Legal Update by Chloe Branton (Pupil).
Today (Thursday 30 April 2020) at 10:30am the Court of Appeal handed down remotely their decision in Re A.
This case has been keenly awaited by family law practitioners, being the first appeal in a public law children case to reach the Court of Appeal on the issue of remote hearings during the COVID 19 pandemic. The appeal was heard on 22 April 2020. On the following day the same bench heard the second such appeal, Re B (Children) (Remote Hearing: Interim Care Order)  EWCA (Civ) 584. There will undoubtedly be further appeals in children cases heard in the High Court or the Court of Appeal on the issue of remote hearings in the coming weeks.
The basic background to the appeal
The background to the appeal, (paragraphs 13 to 16) is that care proceedings concerning 6 children were originally issued on 15 March 2019. The 4 youngest children are in the foster care and the appeal concerned the final hearing which will determine the plans for their care long-term. That final hearing was originally due to commence on 30 March 2020 for 5 days, but was vacated due to the current Covid-19 crisis. A hearing was listed for further consideration and took place on 3 April. At that hearing HHJ Dodd gave directions for the matter to go ahead over 7 days in late April and early May in what was termed a ‘hybrid’ form.
Concerns were raised about the ability of the father, Mr A, to access a remote hearing in circumstances where he was dyslexic and lacking suitable technology at home. The judge directed he could attend the hearing in person if unable to engage remotely, namely by attending court in front of a judge, and it was envisaged his counsel would attend with him. An application for permission to appeal was lodged on Mr A’s behalf the next day. The matter was relisted before HHJ Dodd in order to allow the guidance given by the LCJ to be taken into account. However, the same decision re the ‘hybrid’ nature of the hearing was reached. This was for Mr A and Mrs A to attend separately at court to give evidence, accompanied by a representative from their solicitor’s firms, with counsel attending remotely. The judge considered the matter sufficiently urgent enough to justify the hybrid listing, partly due to the age of the children and the risk of delay impacting upon their adaptability. Indeed, in relation to the second youngest child an error as to their age was recorded, making that child appear 1 year older than they were (paragraph 24).
The appeal outcome
Permission to appeal the order of 3 April was granted by Peter Jackson LJ on 17 April despite no formal application for permission having been made. The court held that the decision of HHJ Dodds to proceed with the planned hearing was wrong and must be set aside. The matter was to be relisted before HHJ Dodds for a further case management hearing in mid-May. The judgment now provides the reasoning for that decision.
Reasons for the decision
The President of the Family Division, Sir Andrew McFarlane, giving the judgement stated:
“49. Our principal reasons for concluding that the judge was wrong and that this case is not currently suitable either for a remote hearing or for the form of hybrid hearing set up by the judge fall under three headlines:
i) Mr A’s inability to engage adequately with remote evidence (either at home or in the courtroom);
ii) The imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the judge;
iii) The need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing.”
Each of these reasons were examined in detail in the discussion section of the judgment from paragraph 50 onwards before the concluding comments were made:
“63. For the reasons that we have now given, and despite our appreciation for the conscientious approach that the judge sought to adopt at every stage, we concluded that his decision to proceed with the planned hearing was wrong and must be set aside. The matter will return to the judge for him to give further directions with a view to the final hearing taking place as soon as may be possible.”
What does this case mean for remote hearings?
The decision is certainly not authority for no remote final hearings taking place in care or adoption hearings. At the start of the judgment the President on behalf of the whole panel took the opportunity to emphasise three key points:
“3i. The decision whether to conduct a remote hearing, and the means by which each individual case may be heard, are a matter for the judge or magistrate who is to conduct the hearing. It is a case management decision over which the first instance court will have a wide discretion, based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children. An appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong.
3ii. Guidance or indications issued by the senior judiciary as to those cases which might, or might not, be suitable for a remote hearing are no more than that, namely guidance or illustrations aimed at supporting the judge or magistrates in deciding whether or not to conduct a remote hearing in a particular case.
3iii. The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might, or might not, have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa. For example, it is the common experience of many judges that remote hearings take longer to set up and undertake than normal face-to-face hearings; consequently, courts are now listing fewer cases each day than was the case some weeks ago. On the other hand, some court buildings remain fully open and have been set up for safe, socially isolated, hearings and it may now be possible to consider that a case may be heard safely in those courts when that was not the case in the early days of ‘lockdown’.”
