Q, Re

Case management decisions concerning remote final hearings must be kept under review, but fairness requires the judge to raise any material concern arising from the parties’ cases and allow submissions before relying on it. A change in the court’s assessment of a child’s welfare must be explained and reconciled with the evidence. Remote hearings are not subject to an automatic veto or universal rule. The judge must determine, having regard to the individual case, whether the hearing should proceed remotely, in person or in hybrid form.

The father appealed against a decision of Deputy District Judge O’Leary in long-running private-law proceedings concerning the welfare of Q. The judge had first decided that a three-day final hearing should proceed remotely, but two days later adjourned it until a face-to-face hearing could take place. She relied on the need to hear the mother’s evidence fairly, the effect of interpretation and the competing welfare and fairness considerations. The appeal concerned whether there had been a material change justifying the reversal, whether the father’s position statement had been fairly considered, the weight given to Q’s welfare, and the proper interpretation of Re P (A Child: Remote Hearings) [2020] EWFC 32.

1. Appeal allowed. The decision to vacate the remote hearing was set aside and the question of how and when the final hearing should take place was remitted to the deputy district judge for redetermination.

2. The father’s position statement contained no new evidence, but the judge treated it as materially altering the case and as requiring the mother to give oral evidence about matters concerning her care of Q. The judge knew that the father did not propose to cross-examine the mother on those matters. By raising the issue for the first time in her judgment, without canvassing it during submissions, the judge acted unfairly. That failure was a material error in the conduct of the proceedings.

3. The judge’s approaches to Q’s welfare on 20 and 22 April were difficult to reconcile. The first treated finality as necessary because Q was suffering emotional harm. The second treated the alternating-week arrangement as maintaining Q’s welfare. The later judgment did not explain the change or address the Guardian’s evidence that Q had suffered significant emotional harm and required a change of primary care. The approach to welfare was therefore erroneous.

4. Re P (A Child: Remote Hearings) was not misapplied. Its decision was expressly concerned with the small number of cases involving allegations of Factitious or Induced Illness. Paragraph 24 contained guidance of more general, obiter application. The deputy district judge was correct to refer to it.

5. Under the guidance and Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, the decision whether a case should proceed remotely, wholly or partly, is case-specific. The judgment did not establish a general rule or veto. The question had to be reconsidered in the present case.

• High Court (Family Division): Appeal from the Central Family Court decision of Deputy District Judge O’Leary. Appeal allowed; the decision to vacate the remote hearing was set aside and the issue was remitted for redetermination.