(Family Division, Sir Andrew McFarlane, P, 6 May 2020)
CASE MANAGEMENT – PRIVATE LAW CHILDREN
This was an appeal from a case management decision of Deputy District Judge O’Leary in a long-running private law dispute concerning Q aged 6. The appeal was transferred to be heard by a judge of High Court level because of a perceived need to clarify the judgment in Re P (A Child: Remote Hearing)  EWFC 32 and because the Designated Family Judge at the Central Family Court had played a part in the case management decisions regarding the remote hearing of the case.
Q's parents had been separated for some years. Her mother, of European origin and who required the assistance of an interpreter during court proceedings, had been Q’s primary carer. Her English father had seen Q regularly until October 2018 when all contact was stopped following the mother’s allegations that he had sexually abused Q. Contact was restarted on a supervised basis in July 2019. In October 2019 DDJ O'Leary conducted a seven-day fact-finding hearing which concluded with a clear finding that no sexual impropriety had occurred. Restrictions on contact were relaxed and the case was adjourned for a psychological assessment of the parents. The expert psychological report filed in March 2020 concluded that it was in Q's best interests for there to be a change of primary carer from mother to father. The court directed that contact should be further increased so that Q spent alternate weeks with each parent, an arrangement which continued through the Covid 19 lockdown. On 10 April 2020 the guardian filed her final report which accepted the expert opinion and recommended an immediate change of residence.
In December 2019 the case had been set down for an ordinary final hearing before DDJ O'Leary on 22 April 2020. On 24 March 2020, at the pretrial review conducted remotely before the deputy district judge, the case was set down for a remote final hearing on 22 April with a time estimate of three days. On 15 April the DFJ HHJ Tolson QC in the course of a paper review of pending trials unilaterally directed that the planned final hearing should be vacated. That decision was reviewed at a further remote hearing before deputy DDJ O'Leary on 20 April 2020. The mother applied for an adjournment on the basis that the matter could not be determined fairly at a remote hearing. In her ex tempore judgment DDJ O’Leary considered the competing interests of Q’s welfare (including the avoidance of delay) and the need for the hearing to be fair to all parties (including their participation and feeling of involvement). The judge decided that it was appropriate for the case to go ahead remotely on 22 April. Q needed finality: she had been the subject of litigation for a considerable period of her life and was displaying evidence of emotional harm. The three- day time estimate would provide sufficient opportunity for the breaks necessary in remote hearings.
On 21 April the judgment in Re P was handed down. DDJ O'Leary had email correspondence with HHJ Tolson on whether the remote hearing planned for the following day should take place.At the start of the hearing on 22 April DDJ O’Leary reopened the question of an adjournment and, having heard submissions from each of the parties, gave a short but detailed ex tempore judgment reversing the decision she had made two days earlier and adjourning the case until a face-to-face hearing could take place. The judge stated that two factors in combination had changed her mind: the judgment in Re P and her reading of the father’s Position Statement, which, while based upon evidence already before the court, set out a substantial list of criticisms of the mother’s care of Q. The judge stated that she would need to hear from the mother on her care of Q as well as (as had previously been agreed) from the psychologist and guardian. The mother would need access to her lawyers throughout the evidence: joining from home by means of the internet, with the complication of an interpreter, was a much less than satisfactory solution. DDJ O’Leary found that Q’s welfare was being maintained by the current shared care arrangement. She gave the father permission to appeal. The guardian supported the appeal.
Held – allowing the appeal, setting aside the decision to vacate the remote hearing and remitting the matter to DDJ O’Leary to redetermine the question of how and when the final hearing was to take place –
Despite the clarity of the deputy district judge's judgments and the obvious care and thought that she brought to bear on difficult decisions, she had fallen into error with respect to two matters.
(a) It was common ground that the Position Statement did not contain any new material and that the father's position for the final hearing remained that his counsel would not seek to cross-examine the mother. However, it was clear that the judge considered that the way the father’s case was now being put would, or at least might, entail hearing 'what the mother has to say about her care of the child'. This factor was plainly influential in the judge's decision to change her mind. The judge's understanding was that these allegations would lead to a need to hear oral evidence from the mother, yet she also knew that the father did not anticipate cross-examining her upon them. In the circumstances, the judge's failure to raise the issue that was in her mind and explore it through submissions, rather than raising it for the first time in her judgment, was a material error in the fair conduct of the proceedings
(b) The judge had erred in her approach to the issue of Q's welfare. It was difficult to reconcile the approach to welfare on 20 April which was in part the justification for holding an immediate hearing conducted remotely on the basis that Q needed finality and the potential for emotional harm must come to an end, with the approach taken on 22 April which was that Q's welfare was currently being maintained by the present arrangements.
It was clear that the judge had not erred in her application of Re P. The decision in Re P is expressly tied to the small number of cases in which allegations of Factitious or Induced Illness are made. Paragraph 24 in Re P is of more general, obiter, application and the judge had been correct in referring to it.
The full case report will be published in Family Law.
This case is a graphic illustration of the difficult case managements decisions which judges face during the Covid 19 pandemic. Despite the President observing that both ex tempore judgments were ‘models of clarity and form for which the deputy district judge should be praised’, the appeal was allowed. However, the President made it equally clear that his judgment is not about remote hearings in general. This was an ordinary appeal, where the issue happened to be a remote hearing, but where the appeal had turned upon a failure of process and an error in approaching the issue of welfare.
On remote hearings, the President observed:
At present, in accordance with the Guidance that has been issued and the decisions handed down last week in the Court of Appeal in the cases of Re A (Children) (Remote Hearing: Care and Placement Orders)  EWCA Civ 583 and Re B (Children) (Remote Hearing: Interim Care Order)  EWCA Civ 584, each judge or magistrate must consider the individual case before the court and determine whether or not it should proceed remotely in whole or in part. It is to be accepted that a consequence of this approach is that different courts may take a different view on similar cases and that this may inevitably give rise to some inconsistency from court to court, or even from judge to judge. The Family Justice Observatory’s speedy research into remote hearings in the Family Court will inform a review of the current situation and indicate whether the present guidance needs to be revised.
Both decisions are the subject of comment by Gillian Douglas in this issue. The research has now been published: M Ryan et al Remote hearings in the family justice system: a rapid consultation (Nuffield Family Justice Observatory, 2020).Rebecca Bailey-Harris