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Article: In light of Re P (A Child: Remote Hearing) [2020] EWFC 32, what will the Court’s approach be post-lockdown?29.04.20

In light of Re P (A Child: Remote Hearing) [2020] EWFC 32, what will the Court’s approach be post-lockdown?

by Connie Purdy, 29 April 2020

Lockdown measures were implemented on 23rd March 2020 and, as many of you will be aware, the following day, The Bar Council issued the following guidance to barristers on attending Family (and Civil) Court hearings:

“You should not attend in person unless the hearing is genuinely urgent and it cannot be done remotely. Such a hearing will be a rare occurrence” [1] 

Since then, there has understandably been uncertainty amongst legal professionals as to what constitutes a hearing that meets such criteria, especially when it comes to contested finding of fact and final hearings.

Fortunately, on 16th April 2020, Sir Andrew McFarlane, President of the Family Division, considered the appropriateness of a remote finding of fact hearing, regarding allegations made by the local authority against the mother of fabricated or induced illness (“FII”). The issues were fully contested by the mother.

By way of brief summary, the application arose out of ongoing care proceedings which were issued in April 2019. The President however noted that the child had been “the subject of contested private law proceedings for a good deal longer than that[2].

A fifteen day composite hearing was due to start at the Family Court at Guildford on Monday 20th April 2020 whereby a circuit judge sitting as a deputy High Court judge would be invited to determine the factual issues and then go on to fix the final care plan for the child. It is important to note this was the second time a final hearing had been listed in the matter.

There was a pre-trial review on 3rd April 2020 during which all parties, and the judge, effectively accepted that the hearing would now have to go ahead and be conducted remotely. This was influenced by the publication produced by Mr Justice MacDonald on the conduct of remote hearings and it seemed as though “those involved in this case read that advice as indicating that all hearings must now proceed as remote hearings”. [3]

The President confirmed that was a misunderstanding of MacDonald J’s document stating that “it does not offer guidance, let alone give direction, on the whole 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 a hearing must be conducted in that way.” [4]

The arrangements for the mother to engage in the process involved her being in her home and joining the proceedings over the internet, to which she had basic access.

The case involved expert evidence from an expert paediatrician, an expert adult psychiatrist and an expert adult psychologist. Dr Evans, the paediatrician, described the case as “extremely complicated” and FII as “an extremely unusual disorder”, later was describing the task of investigating it as being “incredibly challenging[5]. The President said Dr Evans was right to describe it in such terms and confirmed that, from a judge’s perspective, it was a “crucial element in the judge’s analysis 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 and reacting, as they may or may not do, to the factual and expert evidence as it unfolds during the course of the hearing.[6].

The local authority submitted that the hearing was a hearing that could be properly undertaken over the remote system. The mother was sufficiently aware of all of the issues to be able to engage in the process fully and all of the sixteen or so witnesses, bar the parents, were professional witnesses and it should have been perfectly possible for them to give their evidence remotely by way of video link. This was a young girl was who was already currently suffering, on their view, significant emotional harm by being held in limbo. She needed a decision now and to contemplate the case being put off to an indefinite date would (a) not serve her interests and (b) do harm itself.

The father supported the local authority’s position although he played no part in the FII part of the case. He “remained concerned for his daughter’s welfare”. [7]

The Children’s Guardian urged the court to hold to the fixture for the full hearing or in some way that at least achieved the hearing of the professional witnesses. Technical difficulties should not be a reason in itself for the hearing to be adjourned.

The mother opposed the local authority’s position, considering that the case fell outside the category of hearings that “could be contemplated as being able to be conducted over a remote platform in a manner that met the requirements of fairness and justice”. [8]

The President considered that “the decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a court to resolve… The need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for her life to move forward is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner.[9]

In conclusion, the President felt that “a trial of this nature is simply not one that can be contemplated for remote hearing… I would hold that this hearing cannot properly or fairly be conducted without [the mother’s] physical presence before a judge in a courtroom” [10]

Moving forward to post-lockdown, the question that many will ask is whether remote hearings can, and/or should, continue?

There is no doubt that there is an element of efficiency to remote hearings. It is now possible to attend multiple hearings in different court centres in one day and there is a real effort on behalf of all practitioners to resolve many hearings and issues by consent.

However, in both care proceedings and private law children matters pre-lockdown, parents were always given the opportunity to attend any hearing in person. In my experience, and I believe most practitioners and judges will agree, having a client present to take instructions from greatly assists with making progress, even at case management hearings. At present, it takes significant co-ordination to undertake successful pre-hearing discussions remotely with both your client and the other advocates involved. Further, if you need to take instructions mid-hearing, you would have to either mute or end the telephone call or video conference in order to do so. This could result in missing important information or causing delay to an already tightly-scheduled court list.

The President referred to cases where the parent(s) would not be in their home on their own but “to go to some neutral venue, maybe an office in local authority premises, maybe a room in a court building, maybe elsewhere, and be with a member of the solicitors firm that they are instructing” [11]. Once lockdown is lifted, this is a much more distinct possibility and one which may work well when remote hearings are listed. It would negate technical issues which may be present as a consequence of parents’ internet access and access to devices within their homes and it would ensure the ability to take instructions readily.

There are many important factors to consider in addition to those mentioned above, including the impact on wellbeing of members of the Bar, which Philippa Pudney considered last week. However, in my view, parents’ effective participation in hearings relating to the welfare of their children must be at the very top of that list.

[1] https://www.barcouncil.org.uk/resource/updated-guidance-on-attending-hearings.html
[2] https://www.bailii.org/ew/cases/EWFC/HCJ/2020/32.html, paragraph 1
[3] ibid, paragraph 8
[4] ibid, paragraph 8
[5] ibid, paragraph 11
[6] ibid, paragraph 12
[7]ibid, paragraph 17
[8] ibid, paragraph 19
[9] ibid, paragraph 24
[10] ibid, paragraph 29
[11] ibid, paragraph 20