CORONAVIRUS LAW: APPLICATION TO ADJOURN HEARING REFUSED: JUSTICE DELAYED IS JUSTICE DENIED

The decision of Mr Justice MacDonald today in Lancashire County Council v M & Ors (COVID-19 Adjournment Application) [2020] EWFC 43  is another case where an application to adjourn because of Covid concerns was refused. The judge held that an “in person” hearing could go ahead safely and a “hybrid” hearing was available as an alternative.

“In this context I agree with Mr Rowley that the well-known aphorism that justice delayed is justice denied is particularly apt.”

THE CASE

A case concerning the welfare of a one year old child stands adjourned part heard.  It is listed for a 10 day hearing at the Manchester Civil Justice Centre.  It is listed in a court that will enable the hearing to take place face to face whilst complying the the social distancing requirements.  Alternatively the court allows for a “hybrid” hearing to take place.   The father applied for an adjournment of the hearing until a time when a fully face to face hearing could take place in Preston.  The hearing had started in a small court in Preston but had been adjourned on the 17th March because of concerns in relation to infection.   The judge had offered to conduct the hearing remotely, however this was not accepted by the parents.

The father contended that his health prevented him travelling from Preston to Manchester. however there was no medical evidence to support the father’s case.

THE JUDGE’S DECISION: THE HEARING WILL PROCEED

The judge considered the submissions and set out the law, and recent cases, on hearings in some detail.

