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Re P (A Child: Remote Hearing) [2020] EWFC 32

The President of the Family Division considers the appropriateness of a remote hearing, in a proposed fully contested composite finding of fact hearing, concerning allegations of FII made by a Local Authority against a mother.

The decision of the President distils a number of key principles to be borne in mind when parties, and indeed the Court, are considering whether a matter is suitable to proceed by remote hearing. There is 'no one size fits all' approach. Just because a matter can be heard remotely it doesn't mean it must be, and practitioners must be alive to issues of fairness and to ensure all parties are on an equal footing, particularly when considering the ability of lay parties to participate in remote proceedings.

Procedural History

The Parties' Positions

The Local Authority maintained, in the course of their submissions, that despite the complex nature of the allegations it was nonetheless 'a hearing that can be properly undertaken over the remote system' [14].  In support of the same, the Local Authority sought to assert that the witnesses, save for the parents, are professional witnesses and as such it would be possible for the trial process to be conducted remotely.

In addition, the Local Authority maintained that the young person was already suffering, and would continue to suffer, significant emotional harm by being held in a position of limbo, only abating once a decision is made. A further delay, submitted the Local Authority, would only serve to prolong and further that harm and, as a result, the matter 'must be heard now to meet her welfare needs' [15].

In the event that the Court did not support that view and remained concerned about the Mother's participation throughout the hearing. Leading counsel, Mr Taylor QC, submitted that the Court could hear the professional witnesses now and convene a hearing at a later date for the lay parties or, again in the alternative, have a split hearing [16].

The Father supported the Local Authority position, albeit he was not involved in the FII part of this case. The Father 'remained concerned for his daughter's welfare and wishe[d] for the determination to be made now.' [17].

The Children's Guardian, represented by Miss Howe QC, supported the Local Authority in that it was submitted on the Guardian's behalf that the Court should hear '…the full hearing or, as the Local Authority submit, in some way that at least achieves the hearing of professional witnesses at this stage.' [18]

Miss Howe on behalf of the Guardian suggested that technical difficulties which may prevent the Mother's participation with her lawyers or at the hearing could be overcome and should not be a reason for an adjournment.

The Mother, represented by Miss Allison Munroe QC, leading Mr Tautz, opposed the Local Authority position and sought to adjourn the matter. It was accepted that the Mother did not initially oppose a remote hearing at the PTR on the 3rd April 2020, but at that point it was understood that there would be a hearing that would be undertaken by remote hearing in light of the Covid-19 pandemic.

The Mother submitted, in light of recent guidance given to judges by the Presidents of their respective divisions, but also in light of the mother's inability to effectively participate within the proceedings (due to an unstable internet connection and her ability to receive advice and to give instructions throughout the hearing), that 'this is a case that falls outside the category of hearing that could be contemplated as being able to be concluded over a remote platform in a manner that meets the requirements of fairness and justice.' [19]

The President made note that some judges have allowed the attendance of lay parties, and their representative, to attend court to give evidence however this was not deemed appropriate in this matter due to the Mother's suspected infection with Covid-19. [20]

The President's Decision
In short, the President considered

'…that a trial of this nature is simply not one that can be contemplated for remote hearing during the present crises. … I would hold that this hearing cannot be properly or fairly be conducted without her physical presence before a judge in a courtroom.' [29]

As a result of that decision, the President re-listed the matter until such time that the restrictions relating to Covid-19 are lifted.

General principles to be distilled from the President's decision

'…we must not lose sight of our primary purpose as a Family Justice System, which is to enable the courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r1.1 'the overriding objective], part of which is to ensure that parties are 'on an equal footing' [FPR 2010, r1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.' [23] (emphasis added by author)

Summary by Liam Kelly, Pupil Barrister, Deans Court Chambers

You can read the full judgment of Re P (A Child: Remote Hearing) [2020] EWFC 32 on BAILII