A HEARING THAT “COULD NOT BE CONDUCTED FAIRLY OR PROPERLY” WITHOUT A PHYSICAL PRESENCE IN THE COURTROOM: IDEA OF REMOTE TRIAL REFUSED
The judgment of Sir Andrew McFarlane in P (A Child: Remote Hearing), Re  EWFC 32 shows that remote hearings are not suitable for every case.
“It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment.”
This was a family case listed for a 15 day hearing to start on the 20th April. the main issue was whether a child had been caused harm by their mother by a fabricated or induced illness. The main issue was whether the matter was suitable for a remote hearing.
THE JUDGMENT ON THE REMOTE HEARING
The judge reviewed the matter and noted the major practical difficulties in allowing the mother to participate in the hearing remotely.
20. The mother’s health remains a matter of concern. She has not been well. I have not seen any further medical evidence and it may be that further medical evidence would have to be provided if the case goes ahead, and I am certainly not determining the health issue today save to say this, that an option which has now been developed and is being used, as I understand it, more and more in cases elsewhere is for the parent, as it would be in this case, not simply to be in their home on their own but 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 are instructing, keeping a safe socially isolated distance at all times, so that they can be supported both professionally and in ordinary human terms during a remote hearing. It seems to me that that is not possible to contemplate that option in this case simply because, although proving that the mother has had Covid-19 may be a matter for a judge to determine if an adjournment was being sought on that basis may be one thing, but finding a member of the solicitors’ staff or asking a member of the solicitors’ staff to sit in a room with someone who thinks that they have had or are getting over Covid-19 is more than can be properly asked of anyone in that position. So that simply does not seem to be an option here. So I have to proceed on the basis that the mother will join this hearing, if she does, on her own from her home in the manner that I have described.
Miss Munroe’s position statement makes it plain that what is proposed now is, in her submission, unable to provide a hearing in which the mother can have effective participation and a hearing that could be fair. The mother therefore objects to the proposed remote hearing. And so the case moves into a category where, rather than all the parties accepting that there would be a remote hearing, to one where the parent, who is at the centre of the allegations, is now objecting to the remote process and it is on that basis that I have to determine the issue.
In a letter from the Lord Chief Justice, Master of the Rolls and President of the Family Division to judges on 9 April 2020, rather than giving formal guidance, a number of parameters were suggested to assist a court in deciding whether or not to conduct a remote hearing. The following three factors were identified as being of particular relevance to Family cases:
“e. Where the parents oppose the LA plan but the only witnesses to be called
are the SW & CG, and the factual issues are limited, it could be conducted
f. Where only the expert medical witnesses are to be called to give evidence,
it could be conducted remotely;
g. In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”
“Can I stress, however, that we must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1 ‘the overriding objective’], part of which is to ensure that parties are ‘on an equal footing’ [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.”
The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a court to resolve. A range of factors are likely to be in play, 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. 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.
Turning to the particular case now before the court, although I am extremely aware of and sensitive to the position of this young girl and the negative impact that a decision to adjourn will have on her wellbeing and the potential for it to cause her emotional harm, I am very clear that this hearing has to be adjourned. I make the decision also being aware of the impact that this will have professionally on all of those who have had this fixture booked in their professional diaries for a long time and who are now ready for the hearing to take place. That cannot be a factor that weighs very significantly in the decision-making process but it is one of which I am aware.
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 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. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment. I do 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 I have 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.
The observations that I have made in the preceding paragraph apply equally to the options for dividing the hearing process up that have been helpfully suggested by Mr Taylor as, with each option, the judge would not have the opportunity to engage fully with the parent during the whole of the hearing as would be the case in a courtroom.
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.
For the reasons that I have given, I direct that the hearing listed to start on 20 April must now be vacated. This case is to 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.