C (Children : Covid-19: Representation)

A fair hearing under Article 6 is assessed case specifically and by reference to the proceedings as a whole. It requires effective participation and a reasonable opportunity to present a case, but it does not require ideal or conventional hearing arrangements.

A hybrid hearing remains fair where any difference in representation does not place a party at a substantial disadvantage. The physical absence of leading counsel is not, without more, inequality of arms or an appearance of unfairness. The court must balance the parties’ rights to a fair hearing within a reasonable time, including the serious effect of avoidable delay on children. The format of a hearing is a case-management decision within the first-instance judge’s wide discretion.

In care proceedings concerning four children, the Family Division had heard substantial expert evidence remotely during the Covid-19 pandemic. The remaining lay evidence was to be heard in person at a socially distanced hearing.

The mother sought an adjournment until the autumn because her leading counsel, who was shielding, could not attend court physically. Williams J refused that application. He adjourned the part-heard fact-finding hearing until June so that the mother could give evidence in person, with her leading counsel participating remotely: [2020] EWHC 1233 (Fam).

The mother appealed, contending that the hybrid hearing would breach her Article 6 right to a fair trial, undermine equality of arms and create unfairness in proceedings with grave consequences for her and the children.

1. Appeal dismissed. The proposed June hybrid hearing did not threaten a breach of the mother’s right to a fair hearing. The judge’s case-management decision was plainly open to him and was correct.

2. Fairness under Article 6 of the European Convention on Human Rights is assessed in the context of the proceedings as a whole. The court had to protect against actual unfairness and a real risk of unfairness, while also ensuring an effective opportunity to present evidence and challenge adverse material. It also had to determine the case within a reasonable time.

3. The physical absence of leading counsel did not prevent the mother from participating effectively. Her evidence would be given in person; experienced junior counsel would be present; leading counsel could prepare, participate remotely and communicate with the team; and the judge would keep fairness under review. Remote examination by a skilled advocate was capable of being effective.

4. There was no inequality of arms. A difference in the manner of representation does not itself create Convention inequality. Any disadvantage caused by counsel’s remote participation would be slight and would not place the mother at a substantial disadvantage. Social distancing also limited immediate communication for advocates who were physically present.

5. The judge was entitled to assess the proposed adjournment in the full procedural context. A delay until the autumn was neither short nor certain. It would significantly delay decisions with lifelong consequences for children who had already spent a lengthy period in foster care, and could lead to an indefinite postponement.

6. Following Re A, the means by which an individual care case is heard is a case-management matter over which the first-instance court has a wide discretion, exercised according to fairness, justice and the children’s welfare. A careful evaluative decision of that kind will ordinarily attract the usual appellate restraint.

• Court of Appeal (Civil Division): Dismissed the mother’s appeal against the decision to resume the fact-finding hearing as a hybrid hearing.
• High Court (Family Division), Williams J: Refused an adjournment until the autumn and listed the remaining lay evidence for a June hearing with the mother’s leading counsel participating remotely: [2020] EWHC 1233 (Fam) .