This is the first appeal in relation to remote hearings in the COVID-19 pandemic relating to private children cases. Despite being an appeal from a District Judge, it was heard by the President of the Family Division: (a) to remedy some perceived confusion arising out of Re P [2020] EWFC 32 and (b) because some case management in the case had been done by the relevant Designated Family Judge. The judgment is largely fact-specific but makes clear that the decision as to whether to hold a remote hearing is one for the judge and is one specific to the case at hand. The President stresses that while the issue is one of remote hearings, the appeal in fact turns on ordinary principles of welfare and appropriate procedure.

Facts

The case concerned Q, who was a girl aged 6 ½. Her mother (“M”) had been her primary carer throughout her life. M was of European origin and required an interpreter. The proceedings about the arrangements for her care had been ongoing for some time. Q was represented through her Children’s Guardian. She had been having regular contact with her father (“F”) until October 2018, when her mother (“M”) made allegations that he had sexually abused Q. There was then no contact until July 2019, when supervised contact started. In October 2019, DDJ O’Leary heard a 7 day fact-finding hearing. No findings of sexual abuse were made and at the end of the hearing, the restrictions on contact were relaxed and a psychological assessment was ordered.

The expert psychological assessment was received in March 2020 and recommended a change of Q’s primary carer to F. At the pre-trial review on 24 March 2020 – heard remotely – the court directed that Q spend one week on and one week off with each parent. A three day final hearing was listed to take place remotely on 22-24 April 2020.

The guardian filed her final report on 10 April 2020 and recommended an immediate change of residence for Q.

On 15 April 2020, HHJ Tolson QC – the Designated Family Judge at the Central Family Court – did a paper review of the pending trials. He unilaterally directed the vacation of the final hearing relating to Q.

On 20 April 2020, there was a further review hearing before DDJ O’Leary. M sought an adjournment on the basis that a remote hearing would not be fair. The judge rejected this and directed that the final hearing continue as initially planned.

Re P (A Child: Remote Hearings) [2020] EWFC 32 was handed down on 21 April 2020. DDJ O’Leary communicated with HHJ Tolson QC about whether a remote hearing could or should occur.

On the first day of the listed final hearing, the judge indicated that she had been reviewing the decision to proceed with the trial and heard submissions on this basis. She then changed her position, vacated the hearing and re-listed for a three-day face-to-face hearing before her when these were again possible. F appealed the decision to vacate the remote hearing.

DDJ O’Leary’s decisions

On 20 April 2020, DDJ O’Leary refused M’s application to adjourn the final hearing until it could be heard more conventionally. The key parts of her decision were [12]:

      • There were two competing interests: Q’s welfare, which included avoiding delay, and the need for a fair hearing for two parties
      • “I am certain in my mind that a fair hearing can and should take place on 22nd April with its three day time estimate…”
      • The importance of finality for Q, who was displaying evidence of emotional harm
      • The fairness of the hearing could be considered as the hearing progressed if that became a concern

On 22 April 2020, the question of the adjournment was raised by the judge. In her judgment [14], she stated that “It is two factors together that have changed my mind. They are a combination of a reading of yesterday’s decision of the President in Re P and last night reading and considering the father’s position statement. The root of the tension in this case is a timely resolution of the matter for the sake of the child, Q, as against the need for fairness in this case. I have to balance those two interests while making it absolutely clear that my paramount concern must be the welfare of Q.”

The judge said Q’s welfare was being maintained on an “even-handed basis” by the one week on, one week off approach. She was concerned that “there are stark matters said on behalf of the father about the mother’s care of Q which came clearly to me from the position statement prepared on the father’s behalf and I will have to give proper consideration to what the mother has to say about her care of the child and her capacity to engage with professionals and with what Miss Fottrell describes as Q’s lived experience”.

DDJ O’Leary considered that M joining in through the internet, with her need for interpretation, was less than satisfactory. She also pointed out the letter from the Lord Chief Justice, Master of the Rolls and President of the Family Division where it was said that, where parents and witnesses were needed, the case was unlikely to be suitable for remote hearing.

Decision

The President set out the history of the case and the judge’s two judgments in some detail; he praised these for their clarity and form.

Four grounds of appeal were relied upon by F:

      • Misapplication of Re P;
      • There had been no material change in circumstances between the two hearings; matters said to be in F’s position statement were before the court in any event and the judge did not raise this for it to be addressed in submissions;
      • Insufficient weight was afforded to Q’s welfare; and
      • There was insufficient regard given to the overriding objective.

The President considered that the points raised in F’s position statement were a factor which had influence in the judge’s change of mind. Despite the position statement containing no new material (as was accepted by M) and F’s position remaining that he did not seek to cross-examine M, the judge did not raise the issue with counsel. This was a material error in the fair conduct of the proceedings.

It was also difficult to reconcile the approach to Q’s welfare on 20 April 2020 – which was at least in part the justification for proceeding with a remote hearing – with that taken on 22 April 2020, where the guardian’s analysis was not mentioned and Q’s welfare was said to be being maintained by the present arrangements.

The President stated that the judge did not misinterpret Re P: although the decision was more specifically tied to the small number of cases relating to allegations of FII, paragraph 24 to which the judge had referred was, although obiter, of general application.

It was flagged that the need to consider each individual case when making case management decisions about the possibility, or otherwise, of a remote hearing could cause inconsistent decisions between courts and even judges at the same court. This was to be accepted as a consequence of that individualised approach.

The President ended his judgment with a reminder that the decision was not about remote hearings per se: “The decision in the present case should be seen as an ordinary appeal, where the issue happens to be a remote hearing, but where the appeal has turned upon a failure of process and an error in approaching the issue of welfare.”

Elle Tait – click here to view profile 

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