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England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Lancashire County Council v M & Ors (COVID-19 Adjournment Application) (Rev 1)  EWFC 43 (12 June 2020)
Cite as:  EWFC 43
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B e f o r e :
| Lancashire County Council
|- and -
(By his Children's Guardian)
Mr Paul Storey QC and Ms Sara Lewis (instructed by Wollens) for the First Respondent
Ms Vanessa Meachin QC and Ms Lucy Hendry (instructed by Brendan Fleming) for the Second Respondent
Ms Kathryn Korol and Mr Christopher Blackburn (instructed by John Whittle Robinson Solicitors) for the Third Respondent
Hearing date: 8 June 2020
Crown Copyright ©
Mr Justice MacDonald:
i) Bilateral subdural haemorrhages more extensive on the right hand side than on the left.
ii) Acute ischaemic damage on the medial aspect of the left temporal occipital region.
iii) Extensive retinal haemorrhages to the right eye.
iv) Petechial bruising on the abdomen.
v) Two parallel red marks on the right thigh.
vi) A bruise between the eyebrows.
vii) A healed laceration to the forehead.
viii) A torn upper frenulum.
ix) Multiple fractures to C's hands, feet and ribs and an older displaced fracture to his left arm.
"As matters stand, given the stark nature of the disagreement between the parties on the question of a remote hearing, the impact of the current government guidance on the ability of the parents to attend a court, the parents' apparent lack of access to effective IT, the acknowledged difficulties with securing the effective participation of intermediaries in remote hearings and in light of emerging issues regarding the participation of vulnerable parties in extended remote hearings, my strong provisional view is that it would not be appropriate to recommence a hearing of this length and this complexity remotely unless agreed solutions to the parents' stated Art 6 concerns can be arrived at between the parties, particularly in circumstances where one of the potential outcomes of the proceedings is the permanent removal of their child".
Within this context, no party sought to further press the court to deal with the part heard final hearing by way of a fully remote hearing at the end of April.
i) It is to be anticipated that past experience, now exacerbated by COVID-19, is likely to provoke increased anxieties in the father with respect to a venue away from Preston.
ii) The father has in the past experienced "increased anxieties" in travelling away from Preston to another court. Whilst it is accepted that the father has travelled to Manchester to meet his legal team for the purposes of a consultation and to London, Ms Meachin and Ms Hendry submit that this was prior to the COVID-19 pandemic and was, accordingly, a very different scenario to a daily travel for the final hearing.
iii) The father has given instructions to his solicitor that he would not wish to travel to court in Manchester and expressed his ongoing anxieties as to a contemplated fixture in Manchester.
iv) The father is now unable to contemplate any other option than a fully face to face hearing conducted in Preston.
v) Within this context, and given that the father has vulnerabilities which render him particularly anxious about court proceedings as recognised by the special measures that the court previously sanctioned for him, listing the case away from his home and local court, requiring him to travel on public transport before and after court wearing a face mask for ten days at a time when the pandemic continues will exacerbate his anxiety and is inconsistent with a proper recognition of his particular vulnerabilities.
i) Dr Waheed has provided an opinion that makes clear that the father requires intermediary support in order to participate effectively in the hearing and the court has previously endorsed that opinion by making provision for such support.
ii) The hearing commenced on 16 March 2020 demonstrated that the father was able to participate in a fully face to face hearing with the benefit if appropriate support, in contrast to the position with respect to the two previously adjourned final hearings where he lacked such support.
iii) In the circumstances, the father continues to require the assistance of an intermediary, which assistance can only be effected if the father is able to participate in a fully face to face hearing in Preston.
iv) The parents do not have technological support at home or the technology required to participate effectively in a hybrid hearing run from the Manchester Civil Justice Centre.
v) An arrangement whereby the father is required to participate remotely when all other parties and the judge are face to face in court is not what is ordinarily meant by a 'hybrid hearing', does not have the appearance of a fair trial and would not be 'even handed'.
vi) Whilst again there has been no application to adduce medical evidence on the point, Ms Meachin and Ms Hendry submit that there "must be a very real risk that such an imbalanced approach will further provoke [the father's] anxieties". Within this context, they further submit it is only by means of a fully face to face hearing in Preston that the father will be able to bring his anxieties to a manageable level, to follow the evidence properly and to give his best evidence.
