Wed, 09 Sep 2020
The difficulties with court listings and the inability to hold hearings in a normal fashion has now been underway for 6 months. The recent guidance set out in ‘The Road Ahead’ shows there is no likelihood of that changing in the near future. This means there has had to be a reconsideration of what delays are acceptable and what reasons are sufficient to delay final decisions being made for children.
It is obvious that robust case management is essential, as set out at para 49 of the guidance. It
should include consideration; to narrow of issues prior to any hearing, of the hearing format, of whether it can justly dealt with in a fully remote hearing, of how best to optimise the fairness of remote hearings and how to enhance the lay parties ability to engage in the hearing. Notably, it stresses that telephone hearings are the most remote form of hearing, which is in accordance with Re B (below), and that video hearings will always be preferable.
There have been a string of cases since we wrote about the case of Re P that have further clarified the principles that should be applied when considering remote hearings. These cases are set out below.
The judgment which followed Re P, Re A (Children) (Remote Hearing: Care and Placement Orders)  EWCA Civ 583 advised that the starting point of any case management decision, whether to hold a remote hearing and how, was a matter for the tribunal hearing it. In addition, it noted that the court of first instances should be afforded a wide discretion based on the ‘ordinary principles of fairness, justice and the need to promote the welfare of the Child’ so any appeal must be based on it having been an ‘unreasonable’ way of proceeding. It listed a number of factors which should be considered when deciding whether a matter could be heard remotely;
- The importance and nature of the issue to be determined; is this an interim or final order
- Whether there is a special need for urgency
- Whether the parties are legally represented
- The ability of any lay party to engage with and follow a remote hearing meaningfully
- By what means the case is to proceed; is evidence to be adduced or will it proceed on the basis of submissions only
- 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;
- The scope and scale of the proposed hearing. How long is it expected to last?
- The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is less effective than using video.
- The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
- Any safe alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in the courtroom before the judge or magistrates.
Published on the same day as Re A, Re B (Children) (Remote Hearing: Interim Care Order)  EWCA Civ 584 was a local authority application in respect of two children initiating care proceedings. The appointed Guardian recommended removal to immediate foster care after hastily prepared papers and the hearing being arranged by telephone. The appeal on behalf of the Maternal Grandmother was upheld. This was on the following basis:
- The fundamental principles of substantive law and procedural fairness remain unchanged. Effective use of communication technology is indispensable to the ability to continue to deliver justice. A remote hearing can replicate some, but not all characteristics of a fully attended hearing. The court must be alert to ensure that the dynamics and demands of the remote process do not impinge upon fundamental principles. Cases must be prioritised and some will unfortunately have to wait until the proper time is available.
- The circumstances do not override the obligation for a Children’s Guardian to exercise professional judgment.
- Any process should not be arbitrary, there should always be a balanced analysis in the case for removal and the Guardian should protect a Child’s interests.
- The current circumstances do not provide a reason for the removal of a child where none would otherwise exist.
- There is a qualitative difference between a remote hearing conducted by telephone and one via a video platform. A video link is likely to be the default option in urgent cases.
The overriding principle to arise from Re B is that remote hearings cannot undermine procedural fairness or create an urgency or pressure to decision making that arises only as a result of the current circumstances and would otherwise not exist.
Another case which highlights the drive to keep cases progressing through the court system to secure a final decision was Lancashire County Council v M (COVID-19 Adjournment Application)  EWFC 43. It was made clear within the judgment that indefinite delay of a hearing will simply not be acceptable when there are welfare decisions to be made (full details set out at paragraph 45). Those which are an expansion upon the decision-making considerations for in-person hearings are;
- The extent to which a remote or hybrid hearing will provide the judge with a proper basis upon which to make a full judgment;
- The steps that can be taken to reduce the potential for unfairness by enabling the cases to proceed fairly
- 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;
- 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
- Parties consent to or oppose a remote or hybrid hearing
- The available technology and experience of the court to deal with such technology as is available.
A notable further case relating to the conduct of remote hearings is Re C (A Child)  EWCA Civ 987, in which a judge was overheard making private comments through the video link which they were unaware remained connected. This case demonstrates how important it is to understand the technology and be vigilant to privacy during remote and Hybrid hearings.
Many courts and advocates have now adjusted to the new style of hearings and improvements continue to be made with the introductions of new operating systems and hybrid hearings. However, it does look as though these measures are here to stay for the foreseeable future and therefore it will be important for any case management to assume things will continue in their current form.
To read the original article from Olivia Whitworth and Eleanor Berney-Dale, please Click Here.