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Remote Hearings – A Case Law Update

Danish Ameen, barrister of 18 St John Street Chambers, provides case law analysis highlighting key points for practitioners following the judgments handed down by the Court of Appeal in Re A and Re B.

Danish Ameen, barrister, 18 St John Street Chambers.


On 30th April 2020, the Court of Appeal gave two judgments that related to remote hearings:

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

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

The two cases were heard over consecutive days and by the same three judges: The President of the Family Division, Lord Justice Peter Jackson and Lady Justice Nicola Davies.

In each case, a judgment of the court was handed down, to which all three judges contributed. Added to the equation, the judgments were published at the same time on the same day. We can deduce that these judgments represent an effort by the Court of Appeal to give a clear message on remote hearings as they relate to interim and final contested hearings.


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

Background

The case involved six children. Mr A is father to all six children. Ms B is mother to the oldest four children; Mrs A the mother of the two youngest. Proceedings were issued on 15th March 2019. The oldest child had returned to live with Ms B, and the local authority had withdrawn their application in respect of him on 3rd April 2020. On the same date, the second oldest had been made subject to a supervision order; he was living with Mr and Mrs A (his father and stepmother). The remaining four children remained in foster care. The plan for the third and fourth oldest was long term foster care, with the plan for the youngest two being adoption.

The threshold was agreed; the final hearing listed for five days on 30th March 2020 (just over one year after issue). The final hearing was vacated due to the COVID-19 crisis and listed for directions on 3rd April 2020 before HHJ Dodd. HHJ Dodd ordered the listing of a "hybrid" final hearing over seven days whereby Mr and Mrs A were to attend court in person to attend court. Permission to appeal the decision was lodged the following day on behalf of Mr A.

HHJ Dodd held a hearing on 17th April 2020 to review the decision to list a remote final hearing as a result of the Message for Circuit and District Judges sitting in Civil and Family from the Lord Chief Justice, Master of the Rolls and President of the Family Division dated 9th April 2020. Significantly, on 17th April 2020 the local authority had changed position and no longer supported the case proceeding as a remote hearing. The court maintained the decision to conduct the "hybrid" hearing with Mr and Mrs A attending court (separately) to give evidence accompanied by a representative from their firm of solicitors. A major concern was Mr A's ability to access a remote hearing as a result of dyslexia and a lack of access to suitable technology. He therefore had the option of attending court throughout the hearing. Their counsel would join the proceedings remotely.

The appeal
The Court of Appeal heard submissions on both decisions of HHJ Dodd in respect of listing i.e. the original decision on 3rd April 2020 and the review on 17th April (although no formal application was made to challenge the latter decision).

At the time of the appeal, the only party that supported HHJ Dodd's decision to list the final hearing as a remote "hybrid" hearing was the Children's Guardian on behalf of the children. It was argued that the regime established by the judge met the requirements for fairness and justice and should proceed. Further, that the guidance and other statements fall short of actually prohibiting certain classes of hearings, so the decision in each case falls to the discretion of the trial judge.

The Court of Appeal granted the appeal for three reasons:

First, Mr A's inability to engage adequately with remote evidence (either at home or in the courtroom). Mr A's limited abilities, and some disabilities, rendered him less able to take part in a remote hearing. It was unclear how he would be able to communicate with his legal team. Fairness and the need for a party to 'engage' in the process include their ability to follow and understand what transpires in the hearing (at least to an adequate degree) and to be able to instruct their lawyers adequately and in a timely manner. The court endorsed the submission that the fairness of the process has to be seen as a whole, including from the perspective of the lay party (paragraphs 50 – 57).

Second, the imbalance of procedure in requiring the parents, but no other party or advocates, to attend before the judge. The judgment referred to the importance of the court being able to see all the parties in the room (stressed by the President in Re P (A Child: Remote Hearings) [2020] EWFC 32, paragraph 26). It is noted that there is a need for caution where, as in this case, a lay party is required to attend to give evidence, but the key social worker is not and where the advocate for the lay party is not attending in person. These factors add more weight to the argument that there is a lack of a fair process (paragraph 58).

Third, the need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing. The local authority position was that the age of the second youngest child did not establish this case as exceptional and as such did not justify a remote hearing Significantly, the family finding process is on hold until the current COVID-19 restrictions have been lifted (paragraphs 59 – 60).

The following three cardinal points are emphasised in the judgment (at paragraph 3):

First, 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 there is a wide discretion.

