(Family Division, Lieven J, 5 May 2020)
CARE PROCEEDINGS – PROCEDURE – REMOTE HEARING
Care proceedings were ongoing regarding a 4-year old child whose infant sister had been found to have multiple injuries when she died, aged two months. The two parents were the only potential perpetrators. Lieven J heard the medical evidence from the five expert witnesses via Zoom. After the father indicated that he was finding the proceedings extremely stressful, she permitted him to obtain a psychiatric report and adjourned to consider whether to hear the lay evidence remotely. The father told the psychiatrist that he would prefer to give evidence by video. His counsel applied for the hearing to be adjourned due to his mental state. The mother suffered from asthma and indicated she was scared to leave home.
Held – directing that the proceedings would continue remotely –
(1) On the basis of the psychiatric report the court had no doubt that the father had capacity to litigate within the meaning of the Mental Capacity Act 2005.
(2) It was not possible to say as a generality that a remote hearing is less good at getting to the truth than one in a courtroom. In the absence of empirical evidence, which would in any event be very difficult to verify, no conclusion could be reached on what forum is most likely to elicit the most truthful and/or revealing evidence: Re P (A Child Remote Hearing)  EWFC 32 considered.
(3) Applying the factors set out by the Court of Appeal in Re A (Children) (Remote Hearing: Care and Placement Orders)  EWCA Civ 583, it was appropriate to continue with this case remotely and not to adjourn by reason either of the remote hearing or of the father's mental state.
(4) There was serious detriment to the child from further delay. This was not an overriding factor but it was an important one. Given the mother's asthma, if proceedings were adjourned to have a court-based hearing it was wholly unclear how long it might be necessary to adjourn for, and it could be many months. Most parents in the situation these parties found themselves in would find the prospect of giving evidence and being cross-examined extremely stressful. That alone could not be a reason for not going ahead with a trial such as this. Adjourning this case was not going to make the causes of the stress and the father’s low mood disappear.
(5) The court would very carefully monitor both parents' ability to participate fully in the hearing and to give their evidence to the best of their ability.
The full case report will be published in the June issue of Family Law.
Lieven J’s judgment sets out very fully how she approached each of the factors set out by the Court of Appeal in Re A (Children) (Remote Hearing: Care and Placement Orders)  EWCA Civ 583, in coming to her conclusion that the hearing should continue via Zoom, which she had found to work reasonably satisfactorily. Her Ladyship noted that the Nuffield Foundation’s Family Justice Observatory is conducting research into the use of remote hearings: for their initial consultation of over 1000 parents, carers and professionals, see M Ryan et al, Remote hearings in the family justice system: a rapid consultation (Nuffield Family Justice Observatory: 2020).