A Local Authority v The Mother & Ors

Whether a family fact-finding hearing should proceed remotely is an individual case-management decision. The court must assess fairness, justice, the welfare of the children and the competing Article 6 rights of all parties. Relevant factors include the importance and urgency of the issues, the nature of the evidence, each lay party’s ability to participate and instruct lawyers, the technology available, and safe alternatives for physical attendance.

There is no absolute rule that a fair hearing requires every party or leading counsel to attend physically. However, where oral evidence is central, contested and supported by little contemporaneous evidence, an attended hearing may materially improve fairness. A party’s preferred mode of participation is relevant but not determinative.

Care proceedings concerned four children following the death of their three-year-old sibling after cocaine ingestion. Expert evidence had been completed remotely. The remaining evidence was that of the mother, two fathers and the grandmothers, concerning the circumstances of the ingestion, drug use, domestic abuse and culpability.

The parties differed on whether the fact-finding hearing should continue remotely or in a hybrid form during the Covid-19 restrictions, or be adjourned until an attended hearing was possible. The mother sought an adjournment, principally because she could not safely attend immediately and her leading counsel was required to shield. The local authority, Guardian and some family members supported earlier continuation. The central issue was how to balance a fair hearing against the children’s need for timely determination.

1. Applicable approach. The decision whether to proceed remotely was for the trial judge, exercising a wide case-management discretion according to the particular facts. The guidance and authorities did not create categories of cases that must or must not be heard remotely. The court considered the importance and nature of the issues, urgency, representation, meaningful participation by lay parties, the nature of the evidence, the scale of the hearing, technology, experience and safe attended alternatives.
2. Fairness and evidence. The remaining evidence was important, contested lay evidence. There was limited contemporaneous or corroborative material against which the accounts could be tested. Although remote evidence could technically be heard and challenged, physical attendance had a material advantage in this case. That advantage extended beyond assessing demeanour. It included the parties’ ability to understand the evidence, communicate with their legal teams and respond to the developing hearing.
3. Balancing competing rights. The Article 6 rights of the mother, father, paternal grandmother, local authority and children had to be balanced. The agreement or opposition of a party did not determine whether a fair hearing could take place. The mother’s inability to have her leading counsel physically present would affect the presentation of her case but would not prevent a fair hearing, since effective remote participation and assistance from junior counsel remained possible.
4. Outcome. Continuing immediately, with the mother remote and others attending, would place the parties on an unequal footing and would not provide a fair hearing. A September adjournment would cause substantial additional delay to children already in foster care. The proportionate solution was to adjourn to 24 June 2020 for an attended hearing, with the possibility of a further adjournment only if that hearing could not safely be arranged. Permission to appeal was refused.

Not stated in the judgment. The decision was a first-instance case-management ruling in ongoing care proceedings.