Posted on 4th May 2020
It is unsurprising, therefore, that there have already been 3 reported appeal cases in relation to the decisions of the court in the light of COVID 19, and no doubt there will be many more to come.
1. The first report case was Re P (a remote hearing) on the 21st April 2020. An appeal from the Guildford Family Court.
In re P the court was concerned with the future of a 7 year old child, who had been the subject of public law proceedings for over a year (and private law proceedings prior to that). Prior to lockdown the case has been listed for a 15 day final hearing on the 20th April 2020. The final hearing was to be a combined welfare and fact finding hearing. Threshold related to fabricated infant illness (IFF) and was fully contested. On the 3rd April 2020 the case was listed for pre-trial review. At that time it was accepted by all parties that the case would have to proceed remotely. It appears that the Judge and the advocates had erroneously understood that McDonald J’s Guidance in relation to remote hearings (25th March 2020) was that all hearings should be heard remotely. The Court of Appeal stressed that establishing that a hearing can be held remotely, does not mean that it must be. On the 3rd April no application was made to adjourn the hearing, although the issue of the mother’s health (she was presenting with possible COVID 19 symptoms) would be kept under review. The Court of Appeal observed that this was a case that fell outside the sort of case that could be heard remotely. The allegations of FII are particularly unusual, the evidence needed to be carefully considered and this included not only being able to observe the reactions of the mother in the witness box but also her reactions throughout the evidence when sitting in the well of the court. At the time of the appeal the position of the parties was that the LA, the father and the Guardian all submitted that the final hearing should proceed either fully, or that the experts should be heard and the lay witnesses heard at a later date (when the lock down had been lifted). The mother opposed the final hearing proceeding.
The President drew attention to the: letter from the Lord Chief Justice, Master of the Rolls and President of the Family Division to judges on 9 April 2020. Rather than giving formal guidance, a number of parameters were suggested to assist a court in deciding whether or not to conduct a remote hearing. The following three factors were identified as being of particular relevance to Family cases:
“e. 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; f. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely; g. 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.”
In addition, the President drew attention to the guidance that he issued on 27 March 2020:
“Can I stress, however, that we must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1 ‘the overriding objective’], part of which is to ensure that parties are ‘on an equal footing’ [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.”
The President emphasised that 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.
2. Re A,  EWCA Civ 583. An appeal from the Carlisle Family Court.
The case concerned proceedings in relation to 6 children which had been issued on the 15th March 2019. The oldest (aged 17 years) remained at home with his mother under a supervision Order. The next child (aged 15 years) was living with his father and step mother. The youngest 4 were in foster care. The care plan for the middle 2 children was long term foster care, the plan for the youngest 2 children (aged 3 and 1 year) was care and placement orders. The father (Mr A) was the same father for all 6 children. Ms B was mother to the older 4 children and Mrs A the mother to the two youngest children.
The case was initially listed for final hearing on the 3rd April 2020, however the Judge adjourned the hearing in the light of the COVID 19 issues. The LA and the Guardian supported the case being re listed for a final hearing, but this was opposed by the parents. Mr A had limited access to technology (he would need to share his wife’s iPad). The court directed that the case be listed as a hybrid final hearing on the 27th April 2020, with the Judge directing that Mr and Mrs A could attend the court for the final hearing, whilst others attended remotely. The case was further listed on the 17th April 2020 to review the listing in the light of the Lord Chief Justice’s message on the 9th April 2020. At the hearing on the 17th April 2020, LA had changed its position: the local authority accepted that a final hearing could not fairly proceed on the basis of a hybrid hearing. Prior to the hearing the Judge had prepared and circulated a detailed “Case Plan” for how the case would proceed. In the case plan the Judge erroneously referred to the 2nd youngest child as turning 5 in June (he would be 4) and referred to the urgent need to determine proceedings as the “adoption window” for him was closing. Part of the Judge’s reasoning was that the case would not be remote as Mr A and Ms A would attend the court to give their evidence. Mr A had a cognitive assessment outlining that he was dyslexic and that he struggled to process language. The assessment also advised that he struggled to concentrate.
In the Court of Appeal the President expressed that the principal reasons for concluding that the judge was wrong and that this case is not currently suitable either for a remote hearing or for the form of hybrid hearing set up by the judge fall under three headlines:i. Mr A’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 urgent to justify a remote hybrid hearing.
The court stressed that the decision of the court was limited to the determination of the case and each case would need to be considered on its own facts. The President stressed the following cardinal points with the utmost emphasis:
i. 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.
ii. 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.
iii. 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 earlier.
The President further stressed that 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. The Court of Appeal consider that these will include:
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 can the decision 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.
3. Re B:  EWCA Civ 584. An appeal from the West London Family Court.
In my view this case has much wider application than the issue of remote hearings. The conduct of the hearing remotely simply went to exacerbate the procedural unfairness in any event.
The proceedings related to an appeal of an interim care order removing a 9 year old boy from his grandmother’s care. Ealing BC issued an interim care application for Sam’s sister, Samantha aged 11 years (not their real names). Both had been living with their maternal grandmother for 7 years under a special Guardianship order. There has been some instability in the placement culminating with the police being called in relation to Samantha on the 20th March 2020. On the 23rd March the MGM signed a section 20 agreement in relation to Samantha but subsequently stated she wanted her back. The LA issued proceedings on the 2nd April 2020 for an interim care order in relation to Samantha and an interim supervision order in relation to Sam, who remained at home with his grandmother, the case was listed on the 3rd April 2020. The papers were served electronically with the Guardian obtaining access to the bundle at 17.00 and the Maternal grandmother at 17.20. The solicitor for the MGM did not gain access until 23.39. The Judge had access to various documents from about 18.00 on the 2nd April 2020, but no position statements or case summaries. The Judge received further documentation during the course of the morning, including a position statement on behalf of the Guardian (at 11.00 a.m.). This document supported the removal of Sam from his grandmother’s care, this in turn lead to a change of care plan by the LA, which was announced to the other parties at 11.30. The case came before the court at the end of the morning when, unsurprisingly, Counsel for the MGM sought an adjournment of the application in relation to Sam to another day (the MGM did not oppose the ICO for Samantha). The case was put back to the afternoon, when the Judge indicated he would consider the adjournment application. At 16.22 (having heard a number of other cases all day) the Recorder heard the application on submissions and proceeded to make an interim care order in relation to Sam, removing him from his grandmother’s care.
The Court of Appeal noted a number of concerning deficits in relation the position of the Guardian, not least of all the limited time she had had to make enquires and the fact that neither the Guardian or the solicitor for the children had met or spoken to either child. The court also had concerns about the balancing analysis by the Guardian, who made no reference to the emotional impact of removal on Sam, there was no reference to Sam’s wishes and feelings in relation to removal and no reminder that these remained unknown.
The Court of appeal observed that it was hard to describe the process as anything other than arbitrary. The appeal was allowed and Sam returned to his Grandmother.
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