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Case Management and COVID-19: A New Road to Consistency?

John Jupp, Solicitor, and Lecturer in Law at the University of Sussex, considers whether family judges are making consistent case management decisions during the pandemic.

John Jupp, Lecturer in Law, University of Sussex, and Solicitor

On 9 June the President of the Family Division published a 'road map' for the operation of the Family Courts in which he confirmed that he did not intend to issue prescriptive guidance on case management while social distancing measures remain in force (the 'Road Ahead'). It remains the President's view that decisions about whether or not hearings should take place remotely and, if so, how they should be conducted should not be contingent upon any formal national protocol but instead should be left for judges to determine on a case by case basis. In this regard, judges have been able to refer to a number of publications, including a Protocol for Remote Hearings dated 23 March, Mr Justice MacDonald's report on 'The Remote Access Family Court' issued on the same day, a letter from the Lord Chief Justice dated 9 April ('LCJ's letter'), and now, the President's Road Ahead document. Designated Family Judges have also issued regular directives to local judiciary and family lawyers on remote processes.

The President's concluding remarks in the 'Road Ahead' paper referred to the lyrics of the song 'He Ain't Heavy', which offer that 'we'll get there'. However, in getting to where we are at the moment, it is clear that not all of the judiciary have been singing from the same hymn sheet. Interviewed practitioners have noted a 'post-code lottery' of inconsistent decision-making in different courts as to whether or not cases should be listed for hearing. Moreover, respondents to a recent consultation undertaken by the Nuffield Family Justice Observatory involving judges, solicitors and barristers raised concerns over 'the high rate of adjournment in cases that could have gone ahead and avoided unnecessary delay'. This suggests that there has been some uncertainty in the courts over interpreting and applying guidance received from the senior judiciary to determine whether it is suitable for a case to proceed to a remote hearing. Indeed, respondents to the Nuffield consultation complained of the 'unrealistic,' 'confusing' and 'overwhelming' nature of the information received from the senior judiciary following the lockdown. It is now apparent from the three appeal cases of Re P (A Child: Remote Hearing) [2020] EWFC 32, Re A (Children)(Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and Re Q [2020] EWHC 1109 (Fam), which came before the High Court and the Court of Appeal between 16 April and 6 May 2020, that the lack of clarity in the information provided by the senior judiciary, and the fast-changing advice that was circulated in them, contributed to early judicial uncertainty over case management and the conduct of remote hearings.

The case of Re P, which came before McFarlane P sitting at the High Court on 16 April concerned an appeal by the mother of a 7-year old daughter to vacate a final hearing listed for 20 April. The local authority sought a care order following allegations that the daughter had suffered significant harm as a result of fabricated or induced illness (FII). At a pre-trial review hearing on 3 April the judge determined that the matter should proceed to a final hearing, scheduled to be conducted remotely over 15 days with 16 witnesses, as well as the child's parents, giving evidence. It was planned that the mother would engage in the process alone at her home and access the hearing by Skype, with regular breaks for telephone and Zoom conferences with her representatives (para [10]). Allowing the mother's appeal and vacating the final hearing, Sir Andrew McFarlane referred to more recent guidance issued in the LCJ's letter on 9 April which indicated that 'where the parents and/or other lay witnesses are to be called, the case is unlikely to be suitable for remote hearing.' Given that the parents would be giving evidence it was clearly not suitable for listing for a final contested hearing. He also noted that the earlier decision to allow the hearing to proceed remotely had been influenced by guidance in the document circulated by Mr Justice MacDonald, its positive message that the family justice system should be able to operate substantially relying on remote processes, and its reference to previously successful remote hearings in the week commencing 16 March. This had been, according to the President, 'a misunderstanding' (para [8]). Notably, this earlier decision to proceed to a final hearing had been uncontested, so not only the judge but all parties to the proceedings, including the parents, guardian and local authority, had clearly also been misled by the guidance from Mr Justice MacDonald's report.

