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

Proceedings were issued in April 2019, but, as the President notes, 'this young person has been subject of contested private law proceedings for a good deal longer than that.' [1]
The matter was listed for a 15-day finding of fact hearing to be heard by a Deputy High Court Judge sitting in the Family Court in Guilford beginning Monday 20 April 2020.
At A CMH on 13 March 2020 the 'lockdown' had not yet commenced, and the possibility of a remote hearing was not considered.
At the PTR on 3 April 2020, the parties, along with the judge, accepted that the hearing would now go ahead remotely having been influenced by MacDonald J's 'The Remote Access Family Court' document which gave accounts of early successful remote hearings.
On 16 April 2020, the President of the Family Division convened a short hearing to consider the merits of the matter proceeding remotely.

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 3^rd 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

'The Remote Access Family Court' written by MacDonald J 'does not offer guidance or give direction' as to whether a hearing should be heard remotely. The document, in the President's words, is 'aimed firmly at the mechanics' [8] of remote hearings.
'Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.' [8] (emphasis added by the President).
FII is a type of child abuse which requires 'exquisite sensitivity and skill on the part of the court.' Furthermore, it is an 'extremely unusual disorder' and investigation of the same is 'incredibly challenging.' [11] The President considered, in matters of FII, it crucial 'for the judge to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined-in-chief and cross-examined, but equally when they are sitting in the well of the court reacting…' [12]
The letter issued by the 'Presidents' to judges on 9 April 2020 does not give guidance and should be considered as setting parameters which may assist the Court in determining whether or not a remote hearing should proceed.
Parties are reminded of the President's guidance issued on the 27 March 2020:

'…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)

In deciding whether to proceed, the Court and the parties may consider a range of factors including, the seriousness of the case, available facilities, the party's available technology, personalities and expectations of participants and the tribunal's experience of remote working to name but some. That is why, says the President '…that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance.' [24]
The impact on professional diaries of vacating hearings cannot be a factor which weighs very significantly when deciding whether to proceed with a remote hearing. [25]
The Court should be mindful, even where all parties appear to consent to proceed by way of remote hearing, whether any particular case can proceed properly or fairly without the physical presence of a lay party in the courtroom. [29]

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

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