CORONAVIRUS LAW IN THE COURT OF APPEAL: A HYBRID HEARING WILL NOT BE UNFAIR IF LEADING COUNSEL CANNOT ATTEND IN PERSON
In the judgment today in C (Children : Covid-19: Representation)  EWCA Civ 734 the Court of Appeal dismissed an argument that a “hybrid” hearing, to be heard with one side’s leading counsel attending remotely, was unfair.
There is an ongoing fact-finding hearing in care proceedings. The expert evidence was heard remotely. The lay evidence has yet to be heard. The mother’s leading counsel could not attend trial as they are shielding in relation to coronavirus. The judge held that the hearing should continue with the mother’s leading counsel attending remotely.
THE JUDGE’S DECISION
However, I do not consider that the inability of Ms Isaacs to attend will prevent the mother receiving a fair hearing. The personal presence of leading counsel is one part of the framework which contributes to a fair hearing. It is a desirable part, but in my view it is not essential to the provision of a fair hearing. The combined effect of the rest of the framework; that provided by the court, that provided by the mother’s representation and to an extent the representation of the other parties all play their part in making the hearing fair. Inevitably in some cases leading counsel is prevented from playing the expected role – part of junior counsel’s role is to take on that role. In fact, in this case Ms Isaacs can continue to play a role and in my view (and experience in this case so far) an effective role by remote participation. Some adjustments may be necessary to allow the most effective communication within the mother’s team but this on my experience to date is manageable.
vii) Having given anxious consideration to these imperfect solutions that which in my evaluation reaches the best balance is to adjourn the hearing until June to enable the mother to participate in person at that hearing albeit without the physical presence of her leading counsel. That hearing can be a fair one to the mother and to the other parties. That will then enable the facts to be determined which will lead to a final welfare hearing in September and will avoid a further 3 to 4-month delay, which acceding to the mother’s submissions would inevitably require; and that assuming Ms Isaacs was then able to attend. If she was not then able to attend would the matter require further adjournment?”
THE COURT OF APPEAL
The mother, supported by the father, appealed to the Court of Appeal, arguing that the fact that her Leading Counsel could not be present in court was unfair. This argument was not accepted by the Court of Appeal.
The judge’s decision in adjourning the part-heard fact-finding hearing to a date at which M’s leading counsel was prevented from attending in person to represent her (by virtue of Government guidance) (“the hybrid hearing”) was wrong in law because it breached M’s Article 6 right to a fair trial. In particular –
a. The judge failed to carry out any or any proper assessment of whether the proceedings as a whole, including the hybrid hearing, would be adequate and fair; and/or
b. The judge failed to take any or any proper account of the seriousness of what is at stake for M when assessing the adequacy and fairness of the hybrid hearing; and/or
c. The judge failed to give proper or adequate consideration to whether the arrangements proposed for a hybrid hearing satisfy M’s right to an adversarial trial; and/or
d. The judge failed to take sufficient or adequate account of the importance to M of the appearance of a fair trial, the principle of the equality of arms and whether the hybrid hearing respects the “fair balance” that ought to prevail between the parties.
The judge was wrong in failing to consider properly or at all whether unfairness in the trial process may involve a violation of the Article 8 rights of M and the Article 8 rights of the children.
The judge was wrong in failing to have carried out any proper judicial evaluation of the competing Article 6 rights of the parties.
“The thrust of M’s case is that the decision to adjourn for a part-heard hybrid hearing until 24th June 2020 (rather than a full in-person hearing on 28th September 2020) runs entirely contra to that guidance which, at the time of writing, has not been amended or withdrawn. It is submitted that for the court to contemplate resuming the fact-finding hearing at which every person hitherto involved (judge, lay parties, counsel) is in attendance except her own leading counsel is unfair and fails to respect the fair balance that ought to prevail between her and the other respondents.”
They identified the range of contentious issues that arise between the family members, centring on domestic violence, drug use and drug dealing, and submitted that the credibility of the mother, for whom the stakes are highest is crucial.
