(Court of Appeal, Sir Andrew McFarlane P, Peter Jackson and Nicola Davies LJJ, 30 April 2020)
CARE PROCEEDINGS – PROCEDURE – REMOTE HEARINGS
Two children, a girl now aged 11 and boy aged 9, had been the subjects of a special guardianship order made in favour of their maternal grandmother in 2013, due to their parents’ drug abuse. After an incident involving the maternal uncle and aunt, in which the police placed the girl into their protection and the grandmother declined to consent to her remaining in accommodation, care proceedings were instituted with the local authority seeking an interim care order for the girl and interim supervision order in respect of the boy. The case papers were assembled very quickly and the hearing arranged by telephone, as there were at that point no video facilities available in the court. The children’s guardian recommended that both children should be placed in immediate foster care. The trial judge made an interim care order resulting in the boy being removed that night from the grandmother. Because of difficulties in finding temporary foster placements, the children were placed apart. The grandmother successfully sought permission to appeal against the making of the interim care order in respect of the boy.
Held – allowing the appeal –
(1) In the present abnormal circumstances, the fundamental principles of substantive law and procedural fairness are unchanged. Alongside other courts and tribunals, the Family Court continues to discharge its duties, particularly in urgent child protection cases. The effective use of communication technology is indispensable to this ability to continue to deliver justice. A remote hearing, where it is appropriate, can replicate some but not all of the characteristics of a fully attended hearing. Provided good practice is followed, it will be a fair hearing, but the court must be alert to ensure that the dynamics and demands of the remote process do not impinge upon the fundamental principles. The court must seek to ensure that it does not become overloaded and must make a hard-headed distinction between those decisions that must be prioritised and those that must unfortunately wait until proper time is available.
(2) Once a Children's Guardian has been appointed, he or she is obliged to exercise professional judgment, whatever the circumstances of the appointment. This Guardian had to absorb a mass of information at very short notice with no time to make proper inquiries. It was, therefore, to put it at its lowest, surprising that she felt it appropriate to make such a bold recommendation from such a low knowledge base.
(3) There was also a lack of any balanced analysis in the case for removal, with no reference to the emotional detriment to the child in being removed from his only parental figure without notice or preparation and no reference to his wishes and feelings about immediate removal, nor any reminder to the court that these were not known. The child’s voice was not heard at a critical moment in the proceedings and his interests were not protected by his Guardian, whose recommendation set in train the sequence of events that followed. It was hard to describe this process as anything other than arbitrary.
(4) The pressured way in which the proceedings developed may have felt like an emergency to the professionals, but it was not an emergency for the child. The current 'lockdown' does not provide a reason for the removal of a child where none would otherwise exist. This was a classic case for an adjournment so that a considered decision could be taken about removal, if indeed that option was going to be pursued after reflection.
(5) There is a qualitative difference between a remote hearing conducted over the telephone and one undertaken via a video platform. If the application for an interim care order for the boy had been adjourned, it might well have been possible for the adjourned hearing to have been conducted over a video link and that single factor might, of itself, have justified an adjournment in a case which plainly was not so urgent that it needed to be determined on that day. While it may have been the case that the provision of video facilities was limited at the particular court at the time of the hearing, it is now the case that the option of using a video link is much more widely available. Where that is the case, a video link is likely at this time to be the default option in urgent cases.
The full case report will be published in the June issue of Family Law.
This case is a cautionary warning of what can go wrong when those involved in child protection feel unable to act according to normal processes as a result of the constraints that the pandemic has imposed. The Court of Appeal noted the difficulties faced by the Guardian in carrying out any meaningful investigation, by the Recorder who was dealing with an avalanche of papers and hearings at the end of a telephone throughout a long and arduous day, by the local authority who were attempting to respond to the Guardian’s unexpected recommendation, and by the grandmother and her legal representatives in responding to a case that changed fundamentally in the course of a day.
The Court of Appeal’s central message is that ‘lockdown’ and the demands of maintaining safe distancing through the use of remote hearings do not justify the abrogation of the usual safeguards designed to secure fair hearings and rational decisions by the authorities when dealing with child protection issues.