“As matters stand, given the stark nature of the disagreement between the parties on the question of a remote hearing, the impact of the current government guidance on the ability of the parents to attend a court, the parents’ apparent lack of access to effective IT, the acknowledged difficulties with securing the effective participation of intermediaries in remote hearings and in light of emerging issues regarding the participation of vulnerable parties in extended remote hearings, my strong provisional view is that it would not be appropriate to recommence a hearing of this length and this complexity remotely unless agreed solutions to the parents’ stated Art 6 concerns can be arrived at between the parties, particularly in circumstances where one of the potential outcomes of the proceedings is the permanent removal of their child”
“It is possible that other cases may also be suitable to be dealt with remotely. As the current situation is changing so rapidly, and as the circumstances will impact upon this decision are likely to differ from court to court and from day to day, the question of whether a particular case is heard remotely must be determined in a case by case basis.”
“Generally: a. If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing; if parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the ‘green light’ to conduct a hearing in this way; b. Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely; c. Video/Skype hearings are likely to be more effective than telephone. Unless the case is an emergency, court staff should set up the remote hearing. .../ In Family Cases in particular: e. Where the parents oppose the LA plan but the only witnesses to be called are the social worker and Children’s Guardian, and the factual issues are limited, it could be conducted remotely; f. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely; g. In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing. .../” a. If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing; if parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the ‘green light’ to conduct a hearing in this way; b. Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely; c. Video/Skype hearings are likely to be more effective than telephone. Unless the case is an emergency, court staff should set up the remote hearing. .../ e. Where the parents oppose the LA plan but the only witnesses to be called are the social worker and Children’s Guardian, and the factual issues are limited, it could be conducted remotely; f. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely; g. In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing. .../”
“The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with each other. The need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for her life to move forward is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working. It is because no two cases may be the same that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance.”
“[26] The reason for having the very clear view that I have is that it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely. The judge who undertakes such a hearing may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function. The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge's screen at any one time, it is a very poor substitute to seeing that person fully present before the court. It also assumes that the person's link with the court hearing is maintained at all times and that they choose to have their video camera on. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment.”
“It also follows that the decision on this appeal must not be taken as an authority that is generically applicable to one or more category of children cases. We wish to state with total clarity that our decision does not mean that there can be no remote final hearings on an application for a care order or a placement for adoption order. Neither is our decision to be taken as holding that there should be no ‘hybrid’ hearings, where one or more party physically attends at a courtroom in front of a judge. The appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance indicated above to the unique circumstances of the case.”
“The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might, or might not, have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa.”
“We must all take on board this significant change in perspective which will have an impact on every case management decision. Apparent potential unfairness which justified a case being adjourned for what was hoped to be a relatively short period of time, must now be re-evaluated against this much longer timescale. The need to achieve finality in decision-making for children and families, the detrimental effect of delay and the overall impact on the wider system of an ever-growing backlog must form important elements in judicial decision making alongside the need for fairness to all parties. More positively, experience of remote hearings in the past two months has identified steps that can be taken to reduce the potential for unfairness (a number are listed at paragraph 49 below and more are set out at paragraph 5.19 of MacDonald J’s Guide to the Remote Family Court), enabling cases to proceed fairly when previously they may have been adjourned.” 42. And at paragraphs [11] and [12]: “[11] In the early days of lockdown, it was understandable and acceptable for cases to be adjourned for a short period in the hope that a more normal court process could then be undertaken. A short adjournment to meet the needs for fairness and due process might not unduly compromise the need to achieve a final outcome for the child. Now that we are facing many more months of straitened resources it is likely that nettles will need to be grasped for the sake of the child’s welfare, with final hearings fixed for remote or hybrid determination, and with steps taken to maximise the fairness of the process. [12] Whilst a court is not required to hold the child’s welfare as the paramount consideration when making case management decisions, the child’s welfare and the need to avoid delay will always be a most important factor and may well be determinative in many cases. Making a timely decision as to the child’s further care is in essence what each case is about. The child’s welfare should be in the forefront of the court’s mind throughout the process.”
“In line with the experience of the past 10 weeks, different courts, judges and professionals will be more, or less, able to deliver change as a result of a range of factors including work-load, staffing and judicial resources, technology and (increasingly) the availability of courtrooms that are compatible with the strictures of social distancing.”
“In all other cases where the parents and/or lay witnesses etc are to be called, the case may not be suitable for a fully remote hearing. Consideration should be given to conducting a hybrid hearing (with one or more of the lay parties attending court to give their evidence) or a fully attended hearing. Where it is not possible to conduct a hybrid or fully attended hearing, the court may proceed to hold a remote hearing where, having regard to the child’s welfare, it is necessary to do so; in such a case the court should make arrangements to maximise the support available to lay parties”