Ms Isaacs argued that the judge’s decision breaches a very fundamental principle of natural justice and prejudices her client’s right to participate effectively in the hearing. The physical absence of leading counsel excludes the opportunity for immediate dynamic interaction with the client in the courtroom. Ms Isaacs suggested a number of practical issues and challenges that her physical absence might entail. The judge, she said, did not balance up all the relevant considerations and it is impossible for her client to see why he reached his decision. Nor did he weigh up the possible consequences of the absence of leading counsel in circumstances where all that has to be shown is a risk of unfairness, not actual unfairness. It is further argued that the judge did not deal with the inequality of arms that his decision creates. The feelings of the affected party about the fairness of the trial are of importance, but the judge failed to take account for the need for the trial to appear fair to the mother.
On the other side of the scales, Ms Isaacs says that the judge allowed considerations of delay to dominate his evaluation of welfare and the article 8 rights of the children, when they have a wider welfare interest in the need for a just decision. He did not take account of factors that might support a purposeful 12-week delay. He should, said Ms Isaacs, have given little weight to what she described as speculation about what might happen in the future if the hearing did not continue in June.
The appeal is supported by the father. It is said that a later hearing will allow him to attend court with greater confidence for his own safety. Mr Twomey QC and Ms Kelly describe the proposed hearing as an experiment. They support the mother’s assertion that there will be an impermissible infringement of her right of cross-examination and that a reasonable observer would appreciate her sense of unfairness at what is a nervous time for everyone. However, it became clear that this concern for the mother’s feelings did not extend to the point where the father would voluntarily instruct Mr Twomey to examine witnesses remotely in the same way as had been offered by other advocates.
For the father of the oldest child, while maintaining a position of formal neutrality, Ms Hyatt emphasised in a short and effective submission the window of opportunity that a June hearing offers in an uncertain world and the severe consequences for the children if that opportunity is lost. The judge had struck a balance in the circumstances as they are, and he had rightly acknowledged that perfection could not be achieved.
The other parties opposed the appeal. For the local authority, Mr Tyler QC and Mr Parker submitted that the judge’s decision cannot be faulted and that the arrangements for the proposed hearing come nowhere near to breaching Article 6. If the appeal succeeded, the decision for the children could be postponed indefinitely. Assessments cannot take place until findings of fact have been made. They challenge the impression given that everyone will be in one place except for the mother’s leading counsel. At least 20 people have attended the hearing so far, all from different locations, and no more than half of those could be physically present in the courtroom when the hearing resumes. The judge’s order provides for a further case management hearing on 19 June when attendances will be reviewed and ground rules established. With social distancing, there can be no impromptu in-court, or indeed out-of-court, communication even for those who are physically present. Notes cannot be passed and whispered conversations are not possible.
On behalf of the paternal grandmother, Ms Cook QC and Ms Brereton made submissions, as did Mr Howe QC and Ms Stone for the Guardian. They observed that many of the appellant’s arguments are based on unlikely worst-case scenarios and that they do not take account of the upcoming ground rules hearing.
It is in the public interest and in the interests of children and families that, wherever it can happen in a safe and fair manner, the work of the courts should continue. This case provides a very strong example. These four children are entitled to a decision about their futures without further avoidable delay and the court’s obligation is to put in place a fair process to achieve this. The older three have already been in foster care for over a year after suffering the tragic loss of their sister. The eldest child, aged 11, is said by her Guardian to have a strong wish to return to her mother. The youngest was born into foster care and plans for her future are no clearer now than they were then. The decisions that remain to be made will have lifelong consequences for the children and their family. That is the context in which the fairness of these proceedings falls to be assessed.
(1) Fairness is case-specific and is to be assessed in relation to the proceedings in their entirety: Ankherl v Switzerland (2001) 32 EHRR 1 at .
(2) There must be protection not only from actual unfairness but also from the risk of unfairness: Kanda v Government of the Federation of Malaya  AC 322 (PC) at p.5.
(3) The right of access to the court must be effective, so that the individual has the opportunity to address all material that might affect the court’s decision and is placed in a position to call evidence and to cross-examine: Mantovanelli v France (1997) 24 EHRR 370 at .
