This is 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 Judgment summarises the existing guidance, in particular as set out in the President’s Guidance on Remote Hearings issued on 19 March 2020, and in a message sent on 9 April 2020 by the Lord Chief Justice, the Master of the Rolls and the President of the Family Division to all circuit judge and district judges concerning remote working during the “lockdown” [“the LCJ’s message”]. It goes on to highlight the key principles, and to expand on the factors that should be under consideration when applying the guidance. The Court of Appeal highlights that “[t]he appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance […] to the unique circumstances of the case” [para 11] and “in addition to the need for there to be a fair and just process for all parties, there is a separate need, particularly where the plan is for adoption, for the child to be able to know and understand in later years that such a life-changing decision was only made after a thorough, regular and fair hearing” [para 12].

The appeal related to a decision made on 3 April 2020 (and reviewed and maintained on 17 April) by HHJ Dodd for a final hearing in care proceedings (including applications for placement for adoption orders) to proceed in “hybrid form” i.e. remotely, but with the father of the six children concerned, and the mother of the two youngest children to attend court to give evidence. The father was to have the option to attend court throughout due to dyslexia and a lack of suitable technology at home. Save for the Children’s Guardian, the parties had opposed the matter being heard remotely – the local authority changed its position between the two April hearings in light of the LCJ’s 9 April message which indicated that “where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing”.

The guidance given

In a single judgment, the Court of Appeal first sets out “cardinal points” to be applied, namely [at para 3]:

    1. 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/magistrate who is to conduct the hearing. It is a case management decision, with wide discretion, based on the ordinary principles of fairness, justice and the need to promote the welfare of the child(ren);
    2. Guidance issued by the senior judiciary is there to guide the judge, and is no more than “guidance or illustrations” to support decision making; and,
    3. The temporary nature of the guidance should be remembered, and the situation will alter over time, and from week to week. For example, 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 President summarises the existing guidance on remote hearings, and the circumstances in which these may be appropriate, noting that:

    1. 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 – although it is possible that a particular case may be heard remotely; and
    2. While the current lockdown continues, live court-based hearings should be confined only to exceptional circumstances where a remote hearing is not possible and yet the hearing is sufficiently urgent to mean that it must take place with those involved attending court in a manner which meets social distancing requirements.

At paragraph 9, a list of factors is given to amplify existing guidance as to what may influence the decision as to whether to proceed with a remote hearing. These will include:

    1. The importance and nature of the issue to be determined;
    2. Whether there is a special need for urgency, or whether the decision could await a later hearing without causing a significant disadvantage to the child or the other parties;
    3. Whether the parties are legally represented;
    4. The ability, or otherwise, of any lay party to engage with and follow remote proceedings meaningfully;
    5. Whether evidence is to be heard;
    6. The source of any evidence – written or oral, factual or expert etc.;
    7. The scope and scale of the proposed hearing, including length;
    8. The available technology – bearing in mind that a telephone hearing is likely to be a less effective medium than video;
    9. The experience of those involved in using the proposed technology;
    10. Any safe alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance.

The appeal

In light of the above, the Court of Appeal highlights that each case is different, and that this decision cannot be seen as applicable to a particular category of children case. The President highlights that the decision does not mean that there cannot be remote final hearings on an application for a care order, or a placement for adoption order. Neither should the decision be taken as holding that there should be no “hybrid” hearings, where one or more party physically attends.

However, the appeal in this case was allowed, and the case deemed not currently suitable for remote hearing or hybrid hearing, for the following principle reasons [para 49]:

    1. The father’s inability to engage adequately with remote evidence (either at home or in the courtroom);
    2. The imbalance of procedure in requiring the parents, but no other party or advocate to attend before the judge;
    3. The need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing. On more than one occasion the judge had referred to one child (X) as being a year older than his true age (rising 5 rather than 4), and he may inadvertently have understood this to be the case. The local authority was clear that this was not an “exceptional” case, and did not support the Judge’s conclusion about the adoption window closing for X. Further the local authority highlighted that the family finding process is on hold until the current COVID restrictions have been lifted;
    4. Finally, the Court of Appeal endorses the steer given in the LCJ’s message of 9 April at sub paragraph (a): “If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing”.

 

By Lucia Crimp – click to view profile 

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