In a judgment by Sir Andrew McFarlane, President of the Family Division, delivered on 16 April 2020, the issue of remote hearings during the Covid-19 pandemic was explored and helpful clarification provided. This complex case concerning serious allegations was adjourned following the President’s intervention in proceedings.
In Re P, the President listed the matter for a hearing which took place on 16 April 202 to consider whether the trial could continue to be listed and heard remotely. It was attended by Counsel and Solicitors and arose out of ongoing care proceedings. The final hearing was due to be heard on 20 April 2020 with a time estimate of 15 days and involving expert evidence. This case related to a child aged 7 and proceedings were issued in April 2019. The Local Authority was alleging that the child had been caused significant harm as a result of fabricated or induced illness [“FII”]. The final hearing was likely to have involved at least 16 professional witnesses in addition to any lay evidence.
On 13 March 2020 there was a case management hearing, being before the lockdown, and thereafter the final pre-trial review on 03 April 2020, being during the lockdown. All parties and the Judge had agreed the final hearing must proceed remotely. This followed the publication of advice by Mr Justice MacDonald and taken by those involved in this case to mean that all hearings must be conducted remotely. Therefore, the discussion on 03 April 2020 involved the practicalities of the final hearing being heard remotely, rather than whether it should be heard remotely.
In Re P, the President clarified that the purpose of MacDonald J’s advice was aimed at the mechanics of a remote hearing and does not address the issue of whether or not a hearing should remain listed, remotely or otherwise. The President also stated that the fact a hearing can be held remotely, does not mean that it must be held via that medium.
The President was of the view that this matter initially appeared to be inappropriate for a remote hearing. The expert had described it as an “extremely complicated case”, and FII as being “an extremely unusual disorder” with the task of investigating it being “incredibly challenging”. The President agreed.
At the hearing on 16 April 2020 to consider this matter all parties, save for Mother, were keen to proceed on 20 April 2020 remotely and were of the view that this was not only possible, but essential. Mother, through her representatives, raised concerns about the fairness and justice of this matter being dealt with in such a way.
In reaching his decision, the President referred to the parameters suggested by the Lord Chief Justice, Master of the Rolls and President of the Family Division as provided to Judges on 09 April 2020. He further referred to his own guidance issued on 27 March 2020 which focussed on the overriding objective and the need to deal with matters justly.
In this matter, the President did not hesitate in finding that the matter clearly needed to be adjourned, despite the potentially negative impact for the child and acknowledging that this matter should have long since been decided, as well as the impact on the professionals involved.
The President referred to the following factors:
- The seriousness and complex nature of the allegations;
- Being able to cope with the cross-examination and the assimilation of the detailed evidence in the bundle is only part of the judicial function and the Judge must be able to see the parties in the courtroom (particularly Mother) and the nature of having small images on a screen is not sufficient;
- There may be an issue with parties maintaining a link with the courtroom throughout, therefore further impacting on the previous point;
- A remote hearing would not allow effective participation for the parent and effective engagement either by the parent with the court or the court with the parent; and
- There was a significant risk in respect of fairness.
The President concluded that to hold such a hearing remotely is to deprive the Judge of the process required to give a full judgment.
What is clear from this judgment is that matters should not proceed no matter what and consideration must be given to the overall justice of the matter. The difficulty is that whether or not these matters should be heard remotely will be heavily fact specific and as such no definitive guidance can be provided.
The full case can be found at: https://www.bailii.org/ew/cases/EWFC/HCJ/2020/32.html