DISCUSSION
    1. Having considered carefully the written and oral submissions in this case I have decided that I cannot accede to the father’s application to adjourn the already thrice adjourned final hearing in this matter until such time that a face to face hearing can be held in Preston. My reasons for so deciding are as follows.
    2. First and foremost, the court has now made provision for a face to face hearing at the Manchester Civil Justice Centre. This was done in response to the parents’ contention that a remote hearing was not appropriate in this case. The court in which the face to face hearing will take place has been the subject of a full risk assessment. Whilst it is not appropriate for a court to direct a further risk assessment of a court building for the purposes of individual proceedings or to stipulate alterations to the court estate (that being the responsibility of HMCTS), the court may give such further case management directions as are required to ensure the hearing proceeds safely, for example by stipulating the manner in which parties will arrive and leave the courtroom, the layout of the parties in the courtroom and the length of court sessions during the court day.
    3. The parents’ reluctance to attend the face to face hearing centres on the need to travel to Manchester for each day of the hearing. The mother’s objection in this regard is based squarely on the anxieties caused by having to use public transport during the course of the continuing COVID-19 pandemic. The father’s anxieties are expressed more generally but also focus on the impact of the pandemic, Ms Meachin and Ms Hendry pointing out that the father’s prior travel to Manchester occurred prior to the pandemic taking hold. However, and in this context, not only has the court made available a risk-assessed courtroom enabling all participants in this case to take part in the court hearing by physical attendance in a socially distanced courtroom before the judge but the local authority has made clear that it will if necessary fund private transport for the parents by way of taxi to and from Manchester. This would not only negate the need for the parents to use public transport, but would allow them to attend a face to face hearing at which they would have face to face access to and the support of members of their respective legal teams and would allow the father to have the support of his intermediary in the courtroom. Finally, I note that the court has no up to date medical evidence before it demonstrating that the father is unable to travel to Manchester by reason of anxiety and, indeed he has in the past travelled not only to Manchester but also to London, albeit before the COVID-19 pandemic.
    4. Within the foregoing context, the father’s argument, supported by the mother, essentially runs as follows. The father cannot attend the face to face hearing listed in Manchester by reason of his anxiety. Therefore, the choice facing the court is between holding a hybrid hearing as a contingency plan at which he, unusually in the context of that format, is the party attending remotely or further adjourning the final hearing for a live hearing in Preston and the application of the factors set out at paragraph [45] above clearly shows that it is this latter course that is appropriate. However, applying those factors to the facts of this case I regret that I cannot accept that line of argument.
    5. Whilst C’s welfare is not the court’s paramount consideration in the current context, as is made clear in The Family Court and COVID-19: The Road Ahead the child’s welfare and the need to avoid delay will always be a most important factor and may well be determinative in many cases. Within the context of an adjournment application, the most appropriate lens through which to examine the welfare of C is the statutory duty to have regard to the general principle that delay in determining the question is likely to prejudice his welfare. C is now 21 months old. He has spent the entirety of his young life in foster care. This case has been adjourned three times and is now fast approaching its second anniversary. Within this context, and in the context of the well-known adverse effect of delay and uncertainty on children, it is axiomatic that C has an urgent welfare need for his future to be settled in order that he can settle either in the certain care of his parents and wider family or in the certain care of his current foster carers and develop physically, emotionally and educationally in that settled context.
    6. A decision to adjourn these proceedings to await a face to face hearing in Preston would result in further and extensive delay in meeting this urgent welfare need. This would be entirely antithetic to C’s welfare. Contrary to the submission of the parents, the nature of C’s current placement will not eliminate or significantly mitigate the effect of delay. At best, such an assertion is only true if the court decides that it is not in C’s best interests to return to the care of his parents and then only to an extent. In that context, further delay will still continue to place the current foster care placement under stress, making it potentially more difficult to effect the transition into permanency if that is the outcome the court ultimately favours. If the court determines that C should return to the care of his parents then effecting that rehabilitation becomes more difficult with each day that passes and C builds an ever closer attachment to his foster carers. Indeed, the duty contained in s 1(2) of the 1989 Act is there precisely to avoid a situation whereby a child who, on investigation, should be in the care of his or her parents is deprived of that care for a moment longer than necessary. More generally, to expose C to uncertainty for months longer is plainly antithetic to his welfare.
    7. There is in this case also a further dimension to the detrimental impact of delay. The court is required in this case to make findings of fact. That exercise will rely in part on an examination of the recollection of events by the parents and others and on determining the credibility of the account of the parents. The parents and C have a right to a fair trial under Art 6. Within the foregoing context, continued further delay will risk prejudicing a fair trial as the events with which the court is concerned continue to recede into the distance and memories dull. In this context I agree with Mr Rowley that the well-known aphorism that justice delayed is justice denied is particularly apt.
    8. Moving beyond these considerations, I am also required to further the overriding objective to deal with the case justly, having regard to the welfare issues involved. Within this context, and where the father and mother contend that the case cannot be dealt with justly by way of a hybrid hearing as a contingency should they continue to refuse to attend the fully face to face hearing that has been arranged, it is necessary to identify the welfare issues involved, to evaluate the extent to which a remote or hybrid hearing will provide the court with a proper basis upon which to make a full judgment and to consider the steps that can be taken to reduce the potential for unfairness by enabling the cases to proceed fairly when previously it may have been adjourned.
    9. The welfare issues involved in this case are of some gravity. The court is required in this case to decide on the available evidence whether one or both of the parents inflicted serious injuries to C. Thereafter, and dependent on the outcome of that fact finding exercise, the court is required to determine whether C should return to the care of his parents or be placed permanently away from them. The decisions the court is required to take are amongst the most serious to be considered by any court in this jurisdiction. Within this context, and if it is possible within the constraints imposed by the COVID-19 pandemic, I accept that in this case the optimal method for deciding these issues is a fully face to face hearing. That is now what the court has set up at the Manchester CJC in July. I am also satisfied however that, if rendered necessary in consequence of the position adopted by the parents with regard to that face to face hearing, in this case the alternative of a hybrid hearing as a contingency should the parents continue to refuse to attend the fully face to face hearing that has been arranged will also provide the court with a proper basis upon which to make a full judgment.
    10. It is the case that a hybrid hearing of the type being contemplated if the parents do not take advantage of attending the face to face hearing that has been listed will require them to give evidence and be cross-examined remotely. I accept that, to date, a hybrid hearing has ordinarily involved lay parties attending court to give evidence whilst other aspects of the hearing continue remotely as a means of addressing certain disadvantages of remote hearings and this is the manner in which a hybrid hearing is characterised in The Family Court and COVID-19: The Road Ahead. However, there is nothing in principle preventing, where necessary, a hybrid hearing operating the other way round as a contingency, in this case if the parents continue to refuse to attend the fully face to face hearing that has been arranged, provided such a hybrid hearing can be achieved fairly. In the particular circumstances of this case, I am satisfied that it can.
