On 16th April 2020, Sir Andrew McFarlane handed down a case management judgment on a public law case which may have significant implications for case management decisions until court services return to normal. The case in question was on the issue of fabricated or induced illness and the issue was whether the final hearing should proceed remotely. The Mother opposed the local authority care plan. It was listed for a fifteen day hearing addressing whether she had harmed her seven year old daughter. Despite the coronavirus pandemic both the Father and the local authority supported the hearing continuing remotely. The Mother’s Solicitors’ had assumed it would proceed with plans to take instructions by Zoom or in between each piece of evidence. There were to be three expert witnesses.

The decision to proceed had already been made on the last occasion by a Circuit Judge sitting as a Deputy High Court Judge. This decision was overturned by McFarlane, who deemed it “impossible” to proceed with the final hearing remotely. The basis of that decision offers some insight into which cases the court may or may not be capable of dealing with remotely.   

McFarlane gave a number of reasons for his decision to adjourn the final hearing. Some of these were circumstances which were specific to this case; the Mother had been taken ill with Covid-19 prior to the final hearing. For this reason the Judge determined it would not be proper to ask any representative from the instructed solicitors’ firm to sit in a room with her throughout the hearing. This resulted in a situation where the only way to hear the case remotely would have been with the Mother attending from her home. While not all cases will have this issue it should be a matter for legal representatives to decide whether they are comfortable with having clients attend their offices in the current circumstances and it will not be for the Court to take that decision away from them for the sole purpose of ensuring a hearing is effective.

The secondary issue created by the necessity of the Mother remaining at home was that there was not a sensible way to ensure she could provide contemporaneous instructions to those representing her throughout evidence. These were very detailed allegations and despite the proposal of various technological solutions proposed by advocates McFarlane did not feel they were sufficient to allow her to give continuous updating instructions and his view was this would have implications for the fairness of the hearing.

In this context a remark by McFarlane which will have practical implications for how hearings of this nature should be carried out is that where a lay party attends a remote hearing they should not simply attend from home on their own but go to some neutral venue (Local Authority building, court building etc) and be with a representative of their instructing solicitors within the parameters of the government social distancing guidance.

There were wider factors considered and which may apply more broadly. McFarlane included within his judgment that a Judge needs “to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process”. He did not have concerns about the ability of a Judge to cope with the cross-examination or the evidence itself but he felt there were other factors which inform a Judge’s view and which are required to be considered to reach a full and fair judgment.  Though it is unlikely that McFarlane anticipated any particularly dramatic behaviour from the parents in this case, there is no doubt that the judiciary do take inferences from the behaviour of a party during a hearing in a way that they may not be able to fully grasp through a “postage stamp” sized image. That small image is all that would be available by video link.

Setting up a remote contested hearing may depend upon the specific circumstances of the case: the issue which is being contested, local facilities, available technology, characteristics of individuals involved and experience of the Judge/legal advisor in remote hearings.

This does not mean that all contested hearings should be adjourned. McFarlane noted the often-conflicting issues to consider:

  • Need to avoid delay for the child
  • Need for a conclusion for the child
  • Need for a forensically sound, fair, just and proportionate resolution of the matter.

These factors will need to be carefully balanced with the issues of fairness for parties participating remotely. It is always important for parents to feel that things have been done justly and that they have had sufficient opportunity to participate. What McFarlane has now made absolutely clear is that the advice by Mr Justice MacDonald does not mean a hearing should continue remotely but rather that it “is firmly aimed at the mechanics of the process; it does 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 will be a matter for District Family Judge’s to decide how trials proceed in their court centres and the presiding judge to make the final determination, as no public binding guidance has been issued. This appears to be a very intentional distinction to allow for judicial discretion that can only properly be exercised with a grasp of the case specific circumstances. It will be important that any matters which have to be adjourned are prioritised for when this lockdown is completed in order to minimise any delay in decision making for children, something which may cause difficulties given our already over burdened family court system.