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A Local Authority v Mother & Ors [2020] EWHC 1086 (Fam)

Decision of Lieven J in which she was tasked with making a determination as to whether to proceed with the lay evidence in a fifteen day fact finding conducted remotely, or whether to adjourn the case having heard the medical evidence.

Lieven J was hearing a fact finding hearing in care proceedings concerning the sibling of a deceased child, who died at home of unknown causes. The post-mortem and subsequent investigations established that the deceased child had sustained 65 fractures to various parts of her body, including ribs and long bones, as well as head and brain injuries. Due to delays in obtaining some of the forensic reports the LA decided not to seek findings in respect of cause of death, but to proceed on the basis of specific injuries shown in the medical evidence. The LA threshold alleges that the injuries were inflicted by one or both of the parents, and that each parent knows that the other had caused injury or was likely to have caused injury to the child. No other person is in the pool of alleged perpetrators. During cross-examination of the medical experts Mother did not challenge that the injuries were inflicted; Father did. After hearing five days of medical evidence remotely through the Zoom platform, Lieven J heard submissions as to whether the case should continue with evidence from the parents and other lay witnesses via zoom. An issue then arose as to father's ill-health, which resulted in an application to adjourn.

Legal Framework
In the judgment Lieven J surveys the recent cases in relation to remote hearings, including Re P (A Child Remote Hearing) 2020 EWFC 32; Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 584.

Her Ladyship also notes that one important factor in a decision whether to proceed, particularly in a fact finding case, is the question of whether the judge will be in a less good position to judge whether or not the witnesses are telling the truth if the case is conducted remotely. Lieven J, noting that the weight that a judge should give to the demeanour of witnesses is an 'intensely complex one and has been the subject of considerable judicial debate,' considers the approach to witnesses' demeanour in SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391. Paragraph 24 and 25 are of note.

Decision
Lieven J firstly considered her general approach as to whether to proceed. Her Ladyship confirms that in her view it is not possible to say whether it is easier to tell whether a witness is telling the truth in court rather than remotely, and that, like Leggatt LJ, demeanour will often not be a good guide to truthfulness. 'Some people are much better at lying that others and that will be no different whether they do so remotely or in court'. In the absence of empirical evidence, which Lieven J said would be very difficult to verify, her Ladyship reached no conclusion on what forum is most likely to elicit the most truthful and/or revealing evidence. On that basis she concluded that it is not possible to say as a generality that a remote hearing is less good at getting to the truth than one in a courtroom.

Lieven J then, in considering whether a fair hearing can go ahead, addresses the factors set out in Re A. In summary:

- The final fact finding hearing could not be more important in terms of findings and the implications of those findings for the parents and child. The fact the case is of the utmost gravity does to mean that it is in a category of case that cannot go on remotely.

- It is of utmost importance to the child for the next steps for his future to be determined as soon as possible, in circumstances where he has been in foster care for over one year and is due to start school in September. Lieven J observed that 'one could probably put forward a serious argument on urgency in most Children Act proceedings.' If the case were adjourned it would be reasonable to assume that an adjournment would be for a number of months.

- All parties are represented by highly experienced and highly competent QCs. The parents interests will be fully protected at all times.

- The parents are native English speakers, neither has any language or communication problems. Mother had followed the medical evidence and felt fully engage with the hearing. Father had borrowed a computer to follow the proceedings.

- The case is not proceeding on submissions alone.

- The lay evidence of fact is strongly contested and the parents will be subjected to cross-examination by three QCs. It is relatively straightforward (and common) to proceed remotely with medical evidence. The first and most important fact must be whether it is just to the parties to proceed with them giving their evidence remotely. They must be able to follow the questions and be able to give their best in the answers. If the technology works, and they are in a position to understand the documents, then 'in principle a remote hearing is capable of being a fair hearing.' Lieven J noted that vulnerable witnesses routinely give evidence remotely. A schedule of references is to be prepared so that is it possible to know what documents are to be referred to.

- It is a fifteen day hearing. Breaks will be required. Cross-examination for the parents will be a gruelling process, including if it were 'in person' as opposed to remotely. The mother has support as she is isolating with her father and sister. The father does not, but he is likely to find the whole process intensely stressful whatever course is undertaken. There is an intensity to a remote hearing and the concentration on a close screen is different from sitting in a courtroom. Breaks should be taken as needed.

- The hearing is being conducted by zoom and 'so far it has worked reasonably smoothly'. Private breakout rooms enable instructions to be taken in a way roughly comparable to being able to give instructions whilst sitting behind a solicitor or going into a conference room. It is much more difficult for the judge to watch the reactions of other witnesses to the evidence, although Lieven J questions where it is of much forensic value.

- The technology is capable of providing a satisfactory hearing.

- The Court has managed the technology to an acceptable level, including the large 5000 electronic bundle. The parties' ability to manage the bundle is yet to be tested, and the only way to deal with this is to be astute to the potential for difficulties and to be prepared to review the situation as the hearing continues.

- Although the preferred option of the Court was to consider safe alternatives, including a hybrid hearing, the Mother (who has asthma) had indicated her unwillingness to attend court, even with precautions. The Court could not tell when the mother would consider it safe for her to come to court, nor could the court assess at what date it would be reasonable to order her to attend. Due to Father's mental health, the medical report concluded it would be better for Father to given evidence remotely.

After balancing all factors the Court determined that the case should proceed remotely.

In relation to the application to adjourn on account of the Father's health, Lieven J did not find it a good ground to adjourn, however concluded by making clear that she would carefully monitor both parents' ability to participate fully in the hearing and to give evidence to the best of their ability.

Summary by Emily Ward, Barrister and Deputy Head of Family at Broadway House Chambers.

Read the full judgment of A Local Authority v Mother & Ors [2020] EWHC 1086 (Fam) on BAILII