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Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584 by Emily Ward

Mon 11th May 2020

This is the second case relating to the welfare of children to reach the Court of Appeal on the issue of remote hearings during the Covid-19 pandemic. The same panel of judges who dealt with Re A presided in this case. You can find the decision Re A here and Re B here.

This case concerns Sam, a nine year old boy, who as a result of the order under appeal was removed from the care of his grandmother and placed in foster care. Sam and his sister, Samantha (aged 11) live with their grandmother under the auspices of a SGO following care proceedings in 2013. There continued to be concerns in relation to the stability of the placement, grandmother’s ability to cope and the actions of maternal aunt (who lives with grandmother and the children) and uncle (who lives nearby). In September 2019 Child Protection Plans were put into place for the children, particularly due to the risk of the uncle. Grandmother, who was working with the LA, attended a course on attachment in Jan/Feb 2020. She did however report a deterioration in Samantha’s behaviour in February, and said she was struggling to manage it. Although there were allegations of physical abuse, the main concern related to the emotional well-being of the children. As a result of an incident on 20 March 2020, which saw Samantha being placed in care under section 20 and the subsequent request by the maternal grandmother for Samantha’s return, care proceedings were issued on an urgent basis. The LA sought an interim supervision order in respect of Sam. The social work analysis did not feature removal of Sam from his home as a realistic option, let alone a preferred one.

In the present case, problems arose as the LA changed its care plan in the middle of a remote hearing, and also because the application was treated as urgent when it was not.

The judgment sets out the chronology of events on 2 and 3 April, along with some observations, including:

  • Once the LA was aware that the grandmother was withdrawing consent to section 20 accommodation, it would have been desirable for an attempt to have been made to agree a suitable timetable with the grandmother ahead of service of proceedings upon her;
  • The nature of the workload faced by the Recorder (including continuously working for 10.5 hours) was a contributory factor to the wrong decisions being reached;
  • That it is unfortunate Sam’s voice was not heard at a critical moment in the proceedings and his interest were not protected by his Guardian, whose recommendation set in train the sequence of events that followed. Criticisms of the Guardian include: (i) the lack of any balanced analysis in the case for removal; (ii) no reference to Sam’s wishes and feelings about immediate removal, nor a reminder to the Court that these were unknown; and, (iii) no credible explanation for why there had to be an emergency decision. To put this into some context, the Guardian had no time to make inquiries, beyond reading the papers and having one conversation with the social worker at about 9am. The Court of Appeal formed the view that it was surprising the Guardian and the children’s solicitor felt it appropriate to recommend removal from such a low knowledge base;
  • The volte-face was the intervention of the Guardian. The process was arbitrary. The LA must always be responsive to the stance of a children’s guardian, but there was no good reason for the plan to have been changed in this case;
  • The Recorder was entitled to find that threshold for an interim order was crossed in Sam’s case;
  • On the information before the court it could not be plausibly argued that something had now happened to make Sam’s removal that evening necessary;
  • There was a loss of perspective in relation to the need for an immediate decision about Sam, no doubt partly because of the exigencies of the remote process. Crucial information was lacking and its absence was overlooked by the Court.

The judgment makes clear that:

  1. In the present abnormal circumstances, the fundamental principles of substantive law and procedural fairness are unchanged;
  2. The Family Court continues to discharge its duties, particularly in urgent child protection cases;
  3. The effective use of communication technology is indispensable to this ability to continue to deliver justice;
  4. A remote hearing, where it is appropriate, can replicate some but not all of the characteristics of a fully attended hearing;
  5. Provided good practice is followed, it will be a fair hearing, but we all must be alert to ensure that the dynamics and demands of the remote process do not impinge upon the fundamental principles;
  6. Remote hearing place additional, and in some cases, considerable burdens on the participants; and
  7. The Court must therefore seek to ensure that it does not become overloaded and must make hard-headed distinction between those decisions that must be prioritised and those that must unfortunately wait until proper is available.

 

The judgment concludes with the following:

‘In explaining why the appeal was allowed, we express our appreciation and understanding of the highly pressured circumstances in which all the participants were working.  Those circumstances led to a chain reaction in the course of which fundamental legal and procedural principles came to be compromised despite the best intentions of a range of dedicated professionals.  These days we are all learning from experience and we hope that the observations in this judgment will assist others who find themselves in a similar position.’

Emily Ward

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