(Court of Appeal, Sir Andrew McFarlane P, Peter Jackson and Nicola Davies LJJ 30 April 2020)
CARE PROCEEDINGS – PROCEDURE – REMOTE HEARING
Care proceedings were pending concerning four children, the care plan for the two younger, aged nearly 4 and 20 months, being for adoption. Considering the issue of adoption to be urgent, the trial judge gave directions for the final hearing to go ahead in ‘hybrid’ form, over seven days in late April and early May. The parents were to attend in person to give evidence. In addition, given the father’s lack of suitable IT equipment at his home, and his dyslexia, the judge directed that he could attend for the entire hearing in person in a courtroom in front of the judge if he was unable to engage remotely. The father successfully applied for leave to appeal against the judge’s directions.
Held – allowing the appeal and remitting the matter to the judge to give further directions with a view to the final hearing taking place as soon as may be possible –
(1) 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.
(2) The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered, as the situation regarding the pandemic changes and experience of responding to it grows.
(3) In the LCJ’s message of 9 April 2020, the parameters set out for Family Cases are intended to apply to final hearings and not to interim hearings.
(4) Final hearings in contested Public Law care or placement for adoption applications are not hearings which are as a category deemed to be suitable for remote hearing; it is, however, possible that a particular final care or placement for adoption case may be heard remotely. The task of determining whether or not a particular remote hearing should take place is one for the judge or magistrate to whom the case has been allocated, but regard should be had to the above principles and guidance.
(5) The requirement for 'exceptional circumstances' applies to live, attended hearings while the current 'lockdown' continues.
(6) 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. They will include:
i) The importance and nature of the issue to be determined; including whether the outcome that is sought is an interim or final order;
ii) 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;
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;
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.
(7) The Court’s judgment on this appeal should be seen as being limited to the determination of the individual case to which it relates. Here, one important and potentially determinative factor was the ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair. Such a factor will, almost by definition, be case-specific. Another element, and one that is likely to be important in every case, is the age of the children and the degree of urgency that applies to the particular decision before the court. The impact of this factor on the decision whether to hold a remote hearing will, as with all others, vary from child to child and from case to case.
(8) In addition to the need for there to be a fair and just process for all parties, there is a separate need, particularly where the plan is for adoption, for the child to be able to know and understand in later years that such a life-changing decision was only made after a thorough, regular and fair hearing.
(9) The steer given in the LCJ's message of 9 April that ‘If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing’ should be heeded. Here, only the Children’s Guardian had supported proceeding with the planned hearing. 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.
The full case report will be published in the June issue of Family Law.
This was the first appeal regarding proceedings concerning the welfare of children to reach the Court of Appeal regarding the issue of remote hearings during the Covid-19 Pandemic.
The Court’s guidance should of course be read with that issued by the LCJ and the President (on 19th and 25th March 2020), as well as the Court’s subsequent decision in Re B (Children) (Remote Hearing: Interim Care Order)  EWCA Civ 584, which focuses on the risks of precipitate and unfair action being heightened by the use of remote procedures.
As the Court stressed several times, every decision on whether to direct a remote hearing will be an individual one tied to the particular facts and context, but there were three factors of particular significance here. First was the father’s inability to engage with a remote hearing because of both his dyslexia and (as far as following the proceedings at home were concerned) the lack of suitable IT equipment available to him (and the Court noted that one of his children, who had previously been involved in the same proceedings, lived with him and might be able to watch the case if it proceeded online).
Secondly, there was a fundamental imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the judge. Of course, the trial judge was actually trying to assist the parties, and the Court referred to the decision in Re P (A Child: Remote Hearings)  EWFC 32 (at para ) where the President stressed the importance of the trial judge being able to see the witnesses in the court room. But here, the judge was not requiring anyone else to be present – including the parents’ own legal team - thereby setting up a further potential risk of imbalance in addition to that created if they were not present at all. The need to have regard to the litigants’ perspective in deciding whether and how to make use of remote hearings has been forcefully highlighted by commentators such as Celia Kitzinger and Lucy Reed.
Finally, the local authority had indicated that the family finding process is on hold during the current crisis in any case, and they did not share the judge’s view of the urgency of finding a suitable adoptive placement for the children. The Court considered that clear and cogent reasons would need to be shown for taking a contrary view to that of the professional social work opinion and pressing forward with the proceedings.