A High Court judge has decided to proceed with lay evidence remotely in a hearing of a local authority’s application for a care order in respect of a four-year-old child.
Mrs Justice Lieven had already heard five days of medical evidence remotely through the Zoom platform.
She then adjourned the trial to hear submissions as to whether the hearing should continue with evidence from the parents and other lay witnesses via Zoom. The father also asked for an adjournment on the grounds of ill-health.
The case of A Local Authority v Mother  EWHC 1086 (Fam) concerned the local authority’s application for a care order in respect of SX.
In April 2019, his two-month-old sister, AX, had died at home of unknown causes. It was subsequently established that AX had sustained 65 fractures to various parts of her body. The local authority were granted an interim care order and SX has been living with foster carers since then.
The local authority’s threshold document alleged that the injuries were inflicted by one or both of the parents and that each parent knew that the other had caused injury or was likely to have caused injury to AX.
The mother did not dispute the medical evidence. Her position was that she did not cause the injuries and thus they could only have been caused by the father. She alleged she had suffered domestic violence from the father.
The father argued that the injuries were non-accidental injuries.
Mrs Justice Lieven said that through the course of the first week of the hearing all parties urged her to continue with the lay evidence remotely. However the father’s position changed, saying that he had gone to A&E feeling suicidal and that since then he had felt unable to participate in the hearing.
The father was then permitted to file a psychiatric report, considering both his capacity to litigate and also his mental state in terms of whether he could continue to participate in the hearing.
That report concluded that the father was able to participate in the proceedings, to instruct his legal advisers, to follow court room proceedings, and to give witness evidence and submit to cross examination if called on to do so.
When asked by the psychiatrist what measures the father said could be taken to help him participate in the hearing, given his emotional state, he said that it would help “enormously” to give evidence by video. The psychiatrist endorsed this.
Mrs Justice Lieven considered the recent cases where the Family President, Sir Andrew McFarlane, had looked at the approach to be taken in deciding whether to proceed with a hearing in a complex Family Court case:
- Re P (A Child Remote Hearing) 2020 EWFC, where the Family President ruled that a planned 15-day hearing into allegations made by a local authority that a young child had been caused significant harm as a result of fabricated or reduced illness (FII) should not take place remotely.
- A (Children) (Remote Hearing: Care And Placement Orders)  EWCA Civ 583, in which Sir Andrew set out – amongst other things – the ‘cardinal points’ in relation to remote hearings. He said a decision to proceed would vary “from case to case, court to court and judge to judge” and also outlined ten factors that were among those likely to influence the decision on whether to proceed with a remote hearing.
- B (Children)(Remote Hearing: Interim Care Order)  EWCA Civ 584, in which the Court of Appeal set aside an interim care order made at a telephone hearing.
Mrs Justice Lieven said she did not think that it was possible to say as a generality that a remote hearing was less good at getting to the truth than one in a courtroom. “I am aware that the Nuffield Foundation are currently carrying out research into remote hearings and it may be that this will cast more light on this topic. However, I do not feel it is appropriate to adjourn for this research to be produced. I would be very surprised if it was sufficiently definitive as to give one correct course.”
The judge then applied the ten factors from A (Children) (Remote Hearing: Care and Placement Orders) to the present case. She found:
- The importance and nature of the issue to be determined. “This is a final fact finding hearing and the subject matter could not be more important both in terms of the findings that I am being asked to make in respect of both parents; the long terms implications of those findings for the parents; and most importantly the impact those findings are likely to have on SX. However, the fact that this case is of the utmost gravity does not mean that it is in a category of case that cannot go on remotely. It is clear from Re A that in every case there is an individual decision to be made, the importance and nature of the issue is but one factor.”