The rest of the introductory section of the judgment went on to consider the guidance given by the President on remote hearings on 19 March 2020, and the guidance given to circuit and district judges on 9 April 2020. Consequently the court emphasised at paragraph 10: that the “judgment on this appeal should be seen as being limited to the determination of the individual case to which it relates.”
As such this case will be useful guidance but does turn on the facts. It was stated:
“11. It also follows that the decision on this appeal must not be taken as an authority that is generically applicable to one or more category of children cases. We wish to state with total clarity that our decision does not mean that there can be no remote final hearings on an application for a care order or a placement for adoption order. Neither is our decision to be taken as holding that there should be no ‘hybrid’ hearings, where one or more party physically attends at a courtroom in front of a judge. The appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance indicated above to the unique circumstances of the case.” (emphasis added)
At paragraph 12 the court emphasised the special nature of adoption proceedings and the need for fair and just proceedings for all parties. There is also a separate need for a child who is then adopted to know and understand that such a significant and life-altering decision was made only after a hearing that was thorough, regular and fair.
The Court lastly drew attention, at paragraph 61, to the message of the LCJ on 9 April 2020:
“61. Finally, and more generally, we would draw attention to, and endorse, the steer given in the LCJ’s message of 9 April at sub paragraph (a): ‘If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing’. Whilst in the present case it is true that the Children’s Guardian did not oppose proceeding with the planned hearing, all of the other parties, including the local authority, did. In such circumstances, when the applicant local authority itself does not support a remote contested final hearing, a court will require clear and cogent reasons for taking the contrary view and proceeding to hold one.”
‘Case plan’ – document likely to useful for possible substantive remote hearings
Interestingly, prior to the review hearing the judge prepared and circulated a detailed ‘case plan’ for the final hearing. This was a narrative document, recording the salient features of the case and described the arrangements proposed for the hearing. It also identified a range of practical and forensic issues that needed to be considered or resolved at the reconvened case management hearing. The Court of Appeal considered that this to be the kind of document that was likely to be useful whenever a court is considering the arrangements for a possible remote hearing of any substance.
Client’s Engagement from their home
The Court of Appeal also reflected on the difficulty, now affecting family clients throughout the country, of how they can effectively engage in a substantive hearing from home. It is right to say that Mr A had particular vulnerabilities (for example he was dyslexic with a poor attention span and was emotionally fragile) however practitioners may find some of the observations below applicable to many of their own cases:
“55.The concept of fairness and the need for a lay party to ‘engage’ in the process includes the ability of that person to follow and to understand what transpires at a court hearing at least to an adequate degree and then to be able to instruct their lawyers adequately and in a timely manner. (emphasis added)
56. Taking these technical, emotional, intellectual and environmental factors together, it is not possible to understand how Mr A could engage sufficiently with the professional evidence that is to be given over a video link to his wife’s iPad in his home over the course of a number of days for that process to be regarded as adequate or fair.
57. Mr Rowley is correct in submitting that the fairness of the process has to be seen as a whole, including from the perspective of the lay party. The judge apparently concluded that it was not appropriate to consider a wholly remote hearing for this case and the Children’s Guardian agrees. In our view, making provision for Mr and Mrs A to give their evidence before the judge in the court room did not significantly alter the position on the facts of this case and did not address the substantial deficits in Mr A’s ability to follow the evidence from his home and to instruct his counsel adequately.” (emphasis added)
Practitioners may consider this dilemma to be all the greater in circumstances where it is proposed that the client engage not even with an iPad but observing via the smaller screen of a smartphone.
This case turns on its facts but does reiterate that the decision on whether or not to have a remote hearing is not always clear cut either way. There was no criticism of the judge’s handling or approach, with recognition that he had given the most anxious consideration to the question of how the applications might be heard “in these extraordinary times”.
Many factors must be considered when deciding if a remote, or hybrid, hearing is appropriate in the case. Further, that the guidance produced will inevitably change as the situation develops and that guidance should be contemplated when making decisions on hearings. Ultimately, as stated in the judgment, opposition to a remote hearing is clearly a powerful factor and should not simply be ignored.