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A Local Authority v The Mother and others [2020] EWHC 1233 (Fam) by Ned Sproston

Fri 29th May 2020

“A Local Authority v The Mother and others [2020] EWHC 1233 (Fam)”  http://www.bailii.org/ew/cases/EWHC/Fam/2020/1233.html

What can we take away from the judgment in this recent Covid-19 related remote hearing case?

This judgment of Mr Justice Williams (High Court, dated 15.05.2020), like the previous Covid remote hearing judgments it draws heavily upon, is very much confined to the facts of this particular case. However, the approved judgment does provide a very helpful bringing together of the earlier cases and guidance from the senior judiciary and is a clear practical example of how to go about considering the factors that need weighing up when deciding whether a care case should proceed remotely or be adjourned to wait for a face to face hearing (as set out at paragraph 9 of the judgment of the Court of Appeal in Re A [2020] EWCA Civ583). If you’re in a rush feel free to jump to the “What we can take from this” paragraph at the end of this summary, but first…

The background (in brief):

This case arose after the tragic death of a three year old girl who, the parties now agree, died after ingestion of cocaine. The mother, father and both grandparents were initially in the pool of potential perpetrators although, with the court having now heard the expert evidence of a number of medical practitioners over the course of a week via Zoom, the maternal grandmother has now been excluded from the pool. The decision to hear the expert evidence remotely was not contested and by all accounts the Zoom platform worked well. It had previously been decided that, on completion of the expert evidence, the parties would be given the opportunity to make submissions as to how the remainder of the evidence (of the lay parties and lay witnesses) should be heard. This judgment covers how the remainder of the evidence at the fact finding stage will be heard.

The Local Authority’s threshold criteria changed significantly after the medical evidence was properly considered and, upon consideration of the new landscape, the respective positions of the parties on the issue of continuing the fact finding process were as follows.

The position of the parties:

The Local Authority adopted a flexible approach and supported either continuing remotely straight away or an adjournment to a face to face hearing in June. They strongly opposed any lengthier adjournment to September citing the detrimental impact of delay for the children.

The Children’s Guardian’s preferred option was to resume the fact finding process immediately with remote evidence from the mother (who was in Covid related quarantine and for whom immediate face to face evidence was out of the question) and face to face evidence from the father and PGM. The Guardian identified this case as being the sort of “exceptional” case which would warrant this sort of hybrid hearing.

The mother wanted a swift resolution for the children’s sake, but not at the expense of fairness of process. She advocated an adjournment of three months to enable a more traditional hearing to take place in September. She cited her article 6 and article 8 rights and drew attention to the importance of the contested factual issues to the final welfare decision in this case. She also flagged up the importance of having her leading counsel available to attend an in person hearing and the fact that her QC would not be able to attend a June (or earlier) hearing due to being in the at risk group and the self-isolation that mandates.

The father’s position mirrored that of the mother’s, whereas the position of the father of the eldest child was to mildly support a resumption in September.

The PGM’s position was to prefer an early resumption, saying she was prepared to attend court.

The MGM, who from now would be taking part as a witness only, supported the mother’s position.

From the above you can see that there was considerable disagreement as to how the case should progress fairly and as to how the parties’ competing interests should be properly weighed up.

In delivering judgment, Mr Justice Williams quoted sections from the recent cases of Re P [2020] EWFC 32, Re A [2020] EWCA Civ 583, Re B [2020] EWCA Civ 584, A Local Authority v M and F [2020] EWHC 1086 (Fam), SS (Sri Lanka) v Secretary of State for the Home Department [2018] EWCA Civ 1391, and Re Q (a child) [2002] EWHC 1109 (Fam). He also referred to some of the guidance documents provided in the early days of the Covid crisis. It is a very helpful summary of the guidance and principles, as they currently stand, brought into one place. I say “as they currently stand” very deliberately however, as one thing that is clear is that we are in a rapidly changing situation. The principles relied upon and the balancing act performed in this judgment, although deemed appropriate in May 2020, may be performed quite differently with the passage of time.

The judge’s conclusions:

The judge decided that the right course in this case was to adjourn proceedings to June where there will (hopefully!) be a face to face hearing of the remaining evidence. Factors which seemed to carry particular weight in this balancing act included:

i)The fact that there was little documentary or other evidence to corroborate or contradict the oral evidence that will be given by the parties. As such this is a case where it would be particularly important to hear and see the giving of evidence in the flesh;

ii)The welfare decision of the court will very much depend on the conclusions of fact drawn from hearing the parties’ evidence. For the mother in particular, conclusions as to her culpability might lead to the children being returned to her care or alternatively, adoption may be the outcome;

iii)There were very case specific practical impediments to holding a face to face hearing at this time, including the mother’s current need to isolate;

iv)The importance of parties proceeding on an equal footing was stressed. In practice this meant the judge being disinclined to pursue an option where some parties gave live evidence in court whilst others only proceeded remotely (without their agreement to that arrangement);

v)The unwanted absence of lead counsel from being present in court in June was insufficient reason to adjourn the matter any further into the future. Junior counsel would be there to assist the mother and lead counsel’s remote involvement would be sufficient to ensure the proceedings were fair;

vi)More generally, the determination of what constitutes a fair hearing under article 6 is something individual to each case and a party’s subjective views on that are not determinative;

vii)Making decisions such as this always involves an imperfect balancing of competing rights and interests. In this case, a delay until June was the correct way to balance the parent’s rights to a fair process with the children’s rights to a fair process (i.e. it not being unjustifiably delayed); and

viii) The judge made it clear that, if things are such that a face to face hearing can’t take place in June involving all parties then the balancing act may well fall in favour of the children. It was a not too subtle warning to all the parties that wanted a longer delay for a face to face hearing in September not to put themselves in situations where they might be asking for a further adjournment. In one of the closing paragraphs the judge says “All of the lay parties will need to take such steps between now and the resumed hearing to put themselves in the position where they are able to attend that hearing and have prepared their legal teams well in advance.” Going on to say “…what I consider to be the correct balance of rights today will not necessarily remain the same in June.”

What we can take away from this:

As stated earlier, all of these case are very fact specific however there are some general points of interest to take away:

i)As an exercise in good practice, advocates may wish to adopt the approach set out in this judgment when structuring submissions as to whether Covid impacted cases should continue remotely or adjourn;

ii)Don’t necessarily expect the inability of lead counsel to attend “in the flesh” to be accepted as a good reason to adjourn;

iii)The availability of court room resources able to facilitate face to face hearings in a Covid safe manner will continue to be an important practical factor going forwards;

iv)When there isn’t a lot of other evidence available to judge the oral evidence of a party against, it could be argued that the need to hear traditional face to face evidence increases;

v) In addition to this, the difficulty in parties giving contemporaneous instruction and taking advice from counsel in a remote situation can be a more weighty consideration than the judge’s ability to judge the manner in which a witness gives their account;

vi) Just because the balance falls in favour of an adjournment to enable the giving of evidence face to face at the present time, it doesn’t mean that that will remain the case indefinitely and it may become appropriate, in the future, for the court to return to the idea of hearing evidence remotely (or in a hybrid format) to avoid further delay; and

vii) As with other cases to date, all cases are highly fact specific and advocates would be wise not to pin too much weight to the decision in this case unless the facts are a close match. The process illustrated is of much more value.

Ned Sproston

 

 

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