- The need for urgency. On the facts of this case that was “a complicated factor”, she said. SX might be said to be at a particularly crucial age, as he was due to start school in September, “but one could probably put forward a serious argument on urgency in most Children Act proceedings”. Mrs Justice Lieven said she was conscious that in both Re A and Re B the first instance judges considered the cases to be urgent, and in both cases there plainly was some urgency. “In deciding what weight to give urgency in this case I have closely in mind that it is particularly important for SX to be settled at the point he starts school.” It had already been a year since he was placed in foster care and after the fact finding hearing, if the judge made any of the findings sought, there would need to be a welfare hearing which would further delay any final decision. If the case was adjourned at this point then it would be by no means straightforward for it to be re-listed quickly. “This again is a factor which is going to arise in a very large proportion of the cases being adjourned because of Covid 19. It is unfortunately inevitable that there is going to be a significant backlog of cases in the Family courts, quite apart from the new cases arising.” The judge said that one factor she viewed as particularly important was the position of the mother, who had asthma and had indicated that she was not prepared to leave home and come to court at the present time. “It is simply not possible to know how long the Covid 19 lockdown will continue, in what ways it will be lifted and over what timespan and when the mother will be prepared to come to a court to give live evidence.” There was also the additional factor of availability. If the case was adjourned it would require another six days of hearing time. “Although it might be possible to put this in the list before August that is not going to be straightforward.” In those circumstances Mrs Justice Lieven thought it was reasonable to assume that if she did adjourn the case she might well be adjourning it for many months.
- The question of legal representation. All parties in this case were represented by highly experienced and highly competent QCs. Mrs Justice Lieven said she had not the slightest doubt that the parents were getting the best possible advice and that their interests would be fully protected at all times.
- The ability of the parents to engage with the proceedings. Both parents were native English speakers, neither had any language or communication problems. There was no suggestion that either was of anything other than normal intelligence. The mother had access to two screens, although one was her phone, but she had been able to find documents in the electronic bundle. Mrs Justice Lieven was told by the mother’s QC that the mother had followed the evidence, had been able to give instructions and had felt fully engaged with the hearing. The position of the father was “more complicated”, Mrs Justice Lieven said. “I was told on day one that he had listened to the evidence and had been able to follow it. I believe initially that he only had access to the hearing via a phone but he had been able to borrow a computer. I made clear that I would not proceed if the parents could only follow proceedings via a phone. The hearing is too lengthy and too complex for that to be an appropriate course.”
- This was not a case proceeding on submissions alone.
- The issue now involves lay evidence of fact. That evidence was strongly contested and both parents would be subject to cross examination from three QCs. The impact of the nature of the evidence on the decision as to whether a remote hearing was appropriate was “perhaps the most complicated element of the assessment”, Mrs Justice Lieven said. As long as the lay parties could follow the evidence, which they could in this case, Mrs Justice Lieven was entirely satisfied that it was fair to all concerned and met principles of natural justice to proceed with the professional evidence. In respect of the lay evidence there were a number of different factors, she suggested. The first and most important must be whether it was just to the parties to proceed with them giving their evidence remotely. “They must be able to follow the questions and be able to give their best in the answers. If the technology works, and they are in a position to understand the documents, then in principle a remote hearing is capable of being fair.” It had been pointed out by two of the QCs that vulnerable witnesses routinely gave evidence remotely in the family and criminal courts. “Subject to all the protection in PD3AA, the assumption must be that such a process is capable of being fair and meets the requirements of Article 6.” A judge would have to be astute in a remote hearing to ensure the witness was following the question and where appropriate had the relevant document, Mrs Justice Lieven said. “It is easier to do this in a live hearing because one can see more easily what the witness has in front of them, and sometimes tell by their body language if they are completely lost. However, it is perfectly possible with a little sensitivity to do the same task remotely.” The judge said that on the facts of this case she had no reason to doubt that the mother would be able to follow the questions. She was, however, concerned about whether the father would be able to follow references to documents in cross examination. However, it had already been agreed that all documentary references will be read out to him.
