Re P (A Child: Remote Hearing) (Rev 3)  EWFC 32 is a decision of the President of the Family Division and Head of Family Justice, Sir Andrew McFarlane, about whether or not a 15 day trial should go ahead remotely. The trial was set down within care proceedings to determine very serious allegations that the mother had harmed her seven-year-old daughter by fabricating or inducing illness (known in the trade as FII).
The hearing was due to start on Monday 20 April 2020 and last for 15 days, during which the court would deal with a huge amount of documentary evidence and hear live evidence from many witnesses. In addition to the allegations of FII, the court would go on to determine where P should live in the future: should she be with her mother at home, or in local authority foster care? To answer all of these difficult questions, the court would require the assistance of expert witnesses, including a paediatrician, an adult psychiatrist and an adult psychologist.
This was not the first attempt in this case (which has been going on for over a year) at a final hearing, but the second (following a hearing in autumn 2019 that had to be abandoned). The result was that the case was already seriously delayed by the time this case came to be heard on 20 April 2020.
Covid-19 has caused widespread disruption to the courts. I and my colleagues have all had cases – some long with serious allegations to be determined – adjourned off into the uncertain future. The question for the President in this judgment was the fate of this final hearing – should it be adjourned into the future or should the Court attempt to hear the matter remotely over Skype for Business.
As an aside, Skype for Business (SfB) is a video conferencing software designed for enterprise use. It is old software – it has been replaced in terms of version by Microsoft Teams and outdone in terms of usability and functionality by Zoom. However, concerns over Zoom’s security and privacy record (spoiler: it’s not great), and Judicial IT having only SfB installed on the mysteriously named ‘DOM1’ (what does it even mean?) judicial laptops, we are stuck with Skype for Business.
A decision had been made already in this case on 3 April 2020 by the trial judge to bat on and hear the case remotely. This was in light of the first version of ‘The Remote Family Court’ being published by Mr Justice MacDonald. For those who are unfamiliar, the ‘Remote Family Court’ is a sort of holy book for remote family justice, containing (in the most comprehensive fashion) all the rules, regulations, tips, mechanics and how-to guides one might require to run and participate in a remote hearing. The latest version (v4) can be found here. The parties clearly took Version 1 of The Remote Family Court’ to be validation of the remote approach and, fortified by this document, discussed HOW the hearing would proceed remotely as opposed to IF a fair hearing could take place remotely. The President was critical of this, saying:
“I was told, the discussion during the hearing was about how the remote hearing would be conducted and not whether it should be heard remotely. If that was the understanding of MacDonald J’s document, it was a misunderstanding. MacDonald J’s document is firmly aimed at the mechanics of the process; it does not offer guidance, let alone give direction, on the wholly different issue of whether any particular hearing should, or should not, be conducted remotely. Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.”
An application was made on 3 April 2020, however, to postpone the hearing owing to Mother contracting the coronavirus. The trial judge did not allow this and instead ordered that Mother‘s health be kept under review. The hearing was to go ahead on SfB.
The President’s preliminary view is expressed thus:
“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. That category of case is a particular form of child abuse which requires exquisite sensitivity and skill on the part of the court. Dr Evans, the paediatrician instructed as an expert witness in this case, at p.E31 of the bundle, describes this as “an extremely complicated case”. And later, at p.E41, he describes FII as “an extremely unusual disorder” and describes the task of investigating it as being “incredibly challenging”.
From his considerable experience as a practitioner and then a judge, the President observed:
“[In FII] a crucial element in the judge’s analysis for the judge to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined in-chief and cross-examined, but equally when they are sitting in the well of the court and reacting, as they may or may not do, to the factual and expert evidence as it unfolds during the course of the hearing.”
In terms of what was argued, the local authority asserted that the case could properly be heard on SfB. Their core submission was characterised by the President as:
“She [the child] needs a decision, she needs it now and to contemplate the case being put off, not indefinitely but to an indefinite date, is one that (a) does not serve her interests, because it fails to give a decision now, but (b) will do harm itself because of the disappointment, the frustration and the extension of her inability to know what her future may be in a way that will cause her further harm.”
The child’s father – who plays no meaningful role in this case – supported the local authority’s position, as did the Children’s Guardian (at least in part).
The child’s Mother, on the other hand, did not wish for the hearing to proceed. Whilst she did not object to the hearing going ahead remotely at the hearing before the trial judge on April 3rd, her counsel expressed that the passage of time and reflection revealed experiences and lessons that call into question the ability of a remote hearing to achieve fairness and, therefore, justice. Her decision to initially support a remote hearing may well have influenced by initial optimism from lawyers who were, as the President said, ‘feeling their way’ into remote working. Mother’s team also reflected on how difficult it may be for mother to properly take part in the hearing, to understand and react to events as they unfolded. That she had the virus made this more prospect more difficult, ruling out the possibility of being in the same room as her legal team.
I pause here to reflect on the landscape as it has changed in the past few weeks. I accept that this is entirely anecdotal but as we become more experienced and adept in dealing with remote hearings, the profession has also experienced the limitations of such hearings. As the reality of the public health emergency began to set in and various professional bodies took action to safeguard the health and wellbeing of their members, the remote hearing cause was advanced with zeal by senior members of the bar, the solicitors’ profession and others. Legal twitter almost exploded with enthusiasm, and Mr Justice Mostyn observed in A CCG v AF and Ors  EWCOP 16 that a very complex and serious case involving 17 participants and 11 witnesses had “proceeded almost without a hitch”. The learned judge further observed that “In the current national crisis, it must be expected that hearings will be conducted remotely in this way as a matter of routine practice.” It appeared that this case was a wholly positive experience.