    11. Whilst, as the President made clear in Re P (A Child: Remote Hearing), there will be some cases where it is important for the court to be able see the parent in the courtroom itself, the credibility of the parents’ evidence falls to be evaluated primarily by reference to matters such as the internal consistency of their evidence, its logicality and plausibility, details given or not given and the consistency of their evidence when measured against other sources of evidence (including evidence of what the witness has said on other occasions) and other known or probable facts.
    12. Further, all parties in this case are legally represented by advocates of the highest calibre who are well versed in the use of video links for the taking of evidence. The effectiveness of remote examination and cross-examination by experienced advocates is now well demonstrated. The court also has extensive experience of the same. The court will keep the fairness of the proceedings under ongoing review and the parents benefit from the right to seek permission to appeal if they contend the procedure adopted has been unfair. Further, some three months into the temporary widespread use of remote hearings in the family jurisdiction both the court and those appearing before it have extensive experience and confidence in using the technology required to orchestrate a successful remote or hybrid hearing if necessary. Finally, for reasons I will come to, it should be possible in this case to ensure that each parent will be appropriately supported by at least one member of their legal team and, in the case of the father, his intermediary if one or both of the parents chooses not to attend the face to face hearing.
    13. Within this context, if the court is required to conduct a hybrid hearing of the type outlined above as a necessary contingency should the parents continue to refuse to attend the fully face to face hearing that has been arranged, I am satisfied that neither the father nor the mother would be denied a fair hearing if required to give their evidence from a remote location during the course of such a hybrid hearing.
    14. I have of course borne carefully in mind that both parents object to this matter being dealt with by way of a hybrid hearing as a contingency (although I must also take account of the fact that the court is only contemplating a hybrid hearing as a contingency because both parents have indicated they are unwilling to attend the fully face to face hearing the court has listed in an effort to provide them with the most optimal hearing). Further, I accept that the father in particular has difficulties with anxiety which the court is duty bound to address by reason of the requirements set out in FPR 2010 Part 3A. All parties accept and the court has directed that the father have the services of an intermediary throughout the proceedings. I am satisfied, again for reasons that I will come to, that this can be achieved even if the father is participating remotely.
    15. As noted by the Court of Appeal in Re A at [10] the impact of personality, intellect or mental health factors will, almost by definition, be case specific. Within this context, it is plain that the father considers that his anxiety renders unable to contemplate attendance remotely, and indeed unable to contemplate any option other than a face to face hearing in Preston. In this regard I note that, beyond the assessments provided by Dr Waheed and the intermediary, there is no medical evidence before the court demonstrating that the father’s anxiety renders him unable to participate in a remote hearing. More importantly however, notwithstanding the father’s vulnerabilities I am satisfied that in this case that it is possible to take steps to ensure that a hybrid hearing conducted as a contingency should the parents continue to refuse to attend the fully face to face hearing that has been arranged is conducted fairly.
    16. In particular, it is clear from the information before the court that steps can be taken in this case to ensure that the parents can participate remotely in the company of one or more of their lawyers and, in the father’s case, his intermediary at a location other than their home. The provision of the contingency arrangements canvassed at this hearing, whereby if the parents continued to refuse to attend the face to face hearing they could attend a location or locations away from their home but in Preston with at least one of their lawyers and, for the father, his intermediary will, I am satisfied, ensure that the parents have access to legal advice and support, can give instructions during the course of the hearing and can be supported to use the required technology to participate in the hearing.
    17. Whilst it can be argued that this latter approach is not completely optimal when compared to the option of a fully face to face hearing in Preston, that argument falls to be evaluated against both the fact that the court has already set up a fully face to face hearing in Manchester and the length of the delay that would result in this case if the court adjourned the matter until such time as a fully face to face hearing could be effected in Preston. As I have made clear, following extensive investigations undertaken by the court, and having regard to the duty on the court to allot to the case an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases, evaluated in the context of the limitations placed by the COVID-19 pandemic on the resources currently available to give effect to fully face to face hearings, the impact of the COVID-19 pandemic on the likely timescales for a fully face to face hearing is such that a hearing of this nature is unlikely to be achievable before late 2020 and possibly early 2021. Balancing the effect of such a delay against the disadvantages of a hybrid hearing conducted as a necessary contingency in the event that the parents continue to refuse to attend the fully face to face hearing that has been arranged, I am satisfied that, provided the steps to ensure a fair hybrid hearing that I have outlined are taken, the consequences of that delay far outweighs the disadvantages of holding, as a necessary contingency, the type of hybrid hearing I have described.
    18. Within this context, and finally, I remind myself of the statutory requirement that all public law children cases are to be completed within 26 weeks and that any extension to the 26 week timetable must be necessary to enable the court to resolve the proceedings justly. Within this context, I am not satisfied that it is necessary to adjourn the final hearing for a fourth time in order to achieve a just final hearing. For all the reasons I have given, if rendered a necessary contingency in consequence of the position adopted by the parents with respect to the face to face hearing in Manchester, I am satisfied that in this case a hybrid hearing at which one or both the parents attend the hearing at the Manchester CJC remotely will also provide the court with a proper basis upon which to make a full and fair judgment and that, accordingly, an adjournment to await a face to face hearing in Preston is not necessary or appropriate in this case.
CONCLUSION
  1. For the reasons I have set out, I refuse the father’s application to adjourn the part heard final hearing in Manchester. In this case, the court is able to conduct a fully face to face hearing in a manner that addresses the parents’ anxieties with respect to travel or, as a contingency if the parents still refuse to attend that hearing despite the provision of private transport, to facilitate a hybrid hearing in a manner that permits the parents fully and fairly to participate. I intend to retain those two options for the adjourned part heard final hearing which will proceed as currently timetabled. It is earnestly to be hoped that the parents will take advantage of the facility for private transport that will be made available to them to attend the fully face to face hearing that has been arranged in response to their contention that this case is not suitable for a remote hearing.
  2. If however, the parents continue to maintain their objection to travelling to Manchester, final arrangements will have to be made to implement the contingency plan of holding a hybrid hearing in which the parents attend remotely from an appropriate venue or venues in Preston. Investigations in this regard are well advanced and I will approve the final proposals in this respect in due course.
  3. Finally, the father and the mother must understand that should they choose not to avail themselves of the results of the extensive efforts the court and their legal advisers have made to facilitate their respective participation in these proceedings in the difficult context presented by the COVID-19 pandemic, it remains open to the court to proceed to determine the issues before it without them, including drawing adverse inferences from any failure to give evidence before the court.