A Closer Look at Remote Hearings: Re A and Re B

A Closer Look at Remote Hearings: Re A and Re B

This document summarises the recent decisions of Re A and Re B which consolidate the various guidance and case law on the decision to conduct, and the operation of, remote family law hearings during the COVID-19 Pandemic.

Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583

Background

Re A is the first welfare of children decision considered by the Court of Appeal on the issue of remote hearings during the COVID-19 pandemic, following the very recent High Court matter of Re P [2020] EWFC 32 in which the President of the Family Division first addressed the appropriateness of remote hearings during this health crisis. Re A was heard on 22^nd April 2020. In the course of the court’s judgement the President referred to the President’s Guidance on Remote Hearings (19^th March 2020, clarified on 25^th March 2020) and the ‘LCJ message’ to judges concerning remote working during lockdown (9^th April 2020) which merit careful reading.

The appeal arose after the Local Authority issued proceedings in respect of six children fathered by Mr A. The LA withdrew their application relating to the oldest child and a supervision order was made in respect of the second oldest. This left a long-term foster care application in respect of the 3^rd and 4^th child, whose mother is Mrs A, and an application for a placement for adoption order in respect of the youngest two, mothered by Mrs B.

The LA’s concerns related to emotional and physical harm through exposure to domestic violence, coercive and controlling behaviour, instability, conflict and volatility. Threshold under s.31 CA 1989 was agreed.

Lower Court

The case was listed for a 5-day hearing on 30^th March 2020 which was vacated at the start of the COVID crisis and listed for consideration on 3^rd April 2020. At that hearing HHJ Dodd gave directions for the final hearing to go ahead in ‘hybrid’ form, over seven days in late April and early May. Mr and Mrs A were to attend in person to give evidence separately. In light of Mr A’s concern about being unable to access a remote hearing due to his dyslexia and a lack of suitable technology, the judge suggested Mr A attends entirely in court if he was unable to engage remotely. This plan was opposed by counsel for Mr and Mrs A, firstly on the ground they were reluctant to leave their home during lockdown, secondly that a remote or hybrid hearing would not be sufficiently fair to meet the requirements of ECHR Articles 6 and 8, and thirdly that it was oppressive to expect their counsel to travel from Merseyside to Carlisle [20].

Despite taking account of the parents’ opposition, the judge considered the case sufficiently urgent to justify an April/May listing for a hybrid hearing. He suggested that the adoption ‘window’ would close if the court waited until current restrictions were lifted [28]. The judge’s mistaken belief that the second youngest child was 4 years old supported his reasoning; the child was in fact 3. He found it reasonable to expect the parents to come to the court building to give evidence and it was a matter for counsel whether they attended court in person or remotely [21].

The judge maintained the decision to conduct the final hearing in hybrid form at the review hearing on 17^th April 2020, with Mr and Mrs A to attend separately to give evidence, having circulated a ‘case plan’ for the final hearing. It was expected, but not ordered, that they would be accompanied by a representative of their firm of solicitors and that counsel would join the proceedings remotely.

The judge noted the LCJ’s message which indicated that contested final care proceedings in which the parents were expected to give evidence would not normally be suitable for a remote hearing. However, he drew a distinction between a fully remote hearing and the hybrid hearing he had established, a position supported only by the Children’s Guardian at the appeal hearing.

Judgment

The court first set out three fundamental principles on remote hearings which can be summarised as follows [3]:

1. The judge or magistrate must consider the appropriateness of a remote hearing or conduct thereof on a case by case basis, considering fairness, justice and the need to promote the welfare of the child[ren] concerned. It is a case management decision.
2. Guidance by the judiciary as to suitability of a remote hearing is not binding or prescriptive.
3. Any guidance or court decision on remote hearings is subject to change because of the rapid development of government and court operation.

Points 1. and 2. highlight that there can never be a ‘one size fits all’ approach. The court did however list a range of factors which may influence a judge’s decision in every case [9]. The importance of solicitors and counsel applying these considerations to each individual case is stressed. This approach will ensure they are fully aware of the client’s position and the likely decision of the judge:

1. The importance and nature of the issue to be determined: is the outcome sought an interim or final order?
2. Whether or not there is a special need for urgency or whether the decision could await a later hearing without causing significant disadvantage to the child or other parties;
3. Whether the parties are legally represented;
4. The ability of lay parties to engage with and follow remote proceedings meaningfully (consider technology, funding, intelligence/personality, language and their ability to instruct lawyers before and during the hearing);
5. Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
6. The source of any evidence to be adduced and assimilated by the court (i.e. whether it is written or oral, contested or uncontested, given by a professional or lay witness, factual or expert evidence);
7. The scope and scale of the proposed hearing;
8. The available technology. A telephone hearing is likely to be a less effective medium than video;
9. The experience and confidence of the court and those appearing before the court in conducting the hearing using the proposed technology; and
10. Any safe alternatives 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.