The Local Authority
The Children's Guardian
"8. The following categories of hearing are likely to be suitable for remote hearing:
a. All directions and case management hearings;
b. Public Law Children:
i. Emergency Protection Orders
ii. Interim Care Orders
iii. Issues Resolution Hearings;
c. Private Law Children:
i. First Hearing Dispute Resolution Appointments
ii. Dispute Resolution Appointments
iii. Other interim hearings
iv. Simple short contested cases
d. Injunction applications where there is no evidence that is to be heard (or only limited evidence).
e. Financial Cases
g. Other hearings as directed by the judge concerned."
"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 will impact upon this decision are likely to differ from court to court and from day to day, the question of whether a particular case is heard remotely must be determined in a case by case basis."
""Can I stress, however, that we must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1] 'the overriding objective'], part of which is to ensure that parties are 'on an equal footing' [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process."
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.
In Family Cases in particular:
e. Where the parents oppose the LA 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;
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.
"The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a 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 need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for her life to move forward is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. 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 the 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. It is because no two cases may be the same that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance."
" The reason for having the very clear view that I have is that it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely. The judge who undertakes such a hearing may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function. The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge's screen at any one time, it is a very poor substitute to seeing that person fully present before the court. It also assumes that the person's link with the court hearing is maintained at all times and that they choose to have their video camera on. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment."
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 who is to conduct the hearing, subject to the applicable principles and guidance.
ii) The decision whether to conduct a remote hearing 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.
iii) 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.
iv) 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.
v) The requirement for 'exceptional circumstances' applies to live, attended hearings while the current 'lockdown' continues.
vi) 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 but will include:a) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?b) 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;c) Whether the parties are legally represented;d) 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;e) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;f) 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;g) The scope and scale of the proposed hearing. How long is the hearing expected to last?h) 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;i) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;j) 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.
"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."
"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."
"We must all take on board this significant change in perspective which will have an impact on every case management decision. Apparent potential unfairness which justified a case being adjourned for what was hoped to be a relatively short period of time, must now be re-evaluated against this much longer timescale. The need to achieve finality in decision-making for children and families, the detrimental effect of delay and the overall impact on the wider system of an ever-growing backlog must form important elements in judicial decision making alongside the need for fairness to all parties. More positively, experience of remote hearings in the past two months has identified steps that can be taken to reduce the potential for unfairness (a number are listed at paragraph 49 below and more are set out at paragraph 5.19 of MacDonald J's Guide to the Remote Family Court), enabling cases to proceed fairly when previously they may have been adjourned."
And at paragraphs  and :
" In the early days of lockdown, it was understandable and acceptable for cases to be adjourned for a short period in the hope that a more normal court process could then be undertaken. A short adjournment to meet the needs for fairness and due process might not unduly compromise the need to achieve a final outcome for the child. Now that we are facing many more months of straitened resources it is likely that nettles will need to be grasped for the sake of the child's welfare, with final hearings fixed for remote or hybrid determination, and with steps taken to maximise the fairness of the process.
 Whilst a court is not required to hold the child's welfare as the paramount consideration when making case management decisions, the child's welfare and the need to avoid delay will always be a most important factor and may well be determinative in many cases. Making a timely decision as to the child's further care is in essence what each case is about. The child's welfare should be in the forefront of the court's mind throughout the process."