(4) The importance attached to the welfare of the child must not prevent a parent being able effectively to participate in the decision-making process: L v UK  2 FLR 322 at 332.
(5) The principle of equality of arms entails a reasonable opportunity to present one’s case, including one’s evidence, in a way that does not place one at a substantial disadvantage to one’s opponent: Dombo Beheer BV v The Netherlands (1994) 18 EHRR 213 at .
(6) The administration of justice requires not only fairness but the appearance of fairness: R v Leicester City Justices ex p Barrow  2 QB 260; P, C & S v UK  2 FLR 631 at . However, the misgivings of individuals with regard to the fairness of the proceedings must be capable of being objectively justified: Kraska v Switzerland (1994) 18 EHRR 188 at .
(7) The determination must be made within a reasonable time: Article 6 itself.
Set against this framework, I am in no doubt that, even without such refinements as may arise from the ground rules hearing, the format proposed for the remainder of the hearing does not threaten any breach of the mother’s right to a fair hearing, let alone the fundamental breach that has been claimed. The judge’s decision was not only plainly open to him but, I think, correct. My reasons are these:
(1) The single basis of complaint is the fact that leading counsel cannot be physically present in court while other advocates can, at least in theory. That is unfortunate but it will not prevent the mother from participating effectively in the hearing. Perfection in the arrangements for a complex trial of this kind is not always achievable and the contemplated arrangements comfortably satisfy the requirements for a fair hearing. They are not to be described as an experiment. The judge’s approach has been meticulous throughout and his decision was the result of principled case management.
(2) There will be no inequality of arms. A difference in the way parties are represented does not of itself amount to inequality in Convention terms. Any disparity created by the physical absence of leading counsel from the courtroom is likely to be slight and cannot amount to a substantial disadvantage rendering the proceedings unfair. A socially-distanced hearing will emulate some but not all of the characteristics of a conventional hearing. The capacity for ‘immediate dynamic interaction’ is not an indispensable element of a fair hearing and its absence will affect all parties to some extent. The description given at paragraph 15 above of a hearing where everyone except leading counsel will be present is not accurate.
(3) I make no doubt of the mother’s anxiety about Ms Isaacs’ inability to attend in person. However, the reality of the arrangements does not give rise to any appearance of unfairness. The mother’s corner will be fought in a way that fully upholds her rights. Her case will have been prepared to a high standard, she will give her evidence in person in the presence of experienced junior counsel, and her leading counsel will no doubt be engaged before, during and after each stage of the hearing. There is no reason to downplay the effectiveness of remote examination and cross-examination by a skilled advocate. The judge will keep the fairness of the proceedings under ongoing review and any valid complaint about the conclusions of the fact-finding hearing can be made to this court.
(4) As can be seen from reading paragraph 64 of the judgment alone, there is no substance to the argument that the judge’s reasons for his order cannot be understood. His reasoning was clear. Nor was his approach contrary to guidance and authority. He did exactly what he was required to do by making a survey of all the relevant considerations at each stage of the process. The level of detail of his ruling no doubt reflects the fact that it was made at a time when the courts have been feeling their way forwards with decisions of this kind. I emphasise though that it is not expected that other rulings of this kind will need to be of similar length.
(5) The submission that the judge was impermissibly speculating when he considered the consequences of granting the adjournment application had an air of unreality. On the contrary, he was bound to set his assessment of fairness in the context of the proceedings as a whole. A short and certain adjournment may sometimes be granted to secure the attendance of counsel where that is important to a party and any delay is not significant. In this case the adjournment was neither short nor certain and I emphatically reject the submission that the length of the delay would be a small price to pay. Time is running against these children and three months or more in the lives of children of pre-school age and a baby is highly significant, particularly given the already disquieting timescale of these proceedings. The real possibility of an indefinite postponement was also something the judge could not fail to take into account.
To conclude, as was said in Re A, the means by which an individual case may be heard 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. For specialist judges, these are becoming routine decisions, and as time goes on a careful evaluation of the kind made in this case is no more likely to be the stuff of a successful appeal than any other case management decision.