Complications inherent in conducting remote hearings with reference to Re P (a child: remote hearing)  EWFC 32
April 22, 2020
An up-to-date summary of considerations implicit in a decision to conduct a hearing remotely during the Covid-19 pandemic.
Over the last month, the courts have been forced to embrace an unprecedented degree of change in order to ensure that the deliverance of justice continues throughout the pandemic. Journalists and commentators have praised the courts for the adaptations which have been made and in a number of jurisdictions, despite technological teething issues, the courts continue to operate. However, despite best efforts, unsurprisingly, there has been a considerable degree of deliberation given to the appropriateness of remote hearings, especially in relation to sensitive or complicated matters. Whilst it is observed that the legal arena must be preserved as much as possible, this must not be to the detriment of fairness and best practice.
In the Family Courts, these considerations are crucial as matters are often highly sensitive and complex in nature. In Re P (a child: remote hearings), Sir Andrew McFarlane handed down his decision on 16th April 2020 which addressed the deliberations included in assessing whether or not a remote hearing is appropriate for a certain matter. The factors identified provide assistance to other jurisdictions, in addition, of course, to other Family Law cases.
Re P (a child: Remote Hearing)  EWFC 32
The case of Re:P involves a seven-year-old girl who has been the subject of contested private law proceedings for some time. There is a planned fifteen-day hearing, beginning on the day that I write this article (20th April 2020) where the judge is being invited to determine the factual issues and fix a final care plan for the child. The mother’s case is that the child should be returned to her. The local authority persist that the child should be placed in foster care. The hearing is essentially a ‘roll-up’ hearing and it is the second time that the child has ‘come to understand that a judge is imminently about to determine her future care arrangements.’ The hearing date was set before a ‘lockdown’ was on the horizon in the UK, however, by the time the matter had progressed to the final pre-trial review on 3rd April 2020, the Government had implemented restrictions and Family Court hearings were already proceeding remotely. At the pre-trial review, there were discussions as how best to continue with the fifteen-day hearing remotely. There wasn’t an application to adjourn and arrangements were made for the hearing to be conducted via Skype for Business.
Sir Andrew expressed that on first glance, this matter was one which quite clearly fell outside of the cases which are held to be appropriate for remote hearing. He acknowledged that the matter involves allegations of child abuse which would require ‘exquisite sensitivity and skill on the part of the court.’ Further, he made reference to the expert witness comments that it was an ‘extremely complicated’ and ‘extremely challenging case.’ He expressed that matters such as these require judges to make an analysis of the parent’s behaviour, when they are in the witness box and when sitting in the well of the court. As a consequence of these findings, he invited the judge to consider adjourning the hearing until after lockdown. The parties expressed their concern at adjournment, and Sir Andrew listed a short hearing to consider the issue in full.
The local authority submitted that, despite the nature of the issues, the hearing could properly be heard remotely. They maintained that all 16 witnesses could be heard via appropriate video link and the mother of the child was aware of all of the issues. The main concern advanced was minimising the emotional harm to the child which would be exacerbated by ‘being held in limbo.’ They expressed that the child was in need of a clear decision and adjournment did not serve her best interests. Representatives of the father supported this argument due to his concern for his daughter’s welfare.
However, counsel for the child’s mother opposed the local authority position and maintained that the hearing must be adjourned. The mother’s legal team considered the case to be one that falls ‘outside of the category of hearings that could be contemplated as being able to be conducted over a remote platform in a manner that meets the requirements of fairness and justice.’
Alongside these deliberations was the mother’s suspicion that she had contracted Covid-19. The President expressed that the mother had not been well, and therefore, the technicalities behind involving the mother in the hearing were further complicated. As would usually be considered, a parent may not be at home, but instead, in a neutral venue such as an office or room in the court building. However, this would not be possible as a member of the solicitor’s staff would not be expected to place themselves in potential harm, by accompanying the mother. Therefore, attendance of the mother, outside of her home, was not possible and the only option was for her to attend from home, on her own. It was expressed that this would be unfair and would prevent the mother from having effective participation in the hearing.
Sir Andrew made reference to various guidance issued by himself and the Lord Chief Justice before expressing his own findings. He noted that ‘as no two cases are the same, the decision on remote hearings has been left to individual judges in each case, rather than making it the subject of binding national guidance.’ Although not intended to be comprehensive, the following factors for consideration were raised;
- The need to maintain a hearing in order to avoid delay;
- The need to resolve issues for a child in order for their life to move forward;
- The need for issues in the case to be undertaken in a through, forensically sound, fair, just and proportionate manner;
- The appropriateness of local facilities and technology;
- The personalities and expectations of the key family members;
- The experience of the judge or magistrate in remote working.
The President concluded that the hearing must be adjourned. He was clearly acutely aware of the sensitive position that the child was in, however, he expressed that it seemed ‘impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely.’ He highlighted that it is not sufficient to express that mechanically, it is possible to conduct the hearing via Skype. It appeared that although a judge may be able to physically and mentally cope with cross-examination and the ‘assimilation of the detailed evidence from an e-bundle,’ this was not enough to justify a remote hearing. He stated that part of judicial function is to see the parties and assess their character and reactions and concluded that without the ability to do this effectively, the process would not be fair. He added that the mother should be able to ‘real-time instruct her legal team’, not just by phone call.
Consequentially, it was found that a hearing of this nature is not one which should be held remotely, and it was vacated.
What is clear from this decision is that an application to hear a case remotely will not be rubber stamped. In the Family Courts, great consideration will be given to the nature of the case, the issues to be decided, the possible participation of the parties and the ability of the judge to make a full and informed decision. The personalities of the parties will be taken into account, as will the availability and reliability of technology at their disposal. It is noted that there is a requirement to ensure that justice continues, however, this is not to encompass compromise which may adversely influence the judicial process. The considerations are applicable across the board and are likely to be utilised in other jurisdictions.
There is a breadth of factors to be taken into account by judges when deciding whether or not a hearing is suitable to be held remotely, however, when it is concluded that a hearing is to go ahead, those representing parties may wish to take the following into consideration;
- ‘Impression Management’ – Those representing should ensure that participants have appropriate backgrounds and camera angle. Parties should be encouraged to look into the camera, as opposed to at the keyboard, to avoid looking disinterested or even dishonest;
- Explain to the parties the identity of all participants -this is less obvious when the courtroom setting is not available;
- Ensuring that parties have adequate Wi-Fi connection;
- Ensuring that parties have a good quality audio and visual connection -this is crucial where proceedings involve assessments of credibility. This has been identified as particularly important in the Immigration and Asylum Chamber where often parties are relying on interpreters;
- Explaining the importance of parties remaining engaged in the process- where individuals are not physically in the court room, there may be a tendency to become disengaged more easily. This too has an effect on credibility;
- Arranging conferences beforehand to discuss the matters with clients.
It remains that there are a number of positives arising from certain hearings being held remotely. In many cases, continuation will be a better option for the parties, than adjournment. In an era where technology is being utilised to its maximum potential, it is perhaps justified to suggest that grappling with technology is essential, not only in light of Covid-19, but in light of the inevitable changes that will be implemented over the coming years.