Specialist Trinity Public Law Children barrister, Patrick Goodings (2010 Call), examines the implications of the recently published judgment in the case of Re A and what this means in terms of remote hearings in Care and Placement cases:
“when the wind of change blows, some build walls, while others build windmills” - Ancient Chinese Proverb
The winds of change are well and truly blowing in 2020 and the Family Court is currently grappling with the difficult task of whether to build windmills, or walls, or both.
The recent Judgment in Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583, in which the Court of Appeal considered, and set aside a decision to undertake a remote ‘hybrid’ final hearing is a good example of windmill being built, only to be quickly replaced by a wall.
In short, the Judge at first instance decided to conduct the hearing as a “hybrid” hearing with the parents attending court (separately) to give evidence, with the expectation that they would be accompanied by a representative of their respective firms of solicitors. It was accepted that their counsel would join the proceedings remotely. The court maintained the option of Mr A attending the court throughout the hearing if he was unable to engage with the process remotely.
In setting aside this decision, the Court of Appeal set out three ‘headlines’ under which they said the Judge was wrong in deciding to undertake a remote or ‘hybrid’ final hearing:
i) Mr A’s inability to engage adequately with remote evidence (either at home or in the courtroom);
ii) The imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the judge;
iii) The need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing.
Of particular interest within this Judgment however is the consistent message that deciding whether it is appropriate or otherwise to proceed remotely should be done so on a ‘case by case’ basis.
The Court of Appeal was keen to stress that the current pandemic and thus the fundamental change in the way hearings are current being conducted has created a rapidly evolving and constantly changing legal landscape. What is appropriate today, may be inappropriate tomorrow – or vice versa. This is highlighted in the preamble to the substantive Judgment in Re A in which the following comments were made by the President;
This case 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 appeal was heard on 22 April 2020. On the following day the same constitution heard the second such appeal, Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA (Civ) 584. There will undoubtedly be further appeals in children cases heard in the High Court or the Court of Appeal on the issue of remote hearings in the coming weeks.
The following ‘cardinal points’ were stressed with the utmost emphasis:
i) 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 principles 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.
ii) 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.
iii) 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’.
Within the Judgement the competing strands of the various guidance documents which have been circulated over the preceding few weeks are succinctly drawn together. The Judgment itself is extremely useful in forming an up to date picture of the current approach being taken by the higher courts and thus the likelihood or otherwise of a remote hearing being deemed fair.
The following points are of particular note:
The guidance as set out below by the Lord Chief Justice, the Master of the Rolls and the President of the Family Division concerning remote working during the ‘lockdown’ is intended to apply to final hearings and not to interim hearings.
“Generally:
a. 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;
b. Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely;
c. 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.
d. 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:
e. 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;
f. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;
g. 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 President commented that it follows, applying the principles … and the guidance that has been given, that:
iv) 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;
v) 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;
vi) The requirement for ‘exceptional circumstances’ applies to live, attended hearings while the current ‘lockdown’ continues.
The President stated that;
“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”
He considered that they will include:
vii) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
viii) 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;
ix) Whether the parties are legally represented;
x) 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;
xi) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
xii) 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;
xiii) The scope and scale of the proposed hearing. How long is the hearing expected to last?
xiv) 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;
xv) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
xvi) 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.
In setting aside the Judge’s decision at first instance the following specific points were made:
- It follows from all that we have said above that our judgment on this appeal 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.
- The import of the decision in this case, in which we have held that the appeal must be allowed against a judge’s decision to conduct a remote hearing of proceedings which include applications for placement for adoption orders, is that, on the facts of this case, the judge’s decision was wrong. As will be seen, one important and potentially determinative factor was the ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair. Such a factor will, almost by definition, be case-specific.
- Another element, and one that is likely to be important in every case, is the age of the children and the degree of urgency that applies to the particular decision before the court. The impact of this factor on the decision whether to hold a remote hearing will, as with all others, vary from child to child and from case to case.
- It also follows that the decision on this appeal must not be taken as an authority that is generically applicable to one or more category of children cases.
- We wish to state with total clarity that our decision does not mean that there can be no remote final hearings on an application for a care order or a placement for adoption order.
- Neither is our decision to be taken as holding that there should be no ‘hybrid’ hearings, where one or more party physically attends at a courtroom in front of a judge.
- 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.
- Finally, 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.
We await the forthcoming conclusions of the consultation on the use of remote hearings in the Family Justice System undertaken by the Nuffield Family Justice Observatory.
In addition, the widespread roll out of Cloud Video Platform (CVP) seems imminent.
What effect either of these will have on the ever emerging guidance and the appropriateness or otherwise of remote final hearings will await to be seen. It would seem that the current guidance from the Court of Appeal appears to provide, at least in theory, an ability to undertake a remote final hearing, even with the parents giving evidence. However at this stage that would be in a very specific set of circumstances. Looking particularly at (x) above, and the ability of lay parties to engage is going to be of particular relevance, especially in an area of law where, by virtue of the issues involved, lay parties are often extremely vulnerable.
The need to innovate, by all those who are involved in the Family Justice system, has never been more important.
I would certainly rather build a windmill, than a wall.
Trinity Chambers was recently featured in The Lawyer Magazine as being a Chambers at the forefront of remote working.
Trinity's Family and Child Care barristers and clerking team recognise that dealing with remote hearings may be new to many of our clients and as such we would be more than happy to spend some time discussing the various options available, the process and technical/IT requirements.
Do not hesitate to get in touch with the Family clerking team, who are operating a full service, by email: FamilyClerks@trinitychambers.co.uk or phone: 0191 232 1927.