Remote hearings: Covid-19

It was impossible to contemplate a final hearing in care proceedings, concerning a child, being conducted remotely where the issue concerned allegations of a fabricated or induced illness in respect of that child. The President of the Family Division ruled that a trial of the such nature was simply not one that could be contemplated for remote hearing during the Covid-19 crisis, and that establishing that a hearing could be conducted remotely, did not, in any way, mean that the hearing had to be conducted in that way. Accordingly, the case was adjourned and it was to be re-listed once the current Government imposed ‘lockdown’ restrictions had been lifted.

The present application arose out of ongoing care proceedings relating to a young girl (P) who was currently living with her mother’s friend under an interim care order. The local authority contended that the mother had caused P significant harm, as a result of fabricated or induced illness (FII). The mother disputed that allegation.

In 2019, a final hearing had to be aborted. The hearing was fixed to start in the Family Court on Monday, 20 April 2020. However, when the case came back before the judge for the final pre-trial review, on 3 April, the lockdown implemented by the Government due to the Covid-19 pandemic was already in place. The parties in the case, and the judge, accepted that the hearing would have to go ahead and be conducted remotely. It was apparent that the parties read the advice on the conduct of remote hearings, which had been produced by Mr Justice MacDonald, as indicating that all hearings currently had to proceed remotely. Accordingly, no application was made to adjourn the hearing on the basis that there should not be a remote hearing. However, the judge heard an application for the hearing to be postponed on the basis that the mother had allegedly contracted the Covid-19 virus infection and would not be fit to take part in the court process. The judge did not accede to that application and arrangements were made for the compilation of an electronic bundle and for the hearing to be undertaken through Skype.

The judge was subsequently invited to consider adjourning the hearing, so that it would be re-listed once the lockdown requirements had been removed and so that it could be heard in the ordinary way at a full oral hearing. The matter came before the President of the Family Division.

Whether, and in what circumstances, the present hearing (and similar hearings) should be conducted remotely. Alternatively, whether the present hearing should be adjourned.

MacDonald J’s document did not offer guidance, let alone give direction, on the wholly different issue of whether any particular hearing should, or should not, be conducted remotely; it was firmly aimed at the mechanics of the process. Establishing that a hearing could be conducted remotely, did not, in any way, mean that the hearing had to be conducted in that way (see [8] of the judgment).

The following three factors were  of particular relevance to deciding whether or not to conduct a remote hearing in family cases: (i) whether the parents opposed the authority’s plan, but the only witnesses to be called were the ‘SW & CG’, and the factual issues were limited, it could be conducted remotely; (ii) where only the expert medical witnesses were to be called to give evidence, it could be conducted remotely; and (iii) in all other cases where the parents and/or other lay witnesses etc were to be called, the case was unlikely to be suitable for remote hearing (see [22] of the judgment).

The decision whether to hold a remote hearing in a contested case involving the welfare of a child was a particularly difficult one for a court to resolve. A range of factors were likely to be in play, each potentially compelling, but also potentially at odds with each other. The need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for her life to move forward was likely to be a most powerful consideration in many cases, but it might be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. The decision to proceed or not might not turn on the category of case or seriousness of the decision, but on other factors that were idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in those early days, the experience of the judge or magistrates in remote working. It was because no two cases might be the same that the decision on remote hearings had been left to the individual judge in each case, rather than making it the subject of binding national guidance (see [24] of the judgment).

On the facts, the present hearing had to be adjourned (see [25] of the judgment).

 The present hearing was a type which, certainly at first blush, seemed to be well outside the categories of hearing which could be contemplated as being appropriate for remote hearings before the Family Court. That observation was made in the narrow context of it being an allegation of FII. That category of case was a particular form of child abuse which required exquisite sensitivity and skill on the part of the court (see [11] of the judgment).

It simply seemed impossible to contemplate a final hearing of the present nature, where at issue were a whole series of allegations of factitious illness, being conducted remotely. A trial of the present nature was simply not one that could be contemplated for remote hearing during the present crisis. It followed that, irrespective of the mother’s agreement or opposition to a remote hearing, the present hearing could not properly or fairly be conducted without her physical presence before a judge in a courtroom. Now that the mother was, in fact, opposing the remote hearing, the case for abandoning the fixture was all the stronger (see [25]-[29] of the judgment).

The hearing listed to start on 20 April would be vacated. The case would be re-listed once the current restrictions had been lifted, either before a High Court Judge or a deputy, either sitting in the local Family Court or at the Royal Courts of Justice (see [30] of the judgment).

N Taylor QC and M Heywood for the authority.

A Munroe QC and W Tautz for the mother.

C Stringer for the father.

P Howe QC and L Ramadhan for the guardian.

Carla Dougan-Bacchus Barrister.