Court recognised the advantages of an in person hearing for lay clients as set out in Re P [2020] EWFC 32 and Re Q (A Child) [2020] EWHC 1109 (Fam).

The Court considered 9 factors:

1. The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?

It concluded that there were serious allegations before the Court – the issue being the role that each individual played in how cocaine came to be ingested by the child – and important in terms of the ultimate welfare outcome.

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?

The proceedings had been underway for nearly twice the 26-week statutory timetable. A delay of 3.5 months until September would be a very significant delay for the younger children, and in respect of the youngest, would mean that she had been in foster care for the entirety of the first year of her life.

3. Whether the parties are legally represented.

All parties are represented by experienced leading counsel, junior counsel and solicitors. The Mother’s leading counsel and solicitor would have to shield however in the event the restrictions are relaxed over the summer, Mother’s leading counsel believes she would be able to attend an in person hearing in September although there is no guarantee of this.

4. 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;

The parents were able to participate remotely effectively. For the paternal grandmother who has hearing difficulties, participation remotely was more of a challenge. The maternal grandmother relied on summaries from her legal team. Additionally, it was unclear whether the maternal grandmother would be able to attend an in person hearing in September. The Court noted that participating by listening to medical expert evidence and participating by giving evidence and by hearing the evidence of the other lay parties and communicating instructions is a different matter.

5. Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
6. 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;

Only evidence from lay parties remained. The Court considered that in many cases the existence of a contemporaneous digital fingerprint or other contemporaneous or corroborative documentary or other evidence might affect the importance of the oral evidence. When the court has a host of other sources of evidence against which to measure the veracity or credibility of a party’s evidence the significance of the oral evidence may be reduced. Conversely where other sources of evidence are limited the importance of the oral evidence of the parties assumes a greater prominence and the court’s determination of the parties’ credibility in the round including their demeanour in court as well as their responses to questioning may become crucial.

7. 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.

The use of Zoom had permitted an effective hearing with little glitches throughout the hearing. The vast majority of evidence and submissions had taken place very effectively from the Court’s perspective. The mother and father could give evidence via Zoom. The paternal grandmother would face a considerable struggle in giving evidence by Zoom as she had so far been unable to operate it effectively. The maternal grandmother is unable to participate by Zoom and can only participate by audio.

8. The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;

The Court was satisfied that the remote technology would provide an effective means of the evidence being adduced and tested. The only reservation being that some of the parties have experienced bandwidth difficulties at various time which has required them either to resort to audio only participation or has a required a degree of repetition. This was manageable during the expert evidence, but it could not so easily be addressed were it to occur in the middle of a crucial piece of cross examination.

9. 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.

The technology can be put into place to allow a semi-remote hearing with some parties and their lawyers attending and others remaining on Zoom. Time has been spent to ensure that physical arrangements in court would maintain proper social distancing requirements and that the access to and egress from the court together with the court waiting area could be configured in such a way to comply with government guidance.

The Court concluded:

• The issues remaining were not complex but were of considerable importance to the family. The outcome would have profound implications for the possibilities of rehabilitation and thus the family life of the children and the parties.
• The absence of contemporary documentary evidence placed considerable focus on the oral evidence. The giving of evidence in a court setting in the presence of the judge has an advantage both to the party and the court. The dynamic between the parties could been observed and so evidence in person has a material advantage over remote evidence giving.
• The mother and father could not participate until the end of June. If some lay parties were allowed to attend and others not the parties would be participating on an equal footing.
• The mother, father and paternal grandmother can attend a court hearing in June. The Court accepted that the mother’s leading counsel could not attend at this time and this amounted to some interference with how the mother and her legal team would choose to exercise their fair trial rights and it was likely to have some impact on the presentation of the mother’s case, it does not mean that a fair trial cannot be delivered. A party’s subjective perception of what amounts to a fair hearing is not determinative. A fair hearing sets a minimum standard but how it is delivered is not fixed and may vary from one case to another.
• Balanced against the mother’s article 6 rights are the article 6 rights of the other parties to a fair trial within a reasonable time. All, including the mother have emphasised their desire for the case to be resolved as soon as possible. The agreement of a party to proceeding either remotely or in a hybrid hearing does not relieve the court of the responsibility to determine whether a fair hearing can take place any more than the opposition of a party relieves the court of that obligation. Continuing the case remotely would be a significant interference with the mother’s right to a fair hearing and would prevent a fair hearing and that would outweigh the limited delay involved in adjourning to June which would constitute a hearing within a reasonable time. Thereafter a balance is to be struck between interfering with the children’s rights to a fair hearing within a reasonable time and the mother’s rights to a fair hearing within a reasonable time.
• There is no perfect solution to this clash of rights. Delaying until September will ensure fullest compliance with the mother’s Article 6 rights if leading counsel can attend in person. However, that delay will infringe upon the children’s rights to a fair hearing within a reasonable time.

The Court balancing the competing rights adjourned the hearing until the end of June to facilitate an in person hearing which will allow all of the parties remaining to give evidence in court. If such a hearing could not be facilitated then the hearing would be adjourned until September.

Analysis

It is likely that in cases where oral evidence is required from lay parties and the cases cannot be resolved by submissions, the Court is likely to consider a hybrid hearing or an in-person hearing if the Court can accommodate such a hearing safely. Determining whether such hearing can go ahead is ultimately a balancing exercise of the interference of the various article 6 and 8 rights of each of the parties involved and also a consideration of the practical options available.

The current issues for enabling an in-person hearing are:

• How can in person hearings be reintroduced when social distancing is likely to be extremely difficult to manage and when there is likely to be an element of commuting?
• Are hybrid or part attended hearing appropriate and can the current technology support this?
• What risk assessments are being undertaken before court centres are approved as ‘safe’ for in-person hearing and are these assessments accessible to court users and are they reliable?

HMCTS have published an over-arching risk assessment and checklist of factors for courts to apply to enable in person hearings. This can be found here.

The North Eastern Circuit have hosted a question and answer session with the DFJs from York, Sheffield and Newcastle. Cobb J was also in attendance. It was clear from that session that every effort is being made to enable in person hearings to take place as soon as possible whilst maintaining the safety of the court users and staff. Cases will be considered on a case by case basis as to whether they are suitable for an in person or hybrid hearing drawing on the guidance from the reported cases on the issue so far. Cases will only be heard in person if all those attending can be made safe in the court room and in their passage through the court building.

Leeds Crown Court has recently opened to allow some in person criminal hearings to take place. Feedback from users has been positive in relation to the safety measures and systems that are in place. However, such arrangements clearly impact the amount of cases which can be heard, and they will reduce hearing capacity at court to around 20-25%. Reliance will be placed on DDJs and Recorders to help clear the growing back log of delayed cases. To avoid further delay the hearings that can take remotely should and will often not involve evidence from lay parties.

With the rollout of the HMCTS approved CVP platform due to occur gradually in the next few weeks, remote and hybrid hearings are more likely to take place for cases of longer duration and which require evidence to be heard. Each case will have to be considered in turn as to how a fair hearing can occur especially if such hearings involve the evidence of lay parties.

Further guidance on the use of in person hearings and hybrid hearings is expected from the President of the Family Division at the end of this week.