Could we vs. Should we? The President of the Family Division considers remote hearings in Re: P (remote hearing)  EWFC 32
The last few weeks have seen a fairly consistent stream of guidance, anecdote and creative thinking amongst those practising in and presiding over the family justice system. Re: P (remote hearing)  EWFC 32 represents the first reported decision of the President of the Family Division on the issue of whether a hearing should be allowed to go ahead remotely. The President considers some of the advice and guidance that had been given but emphasises that the decision of whether a hearing should proceed remotely needed to be considered on a case by case basis.
The issue for the President was whether a 15 day final hearing in care proceedings in which findings of fabricated or induced illness (“FII”) were sought against the Mother should go ahead remotely before a Circuit Judge sitting as a deputy High Court Judge from 20.4.20. The proceedings were a year old and had been preceded by private law proceedings. The child was a 7 year old girl who had, throughout the care proceedings, been living with a family friend under an interim care order. It was agreed that this was not a long term option and that the realistic options, depending on the findings, were for her to return to her Mother’s care or placed in foster care. There was recognition of the emotional impact on the child of delaying determination of her long term care arrangements noting that a previous final hearing listing had been adjourned in August 2019.
The route to being heard by the President was itself slightly unusual. On having heard that this hearing was to go ahead remotely the President invited trial Judge to consider adjourning it until it could be heard in an ordinary manner. This was communicated to the parties by the trial Judge and concerns were expressed as there had been broad agreement between the parties that the matter could proceed remotely and preparations had been made accordingly for it to start on 20.4.20. The President agreed to consider the issue at a short hearing that took place remotely on 16.4.20. At that hearing the Local Authority, Father and Children’s Guardian were in support of the final hearing proceeding remotely as planned but the Mother supported adjournment.
The President considered some of the different sources of advice and guidance that had been provided in relation to remote hearings having been made aware that the decision to proceed remotely had been influenced in part by the advice provided by MacDonald J on the conduct of remote hearings at the beginning of April. The President made it clear that the advice of MacDonald J was aimed at the mechanics of the process not an attempt at guidance about whether any particular case should proceed.
The President referred a Letter from the Lord Chief Justice, Master of the Rolls and President of the Family Division to Judges dated 9.4.20 that suggested a number of parameters for Judges to consider. The three of these most relevant to family proceedings being: (a) Where the parents oppose the LA plan but only the SW and CG are to be called and the factual issues are limited it could be conducted remotely; (b) Where only expert medical witnesses are to be called to give evidence it could be conducted remotely; and (c) in all other cases where parents or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing. It is important to note that none of the “parameters” contain the word “should”.
This Judgment makes it clear that the decision as to whether a hearing is suitable for being conducted remotely may not be considered in a binary way simply because it has the features described above. The President referred back to his own guidance issued on 27.3.20 in which he stressed the importance of not losing sight of the primary purpose of the family justice system which was to enable the courts to deal with cases justly having regard to the welfare issues involved. At paragraph 24 of the Judgment the President expanded on this stating:
“The decision of whether to hold a remote hearing in a contested case involving the welfare of the child is a particularly difficult one for the Court to resolve. A range of factors are 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 is likely to be a most powerful consideration in many cases, but it may be at odds with the very 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 may not turn on the category of case or seriousness of the decision, but upon other factors that are 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 these early days, the experience of the Judge or magistrates in remote working. It is because no two cases may be the same that the decision on remote hearing has to be left to the individual judge in each case rather than making it the subject of binding national guidance”.
The President’s analysis of the competing considerations in this case is unlikely to be suitable for any wholesale transposition into other cases but it offers food for thought. Particular features of this case were the extremely complicated and unusual nature of the findings of FII sought. On this point the importance for the Judge of being able to closely observe the parent not only in the witness box but also reacting to the evidence of others during the hearing was recognised. The other particular feature was that Mother had recently been very ill with suspected Covid 19 the implication being that this deprived the Mother of the opportunity for attendance at the remote hearing from a neutral location with socially distanced presence of some of her legal team to allow a degree of professional and ordinary human support during the hearing as has been suggested in other cases.
So where does this leave us? This provides an important reminder that the question that needs to be asked in every case is not just whether a hearing could be conducted remotely but rather whether it should be conducted remotely having regard to, amongst other things, issues of justice and fairness. The considerations to be taken into account may be far ranging and will involve input from all of those involved. Judges will need to ask themselves whether they will be able to observe enough of a party or witness over a screen in order to make difficult judgments about their credibility or responses. Those representing parents should not be deterred from raising issues of fairness to their clients just because less than ideal technical solutions can be identified to compensate for the lack of face to face communication and support.
There is scope in paragraph 24 for the passage of time to lead to different conclusions being drawn in the same case. If restrictions remain in place for a prolonged period the impact of delay may become less tolerable whilst growing experience of remote working and communication may make hearings via video link a better substitute for those attended in person. Similarly the nature of restrictions may change but still not permit physical presence before a Judge in a Court room. It seems likely that unless normal working practices resume fairly swiftly that the issue of whether a particular hearing should be conducted remotely will need to be kept under review.
Article by Kate Lamont