The Covid-19 pandemic has hit us all hard in many ways. It can be difficult to focus on work at a time like this, with all that is happening in the world. Professionally, life is complicated by the fact that none of us seem certain if and how remote hearings are going to take place. The changing nature of the restrictions on our professional lives, at least for the first few weeks, meant there was a lot of “will-we-won’t-we” guidance being issue, almost on a daily basis. Confusion as to how we will approach our case work, particularly final hearings has been, and continues to be, commonplace. With that in mind, Albion Chambers is doing everything it can to assist in the smooth running of remote working and will continue to do so throughout the lockdown process and beyond.
The position seems now a little more settled, but we are all still grappling with the notion of which cases are suitable for a remote final hearing, and what sort of considerations apply in deciding that. This case demonstrates that we are not alone.
The reported case concerns the listing of a 15-day composite final hearing and finding of fact hearing due to start on 20 April. The child concerned is a 7-year-old girl, said to have been caused fabricated or induced illness (FII) by her mother, who denied the same. Three expert witnesses were warned to attend along with various school and other medical witnesses. The only care options were a return to the mother or removal to foster care; the child in question being placed with a family friend in the interim.
This was the second attempt at listing the hearing, an earlier listing being aborted for reasons which are not explored. The case management hearing occurred on 13 March, when “lockdown” was not envisaged, and the matter was considered trial ready. Interestingly, at a further hearing on 3 April, with the lockdown well under way, aside from concerns that M was cited to have symptoms of the Coronavirus, no party was suggesting that even a case of this complexity should not be heard remotely. The matter was returned to court on 16 April, requiring further judicial guidance, by this stage, there being some doubts as to whether the 15-day fixture could possibly go ahead. It was listed before the President of the Family Division.
The position of the parties at the hearing on 3 April seems to have been predicated upon the guidance (as it was at that time) produced by MacDonald J, which appears to have erroneously been interpreted as suggesting that all final hearings were to take place remotely. The President in his judgment in re P makes it clear that the guidance was not to be taken literally and was merely proposing a mechanism by which remote hearings could take place rather than suggesting they should. The President acknowledged with “surprise” the particular concerns of a case as sensitive as FII being dealt with remotely and notes that:
“it is a crucial element in the Judge’s analysis for the judge to be able to experience the behaviour of a parent who is the focus of the allegations throughout the oral court process; not just 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 and reacting as they may, or may not do, to the factual and expert evidence as it unfolds during the course of the hearing.” (Para 26)
By the time of the hearing on 3 April, the LA, Child’s Guardian and, playing a much lesser role, the Father, were keen to see if at least some of the hearing could be dealt with remotely, perhaps by hearing those expert witnesses who were already giving evidence remotely in any event, adjourning the rest part heard. They were understandably citing the risk of further delay to the child in question. Those representing the mother were opposing the matter proceeding remotely in any form, stating she could not expect a fair trial in the circumstances.
Far from being critical to those representing the mother for changing position so significantly between the hearing on 3 April and this hearing on 16 April, the President readily acknowledged that we have all been “feeling our way” through the early stages of the process, “into uncharted territory” and that the envisaged process of remote hearings perhaps hadn’t panned out as smoothly as the parties had initially thought.
In adjourning the hearing, the President makes the following observations which might well be relevant to anyone considering whether or not a remote hearing could or should proceed.
- Such a decision is a “difficult one for a court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with each other.”
- The need to avoid delay is a “powerful consideration in many cases, but it may be at odds with the need for the resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner.”
- “The decision to proceed or not may turn on the category of the case or seriousness of the decision, but on other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members, and in these early days, the experience of the Judge or Magistrates in remote working.”
- No two cases may be the same and is down to the individual judge in each case.
- That the Judge concerned may be able to cope with assimilating the bundle etc. but a “postage stamp image of any particular attendee” is a “very poor substitute to seeing that person fully present before the court”.
- If a parent is opposing a remote hearing, the case for “abandoning the fixture is all the stronger.”
I suspect that this does no more than formally articulate the arguments which have been swimming around in our minds since this lockdown began. The need to keep the wheels of justice turning, to keep the process moving, to keep children safe, and frankly to keep ourselves working, is great. But those considerations must be borne in mind only when set against the overall need for a fair trial. I don’t read this case as suggesting no final hearing could be capable of being dealt with remotely, but as we have all no doubt experienced over the last few weeks, the number of cases where parties can properly and fairly participate are reasonably infrequent.
From the entire children team at Albion Chambers, we hope you are all staying safe and well. We look forward to seeing you all when things return to normal.