The decision of the High Court in Re P contributed to further judicial confusion over whether or not hearings should be listed to take place remotely.  Its reference to the unsuitability of remote hearings in situations where parents are to give evidence, as inferred from the LCJ's letter, was erroneously understood to apply not just to final hearings but also to interim Children Act hearings. Moreover, it was quickly interpreted by practitioners as appearing to establish a veto to the holding of a remote hearing where a parent objects, or expert evidence is to be called, increasing the potential for hearings being unnecessarily vacated and proceedings delayed (Re Q, para [24]). A barrister interviewed on 29 April 2020 noted that 'in terms of the impact of COVID-19 it is causing significant delays and cases are being put back as a result. They can't be decided and final hearings can't take place – perhaps due to technical difficulties or now the decision in Re P.'.  Furthermore, in the private law case of Re Q, reported on 6 May 2020, counsel for the father of a six-year old daughter noted the  'chilling effect' (para [24]) that Re P had had in influencing the order of the deputy district judge in an earlier review to vacate a remote final hearing in which the parents, an expert psychologist and a guardian would be required to give evidence, a decision which the High Court overturned on appeal.

The case of Re A, reported on 30 April, is also indicative of judicial uncertainty over the guidance on remote hearings. This matter concerned contested proceedings in which the local authority sought orders placing two children aged 3 and 20 months for adoption. At a directions appointment on 3 April HHJ Dodds listed the matter for a 7-day final hearing to be conducted in hybrid form, whereby the parents of the two children would attend court separately to give evidence with the expectation that their counsel would join proceedings remotely. While concerns were raised about the father not being able to access a remote hearing due to dyslexia and unsuitable technology at home, HHJ Dodds reasoned that the final hearing could still proceed in a fair and just manner in hybrid form with the parents attending court (para [19]). At that stage, it is likely that the judge was influenced by the guidance from Mr. Justice MacDonald. At a review hearing on 17 April the local authority objected to this arrangement arguing, based on guidance from the LCJ on 9 April, that it would not be suitable for a remote hearing as the parents would be giving evidence (para [26]). HHJ Dodds nevertheless distinguished between a fully remote hearing and hybrid hearing and determined that it was possible to have a fair trial along the lines he proposed, ordering the matter to proceed to final hearing listed for 27 April, a decision which the Court of Appeal overturned on appeal.

Both Re P and Re A indicate that the early guidance issued by Mr Justice MacDonald in March 2020 was less than comprehensive. In both cases its positive message about the ability of the family justice system to continue to operate remotely influenced erroneous decisions in the lower courts to proceed to remote access final hearings in contested care proceedings in which parents would be giving evidence. A similar accusation of inadequate advice can be levelled at the letter from the LCJ. HHJ Dodd's decision to proceed with a contested final hearing at the review hearing on 17 April in Re A suggests that the information in the letter dated 9 April from the senior judiciary failed to provide sufficiently clear guidance about whether or not any distinction should be made between fully remote and hybrid hearings. Moreover, its indication that it was unlikely that matters would be suitable for remote hearing in cases where the parents and/or other lay witnesses are to be called to give evidence failed to stipulate whether this applied to final hearings only, causing it to be quickly interpreted as also applying to interim hearings. These omissions ultimately necessitated resolution by the Court of Appeal in Re A on 30 April. In fact, in all three cases the appeals were successful and therefore earlier decision-making based on information and guidance received from the senior judiciary was erroneous or had been superseded by new instructions. Even making allowances for the speed of the crisis and the unprecedented nature and scale of the transition to remote hearings, more comprehensive and all-inclusive guidance at the early stages of the lockdown may have prevented the confusion and inconsistencies that necessitated referrals to appeal in these cases and the emergence of a 'post-code lottery' as to whether or not courts hearings would direct that hearings should proceed remotely.

Nevertheless, these cases have provided valuable lessons for remote working in the family courts.  An interviewed barrister noted their constructive outcomes, observing that 'Re A has steadied the ship.' According to the President of the Family Division the clarification that has been established through these cases, coupled with the guidance issued on 19 March and 9 April, is now sufficient to enable the judiciary and lawyers to make informed case management decisions. Contested final hearings in public law proceedings are still normally being adjourned in light of this collective guidance. However, the new 'road map' guidance issued on 9 June amends that of 9 April to allow for consideration to be given for conducting a hybrid or full hearing in cases where the parents and/or witnesses will be called to give evidence, noting that the court can proceed to hold a remote hearing where it is necessary to do so giving consideration to the child's welfare. While this is a necessary adjustment in order to support the progression of as a high a volume of cases as possible, it remains to be seen whether sufficient clarity has now been provided to ensure that judges are 'in tune' and making consistent case management decisions. At a time of rapid fluidity and change caused by uncertainties surrounding COVID-19 continuing research is necessary to gauge the manner in which the courts are interpreting and applying the guidance from senior judiciary.