Court of Appeal sets out ‘cardinal points’ on remote hearings and approach to public law children cases

The Court of Appeal has handed down rulings in the first two appeals relating to the welfare of children to have reached the court on the issue of remote hearings during the COVID-19 pandemic.

The first appeal was in A (Children) (Remote Hearing: Care And Placement Orders) [2020] EWCA Civ 583 and the second appeal was in B (Children)(Remote Hearing: Interim Care Order) [2020] EWCA Civ 584.

The President of the Family Division said in A (Children) (Remote Hearing: Care And Placement Orders) that the Court of Appeal wanted to stress the following cardinal points “with the utmost emphasis”:

i) The decision whether to conduct a remote hearing, and the means by which each individual case may be heard, are a matter for the judge or magistrate who is to conduct the hearing. It is a case management decision over which the first instance court will have a wide discretion, based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children. An appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong.

ii) Guidance or indications issued by the senior judiciary as to those cases which might, or might not, be suitable for a remote hearing are no more than that, namely guidance or illustrations aimed at supporting the judge or magistrates in deciding whether or not to conduct a remote hearing in a particular case.

iii) The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might, or might not, have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa. For example, it is the common experience of many judges that remote hearings take longer to set up and undertake than normal face-to-face hearings; consequently, courts are now listing fewer cases each day than was the case some weeks ago. On the other hand, some court buildings remain fully open and have been set up for safe, socially isolated, hearings and it may now be possible to consider that a case may be heard safely in those courts when that was not the case in the early days of 'lockdown'.

The Family President highlighted his own guidance on remote hearings (issued 19 March), which listed the types of hearing that may be considered to be suitable for a remote hearing. With respect to public law children cases, the list includes: i) emergency protection orders; ii) interim care orders; and iii) issue resolution hearings. The 19 March guidance also states that it is possible that other cases may also be suitable to be dealt with remotely, but stresses that this must be done on a case-by-case basis.

On 25 March 2020 the President clarified the position concerning attended hearings by stating that:

"… live court-based hearings should now be confined only to exceptional circumstances where a remote hearing is not possible and yet the hearing is sufficiently urgent to mean that it must take place with those involved attending court in a manner which meets the social distancing requirements."

Sir Andrew also noted the message he sent together with the Lord Chief Justice and the Master of the Rolls on 9 April, and clarified that the general comments it made in paragraphs (a) to (c) and (g) – click here for the exact wording – were intended to apply to final hearings and not to interim hearings.

The President said it followed, applying the principles set out and the guidance that has been given, that:

i) Final hearings in contested Public Law care or placement for adoption applications are not hearings which are as a category deemed to be suitable for remote hearing; it is, however, possible that a particular final care or placement for adoption case may be heard remotely;

ii) The task of determining whether or not a particular remote hearing should take place is one for the judge or magistrate to whom the case has been allocated, but regard should be had to the above principles and guidance, as amplified below;

iii) The requirement for 'exceptional circumstances' applies to live, attended hearings while the current 'lockdown' continues.

The judge said that the factors that were likely to influence the decision on whether to proceed with a remote hearing would vary “from case to case, court to court and judge to judge”. He said the Court of Appeal considered that they would include:

i) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?

ii) Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;

iii) Whether the parties are legally represented;

iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;

v) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;

vi) The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;

vii) The scope and scale of the proposed hearing. How long is the hearing expected to last?

viii) The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;

ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;

x) Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.

The case before the Court concerned the proposed final hearing of an adoption application that had been due to take place in "hybrid" form over eight days, with Mr and Mrs A due to attend in person to give evidence.

The case was due to commence this week until the Family President became aware of it and intervened.

The hearing has now been vacated, though Sir Andrew was at pains to say there were no grounds of criticism of the judge’s handling or approach to the case.

Sir Andrew said: “It follows from all that we have said above that our judgment on this appeal should be seen as being limited to the determination of the individual case to which it relates. Each case is different and must be determined in the light of its own specific mixture of factors.

“The import of the decision in this case, in which we have held that the appeal must be allowed against a judge's decision to conduct a remote hearing of proceedings which include applications for placement for adoption orders, is that, on the facts of this case, the judge's decision was wrong. As will be seen, one important and potentially determinative factor was the ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair. Such a factor will, almost by definition, be case-specific.”

The Family President said another element, and one that was likely to be important in every case, was the age of the children and the degree of urgency that applied to the particular decision before the court. “The impact of this factor on the decision whether to hold a remote hearing will, as with all others, vary from child to child and from case to case.”

The judge said it also followed that the decision on this appeal must not be taken as an authority that is generically applicable to one or more category of children cases.