Second, guidance or indications issued by the senior judiciary are aimed at supporting the judge or magistrate in deciding whether or not to conduct a remote hearing in a particular case.

Third, the temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. 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.
One of the main points that arises from the judgment is the list of factors that the Court of Appeal sets out at paragraph 9 (set out in full):

"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. We consider that they will include:

i) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?

ii) 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;

iii) Whether the parties are legally represented;

iv) 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;

v) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;

vi) 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;

vii) The scope and scale of the proposed hearing. How long is the hearing expected to last?

viii) 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;

ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;

x) 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."


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

Background

The subject children are Sam (boy), aged 9, and Samantha (girl), aged 11 (not their real names). In July 2013, their maternal grandmother became their special guardian. She has remained their primary carer, albeit there have been ongoing problems.

In September 2019, the children were placed on child protection plans, particularly because of risks posed by their uncle. Grandmother was working with the local authority, and while there had been allegations of physical abuse, the main concern was over the children's emotional well-being.

On 20th March 2020, Samantha was taken into police protection and placed in foster care following an allegation that her aunt had hit her. Sam was not involved in the incident and remained with his grandmother. Grandmother initially signed a section 20 agreement but then told the local authority a few days later that she wanted Samantha to return by 1st April 2020.

On 2nd April 2020, the local authority issued proceedings, seeking an interim care order in respect of Samantha and an interim supervision order in respect of Sam. The prospect of Sam's removal from the grandmother's care did not even feature in the social work analysis (the local authority had filed substantial documentation).

The hearing was listed before Recorder McCarthy QC on 3rd April 2020 via telephone. On that morning, the solicitor on behalf of the children filed a six-page position statement. The Children's Guardian supported interim care orders in respect of both Sam and Samantha with them both being placed in foster care (preferably together). This position statement led to a change in the local authority's position – and the two parties aligned in what they were inviting the court to do.

The hearing was dealt with on submissions which lasted one hour. Counsel on behalf of grandmother sought an adjournment to another day so he could take instructions, pointing to the shifting sands of the local authority's case and the inadequacy of the evidence as a justification for immediate removal.
Recorder McCarthy QC refused the application for an adjournment, made the interim care orders and approved the interim care plan of removal. The grandmother appealed.

The appeal
The Court of Appeal observed that the system has the ability to respond very quickly for cases of genuine urgency but that this led to considerable pressure on the parties (paragraph 14) with the quick response of the process. There had been no pre-proceedings process with access to legal advice, and no evidence filed in response from the grandmother. Further, it observed that once the local authority became aware that grandmother was withdrawing her consent to section 20 for Samantha, it would have been desirable for an attempt to agree on a suitable timetable with the grandmother ahead of the service of proceedings upon her (paragraph 16).

Paragraphs 22 and 23 of the judgment are worth repeating in full (my emphasis):

"Once a Children's Guardian has been appointed, he or she is obliged to exercise professional judgment, whatever the circumstances of the appointment. The court relies on Guardians to be independent in promoting and protecting the interests of the children in the litigation, and they may take, and not infrequently do take, a different position to that of the local authority. We acknowledge that, as commonly happens when an interim application is made at the outset of proceedings, this Guardian was having to absorb a mass of information at very short notice. She had no time to make inquiries, beyond reading the papers and having one conversation with the social worker at about 9 am. In cases of real urgency that may be unavoidable, but in this case it is, to put it at its lowest, surprising that she and the children's solicitor felt it appropriate to make such a bold recommendation from such a low knowledge base. Neither of them had met or spoken to Sam or to his grandmother or his grandmother's solicitor, nor did they have any information at all coming from that quarter. We also note that the Guardian was not available for the hearing in the afternoon. Her solicitor was said to be fully instructed, but the Guardian's absence left her unaware of such arguments as Mr Lue was able to put to the court in response to her recommendation and deprived her of the opportunity to reflect.

"We are also troubled by the lack of any balanced analysis in the case for removal that was put by the Guardian, and also by the local authority. There is no reference to the emotional detriment to Sam in being removed from his only parental figure without notice or preparation. There was no reference to Sam's wishes and feelings about immediate removal, nor any reminder to the court that these were not known. There was no credible explanation for why there had to be an emergency decision. Mr Squire fairly accepted at no less than three points in his appeal skeleton argument that the outcome was "harsh", though he defended it as not being unfair or unjust. When we asked him about the above matters he described them as a consequence of this being "an emergency application" in which child protection imperatives had to prevail. We reject that argument. The pressured way in which the proceedings developed may have felt like an emergency to the professionals, but it was not an emergency for Sam. We also firmly dismiss the proposition that the current 'lockdown' provides a reason for the removal of a child where none would otherwise exist. It is possible to envisage a case at the margins where face-to-face supervision is so important that a child would not be safe without it, but this case and most others like it fall nowhere near that category. Our overall observation in this respect is that unfortunately Sam's voice was not heard at a critical moment in the proceedings and his interests were not protected by his Guardian, whose recommendation set in train the sequence of events that followed."

