This article considers the reported decision by the President of the Family Division, Sir Andrew McFarlane, on the suitability and appropriateness of remote contested final hearings during the current Covid-19 pandemic. Ultimately, this case provides that even though a hearing can take place remotely, this does not inevitably mean that it should. A copy of the judgement can be found via this link: https://www.bailii.org/ew/cases/EWFC/HCJ/2020/32.html
The application arose out of ongoing care proceedings that first began in April 2019 concerning a seven-year-old girl. A series of allegations had been made by the local authority that the child had been caused significant harm as a result of fabricated or induced illness; such allegations were fully contested by the child’s mother. A fifteen-day final hearing was listed, due to commence on 20 April 2020, when the Judge would determine the factual issues and decide the final care plan for the child.
On 3 April 2020 at the final pre-trial review, it was decided that the final hearing would have to take place remotely via Skype for Business, given the current lockdown due to the Covid-19 pandemic. This decision was influenced by the guidance of Mr. Justice MacDonald in “The Remote Access Family Court” (now in its 4th edition as of 16 April 2020). Those involved in this case considered that this advice provided that all hearings should take place remotely, which was unfortunately a misunderstanding of the advice.
The local authority submitted that this was a case that could be heard remotely, as the allegations had been well rehearsed in documents and all the witnesses were professional witnesses and able to give remote evidence. They also submitted that the child was already suffering significant emotional harm, and this would not be alleviated until the final care plan was decided. The father and the child’s guardian opposed the adjournment and supported the position of the local authority. The local authority further suggested that the Court could hear from the expert witnesses remotely and then reconsider the way forward.
The mother pushed for an adjournment on the basis that her case fell short of the category of cases that could be conducted remotely in a way that met the requirements of fairness and justice. Additionally, the mother’s health was a concern – it was said that the mother herself had in fact contracted Covid-19.
The President had grave concern that this was a type of hearing that “certainly at first blush, seemed to be well outside the categories of hearing which could be contemplated as being appropriate for remote hearings before the Family Court” [paragraph 11]. He went on to state that this hearing, involving allegations of fabricated or induced illness, required “exquisite sensitivity and skill on the part of the court” [paragraph 11] which could not take place in a remote setting. Therefore, the President invited the Judge to adjourn the hearing.
The President ultimately decided that the hearing could not proceed remotely and therefore adjourned until the unprecedent limits had been lifted and the hearing could proceed as usual. A particularly noteworthy paragraph from the President’s judgment that summarises his position is as follows:
“The reason for having the very clear view that I have is that it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely. The judge who undertakes such a hearing may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function. The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court. It also assumes that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment. I do not consider that a remote hearing for a final hearing of this sort would allow effective participation for the parent and effective engagement either by the parent with the court or, as I have indicated, the court with the parent. I also consider that there is a significant risk that the process as a whole would not be fair.” [paragraph 26].
This case tackles head-on the issues Family Courts are currently facing. The Courts have had to adapt quickly to modern technologies and ways of working, which has been a huge task. This decision of the President is extremely welcomed by professionals in the Family Law jurisdiction; it emphasises the importance of a fair trial and effective participation of the parties within proceedings