A timely and important decision on remote hearings in the family courts – Re P: (A Child Remote Hearings) (2020) EWFC 32

Wednesday 22 April 2020

Allison Munroe QC leading William Tautz, both members of the Garden Court Family Team, were instructed by All Family Matters, on behalf of the 1st Respondent.

The case considered the issues around the suitability of remote hearings for contested final hearings.

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Allison Munroe QC leading William Tautz, both of Garden Court Chambers, appeared on behalf of the 1st Respondent Mother, in this matter before the President of the Family Division on 16th April 2020. In the judgment published on 21st April 2020, the President has set out some clear and important comments on the issue of remote hearings.

This is a serious FII case, and concerned care proceedings involving a 7 year old child. It was alleged that the mother had falsely made a number of damaging claims that her child was suffering from a myriad serious ailments and health conditions. This was all hotly disputed by the mother, so the case was fully contested. It had been fixed several months previously for a 15 days fact finding and disposal hearing before a Judge at Guildford Law Courts. Following the lockdown, the Judge had decided the case would proceed as a remote hearing using the Skype video platform.

The President was sufficiently concerned about such a hearing being conducted remotely that he requested that the Judge adjourn the final hearing. The Local Authority, Father and Children’s Guardian all contended that the matter could and indeed should proceed remotely. The Local Authority particularly cited the fact that the child knew about the proceedings and was expecting a resolution after almost a year. In the alternative, the Local Authority supported by the Children’s Guardian and the father, suggested that the court could hear from the expert witnesses and then reconsider the position at that stage.

On behalf of the mother, Allison and William opposed both proposals, arguing that there were fundamental principles of fairness, transparency and effective participation, which could not be sidelined, even in a time of crisis. They contended that the mother could not have a fair trial or effectively participate if the hearing was to proceed remotely.

At an urgent hearing last week, on 16th April 2020, the President heard from all the parties and considered the opposing arguments presented. He ruled that the case should be adjourned and could not proceed remotely, stating in his judgment:

25. Turning to the particular case now before the court, although I am extremely aware of and sensitive to the position of this young girl and the negative impact that a decision to adjourn will have on her wellbeing and the potential for it to cause her emotional harm, I am very clear that this hearing has to be adjourned.  I make the decision also being aware of the impact that this will have professionally on all of those who have had this fixture booked in their professional diaries for a long time and who are now ready for the hearing to take place.  That cannot be a factor that weighs very significantly in the decision-making process but it is one of which I am aware.

26. The reason for having the very clear view that I have is that it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely.  The judge who undertakes such a hearing may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function.  The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court.  It also assumes that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on.  It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment.  I do not consider that a remote hearing for a final hearing of this sort would allow effective participation for the parent and effective engagement either by the parent with the court or, as I have indicated, the court with the parent.  I also consider that there is a significant risk that the process as a whole would not be fair.

The case raised a number of important issues that the courts, not just in the family jurisdiction, now have to grapple with. We are all living through dangerous and difficult times, and the responses from civil society are fast developing. The courts like other large institutions of state have to an extent been reactive in grappling with these issues. However, the President’s intervention was an extremely timely and welcome one, and tackled head on the competing principles that are in play and emphasised in this particular case the importance of the need for a fair trial and effective participation for the lay clients in our justice system.

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