The Court of Appeal observed that the decision by the local authority to change their interim care plan was undocumented and unreasoned; it was described as "arbitrary" (paragraph 25).

In the judgment, the Court of Appeal recognised that the Recorder had made reference to the correct principles regarding interim separation but noted that he did not apply them. The Court of Appeal comments that due to the issues relating to the remote process, there was a loss of perspective about the need for an immediate decision about Sam (paragraph 34).

It is significant to note that the Court of Appeal goes through the specific times of events during the course of the two days and observes that the workload faced by the Recorder was a contributory factor (paragraph 20).

Unsurprisingly, the appeal was granted, and Sam returned to the care of his grandmother. Two main points arise out of the decision to grant the appeal:

First, the pressured circumstances in which all the participants were working at the time led to fundamental legal and procedural principles becoming compromised despite the best intentions of the professionals. This case serves as an important reminder for others who may find themselves in a similar position.

Second, where a video link is an available option, a video link is likely at this time to be the default option in urgent cases (paragraph 35).

Practice points
Moving forward, parties at a case management hearing approaching a contested hearing (whether interim or final) ought to consider the factors set out in paragraph 9 of Re A.

Practitioners must be proactive in helping the court determine whether a particular case is suitable for remote hearing. Practitioners should ascertain what technology clients (including professional clients) have access to and their ability to use it effectively. Practitioners should attempt to hold a video conference with clients before any case management hearing and understand whether clients are able to use the technology with appropriate privacy and sufficient confidence. With this information, they can confirm with the court whether or not, in their view, their client could take part in a remote hearing.

In Re A, the trial judge had prepared a case plan. This is a narrative document that sets out the salient features of the case and describes the arrangements that had been proposed for the hearing. The Court of Appeal endorsed this exercise, commenting that they considered such a document to be useful whenever a court is looking at arrangements for a possible remote hearing of any substance (paragraphs 23 – 25). Particularly in advance of an IRH, parties should attempt to agree on a case plan in advance. If one cannot be agreed, a document setting out that which is agreed and what is not, should form part of the preliminary reading list. There is no reason why this information cannot form part of the Case Summary.

For interim contested hearings, the first thing is to check whether the hearing is listed as a telephone hearing. If it is likely to be contested (or even if there is only a possibility), it would be prudent to obtain email addresses. Practitioners must consider how lay parties could participate in a video link and/or give evidence if the subject children are in the house. If the mother has just given birth, ask whether the hospital ward can help look after the new-born and allow the mother privacy in a private ward on the day of the hearing.

The case of Re B has implications for all 'urgent' interim hearings that practitioners face regularly. The lessons from that judgment stand regardless of whether the hearing is being conducted remotely.

Conclusion

Practitioners are reminded that the Family Court has heard contested final hearings and will continue to do so, where appropriate, during the COVID-19 crisis. Good examples include: Padero-Mernagh v Mernagh (Divorce: Nullity: Remote Hearing) [2020] EWFC 27; and Re EK [2020] EWFC 25.

The President's Guidance on Remote Hearings issued on 19th March 2020 states at paragraph 10:

"It is possible that other cases may also be suitable to be dealt with remotely. As the current situation is changing so rapidly, and as the circumstances that will impact upon this decision are likely to differ from court to court and from day to day, the question of whether any particular case is heard remotely must be determined on a case-by-case basis."

This remains the mantra when considering the decision on whether or not to hold a remote hearing. The Court of Appeal expects further appeals on decisions made regarding whether or not to hold remote hearings; we also await the further guidance from the President of the Family Division this month following the review by the Nuffield Family Justice Observatory. Any further case law and/or guidance will be a matter of evolution, rather than revolution.

Practitioners must continue to consider the practical and forensic detail for each hearing. The judiciary are receptive to creative solutions to ensure justice is not delayed. At the same time, more than ever, they are alive to the competing Article 6 and 8 rights of the parties.


Danish Ameen maintains a Twitter account: @ameenbarrister and the chambers account is @18stjohn.

5/5/20