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Re A (Children) (Remote Hearing: Care and Placement Orders)[2020] EWCA Civ 583

Fri 1st May 2020

Re A (Children) (Remote Hearing: Care and Placement Orders)[2020] EWCA Civ 583. This is a Judgment of the President of the Family Division following a case management hearing in care proceedings. Please find decision here.

This is the first appeal in a case relating to the welfare of children to reach the Court of Appeal on the issue of remote hearings during the Covid-19 crisis.

The proceedings, issued on the 13th April 2019, concern 6 children. On the 3rd April 2020, the Local Authority withdrew their application in relation to the eldest child who had turned 17 years. On the same date the Court made a Supervision Order in respect of the second eldest child who was 15 years.

The appeal concerned the listing of the final hearing in which the Court was asked to determine the long term plans for the 4 youngest children who are in Local Authority foster care. The Local Authority care plan for the 3rd and 4th eldest was for them to remain in long term foster care. In relation to the two youngest children, the Local Authority care plan was one of adoption and an application had been issued for a Placement Order.

There was an agreed threshold document before the court which all parties had accepted that threshold, under the Children Act 1981, s31 for the making of a Care Order had been crossed.  The case had been originally listed for a 5 day final hearing. That hearing was vacated at the start of the Covid19 crisis.

The case was listed before HHJ Dodd on the 3rd April 2020 for further consideration. At this hearing HHJ Dodd was urged by the Local Authority and Children’s Guardian to list the final hearing to take place remotely or by way of a hybrid hearing. The parents’ opposed the case being listed for a remote or hybrid hearing on the basis that they were not keen to leave their homes during lockdown and that a remote or hybrid hearing would not meet their rights under Articles 6 and 8.  The Judge was of the view that a completely remote hearing was not appropriate given the father’s dyslexia and inability to access a remote hearing and gave directions for the father to attend the hearing in person together with his counsel. The case was listed for a hybrid final hearing to commence on the 27th April 2020.

On the 4th April 2020, an application was issued by the father for permission to appeal the decision made on the day earlier.

The case was re-listed on the 17th April 2020 before HHJ Dodd to give him an opportunity to revisit his decision in light of the LCJ’s message on the 9th April 2020. The Local Authority at this hearing changed its position and no longer supported a remote final hearing. The Judge maintained his decision for the parents to attend the hybrid hearing to give evidence and that they would be accompanied by a representative of their solicitors. It was expected that their counsel would attend remotely.

The Decision on Appeal – The President of the Family Division concluded that the Judge was wrong and that the case was not currently suitable for a remote hearing or the form of a hybrid hearing set up by the judge for three reasons –

i)The father’s inability to engage adequately with remote evidence (either at home or in a courtroom);

ii)The imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the Judge;

iii)The need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing. [para 49]

At para 61 the President endorsed, ‘the steer given in the LCJ’s message of 9 April at sub paragraph (a): ‘If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing’.

Whilst in the present case it is true that the Children’s Guardian did not oppose proceeding with the planned hearing, all of the other parties, including the Local Authority, did. In such circumstances, when the applicant Local Authority itself does not support a remote contested final hearing, a court will require clear and cogent reasons for taking the contrary view and proceeding to hold one.

The decision to hold the hearing was therefore held to be wrong and the decision set aside with a view to the final hearing taking place as soon as possible.

At para 11 the President made it abundantly clear that this does not mean that there can be no final hearings –

 ‘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.’

-Kerry Barker

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