MORE ON REMOTE HEARINGS: THE DANGERS OF INJUSTICE: COURT OF APPEAL DECISION (IT MAY BE DIFFICULT TO DO JUSTICE OVER THE TELEPHONE IN THE COURSE OF A OVER-BUSY LIST)

In  B (Children)(Remote Hearing: Interim Care Order) [2020] EWCA Civ 584 the Court of Appeal set out some of the dangers of remote hearings and the need to take considerable care when important decisions are being made. It is also worth looking at the (almost impossible) position of the Recorder who was making important decisions, in hearings over the telephone, in the course of a very busy list.  This is a dangerous and nonsensical situation.  The judgment contains a clear message from the Court of Appeal in relation to listing and the need to ensure that the court does not become overloaded.

 

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. In particular, experience shows that remote hearings place 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.

THE CASE

The appeal related to an interim order where a child was removed from home.   The Court of Appeal overturned a decision that the child should be removed from the home.

THE POSITION OF THE TRIAL JUDGE (RECORDER)

It is worthwhile looking at the position of the Recorder who heard the application.

“We have also been provided with a chronology from the perspective of Recorder McCarthy QC, who came to hear the application on 3 April. This shows that he was notified of his list of three cases at 17.25 on 2 April and received the files in a variety of electronic formats at around 18.00. None of these contained any position statements or case summaries….”
17. We resume the events of Friday 3 April from the point of view of the court. By the time the Recorder started to hear his first case, he had already been working for at least three hours. The hearings took place by telephone, as was then the practice in that court, with the Recorder at his home address and the other participants at various locations elsewhere. He was able to contact a member of the court staff by phone or text to coordinate the start and finish of hearings. The first case was heard between 10.21 and 11.43. During the course of the morning the Recorder received a continuous stream of bundles, documents and position statements in the other two cases. These included the Guardian’s position statement in the present case at 11.01. The significance of that document was that it led to a change in the local authority’s care plan in respect of Sam, which it announced to the other parties at around 11.30.
  1. The present case, the second in the list, was first called on at 12.31 and at 12.49 it was adjourned until later in the afternoon. During that hearing Mr Lue asked for an adjournment to another day so that he could take instructions about the change in the local authority’s case. The Recorder said he would consider that when the hearing resumed.
  2. At 14.05 the Recorder received the local authority’s revised position statement in this case. At 14.06 the hearing in the third case began. It ended at 16.02.
  3. At 16.22 the present case restarted. Submissions lasting one hour were made, during the course of which the Recorder was sent the local authority’s original position statement. Between 17.20 and 17.41 he gave an extempore judgment. At 17.52 he refused Mr Lue’s application for permission to appeal and scheduled a further hearing for 21 April. At 17.57 the hearing concluded. By that time the Recorder 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 APPEAL

The Court of Appeal overturned the Recorder’s decision.

3. At the end of the hearing of this appeal, we 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.
  1. 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. In particular, experience shows that remote hearings place 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.
  2. In our judgement, the events in the present case illustrate why this approach is 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. We will briefly summarise the background, and then describe the course of the proceedings in more detail.

USE OF A VIDEO PLATFORM

The Court of Appeal considered the issue that a video platform was not available at the court in question.

  1. There is 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. 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.
39.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.