A (Children) (Remote Hearing: Care And Placement Orders)

A court deciding whether to conduct a children case remotely must assess the individual case by reference to fairness, justice and the child’s welfare. The first-instance court has a wide case-management discretion, but an appellate court may intervene where its chosen procedure falls outside the reasonable range.

Contested final care and placement proceedings are not categorically unsuitable for remote or hybrid determination. Relevant considerations include urgency, the gravity and finality of the orders, the evidence, available technology and each lay party’s ability to understand the hearing and instruct lawyers. Fairness must be assessed across the whole hearing and from the lay party’s perspective. Guidance identifies relevant considerations but does not determine individual cases.

The father appealed against directions made by HHJ Dodd in care proceedings concerning four children. The local authority sought long-term foster care for two children and adoption for the two youngest. The Family Court directed that the contested seven-day final hearing should proceed during the COVID-19 restrictions in hybrid form. The parents could attend court to give evidence, while the advocates and other witnesses would participate remotely.

The father had dyslexia, limited information-processing abilities, emotional fragility, a short attention span and inadequate technology. Most parties ultimately opposed proceeding, but the Children’s Guardian supported the judge’s decision because of the perceived urgency of determining the adoption applications.

The central issue was whether the decision to proceed immediately by remote or hybrid means fell within the reasonable range of case-management decisions consistent with fairness, justice and the children’s welfare.

1. Appeal allowed. The decision to conduct the final hearing in the proposed remote or hybrid form was wrong. The hearing fixed for 27 April 2020 was vacated, and the proceedings were returned to HHJ Dodd for further case management with a view to holding the final hearing as soon as possible.

2. The decision whether, and by what means, to conduct a remote hearing belongs to the judge or magistrates hearing the case. It attracts a wide case-management discretion governed by fairness, justice and the welfare of the children. Appellate intervention will ordinarily be justified only where the decision lies outside the range of reasonable available procedures. Judicial guidance supplies illustrations rather than categorical rules and must be applied case by case.

3. Contested final care and placement-for-adoption proceedings are not, as a class, suitable for remote determination. A particular case may nevertheless be heard remotely. Relevant factors include the nature and finality of the issues, urgency, legal representation, the lay parties’ ability to participate meaningfully, the nature of the evidence, the hearing’s length and scale, available technology, participants’ experience and safe alternatives involving physical attendance.

4. Fairness must be assessed across the whole hearing and from the lay party’s perspective. Meaningful engagement requires an adequate ability to follow and understand the proceedings and to give timely instructions to lawyers. The father’s technical limitations, dyslexia, processing difficulties, emotional fragility, short attention span and home environment meant that he could not engage adequately with several days of remotely presented professional evidence. Allowing him to give his own evidence in court did not cure those deficiencies.

5. A procedural imbalance also arose because the parents alone were expected to attend before the judge while their advocates, the other parties and professional witnesses participated remotely. Requiring an unaccompanied lay party to give live evidence before the judge and answer questions asked by video link may leave that party exposed and must be considered carefully.

6. The children’s need for timely decisions was pressing but insufficiently urgent to justify an immediate hearing by an unfair process. The local authority did not consider the adoption opportunity to be about to close, and family-finding work could not conclude while the restrictions remained. Where the applicant local authority and nearly all other parties oppose a remote contested final hearing, clear and cogent reasons are required before the court proceeds.

1. Court of Appeal (Civil Division): The appeal was allowed. The directions for an immediate hybrid final hearing were set aside, the hearing was vacated and the proceedings were returned to HHJ Dodd for further case management: [2020] EWCA Civ 583.

2. Family Court sitting at Carlisle: On 3 April 2020 HHJ Dodd directed that the seven-day final hearing should proceed in hybrid form. Following review on 17 April 2020, the judge maintained that decision.