Applying the above considerations to the facts of Re A, the court allowed the appeal due to [49]:

i)               Mr A’s inability to engage with remote evidence: this was important and potentially determinative [10];

ii)             The imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the judge; and

iii)           the need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing.

Although the option for Mr A to attend court and use its video equipment might address the technological deficit, it would not resolve the difficulties of his communication with his legal team and his limited ability to follow the proceedings from home when he is not giving evidence [54]. The court further endorsed the LCJ’s message in stating that given all parties, except the Children’s Guardian, opposed proceeding with the planned hearing, the court required clear and cogent reasons for taking the contrary view [61]. The decision was set aside, and the matter remitted to the judge to give further directions with a view to the final hearing taking place as soon as may be possible.

Re B (Children)(Remote Hearing: Interim Care Order) [2020] EWCA Civ 584

Background

Heard on 23^rd April 2020, the day after Re A, the Court of Appeal considered the appropriateness of an interim care order made in respect of a 9-year-old, Sam, at a remote hearing on 3^rd April 2020. The court was constituted of the same members as delivered judgement in Re A, led by the President.

Sam has an 11- year old sister Samantha. Their mother is a drug user with a criminal record and their father, who died in 2019, was a prolific drug user. When they were young, the Local Authority took care proceedings and in 2013 their maternal grandmother, now aged 65 became their special guardian and has been their primary carer for all Sam’s life.

The LA remained involved in providing support and had a number of concerns about the stability of the placement including grandmother’s ability to cope, interventions by the children’s mother and the actions of a maternal aunt and uncle. The catalyst for proceedings was an incident on 20^th March, when police were called to the home where Samantha was outside, screaming. She said she had been hit by her aunt; the grandmother and aunt denied it and described Samantha’s behaviour as particularly challenging. She was taken into police protection and placed in foster care. Sam remained with his grandmother.

On 23^rd March the grandmother signed a section 20 agreement for Samantha. On 27^th March she told social services that she would like Samantha back at some stage. On 1^st April, she said she wanted her to return by 3^rd April. The LA issued proceedings on 2^nd April for an interim care order in Samantha’s case and an interim supervision order in Sam’s, drawing attention to the grandmother’s request for Samantha’s return the following day and asking for an urgent hearing.

The Guardian filed a position statement at 10:49am on 3^rd April, the hearing date, which supported interim care orders for both children. The Guardian sought to explain that an interim supervision order was no longer appropriate for Sam as he would be placed at a greater risk of emotional and physical harm without Samantha in the family home. Interim care orders were made in respect of both children.

Judgment

In allowing the appeal, the court considered that a number of unfortunate factors contributed to the incorrect decision for Sam to be subject to an interim care order. The application was incorrectly driven by the Guardian in terms of immediacy, there was insufficient time for the judge to read the papers and there lacked balanced analysis in the case for removal that was put by the Guardian and LA ([20] onwards). The court criticised the LA’s alteration to the care plan as lacking good reason and solely founded upon the Guardian’s position statement.  It was also considered unfair that the grandmother had no opportunity to file evidence in relation to this serious matter; it would have been desirable for the LA to attempt to agree a suitable timetable with the grandmother ahead of the service of proceedings upon her [16]. She had no opportunity to file evidence or make a position statement, although the court acknowledged that in cases of exceptional urgency that may be unavoidable [25].

While the Recorder was entitled to find that the threshold for an interim order was crossed, there was inadequate evidence to justify Sam’s removal [30]. The court can only sanction immediate separation where the child’s physical safety or psychological or emotional welfare makes it necessary and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur: C (A Child) (Interim Separation) [2019] EWCA Civ 1998. The Recorder had not correctly applied these principles and their central concerns related to emotional harm stretching back over years, not something that had happened now to make Sam’s removal necessary [34].

The court concluded there had been a loss of perspective, in part caused by the exigencies of the remote process, and an adjournment would have enabled the parties to have all the necessary information [34]. The court highlighted its preference for video link over telephone hearings which might of itself justify an adjournment where an interim care order hearing is not so urgent as to require determination immediately [35].

Comment

Re A and Re B highlight the possible consequences when urgency is front and centre of the court’s decision making at a remote hearing. The need to stand back and consider whether all the necessary information is available, and practicalities in place, for a remote or hybrid hearing to be effective and fair is key. Applying the 10-point checklist of factors in Re A, and any other relevant considerations, to each individual case will ensure legal representatives can make well-informed submissions as to whether and how a hearing should take place. The clear steer towards video hearings in the case law, building on the current judicial guidance, will give parties greater clarity as to how a remote hearing should be conducted, if indeed it can be fairly achieved.

Henry Pring

Pupil Barrister

9 Park Place Chambers