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Hybrid Hearing’ with remote attendance of advocates is not a breach of Article 6 – Re C (Children: Covid-19: Representation)

The Judgment of the Court of Appeal in Re C (Children: Covid-19: Representation) [2020] EWCA Civ 734 (available here), considers an appeal by a mother against the decision of Williams J ([2020] EWHC 1233 (Fam)) to list a Fact Finding Hearing in care proceedings for a ‘hybrid hearing’.

In his leading judgment, Jackson LJ dismisses the appeal, citing extensively from the judgment of the lower court which decided that the hybrid hearing was fair in accordance with Art. 6 ECHR.

Case on appeal

The case involved expert evidence regarding the death of one of the children in hospital from suspected cocaine ingestion, which the court heard remotely. The court considered whether the lay parties’ evidence could also be heard remotely, finding that it could not and that a hybrid hearing best balanced the Art. 6 rights of the Mother to a fair trial, and the Art 6 rights of the other parties to a fair trial within a reasonable time.

Williams J in his judgment considered the case of Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583, which practitioners will remember for its detailed guidance on the conduct of remote and hybrid hearings.

It is of note that in this case, the Mother’s leading counsel was unable to participate in an attended hearing due to her need to shield a vulnerable person at home from Covid-19. The Court of Appeal commented that, quite properly, Mother’s leading counsel had offered to return her brief should the hearing become an attended hearing. Mother however did not wish to change her representation.

The decision of Williams J was appealed on the grounds that he had failed to carry out an assessment of the proceedings, the seriousness of what was at stake for the Mother, whether the arrangements for a hybrid hearing satisfied Mother’s right to an adversarial trial, or the importance of the appearance of a fair trial and whether the hybrid hearing respects a fair balance between the parties.

The appeal also asserted that the judge had not carried out a proper judicial evaluation of the competing Art.6 rights of the parties.

Judgment

In dismissing the appeal, Jackson LJ at [23] of the Court of Appeal’s judgment outlined 7 points relating to the fairness of a trial, drawing on precedents from the UK and the ECtHR:

  1. Fairness is case-specific and is to be assessed in relation to the proceedings in their entirety: Ankherl v Switzerland (2001) 32 EHRR 1 at [38].
  1. There must be protection not only from actual unfairness but also from the risk of unfairness: Kanda v Government of the Federation of Malaya [1962] AC 322 (PC) at p.5.
  1. The right of access to the court must be effective, so that the individual has the opportunity to address all material that might affect the court's decision and is placed in a position to call evidence and to cross-examine: Mantovanelli v France (1997) 24 EHRR 370 at [36].
  1. The importance attached to the welfare of the child must not prevent a parent being able effectively to participate in the decision-making process: L v UK [2002] 2 FLR 322 at 332.
  1. The principle of equality of arms entails a reasonable opportunity to present one's case, including one's evidence, in a way that does not place one at a substantial disadvantage to one's opponent: Dombo Beheer BV v The Netherlands (1994) 18 EHRR 213 at [33].
  1. The administration of justice requires not only fairness but the appearance of fairness: R v Leicester City Justices ex p Barrow [1991] 2 QB 260; P, C & S v UK [2002] 2 FLR 631 at [91]. However, the misgivings of individuals with regard to the fairness of the proceedings must be capable of being objectively justified: Kraska v Switzerland (1994) 18 EHRR 188 at [32].
  1. The determination must be made within a reasonable time: Article 6 itself.

Finally, at [25], the court outlines that “as time goes on a careful evaluation of the kind made in this case is no more likely to be the stuff of a successful appeal than any other case management decision”.

Analysis

This case appears to ‘shut the door’ on appeals such as this where the court has clearly considered the fairness of any such proposed hybrid hearing in the midst of Covid-19.  That decision is a case management decision as any other, and the first instance court will have a wide discretion in making decisions which take into account fairness and the welfare of the children. It therefore seems likely that, where judges give appropriately reasoned judgments in respect of such case management issues, the appellate courts will be unwilling to intervene.