“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,” he stressed.

“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.”

Sir Andrew said that in addition to the need for there to be a fair and just process for all parties, there was a separate need, particularly where the plan was for adoption, for the child to be able to know and understand in later years that such a life-changing decision was only made after a thorough, regular and fair hearing.

The Family President also said the Court of Appeal wanted to draw attention to, and endorse, 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'.

Sir Andrew said: “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 same constitution of the Court of Appeal (the President of the Family Division, Lord Justice Peter Jackson and Lady Justice Nicola Davies) also heard the second case, B (Children)(Remote Hearing: Interim Care Order).

At the end of the hearing of this appeal, the Court of Appeal informed the parties that the appeal would be allowed and that an interim care order made at a telephone hearing in the family court on 3 April would be set aside. The appeal concerned a 9-year-old boy, Sam (not his real name).

As a result of the order he had been removed from the care of his grandmother and placed in foster care.“The order should not have been made and Sam has now returned home,” the Family President said.

Sir Andrew said: “In the present abnormal circumstances, the fundamental principles of substantive law and procedural fairness are unchanged. Alongside other courts and tribunals, the Family Court continues to discharge its duties, particularly in urgent child protection cases.

“The effective use of communication technology is indispensable to this ability to continue to deliver justice. A remote hearing, where it is appropriate, can replicate some but not all of the characteristics of a fully attended hearing. Provided good practice is followed, it will be a fair hearing, but we must be alert to ensure that the dynamics and demands of the remote process do not impinge upon the fundamental principles.”

The Family President said that, in particular, experience showed that remote hearings placed additional, and in some cases, considerable burdens on the participants. “The court must therefore seek to ensure that it does not become overloaded and must make a hard-headed distinction between those decisions that must be prioritised and those that must unfortunately wait until proper time is available.”

In the Court of Appeal’s judgment, he said, the events in B (Children)(Remote Hearing: Interim Care Order) illustrated why this approach was necessary. “The problems here arose because the local authority changed its care plan in the middle of a remote hearing and because an application that was not urgent was treated as if it was.”

The local authority had changed its position after the Children's Guardian expressed the view that Sam should come into care. It had earlier put the case for an interim supervision order, saying that the boy was not considered to be at immediate risk of physical harm.

The Family President said that, "to put it at its lowest", it was "surprising" that the Children's Guardian and the children's solicitor felt it appropriate to make "such a bold recommendation from such a low knowledge base".

Sir Andrew made a series of observations including that the Recorder, who did not address a proposed adjournment, had been working, almost continuously and mainly on the telephone, for 10½ hours. “Our observation is that, although we have found the decision in this case to have been unquestionably wrong, the nature of the workload faced by the Recorder, experienced as he is, was surely a contributory factor.”

The Family President said that the pressured way in which the proceedings developed might have felt like an emergency to the professionals, but it was not an emergency for Sam.

"We also firmly dismiss the proposition that the current 'lockdown' provides a reason for the removal of a child where none would otherwise exist. It is possible to envisage a case at the margins where face-to-face supervision is so important that a child would not be safe without it, but this case and most others like it fall nowhere near that category," he said.

"Our overall observation in this respect is that unfortunately Sam's voice was not heard at a critical moment in the proceedings and his interests were not protected by his Guardian, whose recommendation set in train the sequence of events that followed."

The local authority had in the Court of Appeal's view taken a sensible position in seeking an interim supervision order, "as reflected in its position statement at 10.37. Yet within the hour it had moved to seeking Sam's immediate removal."

A local authority 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 Family President said.

Another observation was that, "no doubt partly because of the exigencies of the remote process", there had been a loss of perspective in relation to the need for an immediate decision about Sam.

"This was a classic case for an adjournment so that a considered decision could be taken about removal, if indeed that option was going to be pursued after reflection. An adjournment would have enabled the parties and the court to have all the necessary information. As it was, crucial information was lacking and its absence was overlooked by the court," Sir Andrew said.

He added that there was also a qualitative difference between a remote hearing conducted over the telephone and one undertaken via a video platform.

"If the application for an interim care order for Sam had been adjourned, it may well have been possible for the adjourned hearing to have been conducted over a video link and that single factor might, of itself, have justified an adjournment in a case which, in our view, plainly was not so urgent that it needed to be determined on 3 April," the Family President said.

"Whilst it may have been the case that the provision of video facilities was limited at the particular court at the time of the hearing, it is now the case that the option of using a video link is much more widely available. Where that is the case, a video link is likely at this time to be the default option in urgent cases."