A Local Authority v Mother & Ors

Whether a contested Family hearing should proceed remotely is an individual case-management decision. The court must balance fairness, effective participation and the welfare consequences of delay, having regard to the nature and urgency of the issue, the parties’ ability to engage, the evidence, technology, hearing length and safe alternatives.

A fact-finding hearing is not automatically unsuitable for remote determination. Demeanour is not a reliable general guide to truthfulness, and remote evidence may be fair if participants can follow questions, access documents, instruct lawyers and receive appropriate breaks and support. The court must keep fairness under continuous review.

The local authority sought a care order concerning a four-year-old child after his infant sister died with extensive injuries. A fact-finding hearing had begun remotely because of the Covid-19 pandemic, and five days of medical evidence had been heard by video link.

The court then considered whether the parents and other lay witnesses should give evidence remotely or whether the hearing should be adjourned. The father also sought an adjournment because of his mental health, although a psychiatric report found that he had litigation capacity and could participate in proceedings.

The central issues were whether continuing with contested lay evidence by Zoom would be fair and whether the father’s emotional condition justified an adjournment.

1. The remote-hearing decision. The court held that the decision whether to conduct a remote hearing is fact-sensitive and must be determined by the judge in accordance with fairness, justice and the welfare of the child. Guidance issued by senior judges identifies relevant considerations but is not binding national guidance. The factors include the nature and importance of the issue, urgency, representation, meaningful engagement by lay parties, the evidence to be heard, the scope and length of the hearing, technology, experience in using it and safe alternatives: Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583.
2. The gravity of a final fact-finding hearing did not make it unsuitable for remote determination. Medical evidence had been heard satisfactorily by Zoom. The parents could use the technology, documentary references would be read to the father, and private communication with lawyers was possible. The court would remain alert to whether either parent was following the evidence and would stop or adjourn the hearing if participation became unfair.
3. The court rejected any general rule that remote fact-finding is inferior because the judge cannot observe witnesses in a courtroom. Demeanour is often an unreliable guide to truthfulness. The more reliable approach is to examine the content of testimony, its internal consistency, its consistency with other evidence and its conformity with known or probable facts. The court adopted the cautionary approach discussed in R (on the application of SS (Sri Lanka) v Secretary of State for the Home Department 2018 EWCA Civ 1391.
4. The earlier decision in Re P (A Child) (Remote Hearing) 2020 EWFC 32 did not establish that a complex hearing must proceed or must not proceed remotely. It illustrated the need for an individual assessment. The circumstances in Re B (Children) (Remote Hearing: Care and Placement Orders) 2020 EWCA Civ 584 did not determine the present case.
5. On the particular facts, the technology had worked well, both parents could engage, delay would seriously prejudice the child, and a safe in-person alternative was unpredictable because of the mother’s asthma and unwillingness to attend court. The hearing should therefore continue remotely.
6. The father’s mental health did not justify an adjournment. He had litigation capacity, could participate and had expressed a preference for giving evidence remotely. Stress associated with giving evidence was insufficient, particularly since an adjournment might not remove the underlying causes of that stress. The court would continue to monitor both parents’ ability to participate fully.