COVID – 19
CASE LAW UPDATES
By Neelam Mall
Re P (A CHILD: REMOTE HEARING)  EWFC 32 – Approved Judgment of The President
This judgment deals with the suitability of remote hearings for contested final hearings and sets out considerations to be made.
The case concerned a 15 day composite final hearing and finding of fact hearing to determine allegations that the Mother harmed her 7 years old daughter by fabricating or inducing illness. There was a considerable amount of documentary evidence and number of witnesses regarding this aspect of the case. In addition to the allegations, the court would also need to consider the placement of the child in the future which would require hearing from expert witnesses.
The President had to consider whether the case, which was already significantly delayed should proceed remotely via Skype for Business or be further adjourned.
All parties prior during the pre-trial review agreed that the hearing could proceed remotely.
A hearing then took place before the President to consider the merits of proceeding. The Local Authority outlined that the majority of the witnesses were professional save for the parents, that there would be significant harm if there was further delay and suggested that the evidence of the expert witnesses could be heard and to reconsider whether at that stage if the lay witness evidence would proceed or need to be adjourned.
The Guardian supported the Local Authority, in particular the suggestion of hearing the evidence of the professional witnesses. It was also submitted that any technical difficulties raised by the Mother could be addressed and that alone should not be a reason to adjourn.
The Father supported the Local Authority position, seeking for matters to be determined.
The Mother opposed, she argued that she could not have a fair trial if the held remotely due to her inability to effectively participation as a result of technical issues (unstable internet connection, ability to receive advice/give instructions). There was also the concern of Mother potentially having Covid-19 and her ability to attend court as a result.
The matter came before the President who ruled that the case was to be adjourned and could not proceed on a remote basis. His reasoning was as follows:
“…it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely. The judge who undertakes such a hearing may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function. The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court. It also assumes that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment. I do not consider that a remote hearing for a final hearing of this sort would allow effective participation for the parent and effective engagement either by the parent with the court or, as I have indicated, the court with the parent. I also consider that there is a significant risk that the process as a whole would not be fair.”
The President criticised the approach taken which failed to consider the suitability of the proceeding remotely and instead took the guidance at the time to mean that it should proceed remotely:
“I was told, the discussion during the hearing was about how the remote hearing would be conducted and not whether it should be heard remotely. If that was the understanding of MacDonald J’s document, it was a misunderstanding. 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.”
This case highlights the importance to consider each case individually alongside factors such as facilities, technology, the family members involved and the experience of the courts, “The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working. It is because no two cases may be the same 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.
Re A (Children) (Remote Hearing: Care and Placement Orders)  EWCA Civ 583
This was the first case dealing with the issue of remote hearings during the Covid-19 pandemic.
The background of this case included care proceedings being issued in relation to six children. The eldest children turned 17 years old and the Local Authority removed their application in respect of him. The second oldest child was made subject to a Supervision Order. This left four children, all of which were in foster care and two of which were being considered for adoption. As it was in relation to adoption, the Local Authority and Guardian submitted that the final hearing could take place either remotely or by way of a hybrid manner.
HHJ Dodd determined that this was an urgent matter given the ages of the children and the risk of delay impacting on the likelihood of them being adopted. Directions were given to proceed with the final hearing in a hybrid manner. This was opposed by both parents who were not comfortable leaving their home in the current pandemic.
The hearing was listed for 7 days and was to include parents attending in person to give evidence. Specific directions were given to allow the Father to attend the whole hearing in person, with his counsel, as he did not have suitable equipment to take part remotely and was also dyslexic.
The appeal was brought by the Father.
HHJ Dodd revisited the case, at this hearing, the Local Authority were no longer supporting a remote hearing. HHJ Dodd maintained his previous decision that the case could continue using a hybrid method. It was also added that the parents would be accompanied by representatives from their solicitors’ firm and counsel would attend remotely.
The matter proceeded to the Court of Appeal who identified the following ten factors which should be considered when deciding whether or not to proceed remotely:
- The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
- 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;
- 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;
- Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
- 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;
- The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
- 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 President of the Family Division concluded that the trial judge had been wrong, and the matter was not suitable for either a remote hearing or a hybrid hearing, based on the following three headlines:
- The father’s inability to engage adequately with remote evidence;
- The imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the Judge;
- The need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing.
The decision to proceed with the final hearing was set aside and returned to HHJ Dodd to provide further directions and the matter to be listed for a final hearing as soon as possible.
The court did make it clear that this case was not precedent for there be no final hearings during this pandemic, rather each case had to be considered on their own facts, “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. The appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance indicated above to the unique circumstances of the case.”
