(Family Division, Williams J, 15 May 2020)
PRACTICE AND PROCEDURE – CARE PROCEEDINGS
On 6 April 2019 K aged three died in hospital. The post-mortem and toxicology tests indicated that her death was consistent with cocaine ingestion. K’s death led to a police investigation and care proceedings by the local authority in respect of her four siblings. Three of them had been in foster care since May 2019, and the fourth born during the proceedings had been in foster care since birth. At the start of the case the threshold criteria relied upon by the local authority were that (i) K had died as a consequence of cardiac necrosis caused by deliberate administration or accidental ingestion of cocaine by or whilst in the care of her mother and/or her father/paternal grandmother/maternal grandmother; (ii) alternatively, one or more of those individuals failed to protect her from the administration or accidental ingestion of cocaine; (iii) the children were exposed to emotional abuse as a result of domestic violence perpetrated by the father on the mother.
In July 2019 the case was listed before Williams J for a fact-finding hearing to commence on 21 April 2020. At a pre-trial review on 3 April 2020 all parties agreed that the case should be heard remotely and the judge authorised the use of Zoom. From 23 April to 1 May complex scientific and medical evidence from seven experts was given remotely. No party sought oral evidence from police or social work witnesses and so the only evidence remaining was the oral evidence of the mother, the father, paternal grandmother and possibly the maternal grandmother. Williams J reviewed the situation to determine whether the fact-finding hearing should continue either remotely or semi-remotely or whether the case should be adjourned until an in person hearing of pre-Covid 19 format could take place.
Following the evidence of the paediatric cardiologist, the local authority on 4 May filed an amended threshold with a significant change in the nature of the allegations. The local authority replaced the allegation that cocaine had been administered or negligently ingested with an allegation that cocaine was ingested whilst in the care of and due to the culpable actions or neglect of either the mother, the father or the paternal grandmother. Alternatively, they had culpably failed to protect her from the same.
At the review hearing on 12 May the parties adopted a variety of positions on how and when the hearing should continue. The Prime Minister’s announcement on 10 May and the subsequent 50-page document did not, according to Williams J, bring much greater clarity to the position faced by the parties and the court. The local authority wished the hearing to proceed remotely or by hybrid hearing, where the party giving evidence would attend in person together with their advocate and those advocates who wished to cross examine. The guardian submitted that the fact-finding exercise should conclude as soon as possible to enable assessments to commence; the children had been in foster care for a considerable period and each had particular needs for early resolution. This was an exceptional case as identified in recent reported case law and appropriate arrangements could be made for an in person hearing while observing social distancing requirements. Legal representatives could attend either remotely or in person. The mother’s position was that the seriousness of the issues involved even after amendment of the threshold were such that a fair hearing could only take place for her if she were able to attend court with her legal team. Further, she had visited her mother who had Covid-19 and so had to self-isolate for two weeks. In addition, because of shielding requirements, the mother’s leading counsel could not attend court in person for potentially several months and she could not contemplate attending court without her. The father did not feel able immediately to leave his home and attend court: he considered himself to be vulnerable and his mother with whom he lived believed she had Covid-19. He would probably feel safe to attend court by the end of June. The paternal grandmother wished to proceed but had experienced technical and hearing difficulties in remote attendance. She considered it essential to give her evidence in person in court and to engage face to face with her legal team. The maternal grandmother supported her daughter’s position. Williams J liaised with HMCTS facilities and IT staff to put in place the technology, structures and protocols for a safe hearing to take place in two courts at the Royal Courts of Justice. The prospect of judicial availability at the end of June now emerged. The local authority strongly resisted an adjournment to September, given the implications for the children of remaining in foster care and the lack of progress in assessments and was prepared to adopt a flexible approach to its presence in court to cross examine. The guardian’s preferred option was to resume the hearing immediately: this was an exceptional case which could properly proceed in a hybrid hearing. The mother emphasised her rights protected by Art 6 of the European Convention to a fair hearing and also her Art 8 rights. She sought postponement until she and her leading counsel could attend court in person. The father also emphasised Art 6 rights.
Held – declining to resume the hearing of evidence in the coming weeks in person from the father and the paternal grandmother and remotely from the mother, adjourning the case to 24 June to facilitate an in person hearing to allow the parties to give evidence in court, convening a further case management hearing once there was clarity in respect of the availability of a June hearing and refusing the mother’s application for permission to appeal –
Having regard to the Guidance of the President of the Family Division issued on 27 March 2020 and to the recent judgments of the Court of Appeal and of the President and balancing the competing arguments:
The full case report will be published in Family Law.
The length of this comment reflects the complexity of the task facing Williams J. The decision to be taken was one of case management, but it required an intensely focused and fact-sensitive balancing of the competing rights of the parties under Art 6 of the Convention. The judgment contains a detailed review of the case law to date on case management in the Covid-19 context: Re P (A Child) (Remote Hearing)  EWFC 32, Re A (Children) (Remote Hearing : Care and Placement Orders)  EWCA Civ 583 and Re B (Children) (Remote Hearing :Interim Care Order)  EWCA Civ 584, A Local Authority v M and F  EWHC 1086 (Fam) and Re Q (A Child)  EWHC 1109 (Fam). Williams J underscores the human rights framework of Covid 19 case management:
‘All of the guidance given in relation to hearing cases at this time is intended to ensure that the parties' article 6 rights to a fair hearing within a reasonable time by an independent and impartial tribunal are not infringed. The article 6 right is unqualified but what constitutes a fair hearing is not an absolute. There is no absolute rule that provides that a fair hearing can only take place if the party is able to attend court in person to give their evidence and to see and hear and respond to the evidence of other important witnesses’.
Also important is his Lordship’s observation that the advantages of physical attendance of a party at court are not confined to judicial assessment of credibility, which is ‘largely a judge orientated perspective’ and is often overrated. Of importance are the advantages perceived by the parties’ themselves, not only in giving evidence in the court setting but also in being able to see other witnesses and to provide immediate instructions to counsel in the middle of cross examination.