Re A (Children) (Remote Hearing: Care and Placement Orders)
| Jurisdiction | England & Wales |
| Judge | Sir Andrew McFarlane P |
| Judgment Date | 30 April 2020 |
| Neutral Citation | [2020] EWCA Civ 583 |
| Date | 30 April 2020 |
| Docket Number | Case No: B4/2020/0626 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 583
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
SITTING AT CARLISLE
HHJ DODD CA19C00007
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE FAMILY DIVISION
Lord Justice Peter Jackson
and
Lady Justice Nicola Davies
Case No: B4/2020/0626
Karl Rowley QC and Simon Heaney (instructed by Cumbria Family Law Ltd) for the Appellant
Father David Rowlands (instructed by Cumbria County Council) for the First Respondent Local Authority
John Chukwuemeka (instructed by Milburns Solicitors) for the Second Respondent
Nicholas Rooke (instructed by Holdens) for the Third Respondent
Richard Hunt (instructed by Bendles Solicitors) for the Fourth to Seventh Respondent Children by their Children's Guardian
Hearing date: 22 April 2020
Approved Judgment
This is the judgment of the court to which all three members have contributed.
This case is the first appeal in a case relating to the welfare of children 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 constitution heard the second such appeal, Re B (Children) (Remote Hearing: Interim Care Order) [2020] 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.
Against that background we wish to stress the following cardinal points with the utmost emphasis:
i) 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.
ii) 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.
iii) 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 President's Guidance on Remote Hearings issued on 19 March 2020 lists the types of hearing which may be considered to be suitable for a remote hearing at paragraph 8. The list includes ‘All directions and case management hearings’ and, with respect to Public Law Children cases, the following three categories:
i) Emergency Protection Orders
ii) Interim Care Orders
iii) Issue Resolution Hearings.
Paragraph 10 of the 19 March Guidance goes on to state:
“10. It is possible that other cases may also be suitable to be dealt with remotely. As the current situation is changing so rapidly, and as the circumstances that will impact upon this decision are likely to differ from court to court and from day to day, the question of whether any particular case is heard remotely must be determined on a case-by-case basis.”
As paragraph 3.3 of MacDonald J's remote hearing manual records, on 25 March 2020 the President clarified the position concerning attended hearings by stating that:
“… live court-based hearings should now be confined only to exceptional circumstances where a remote hearing is not possible and yet the hearing is sufficiently urgent to mean that it must take place with those involved attending court in a manner which meets the social distancing requirements.”
On 9 April 2020, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division sent a message to all circuit judges and district judges concerning remote working during the ‘lockdown’ [‘the LCJ's message’]. That message included this guidance:
“ Generally:
a. If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing; if parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the ‘green light’ to conduct a hearing in this way;
b. Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely;
c. Video/Skype hearings are likely to be more effective than telephone. Unless the case is an emergency, court staff should set up the remote hearing.
d. Parties should be told in plain terms at the start of the hearing that it is a court hearing and they must behave accordingly.
In Family Cases in particular:
e. Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted remotely;
f. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;
g. In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”
It was reported to us that sub paragraph (g) has been interpreted as applying to interim hearings. If that is the case, the President wishes to make it plain that, as the text under the heading ‘Generally’ in sub paragraphs (a) to (c) indicates, the parameters set out thereafter, including sub paragraph (g), are intended to apply to final hearings and not to interim hearings.
It follows, applying the principles set out above and the guidance that has been given, that:
i) Final hearings in contested Public Law care or placement for adoption applications are not hearings which are as a category deemed to be suitable for remote hearing; it is, however, possible that a particular final care or placement for adoption case may be heard remotely;
ii) The task of determining whether or not a particular remote hearing should take place is one for the judge or magistrate to whom the case has been allocated, but regard should be had to the above principles and guidance, as amplified below;
iii) The requirement for ‘exceptional circumstances’ applies to live, attended hearings while the current ‘lockdown’ continues.
The factors that are likely to influence the decision on whether to proceed with a remote hearing will vary from case to case, court to court and judge to judge. We consider that they will include:
i) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?
ii) Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;
iii) Whether the parties are legally represented;
iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;
v) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;
vi) 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;
vii) The scope and scale of the proposed hearing. How long is the hearing expected to last?
viii) The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;
ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;
x) Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.
It follows from all that we have said above that our judgment on this appeal should be seen as being limited to the determination of the individual case to which it relates. Each case is different and must be determined in the light of its own specific mixture of factors. The import of the decision in this case, in which we have held that the appeal must be...
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