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Lancashire County Council v M (COVID-19 Adjournment Application) [2020] EWFC 43

Judgment of MacDonald J dealing with an application by the child’s father to adjourn a part heard final hearing in care proceedings until a full in person face-to-face hearing can take place.

Brief Facts
The genesis of these proceedings was the collapse and admission to hospital of a child, C, in October 2018. Medical investigations which subsequently took place revealed a multitude of injuries, including injuries to the head, brain and the eyes, along with bruising, a healed laceration to the forehead, a torn upper frenulum and multiple fractures to various parts of the body.

The final hearing was due to take place in March 2019, however the father collapsed and required ambulance assistance during the hearing, resulting in an adjournment to October 2019. The father did not attend the second final hearing. His counsel and solicitor visited him and concluded that he would not be able to engage in the proceedings without the assistance of an intermediary. A psychiatric report was prepared which confirmed the father had litigation capacity but that he was suffering from recurrent depression of moderate severity. The consultant psychiatrist considered that the father's symptoms rendered him vulnerable and, to an extent, restricted his ability to fully understand any new information or utilise this information to make his decisions.  An intermediary report was directed, which concluded he would require the support of an intermediary in advance of and throughout the final hearing.

The final hearing commenced on the 16 March 2020 with a time estimate of three weeks. Both parents were in attendance and the father had the support of an intermediary. Covid-19 and events of the world then overtook. Due to the government guidance, MacDonald J took the decision on the 17 March 2020 to adjourn the hearing part heard due to his concerns he was unable to ensure the safety from infection to the court staff, the parties and their legal teams having regard to the information that was available at that stage. The hearing room where the hearing was being concluded, in Preston, had 18 people in attendance supplemented at regular intervals by additional  witnesses.

The court was prepared to offer that the part heard final hearing resume on 22 April 2020 by remote means. The parties could not agree whether the case was suitable for a remote hearing, with both parents contending strenuously that it was not. The court communicated to the parties that in light of the length and complexity of the hearing unless agreed solutions to the parties stated article 6 concerns were found then the court's strong provisional view was that it would not be appropriate to recommence remotely. No party sought to further press the court to deal with the part heard final hearing by way of a fully remote hearing at the end of April.

The court was able to make arrangements for a socially distanced face-to-face hearing at the beginning of May 2020 at Manchester Civil Justice Centre, the building having been assessed as Covid secure. Contingency plans were also put into place including to conduct a hybrid hearing based at the Civil Justice Centre.

The Application & Parties' Positions
The father applied for the part heard final hearing to be adjourned so that it can re-commence in Preston as a fully face-to-face hearing. It was contended on his behalf that the only way he would have the proper opportunity to properly participate and engage in the court hearing, having regard to this particular vulnerabilities, is an adjournment to a face-to-face hearing. The father submitted that he was unable to travel to participate in a fully face-to-face hearing at Manchester. No application to adduce medical evidence in support of that contention had been made. The judgment further sets out the particular points upon which father made those submissions - paragraphs 16 &17.

The mother supported the father's application. The mother herself has a history of anxiety and mental health difficulties, the mother was unwilling to travel to Manchester on public transport, and she was not content with the suggestion as a contingency that she be in venue remote from the other parties where the hearing will be conducted on a hybrid basis. It was conceded on the mother's behalf that she does not fall into a category of litigants whose needs could only be accommodated by a face-to-face hearing. The contents of The Road Ahead where realistically acknowledged on behalf of the mother.

The LA opposed the application. In summary, the local authority opposed on the basis of delay; the child's Article 6 rights to a fair trial; the fact the court had been able to accommodate a face-to-face hearing albeit not in Preston; and whilst accepting the father's Article 6 rights to a fair trial, that cannot permit him to be the sole dictator of how such a hearing will be conducted when all the participants rights fall to be considered. The LA also made clear its willingness to assist the mother and father in mitigating the difficulties. There was also a pressure on the foster placement.

Whilst accepting on behalf of the child that further delay would not be 'totally catastrophic' to the child's welfare, it was emphasised that a decision needs to be made for him and also that the foster carers are now feeling the strain of the extended delay in the proceedings.

MacDonald J set out the pertinent legal framework, in addition to the sources of guidance, communication and authority which have emerged over the past months:

- Section 1(2) of the Children Act and the mandatory requirement to have regard to the general principle that delay in determining questions in respect of a child is likely to prejudice the child's welfare.

- Section 32 of the Children Act which emphasises the duty to avoid delay by setting a statutory requirement that public law proceedings are to be completed within 26 weeks and that any extension to extend the timetable must be necessary to enable the court to resolve the proceedings justly. In relation to this section MacDonald J referred to Re NL (appeal: interim care order: facts and reasons) [2014] 1 FLR 1384 and Re M-F (children) [2014] EWCA CIV 991.

- The COVID-19 national guidance for the Family Court dated 19 March 2020.

- The President's guidance dated 27 March 2020.

- Communication from the Lord Chief Justice, Master of the Rolls and President of the Family Division dated 9 April 2020.

Re P (A child: remote hearing) [2020] EWFC 32

Re A (children) (remote hearing: care and placement orders) [2020] EWCA 583 which sets out a number of principles (paragraph 37)

- The Family Court and COVID-19:  The Road Ahead.

The judgment highlights that, with respect to the authorities and the guidance in dealing with applications of these cardinal statutory and procedural principles in the context of COVID-19, the approach taken is evolving over time as the courts have gained experience and understanding of the suitability or otherwise of remote hearings in particular cases and of the nature and likely duration of the ongoing impact of the public health emergency on the family justice system has become clearer.

