Keeping up with the guidance on remote hearings

14 May

Since the Covid 19 pandemic swept the UK, practitioners have been overwhelmed with guidance about when and by what means the Family Court should be conducting hearings remotely (particularly, those that are contested, listed for multiple days and/or consider a more complex range of issues).

 

The President of the Family Division has valiantly endeavoured to provide clarity, and the recent Court of Appeal decisions in Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA (Civ) 583 & Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA (Civ) 584 have made good strides in doing just that.

 

The starting points remains that “the question of whether any particular case is heard remotely must be determined on a case-by-case basis”. 1 This is a case management function for the judge who 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”. 2 The Court of Appeal has emphasised that an appeal against any such decision will only succeed where it “falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong”. 3

 

Soon after the lockdown restrictions were imposed, the President had before him the case of Re P (A Child: Remote Hearing) [2020] EWFC 32, care proceedings concerning a 7 year old child. Allegations were made against the Mother of Fabricated or Induced Illness (FII). The proceedings had already been running for 1 year, and were listed for a fifteen day fact-finding hearing to determine the allegations of FII. Sixteen witnesses were scheduled to attend the hearing (many of which were professional and might have given evidence remotely irrespective of the current restrictions on public movement). The court’s clear conclusion was that the issues to be tried were simply too complex for a remote hearing. Of significant concern was how, on a practical level, the Mother would be able to participate meaningfully in the hearing (particularly, as Mother believed she, herself, may have contracted Covid 19 and was experiencing symptoms). The conclusion was that a decision to continue would carry with it “a significant risk that the process as a whole would not be fair”. 4


Re A and Re B came before the Court of Appeal before the same three judges on consecutive days: Sir Andrew McFarlane, Lord Justice Peter Jackson and Lady Justice Nicola Davies.


The first, Re A, was an appeal by the Father in care proceedings against a decision to proceed with a 7-day final hearing, not wholly remotely, but as what has come to be known as a ‘hybrid hearing’. The first instance judge (HHJ Dodd) heard objections from the Father as to his ability to participate meaningfully with the proceedings (due jointly to his cognitive ability and the lack of appropriate technology available to him at home). A psychological assessment of the Father had concluded him to be “emotionally fragile and brittle” 5 and in addition, his diagnosis of dyslexia contributed to his difficulties in processing information and becoming frustrated as a result.


In order to access a remote hearing from home, the Father would have needed to share an iPad with his wife (and Mother to some of the subject children). HHJ Dodd accepted that the hearing could not be a “fully remote” hearing, but considered that if the parents attended court in person on each day of the hearing (each accompanied by a representative from their respective solicitor) they could engage fully and properly with the technology in the courtroom with the judge. The rest of the parties were still to attend remotely. The Father successfully appealed.


The court’s primary reasons for concluding the matter was not suitable for a remote or hybrid hearing were as follows:


i) “[Father’s] inability to engage adequately with remote evidence (either at home or in the courtroom);

ii) The imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the judge;
iii) The need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing.” 6 (Note here, that four of the six subject children were in a foster placement, and the care plan in respect of the youngest two, was for Placement Orders to be made).


The court also identified a comprehensive list of factors to be considered when determining whether or not to conduct a remote hearing. These are as follows:


i. “The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
ii. 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;
iii. Whether the parties are legally represented;
iv. 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;
v. Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
vi. 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;
vii. The scope and scale of the proposed hearing. How long is the hearing expected to last?
viii. 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;
ix. The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
x. 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.” 7


We await the wider publication of subsequent judgments applying and considering the Re A criteria, but see for now, Mrs Justice Lieven’s analysis in Re SX [2020] EWHC 1086 (at paragraphs 31 – 52), where the court held it could properly continue to hear remote evidence from the lay parties, within the context of a fifteen day fact-finding hearing about serious non-accidental injuries to a young child (injuries which ultimately resulted in the child’s death). Importantly in that case, neither parent was opposing the use of remote technology nor did they have language or communication difficulties.