In addition, the message of the LCJ on 9 April 2020 was referred to, “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.”
Re B (Children) (Remote Hearing: Interim Care Order)  EWCA Civ 584
This case followed Re A, considering the position of remote hearings in relation to Interim Care Orders.
There were two subject children involved, one aged 9 years and the other aged 11 years. Both children had been in the care of their maternal grandmother since July 2013 under the remit of a Special Guardianship Order following concerns of physical abuse by the maternal family. In September 2019, the children were placed on child protection plans due to risks posed by their uncle.
An incident occurred in March 2020 where an allegation was made against the aunt of physical abuse, this resulted in the 11 year old being removed under police powers and placed in foster care. The younger child remained in the care of maternal grandmother.
Despite the maternal grandmother signing a section 20 agreement, she later changed her mind. As a result, urgent applications were made by the Local Authority, this included an Interim Care Order for the older child and an Interim Supervision Order for the younger child.
The matter was listed remotely by telephone before Recorder McCarthy QC. In the morning the guardian filed a position recommending that both children be subject to Interim Care Orders and placed in foster care. The Local Authority therefore changed their position to agree with the guardian. Submissions lasted for 1 hour, during with counsel for the grandmother sought an adjournment on the grounds that the Local Authority had changed their position and the lack of evidence supporting an immediate removal. The adjournment was refused, and Interim Care Orders were made for both children, approving the plan for removal.
The maternal grandmother appealed.
The appeal court concluded that the younger child was wrongly made the subject of an Interim Care Order. There were a number of factors for this:
- The Local Authority changed their position to suit that of the guardian and lacked good reason.
- The guardian had failed to:
- Provide a balanced analysis for removal
- Consider the wishes and feelings of the younger child in relation to immediate removal
- Provide an explanation for why the matter required an urgent decision
- Due to the urgency of the application, the maternal grandmother was unable to file any evidence.
- The judge had insufficient time to consider the papers.
It was held that the judge had wrongly applied the principles allowing for immediate separation and relied upon historic allegations of physical abuse in relation to the younger child.
This case highlighted the need for perspective in regards to urgent applications.
A Local Authority v Mother & Ors  EWHC 1086 (Fam)
This judgement involved the consideration of whether or not a Finding of Fact Hearing could proceed with hearing the lay evidence remotely or whether the matter had to be adjourned having heard the expert evidence until an in person hearing could take place.
The case concerned an application by the Local Authority in respect of SX following the death of his two month old baby sister, AX, in April 2019. The Local Authority removed SX under an Interim Care Order and placed him in foster care following a post-mortem which identified that AX had suffered 65 fractures to her body. The Mother denied causing the injuries and as she did not dispute the medical evidence, she concluded they must have been caused by the Father. The Father argued that the injuries were non-accidental.
A Finding of Fact Hearing was listed for 15 days. During the first week, medical evidence was heard remotely via Zoom which is noted have occurred reasonably well. Following this Mrs Justice Lieven questioned whether the evidence of the lay parties should proceed remotely. The parties all agreed that the evidence could be heard remotely. The Father then changed his position outlining that he was feeling suicidal and had attended A&E. A psychiatric report was directed to address his capacity to litigate and mental state, this concluded that the Father had full capacity to litigate and that he could participate in the proceedings.
Consideration was given to the recent case law, namely Re P (A Child Remote Hearing) 2020 EWFC, A (Children) (Remote Hearing: Care And Placement Orders)  EWCA Civ 583 and B (Children)(Remote Hearing: Interim Care Order)  EWCA Civ 584. In particular, then 10 factors raised in A (Children) (Remote Hearing: Care and Placement Orders)  EWCA Civ 583 were applied.
Mrs Justice Lieven concluded that the Finding of Fact Hearing should continue remotely, she commented that the technology has worked so far in the case and was confident of the lay parties’ ability to use it to give evidence remotely. In relation to the Father’s mental state, this would be kept under review but given that he had expressed that a remote hearing would decrease his levels of stress, it would not be a reason to adjourn. Another key factor in the determination of whether or not to adjourn was the length of delay, given that the Mother falls into a vulnerable category (asthma), this could result in a lengthy delay.
Re Q  EWHC 1109 (Fam)
This concerned an appeal in relation to remote hearings of a private law matter.
The Father in the proceedings sought to appeal the decision of Deputy District Judge O’Leary to vacate the final hearing for a Child Arrangements Order.
The child was 6 and half years old and was currently living with his Mother. Father issued proceedings as contact had ceased between him and the child due to allegations by the Mother that he had sexually abused the child, which were later unfounded at a Finding of Fact Hearing. During the proceedings, a psychological report was directed. Following the assessment of the parents, it was concluded that the Mother posed a risk of harm to the child and therefore the child should be placed with the Father. Contact was increased and the matter was listed for a final hearing.