MacDonald J emphasises that paragraph 4 of The Road Ahead notes the most crucial change that must now be understood across the board by all involved in delivering family justice, namely that social distancing restrictions will remain in place for many months and it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021. Further, that whilst the court is not required to hold the child's welfare is paramount consideration when making case management decisions, the child's welfare and the need to avoid delay will always be 'a most important factor and may well be determinative in many cases.'

Paragraph 42 of the judgment emphasises the relevant points in respect of the question as to whether to adjourn or to proceed with the case by reason of difficulties caused by the impact of the Covid pandemic. MacDonald J also notes that The Road Ahead amends point (g) in the communication dated the 9 April 2020.

MacDonald reconfirm that whether to hold a remote or a hybrid hearing, or to adjourn to await a fully face-to-face hearing, is a case management decision for the allocated judge to be taken on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children. The appropriateness of proceeding with a particular form of hearing must be individually assessed by the allocated judge applying the relevant principles and guidance to the unique circumstances of the case.

Bringing those considerations together at paragraph 45 of the judgment MacDonald J sets out the following factors which inform the question of whether in a given case a hearing should be conducted by way of a remote hearing, or a hybrid hearing, or adjourned for a fully face-to-face hearing at a later date:

i) The welfare of the subject child or children;

ii) The statutory duty to have regard to the general principle that delay in determining the question is likely to prejudice the welfare of the child;

iii) The requirement to deal with cases justly, having regard to the welfare issues involved;

iv) The extent to which a remote or hybrid hearing will provide the judge with a proper basis upon which to make a full judgment;

v) The steps that can be taken to reduce the potential for unfairness by enabling the cases to proceed fairly when previously it may have been adjourned, having regard in particular to the need to make every effort to accommodate and enhance the ability of lay parties to engage fully in the remote or hybrid process, including the extent to which it is possible to arrange for a lay party to engage with that process from a location other than their home where they can be supported by at least one member of their legal team and, where appropriate, any interpreter or intermediary;

vi) The impact of the COVID-19 pandemic on the likely timescales for a fully face to face hearing in preference to a remote or hybrid hearing and the need to evaluate any potential unfairness against that timescale;

vii) The statutory requirement that all public law children cases are to be completed within 26 weeks and that any extension to the 26 week timetable must be necessary to enable the court to resolve the proceedings justly;

viii) The requirement, so far as is practicable, to allot to the case an appropriate share of the court's resources, while taking into account the need to allot resources to other cases, evaluated in the context of the limitations placed by the COVID-19 pandemic on the resources currently available to give effect to fully face to face hearings; and

ix) The individual circumstances of the particular case and the parties, including but not limited to:

a) Whether the parties consent to or oppose a remote or hybrid hearing;

b) The importance and nature of the issue to be determined bearing in mind that parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be limited to that which it is necessary for the court to hear;

c) 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;

d) Whether the parties are legally represented;

e) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully, including access to and familiarity with the necessary technology, funding, intelligence/personality issues, language, ability to instruct their lawyers (both before and during the hearing) and other matters;

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

g) 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;

h) The scope and scale of the proposed hearing;

i) The available technology. A telephone hearing is likely to be a less effective medium than using video;

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

k) Any 'Covid-safe' 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;

l) Any other factors idiosyncratic to the particular case.

Whilst acknowledge that decisions will be fact specific and will fall to be determined having regard to these, and possibly other factors, MacDonald J notes that it is clear the 'signposts' set out in The Road Ahead that adjourning cases indefinitely or for a period of many months will not be a viable option and that adjourning the case to await a fully face-to-face hearing is unlikely to be a proper course when an effective and fair remote or hybrid hearing can be held with steps taken to maximise the fairness of that remote or hybrid process.

The father's application to adjourn was refused. The outline reasons for this decision are as follows:

(I) The court has now made provision for a face to face hearing at Manchester Civil Justice Centre;

(II) Should the Legal Aid Agency refuse to fund travel to and from Court by taxi for the parents, the LA confirmed that it would do so;

(III) The delay which would be caused to the child's timetable and welfare;

(IV) The court is required to make findings of fact in this case, which will rely in part on an examination of the recollection of events by the parents and others and on determining the credibility of the account of the parents. Further delay would risk prejudicing a fair trial as the events with which the court is concerned continue to recede into the distance and memories dull;

(V) There is nothing in principle preventing, where necessary, a hybrid hearing operating the other way around as a contingency. If the parents refuse to attend a face to face hearing, a hybrid hearing can be achieved fairly;

(VI) Whilst there will be some cases where it is important for the court to be able see the parent in the courtroom itself, the credibility of the parents' evidence falls to be evaluated primarily by reference to matters such as the internal consistency of their evidence, its logicality and plausibility, details given or not given and the consistency of their evidence when measured against other sources of evidence (including evidence of what the witness has said on other occasions) and other known or probable facts;

(VII)  Neither parent would be denied a fair trial if required to give their evidence from a remote location during the course of a remote hybrid hearing;

(VIII) There is no medical evidence before the court demonstrating that the father's anxiety renders him unable to participate in a remote hearing; and

(IX) It is not necessary to adjourn the proceeding for a fourth time in order to achieve a just final hearing.

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

Read the full judgment of Lancashire County Council v M (COVID-19 Adjournment Application) [2020] EWFC 43 on BAILII