And at paragraph :
"In line with the experience of the past 10 weeks, different courts, judges and professionals will be more, or less, able to deliver change as a result of a range of factors including work-load, staffing and judicial resources, technology and (increasingly) the availability of courtrooms that are compatible with the strictures of social distancing."
i) In cases where the fact that parents and/or lay witnesses are to be called means that the case may not be suitable for a fully remote hearing, consideration should be given to conducting a hybrid hearing (with one or more of the lay parties attending court to give their evidence) or a fully attended hearing.
ii) The call on the limited number of courtrooms will be substantial and will come from across the board from civil, crime and tribunals as well as from the Family jurisdiction. Whilst there will be some capacity for the courts to conduct face-to-face hearings, the available facilities will be limited.
iii) Where it is not possible to conduct a hybrid or fully attended hearing, the court may proceed to hold a remote hearing where, having regard to the child's welfare, it is necessary to do so.
iv) Remote hearings are likely to continue to be the predominant method of hearing for all cases, and not just case management or short hearings. In circumstances where the majority of cases must now proceed remotely or semi-remotely, every effort should be made to accommodate and enhance the ability of lay parties to engage fully in the court process.
v) In all cases active thought should be given to arranging for a lay party to engage with the remote process from a location other than their home (for example a solicitor's office, barrister's chambers, room in a court building or a local authority facility) where they can be supported by at least one member of their legal team and, where appropriate, any interpreter or intermediary.
vi) Delay in determining a case is likely to prejudice the welfare of the child and all public law children cases are still expected to be completed within 26 weeks.
vii) Adjourning cases indefinitely or for a period of many months will not, therefore, be an option and adjourning the case to await a full face-to-face hearing is unlikely to be an option where an effective and fair remote or hybrid hearing can be held with steps taken to maximise the fairness of that remote or hybrid process.
viii) There will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.
"In all other cases where the parents and/or lay witnesses etc are to be called, the case may not be suitable for a fully remote hearing. Consideration should be given to conducting a hybrid hearing (with one or more of the lay parties attending court to give their evidence) or a fully attended hearing. Where it is not possible to conduct a hybrid or fully attended hearing, the court may proceed to hold a remote hearing where, having regard to the child's welfare, it is necessary to do so; in such a case the court should make arrangements to maximise the support available to lay parties"
i) The welfare of the subject child or children;
ii) The statutory duty to have regard to the general principle that delay in determining the question is likely to prejudice the welfare of the child;
iii) The requirement to deal with cases justly, having regard to the welfare issues involved;
iv) The extent to which a remote or hybrid hearing will provide the judge with a proper basis upon which to make a full judgment;
v) The steps that can be taken to reduce the potential for unfairness by enabling the cases to proceed fairly when previously it may have been adjourned, having regard in particular to the need to make every effort to accommodate and enhance the ability of lay parties to engage fully in the remote or hybrid process, including the extent to which it is possible to arrange for a lay party to engage with that process from a location other than their home where they can be supported by at least one member of their legal team and, where appropriate, any interpreter or intermediary;
vi) The impact of the COVID-19 pandemic on the likely timescales for a fully face to face hearing in preference to a remote or hybrid hearing and the need to evaluate any potential unfairness against that timescale;
vii) The statutory requirement that all public law children cases are to be completed within 26 weeks and that any extension to the 26 week timetable must be necessary to enable the court to resolve the proceedings justly;
viii) The requirement, so far as is practicable, to allot to the case an appropriate share of the court's resources, while taking into account the need to allot resources to other cases, evaluated in the context of the limitations placed by the COVID-19 pandemic on the resources currently available to give effect to fully face to face hearings; and
ix) The individual circumstances of the particular case and the parties, including but not limited to:a) Whether the parties consent to or oppose a remote or hybrid hearing;b) The importance and nature of the issue to be determined bearing in mind that parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be limited to that which it is necessary for the court to hear;c) 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;d) Whether the parties are legally represented;e) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully, including access to and familiarity with the necessary technology, funding, intelligence/personality issues, language, ability to instruct their lawyers (both before and during the hearing) and other matters;f) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;g) 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;h) The scope and scale of the proposed hearing;i) The available technology. A telephone hearing is likely to be a less effective medium than using video;j) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;k) Any 'Covid-safe' 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;l) Any other factors idiosyncratic to the particular case.