The Mother sought an adjournment to allow the matter to be heard in person. Deputy District Judge O’Leary initially considered the case and determined that any delay would not be in the child’s interest and that it could be heard remotely without impacting on a fair trial.
However, 2 days later she vacated the trial and ordered that it be listed at a later date where it court be heard at court. This was after she had read the Fathers position statement which she felt would require the Mother to give oral evidence with the need for interpretation and considered the case of Re P (A Child: Remote Hearing)  EWFC 32.
The Father appealed her decision on the following grounds:
- The judge misapplied the judgment in Re P;
- 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;
- Insufficient weight was afforded to Q’s welfare; and
- Insufficient regard was given to the overriding objective in FPR 1.1.
The President allowed the appeal and sent the matter back to be listed for the final hearing. Within his judgement he made it clear that each case should be considered on its facts and that it is for the judge to determine whether there should be a remote hearing, the case does not ‘establish a veto to the holding of a remote hearing where a parent objects, or expert evidence is to be called’.
The President also considered the reasoning behind the adjournment in which he outlined included an error by the District Judge in not allowing the parties’ advocates to make submission in relation to her concerns and the approach in relation to the child’s welfare.
Re C (Children)(Covid-19 – Representation)  EWCA Civ 734
This concerned an appeal arising from a decision to continue a Finding of Fact Hearing by way of a hybrid hearing in relation to care proceedings involving four young children.
There had been substantial expert evidence which had already been heard remotely, leaving the lay evidence to be heard by way of live evidence. Counsel for the Mother was ‘shielding’ until at least the 30th June 2020 and would not be able to attend at court in person with her client. The Mother sought for the hearing to be adjourned until the Autumn to allow the possibility of lead counsel being able to attend. Mr Justice Williams concluded on balance that the hearing should continue as a hybrid hearing to prevent any further delay to the four children who had already been in foster care for a year. He stated that lead counsel could attend remotely and to do so did not encroach on the Mother’s right to a fair hearing.
As a result, the Mother appealed the decision for the case to proceed in a hybrid manner and argued 3 grounds:
Ground 1 – that it would be unfair under Article 6 ECHR, the right to a fair trial, for the proceedings to continue without lead counsel present, in particular:
- The judge failed to carry out any or any proper assessment of whether the proceedings as a whole, including the hybrid hearing, would be adequate and fair; and/or
- The judge failed to take any or any proper account of the seriousness of what is at stake for M when assessing the adequacy and fairness of the hybrid hearing; and/or
- The judge failed to give proper or adequate consideration to whether the arrangements proposed for a hybrid hearing satisfy M’s right to an adversarial trial; and/or
- The judge failed to take sufficient or adequate account of the importance to M of the appearance of a fair trial, the principle of the equality of arms and whether the hybrid hearing respects the “fair balance” that ought to prevail between the parties.
Ground 2 – the Judge had failed to consider whether any unfairness would also involve a violation of Article 8 ECHR, the right to private and family life.
Ground 3 – the Judge failed in carrying out a proper judicial evaluation of the competing Article 6 rights of the parties.
The Court of Appeal dismissed the appeal.
The lead judgment was given by Lord Justice Peter Jackson who outlined that ‘it is in the public interest and in the interests of the children and families that, wherever it can happen in a safe and faire manner, the work of the courts should continue. This case provides a very strong example. These four children are entitled to a decision about their futures without future avoidable delay and the court’s obligation is to put in place a fair process to achieve this’.
The reasons for dismissing the appeal included:
- Whilst it was unfortunate lead counsel for Mother could not attend, it did not prevent her from participating effectively. Perfection is not always achievable in arranging a complex hearing and these arrangements within this case satisfied the requirements for a fair hearing.
- There was no inequality of arms under Article 6 caused by a difference in the way parties were represented. This would not create a substantial disadvantage and result in the proceedings being unfair.
- The Mother will still be represented by her experienced junior counsel and will still be able to engage with lead counsel at all stages of the hearing, ensuring that her rights are fully upheld. The effectiveness of remote examination and cross-examination by a skilled advocate should not be downplayed.
Lancashire CC v M (COVID-19 Adjournment Application)  EWFC 43
Another case considering the adjournment of a 10 day hearing due to concerns related to Covid – 19.
The matter concerns a one year old child in welfare proceedings which were issued on 19 October 2018, following the child’s collapse and admission to hospital which revealed multiple injuries. Both parties denied causing the injuries and therefore the Local Authority seek findings that the injuries were caused by either his Mother or Father or both. There are also welfare concerns of the parents regarding their emotional and mental health and alleged inability to work open and honestly with professionals.