Those involved in family justice, however, have the capacity for reflection and introspection. As time went on we in the profession were left humbled by Celia Kitzinger’s powerful exposition on this blog, of the experience of the family involved in AF. This piece reflected on the perceived informality of the Court proceedings, mused whether this “second rate hearing” was really better than a wait, and the importance of the neutrality of the court venue as opposed to the more ornate environment of people’s homes that can lay bare economic, educational and class divides. Twitter had reacted positively to Mostyn J’s judgment and some of the lawyers involved had added their own positive comments about the experience. AF’s daughter shot down such talk, saying:
“I’d like the judge and lawyers to know that this hearing was not about bigging yourselves up because you did the first Skype trial. This is about my Dad.”
Similarly, with TP again at the fore of reflective journalism, the ‘Secret Circuit Judge’ (there is almost certainly a book idea here) took to these pages to reflect on their experiences. The judge referred to being unable to decipher a ‘reasonable starting point’ amongst a deluge of guidance and more guidance. There were reflections on the perception of letting the side down and of being made to feel inadequate against a backdrop of increasingly congratulatory commentary. These words have power because judges like this one make decisions on a daily basis that can change the family life of litigants forever. You can only stop and think when a senior judge comments that:
“I felt compromised and that my ability to do what I do best had been chipped away. Even when I make difficult decisions at an interim stage, the way I manage these hearings is an important part of building trust between me and the litigants. I think the parties know I have listened to them and understood their point of view. I would hope they leave with some confidence that their voices will continue to be heard throughout the process and that it will be fair. I didn’t feel I achieved anything close to that at this hearing.”
I am not a judge, but anybody who has been in a Court room knows that what is done is as important as what is said. The judge continued:
“As a judge operating remotely – whether by phone, Skype or other digital platform – you are deprived of all the means you usually use to create an atmosphere of trust, fairness and compassion from the outset. You cannot smile reassuringly at a party, cannot make any realistic assessment of their level of anxiety and nerves, cannot put them at ease by showing them you are listening intently and carefully to what they say. You have had no insight into the dynamics of the case by hearing from the usher what has been happening before the hearing.”
Our own experiences are significant in building this picture: the giving of difficult and sensitive advice over a screen, the inability to reassure your client by turning around in your chair and smiling at them or even the ease at which the participants become distracted or break up during a hearing. Whilst the professions have adapted with remarkable speed to the remote world and have been well supported by FLBA and their digital task force in doing so, we are learning about the limitations of this technology. That isn’t to say that we aren’t all doing our best – every stakeholder and in particular the judiciary is frankly busting a gut to keep the wheels turning. But as the Lord Chief Justice said, this is not business as usual and we should not forget that important point.
On this point, barrister Matthew Richardson observed with what struck me as great eloquence:
“This human connection is a vital part of what we do and is not something that can be readily replaced with technology. Empathy is vital in areas such as family law, and an empathetic connection comes in ‘real life’, so to speak. To say that a huge amount of communication is non-verbal is a cliche, yes, but it’s a cliche because it’s true. The tech is there to make other aspects of the process better, and to help us prepare and deliver the rest of our professional offering, so that what we do……
… in that room with that person is the best it can be. I am better at my job because of the technology I use, but the best work I do is in person, in real life, not on my computer.”
Some of the concerns have been easily addressed, for example Macdonald J in ‘The Remote Family Court’ refers to the importance of maintaining the decorum of a Court hearing. The Northern Circuit published some helpful pointers for barristers on this point, and my own experiences of remote hearings is that they have been properly treated as formal occasions.
However, these accounts – and the growing experience of a profession learning the limits of the telephone or the webcam – have led us to pause and reflect on whether justice can be done, or seen to be done, over a remote medium, and perhaps downgrade the initial optimism some had about the future potential of this technology.
Back to Re P. As a starting point the Court recalled the note from the Lord Chief Justice, Master of the Rolls (see this at the judiciary site), which set down the following parameters:
“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.”
The judge also recalled his words of 27 March 2020:
“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.”
The President reached the view that such a case was unsuitable for a remote hearing. He identified that the factors to be weighed were difficult to resolve, compelling and at times competing. For example, the need to avoid delay for the child against the need for the hearing to proceed in a “thorough, forensically sound, fair, just and proportionate manner.” These decisions are to be made on a case by case basis; some hearings are plainly suitable for remote hearing such as short directions hearings proceedings on submissions. In this case, the judge was clear that this trial proceeding was impossible. Whilst it may have been possible to cope with cross-examination and evidence from an e-bundle, the full story of a trial leaves S4B showing only a postage stamp size image of the mother as a “very poor substitute”. The judge found that the ability of the parent to engage with the court and vice versa would be significantly compromised by a remote hearing. The Court said:
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.
There was a significant risk that the process as a whole would not be fair, and justice would not be done. As has been said before the position of the parties in respect of the remote hearing is a relevant but not determinative factor, although the mother opposing such a hearing strengthen the case against a remote trial.
So there we have it, a reminder that fairness and proper participation is at the heart of the Court being able to do justice to the serious question of contested factual issues, a child’s welfare and their future. We can take from it that remote hearings are not a matter of course, the court should question if one should be held on a case by case basis, and they should only be held f they complement, and not short circuit, this principle of fairness which is at the heart of family justice.
Re P, I know, will be the first of many reported cases which grapple with this issue, and I understand that other decisions will be published fairly soon. As they say on the tele box, watch this space!
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