REMOTE HEARINGS: CHILDREN CASES: GUIDANCE FROM THE COURT OF APPEAL

Civil litigators may well be able to gain some assistance from the guidance being given in children cases. The Court of Appeal gave judgment today in Re A (Children) (Remote Hearing: Care and Placement Orders). a-children-judgment-300420 [2020] EWCA Civ 583

THE CASE

The judge in a case concerned with the welfare of children and matters relating to domestic violence and emotional and physical harm gave directions for a “hybrid” trial to take place. The parents were to attend in person to give evidence before the judge. It was anticipated that one counsel would be present in court, the rest appearing remotely.

THE JUDGMENT

The Court of Appeal made some observations of wider interest.

2. This case 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 pandemic. The
appeal was heard on 22 April 2020. On the following day the same constitution heard
the second such appeal, Re B (Children) (Remote Hearing: Interim Care Order) [2020]
EWCA (Civ) 584. There will undoubtedly be further appeals in children cases heard in
the High Court or the Court of Appeal on the issue of remote hearings in the coming
weeks.
3. Against that background we wish 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 APPEAL IN THIS CASE

47. At the conclusion of the appeal hearing we announced our decision that the appeal was
to be allowed and that the hearing fixed for 27 April was to be vacated and relisted for
a further case management hearing before HHJ Dodd in mid-May on a date to be fixed
by the parties with the court. This judgment now records our reasons for that decision.

48. Although we have clearly come to a different view to that of the learned judge and have
taken into account factors in addition to those which were considered at the two
hearings before him, there are no grounds for criticism of his handling of or approach
to this case. On the contrary, it is plain that at all times he gave most anxious
consideration to the question of how these applications might be heard in these
extraordinary times.
49. Our principal reasons for concluding that the judge was wrong and that this case is not
currently suitable either for a remote hearing or for the form of hybrid hearing set up
by the judge fall under three headlines:
i) Mr A’s inability to engage adequately with remote evidence (either at home or
in the 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.