The right to a fair trial in times of lockdown and the impact of Re P (A Child: Remote Hearing) 2020

Since the government introduced lockdown measures in March 2020 to curb the spread of coronavirus, the issue for the courts has been how to safely proceed with hearings. Initially the default position was to conduct all necessary hearings remotely, either by way of telephone conferencing or through a variety of video platforms including Zoom, Skype for Business and Teams, and to adjourn non-essential hearings. In the case of remote contested hearings including interim removal hearings, fact-findings and final hearings in care proceedings, there has been the potential for prejudicial outcomes for many parents, which could in turn lead to human rights breach claims, as well as to appeals.

Since the start of lockdown, there has been guidance on the types of cases that can be considered suitable for remote hearings. In a letter from the Lord Chief Justice, Master of the Rolls and the President of the Family Division to judges on 9^th April 2020, the authors of the letter set out the following criteria for the suitability of remote hearings:

In family cases in particular:

1. Where the parents oppose the LA (local authority) plan but the only witnesses to be called are the social worker and Children’s Guardian, and the factual issues are limited, it could be conducted remotely;
2. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;
3. 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;

Prior to this, on 27^th March 2020, the President of the Family Division issued the following guidance:

“Can I stress however, that we must not lose sight of our primary purpose as a Family Justice system, which is to enable the courts to deal with cases justly, having regard to the welfare issues involved [Family Procedure Rules 2010, rule 1.1 ‘the overriding objective’], part of which is to ensure that the parties ‘are on an equal footing’ [Family Procedure Rules 2010, rule 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.”

On 16^th April 2020, Sir Andrew McFarlane, President of the Family Division handed down judgment in the case of Re P (A Child: Remote Hearing) [2020] EWFC 32 which further endorsed the views expressed in the letter to the judges dated 9^th April 2020.

This case of P concerned a series of allegations made by the local authority against a mother, that she had caused significant harm to her 7 year old child as a result of fabricated or induced illness. The matter had been set down for a 15 day fact finding and welfare hearing to determine the factual issues, then go on to consider the final care plan for the child, which could result in the child being removed from her current carer into foster care.  Sir Andrew McFarlane referred to the guidance of Mr Justice MacDonald at the start of the current lockdown, which gives an account of a number of remote hearings that have been successfully accomplished following the start of lockdown.  He goes on to say at paragraph 8 “Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.”

At paragraph 11 consideration is given to whether Re P is the type of case that is suitable for a remote hearing: “It is a type of hearing which, certainly at first blush, seemed to be well outside the categories of hearing which could be contemplated as being appropriate for remote hearings before the family Court. I make that observation in the narrow context of this being an allegation of FII [Fabricated or Induced Illness]. That category of case is a particular type of child abuse which requires exquisite sensitivity and skill on the part of the court”

At paragraph 15, the President went on to consider the impact of delay on the child if he were to agree to adjourn the hearing: “All cases are pressing when the welfare of the children is to be determined. The Children Act spells that out. But, on the facts of this case, this young person’s welfare particularly requires that a decision be made at this stage if not, frankly, before now”. One might be forgiven for thinking that based on those comments he would have decided that the Judge could hear the case remotely. However, at paragraph 24 he goes on to say: “The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particular difficult one for the court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with each other.” “The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working”.

Sir Andrew McFarlane talks of the importance of seeing all parties in the courtroom, in particular the mother, and raised concern that in conducting the hearing remotely “there is a significant risk that the process as a whole would not be fair” [paragraph 26].

The President sets out the reasoning behind his decision:  “Given the wealth of factual detail that is to be placed before the court in relation to this mother’s actions over the last three to four years, for her to have a full real-time ability to instruct her legal team throughout the hearing, not just by a phone call at the end of each witness’s evidence, seems to me to be a prerequisite for her to be able to take an effective part in a fair process at the trial of issues such as this” [paragraph 28].

Ultimately, the court held “this hearing cannot properly or fairly be conducted without her physical presence before a judge in a courtroom. Now that the mother is in fact opposing the remote hearing, the case for abandoning the fixture is all the stronger” [paragraph 29].

It remains to be seen whether the judgment in Re P will lead to the courts’ widespread decision making to put off all or most contested hearings until such time as they can be heard live within courtrooms, but it is likely that it will have significant impact on both new and existing listings. There will be a large backlog of hearings that have been adjourned and on-going social distancing will make physical attendance at court an issue to contend with for quite some time.

Anna Perry