May 2020

The above case should be considered by all family law practitioners when considering whether a contested hearing should proceed on a remote basis.

On 16^th April 2020 The President of the Family Division handed down  the  attached Judgement which considers the appropriateness of a fully contested hearing (in this case a composite finding of fact hearing concerning allegations of FII against the mother) taking place on a remote basis.

The decision of the President outlines a number of key principles to be considered when parties, and indeed the Court, are considering whether a matter is suitable to proceed by remote hearing. There is 'no one size fits all' approach. If a matter can be heard remotely it doesn't mean it must be. When considering whether a hearing can proceed remotely all practitioners must in particular consider the ability of lay parties to participate in remote proceedings and all practitioners must be alive to issues of fairness and to ensure all parties are on an equal footing.

Background to the case

This case concerned allegations of FII by the Local Authority against the mother and a 3-week composite Finding of Fact hearing was due to commence on the 20^th April 2020. At the PTR on 3 April 2020, the parties, along with the trial judge, accepted that the hearing could proceed remotely having been influenced by MacDonald J's 'The Remote Access Family Court' guidance document.

On 16 April 2020, the President of the Family Division convened a short hearing to consider the merits of the matter proceeding remotely. The Local Authority’s position was that despite the complex nature of the allegations it was of the view that a hearing could properly take place remotely and that any delay to hearing the matter would not be in the child’s welfare. The LA proposed that if the Court were concerned as to the mother’s participation in the hearing it could hear the professional evidence and adjourn the hearing to a later date for the lay parties evidence. The Father supported the Local Authority position, although he was not involved in the FII part of this case. The Children’s Guardian supported the Local Authority’s position that the Court should hear the matter in full or as the LA proposed hear part of the evidence with a later hearing date being convened. It was submitted by leading counsel on behalf of the Guardian that technical difficulties which may prevent the Mother's participation with her lawyers or at the hearing could be overcome and should not be a reason for an adjournment.  The Mother opposed the Local Authority position and sought to adjourn the matter. It was accepted that the Mother did not initially oppose a remote hearing at the PTR on the 3^rd April 2020.  It was submitted on behalf of the Mother in light of recent guidance given to judges by the Presidents of their respective divisions and in light of the mother's inability to effectively participate within the proceedings (due to an unstable internet connection and her ability to receive advice and to give instructions throughout the hearing), that 'this is a case that falls outside the category of hearing that could be contemplated as being able to be concluded over a remote platform in a manner that meets the requirements of fairness and justice.' (para 19 Re P)

The President made note that some judges have allowed the attendance of lay parties, and their representative, to attend court to give evidence however this was not deemed appropriate in this matter due to the Mother's suspected infection with Covid-19. (para 20 Re P)

The President's Decision

The President considered '…that a trial of this nature is simply not one that can be contemplated for remote hearing during the present crises. … I would hold that this hearing cannot be properly or fairly be conducted without her physical presence before a judge in a courtroom.' (para 29 Re P). Therefore the President re-listed the matter until such time that the restrictions relating to Covid-19 are lifted.

The following are general principles from the President’s decision to be considered in relation to the conduct of contested remote hearings:

• 'The Remote Access Family Court' written by MacDonald J 'does not offer guidance or give direction' as to whether a hearing should be heard remotely. The President stated this document is 'aimed firmly at the mechanics' (para 8 Re P) of remote hearings. 

• ‘Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way’. (para 8 Re P) (emphasis added by the President).

• ‘We must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1 ‘the overriding objective’], part of which is to ensure that parties are ‘on an equal footing’ [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process’. (para 23 Re P)

• The President considered, in matters of FII, it crucial 'for the judge to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined-in-chief and cross-examined, but equally when they are sitting in the well of the court reacting…'  (para 12 Re P)

• The letter issued by the 'Presidents' to judges on 9 April 2020 does not give guidance and should be considered as setting parameters which may assist the Court in determining whether or not a remote hearing should proceed. 

• There are a number of factors the Court and parties should consider when deciding whether to proceed with a remote hearing, including but not limited to, the seriousness of the case, available facilities, the availability of technology and each parties ability to access the same, the personalities and expectations of participants and the tribunal's experience of remote working. It is for these reasons that the President has stated '…that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance.'  (para 24 Re P)

• The impact on professional diaries of vacating hearings cannot be a factor which weighs very significantly when deciding whether to proceed with a remote hearing. (para 25 Re P) 

• The Court should be mindful whether any particular case can proceed properly or fairly without the physical presence of a lay party in the courtroom even if all parties are in agreement that it can (para 29 Re P)

It is therefore imperative that when considering whether a hearing can take place remotely that the above factors should be considered in order to achieve that such a hearing is fair for all parties. As stated by the President “Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way”.

