The President of the Family Division has ruled that a planned 15-day hearing into allegations made by a local authority that a young child has been caused significant harm as a result of fabricated or reduced illness (FII) should not take place remotely.
In P (A Child: Remote Hearing), Re  EWFC 32 Sir Andrew McFarlane said the proceedings concerning a seven-year-old girl were issued as long ago as April 2019. Contested private law proceedings had been going on “for a good deal longer than that”.
The issues are all fully contested by the mother. “It is, in every sense, a full final hearing,” Sir Andrew said.
The hearing, which had been scheduled for 20 April, was to be a roll-up hearing in the sense that the judge was being invited not only to determine the factual issues that were in play but to go on then, at the same hearing, to fix the final care plan for this child.
The options were that the child should return to the mother – that is the mother's case – or be placed elsewhere. As the Family President understood it, the principal suggestion was that that should be in foster care.
A serious attempt to achieve a final hearing of the matter had been made in the autumn of last year, but that had to be aborted.
The hearing was therefore the second time that the seven year old girl had come to understand that a judge was imminently about to determine her future care arrangements.
The hearing was fixed to be undertaken by a circuit judge. However, since it was arranged, the Covid-19 pandemic had led to a lockdown and led to most Family Court hearings that have gone ahead being undertaken remotely, over the telephone or via some form of video platform.
The case came before the court for a case management hearing on 13 March. By the time the case came back before the judge for the final pre-trial review, on 3 April, the lockdown implemented by the Government had come to pass.
The Family President said that counsel at the hearing before him had explained that at the hearing on 3 April all parties, and the judge, effectively accepted that this hearing would now have to go ahead and be conducted remotely.
Sir Andrew was told that all parties and the court had been influenced by the publication, shortly before 3 April, of advice produced by Mr Justice MacDonald on the conduct of remote hearings which gave an account [at paragraph 2.2.1] of a number of remote hearings that had been successfully accomplished in the early days following the lockdown.
The Family President said: “It would seem that those involved in this case read that advice as indicating that all hearings must now proceed as remote hearings and, 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.” [President's emphasis]
There was, therefore, no application to adjourn the hearing on the basis that there should not be a remote hearing. The judge did, however, hear an application for the hearing to be postponed on the basis that the mother, it was said, had contracted the Covid-19 virus infection herself and would not be fit to take part in the court process.
The judge did not accede to that application at that stage but indicated that the mother's health and her ability as a result of her health to engage in the court process would be kept under review.
Arrangements, therefore, went ahead for the compilation of an electronic bundle – that has been done – and for the hearing to be set up to be undertaken over the Skype for Business platform.
Arrangements were made for the mother to engage in the process, including through subscription to a wi-fi dongle so as to enhance her internet connection. Her counsel anticipated having a break either after the evidence-in-chief or at the end of each witness's evidence, so that they could take confidential instructions from the mother over the telephone or over Zoom or a separate video link.
That was the way in which the hearing was being constituted and planned for until the middle of last week.
Sir Andrew, as President of the Family Division, said he was being kept informed of developments in remote hearings nationally and he came through that means to understand that this hearing was planned to be undertaken.
He said: “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.”
Sir Andrew said the paediatrician instructed as an expert witness had described the case as "an extremely complicated case”, FII as "an extremely unusual disorder" and the task of investigating it as being "incredibly challenging".
The paediatrician was right to describe it in these terms, the Family President said. “These are particularly unusual cases and, from a judge's perspective and, from experience of having undertaken a number of these cases over a number of years, it is 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.”
Sir Andrew said his reaction on learning that this was a category of hearing which was thought to be appropriate for a remote hearing process was “one of surprise”.
He therefore invited the judge to consider adjourning the hearing so that it would be re-listed once the lockdown requirements had been removed and it could be heard in the ordinary way at a full oral hearing.
“The judge, as I understand it, communicated that to the parties and they, understandably, indicated their concern at that turn of events and thus we have established the short hearing this afternoon to consider whether or not the hearing should be adjourned,” the Family President said.
The local authority submitted to Sir Andrew that this was, despite the nature of the allegations, a hearing that could be properly undertaken over the remote system. It pointed out that all of the allegations had been well rehearsed in documents, both witness statements and matters of record, and were well known to the mother.
The council also submitted that the young girl was currently already suffering, on its view, significant emotional harm by being held in limbo and that she would only be released from this damaging situation of simply not knowing where she was going to live and spend the rest of her childhood, at least for the foreseeable future, until the court process came to an end.
Not only could the case be heard now but also that it must be heard now to meet her welfare needs, it argued.
As a fallback position, the local authority’s QC said, evidence from the professional witnesses could be heard remotely and the court could then take stock. The court could then adjourn hearing the lay witnesses until an ordinary hearing could take place. The council also suggested that an option would be for the court to undertake the fact-finding process at this stage but adjourn the final welfare determination.
The father supported the local authority. The Children’s Guardian in turn urged the court to hold to the fixture either for the full hearing or, as the local authority had submitted, in some way that at least achieved the hearing of the professional witnesses at this stage.
The QC for the mother opposed the local authority’s submission, arguing that the hearing should be adjourned. The mother's team now considered that this was a case that fell outside the category of hearings that could be contemplated as being able to be conducted over a remote platform in a manner that met the requirements of fairness and justice.
The Family President noted that another option – in use elsewhere – was for the parent to go to some neutral venue, maybe an office in local authority premises, maybe a room in a court building, maybe elsewhere, and be with a member of the solicitors firm that they were instructing, keeping a safe socially isolated distance at all times, so that they could be supported both professionally and in ordinary human terms during a remote hearing. But this was not possible here, given that the mother might have COVID-19.
Sir Andrew said the decision whether to hold a remote hearing in a contested case involving the welfare of a child was a particularly difficult one for a court to resolve. A range of factors are likely to be in play, he added, 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,” he said.
“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 Family President said he was extremely aware of and sensitive to the position of the young girl and the negative impact that a decision to adjourn would have on her wellbeing and the potential for it to cause her emotional harm.
However, he said he was “very clear” that this hearing had to be adjourned. “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 Family President said: “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.”
Sir Andrew said it seemed to him that to contemplate a remote hearing of issues such as this was “wholly out-with any process which gives the judge a proper basis upon which to make a full judgment”.
He added that he did not consider that a remote hearing for a final hearing of this sort would allow effective participation for the parent and effective engagement either by the parent with the court or, as he had indicated, the court with the parent. “I also consider that there is a significant risk that the process as a whole would not be fair.”
He said these observations applied equally to the options for dividing the hearing process up.
The Family President said: “Given the wealth of factual detail that is to be placed before the court in relation to this mother's actions over the last three or four years, for her to have a full real-time ability to instruct her legal team throughout the hearing, not just by a phone call at the end of each witness's evidence, seems to me to be a prerequisite for her to be able to take an effective part in a fair process at the trial of issues such as this.
“For those shortly stated basic reasons, I consider that a trial of this nature is simply not one that can be contemplated for remote hearing during the present crisis. It follows that, irrespective of the mother's agreement or opposition to a remote hearing, I would hold that this hearing cannot properly or fairly be conducted without her physical presence before a judge in a courtroom. Now that the mother is in fact opposing the remote hearing, the case for abandoning the fixture is all the stronger.”
Sir Andrew directed that the hearing listed to start on 20 April must now be vacated. The case will be re-listed once the current restrictions have been lifted, either before a High Court Judge or a deputy, either sitting in the local Family Court or at the Royal Courts of Justice.