Finally, turning to Re B, we have some much needed guidance on interim hearings. The subject children were nine and eleven years old respectively. Both were placed with their maternal grandmother under an SGO, and indeed had been for many years. The Local Authority had historic concerns about physical abuse of the children by members of the maternal family (one of whom was still living in the home). Following a serious incident, the 11 year old child was police protected and placed into foster care.

 

The Local Authority issued proceedings urgently and the hearing was listed on that basis. It is of note that the Local Authority application was for an ICO for the older child, but only an ISO for the younger. The Children’s Guardian (only recently allocated, as is often the case with urgent hearings) disagreed with the Local Authority, and felt an ICO should be made for both children with placement into foster care. The Guardian particularly cited the impact of Covid 19 on the availability of social work resources as a risk factor in the case. The Grandmother was not opposing the making of an ICO for the older child.

 

The matter came before Recorder McCarthy QC who, it is noted in the judgment, had received a “continuous stream of bundles, documents and position statements in the two other cases” 8 he was also dealing with that day. It is specifically noted that by the conclusion of the hearing of Re B, the time was 17:57 and the “Recorder had been working, almost continuously and mainly on the telephone, for 10 ½ hours”, something which is noted as “surely a contributory factor” 9 to the decision made.

 

During the course of the day, the Local Authority (mostly as a result of the Guardian’s position it must be said) changed their care plan to also seeking an ICO for the younger child, an application which was ultimately granted and acted upon immediately.

 

The Grandmother’s appeal was successful – not because the hearing had been conducted remotely, that in itself was not the issue, but because “the local authority changed its position in the middle of a remote hearing and because an application that was not urgent was treated as if it was”. 10 We are reminded by the Court of Appeal that “in the present abnormal circumstances, the fundamental principles of substantive law and procedural fairness are unchanged”. 11 We are warned to ensure that the court “does not become overloaded” and in doing so, reminded that judges shall need to “make a hard-headed distinction between those decisions that must be prioritised and those that must unfortunately wait until proper time is available”. 12

 

Considering briefly the impact of Covid 19 in particular, the court “firmly dismiss[ed] the proposition that the current ‘lockdown’ provides a reason for the removal of a child where none would otherwise exist”, saying “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”. 13

 

It should be particularly noted, that the court made clear that where the technology is available, “a video link is likely at this time to be the default option in urgent cases”. 14

 

So where does that leave us? It would seem that the Re A criteria need to remain firmly at the forefront of our minds – the court’s expectation, no doubt, when this issue arises will be that all necessary instructions have been taken from client’s to ascertain what restrictions there may be on their effective participation, and what options might otherwise be available (in the form of a hybrid hearing, or otherwise).

 

Whilst it is clear that this will not be the end of the disputes (and the issuing of subsequent guidance!) around the conduct of remote hearings, in this unprecedented time, the Court of Appeal has provided some helpful aids to negotiating the ‘new normal’.

 

Footnotes –
1. President’s Guidance on Remote Hearings, issued 19 March 2020 (Paragraph 10)
2. Re A, Paragraph 3(i)
3. Re A, Paragraph 3(i)
4. Re P, Paragraph 26
5. Re A, Paragraph 35
6. Re A, Paragraph 49
7. Re A, Paragraph 9
8. Re B, Paragraph 17
9. Re B, Paragraph 20
10. Re B, Paragraph 5
11. Re B, Paragraph 4
12. Re B, Paragraph 4
13. Re B, Paragraph 23
14. Re B, Paragraph 35

 

Article by Meghan Daniels – Nothing in this article is intended to be legal advice. Readers may contact clerks@stourchambers.co.uk should they wish formal legal advice on their particular circumstances.

This set comes recommended for its members' expertise in children and matrimonial finance matters. The children cases range across both public and private law work, and include those concerning non-accidental injury, sexual abuse and fabricated illness. On the financial side, the set's barristers demonstrate the ability to act in substantial financial remedies cases as well as Schedule 1 and TOLATA matters.

~ Chambers UK Bar Guide 2020

Specialising in matrimonial finance and children matters. Members appear in the regional courts as well as the High Court and the Court of Appeal. They often act in financial remedy proceedings relating to farms, companies, properties and other assets. In addition they are adept at dealing with serious child care allegations including physical abuse and death.

~ Chambers UK Bar Guide 2019

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