In this current lockdown period where face to face parenting courses are unlikely to be running, it might be worth looking at the Solihull approach which appears to still be running online. This is especially so for those cases where the parties are being urged to “sort it out themselves” or need to progress contact and one of the barriers potentially holding that up is a parenting course. 

The main weblink is https://solihullapproachparenting.com/ - click on the link at the top of the page “For parents” and then “Online course for parents” and there are lots to choose from. It currently appears to be a cost of £39, which in this current climate is rather affordable compared to other parenting courses. It is also available in English, Urdu and other languages which again gets over another barrier that might appear in certain cases. 

The most useful is probably the “Understanding your child” course, the details of which are here: https://inourplace.heiapply.com/online-learning/course/6

This course can be done online in 11 sessions done in the parents’ own time. It is about as interactive as parties are going to get in the current situation and worth a look. 

Hot off the press and already used by one of the Circuit Judges in Portsmouth this morning (01.05.20)! So practitioners take heed of what the Court of Appeal says and make sure you have at least read this one or have a copy to hand if you’re dealing with an IRH and the matter is being listed for a final hearing to consider whether that final hearing should be remote or in-person.

In summary the Court of Appeal do say it is a matter for the Judge looking at the factors they list as to whether a final hearing can be remote, a hybrid of remote and in-person or a full in person hearing.

In my case this morning the Judge has listed an in-person final hearing deeming the case not suitable for a remote hearing because the application includes a placement for adoption application and one of the parents is to give evidence.

Re A was the first appeal in a case relating to the welfare of children to reach the Court of Appeal on the issue of remote hearings during the Covid-19 pandemic. The appeal was heard on 22 April 2020.

At paragraph 3 the Court of Appeal stress the following cardinal points with the utmost emphasis:

• 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 principle 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.
• Guidance or indications issued by the senior judiciary as to those cases, which might or might not be suitable for a remote hearing are no more than that, namely guidance or illustrations aimed at supporting the judge or magistrates in deciding whether or not to conduct a remote hearing in a particular case.
• The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might or might not have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa. For example, it is the common experience of many judges that remote hearings take longer to set up and undertake than normal face-to-face hearings; consequently courts are now listing fewer cases each day than was the case some weeks ago. On the other hand some court buildings remain fully open and have been set up for safe, socially isolated, hearings and it may now be possible to consider that a case may be heard safely in those courts when that was not the case in the early days of ‘lockdown’.

The key paragraph and the one relied upon by my Judge today was paragraph 6 of Re A, which states as follows:

6. On 9 April 2020, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division sent a message to all circuit judges and district judges concerning remote working during the ‘lockdown’ [‘the LCJ’s message’]. That message included this guidance:

Generally:

• If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing; if parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the ‘green light’ to conduct a hearing in this way;
• Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely;
• Video/Skype hearings are likely to be more effective than telephone. Unless the case is an emergency, court staff should set up the remote hearing.
• Parties should be told in plain terms at the start of the hearing that it is a court hearing and they must behave accordingly.

In Family Cases in particular:

• Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted remotely;
• Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;
• In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.

The other relevant paragraphs in the Judgment are paragraphs 8 and 9, which state as follows:

8. It follows, applying the principles set out above and the guidance that has been given, that:

(i) 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;

(ii) 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, as amplified below;

(iii) The requirement for ‘exceptional circumstances’ applies to live, attended hearings while the current ‘lockdown’ continues.

9. 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. We consider that they will include:

(i) The importance and nature of the issue to be determined; is the outcome that is sought 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. How long is the hearing expected to last?

(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.

The Court of Appeal was keen to say that the above should be seen as being limited to the determination of the individual case to which it relates. Each case is different and must be determined in the light of its own specific mixture of factors.

In Re A the Judge had decided to conduct a hybrid hearing over 7 days with some witnesses (the parents) to attend in person to give evidence and then the others were to attend remotely. This was a set of proceedings which included applications for placement for adoption orders and the Court of Appeal determined on the facts of that case the Judge’s decision was wrong. One of the determining factors in Re A was the inability of the Father to participate or engage adequately in a remote hearing because of his personality, intellect and diagnosis of dyslexia. The other factors were the imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the judge and the need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing. The children subject to applications for a placement for adoption order in Re A was 3 years and 10 months and 20 months of age.

An important element in every case is the age of the children and the degree of urgency that applies to the particular decision before the court. The Court of Appeal was clear that the appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance indicated above to the unique circumstances of the case.

So in essence it may well come down to the preference of the specific Judge and how keen they are to conduct remote final hearings where the plan is one of adoption and how they interpret the Court of Appeal’s decision in Re A.