To date there has been considerable delay. The first listing of a final hearing was for 5 days commencing the 25 March 2019, the Father collapsed on the last day of the hearing and was too unwell to attend court. A second final hearing was listed to commence on the 16 October 2019 but the Father failed to attend due to suffering from anxiety. His legal team determined that an intermediary would be required, this was supported by expert evidence and a registered intermediary. The third final hearing was listed to commence on 16 March 2020 in Preston but was later adjourned on the 17 March due to the current pandemic and the guidance that non-essential contact with others should be stopped. The court expressed concerns of infection as the courtroom was too small to safely accommodate the parties.
The parties were offered a part heard final hearing remotely, but this approach was not agreed between the parties.
The case was re-listed at Manchester Civil Justice Centre which given the size of the courtrooms, would allow for a face to face hearing whilst complying with social distancing or in the alternative, a hybrid hearing.
The Father in the proceedings applied to adjourn the matter until a face to face hearing could take place in Preston on the basis that his health prevented any travel from Preston to Manchester although no application to adduce medical evidence was made in support of this. The Father’s previous anxiety issues were also discussed and how this impacted on his ability to travel on public transport to Manchester. The Father also required intermediary support to participate in the final hearing.
The Mother was also unwilling to travel to Manchester on public transport and also had a history of anxiety and mind mental health difficulties.
In addition, neither parent had the technological support or technology to effectively participate in a remote hearing.
Arguments were also made regarding the nature of a hybrid hearing and that this would impact on the fairness of the trial based on the equality of arms argument.
The Local Authority strongly opposed any adjournment on the grounds that this case had already been adjourned three times and required resolution as to the child’s future placement as a matter of urgency. The Local Authority sought to assist the parents with any difficulties i.e. funding a taxi instead of having to use public transport.
The Guardian supported the Local Authority and opposed the Father’s application outlining that any further delay would be catastrophic to the child’s welfare.
The guidance in The Family Court and COVID19: The Road Ahead was relied upon which stressed that a child’s journey must not be delayed.
The court refused the Father’s application to adjourn based on the following reasons:
- The court now made the provision for a face to face hearing which was requested by both parents. Directions can be given to ensure the hearing proceeds safely.
- The anxieties of both parents to travel on public transport can be dealt with as the Local Authority are willing to fund taxis to and from Manchester. No medical evidence has been provided on behalf of the Father regarding his inability to travel. Cannot accept line of argument in relation to further adjourning the case and attending at Preston for a live hearing.
- The child’s welfare is paramount, the need to avoid delay will always be the most important factor. A further adjournment will result in further and extensive delay in meeting this urgent welfare need.
- As the court is required to make a finding of fact, continued further delay will risk prejudicing a fair trial as the events concerned will recede into the distance and memories dull.
- Overriding objective requires cases to be dealt with justly. If parents don’t take advantage of attending face to face, then evidence will be required by them remotely, including remote cross-examination. Parties are legally represented by advocates of the highest calibre who are well versed in the use of video links for taking evidence. Effectiveness of remote examination and cross-examination by experienced advocates is now well demonstrated.
- Neither parent would be denied a fair hearing if required to give evidence remotely during a hybrid hearings.
The court concluded:
“In this case, the court is able to conduct a fully face to face hearing in a manner that addresses the parents’ anxieties with respect to travel or, as a contingency if the parents still refuse to attend that hearing despite the provision of private transport, to facilitate a hybrid hearing in a manner that permits the parents fully and fairly to participate. I intend to retain those two options for the adjourned part heard final hearing which will proceed as currently timetabled. It is earnestly to be hoped that the parents will take advantage of the facility for private transport that will be made available to them to attend the fully face to face hearing that has been arranged in response to their contention that this case is not suitable for a remote hearing.
If however, the parents continue to maintain their objection to travelling to Manchester, final arrangements will have to be made to implement the contingency plan of holding a hybrid hearing in which the parents attend remotely from an appropriate venue or venues in Preston. Investigations in this regard are well advanced and I will approve the final proposals in this respect in due course.
Finally, the father and the mother must understand that should they choose not to avail themselves of the results of the extensive efforts the court and their legal advisers have made to facilitate their respective participation in these proceedings in the difficult context presented by the COVID-19 pandemic, it remains open to the court to proceed to determine the issues before it without them, including drawing adverse inferences from any failure to give evidence before the court.”
“An adjournment to await a face to face hearing in Preston is not necessary or appropriate in this case.”