- The length of the hearing. This hearing was listed for nearly 15 days, although in normal circumstances it would not have needed to take that long. The mother and father were both likely to be giving evidence for at least a day. If they gave evidence remotely it woud undoubtedly be necessary to give a number of breaks, Mrs Justice Lieven said. “This will be a gruelling process, and I have little doubt that they will both find it difficult. It is important however to bear in mind that parents being accused of very seriously harming their child are likely to find giving evidence in the courtroom also intensely gruelling.” Mrs Justice Lieven concluded that there could be a fair hearing. She was, however, very concerned about the parents potentially not having support if giving evidence remotely, particularly during a time of lockdown. “I would describe this as the humanity of the situation, being somewhat different from the consideration of a fair trial. The Mother is isolating with her father and sister and thus has some support. The position of the Father is different. He is isolating on his own, but I am told is receiving support from his mother.” Mrs Justice Lieven said overall the view she had taken was that the father was likely to find the whole process intensely stressful whatever course was undertaken. “It seems likely that he has relatively little support, only as I understand it having his mother as a close family member, whenever he gives evidence. I therefore do not consider this to be a factor which prevents proceeding with the hearing at this stage.” Mrs Justice Lieven noted the Court of Appeal's concern in Re A and Re B about the increased strain placed on the court by remote as opposed to courtroom hearings. She said, however, that she did not consider the position of the judge in a case such as this, as being as stressful as that of the Judge in Re B “who had to face some 10 hours of different hearings, and a very urgent case with multiple late papers”.
- The hearing is being conducted via Zoom. “We have had five days of evidence to test the technology and so far it has worked reasonably smoothly. All participants have largely retained connection and the quality of video and sound has been very good. It is easy to forget that courtroom hearings have their own logistical problems including the exigencies of public transport, the challenges of poor heating systems and uncomfortable courts.” In her judgement, the technology had not, at least so far, impeded a fair trial. Overall, she considered the technology to be capable of providing a satisfactory hearing.
- The ability of the court and the participants to manage the technology. “The court, so far, has managed the technology to an acceptable level. There is an overly large electronic bundle (over 5000 pages), but all parties have managed to find the relevant pages surprisingly easily, largely thanks to the hard work of counsel, including the juniors. The ability of the parents to manage the technology whilst giving evidence has not yet been fully tested. The only way to deal with this is to be astute to the potential for difficulties and to be prepared to review the situation as the hearing continues.”
- Whether there were any safe alternatives that would allow some parts of the evidence to be heard in court. This was Mrs Justice Lieven’s initial preferred approach. “However, the fact that the mother has asthma and has indicated her unwillingness to come to court, even with precautions in place, makes this a difficult and very unpredictable alternative. I asked whether the mother had access to a car so that she did not need to use public transport or go out onto the streets, but apparently neither she nor anyone in her household has a car. I cannot tell when she would consider it safe for her to come to court, nor can I assess at what date it would be reasonable for me to make an order for her to attend. I am also now faced with the report from Dr McEvedy saying it would be better for the Father's mental health to be giving evidence remotely.”
Mrs Justice Lieven said that taking all these factors into consideration, she had come to the conclusion that it was appropriate to continue with the case remotely and not to adjourn by reason either of the remote hearing or of the father's mental state.
The judge said she had carefully considered all the Re A factors set out above. “To summarise the position, the technology has been proven to work in this case and I am confident that the Mother can use it effectively. The Father has the technology available to him, and on the day that he was in the hearing he seemed to cope with it fine. I will keep this matter under very careful review. In terms of managing documents, it has already been agreed that all references will be read to the Father.”
Mrs Justice Lieven added that, in terms of the father's mental state and the technology, it was important that the father had expressly said that he wanted to give evidence remotely and this would decrease the stress on him. Therefore, the remote nature of the hearing was not the impediment to the father's participation.
The judge said: “There is serious detriment to SX from further delay. This is not an overriding factor but it is an important one. Given the Mother's asthma, if I adjourn to have a court based hearing it is wholly unclear how long I might have to adjourn for, and it could be many months.”
Mrs Justice Lieven said she was extremely conscious of the gravity of the case but in her view, taking the facts of this particular case into account, this was a case where it was appropriate to proceed remotely.
The judge also concluded that the father's ill-health was not a good ground to adjourn this matter. “I will however very carefully monitor both parents' ability to participate fully in the hearing and to give their evidence to the best of their ability. The fact that I have decided to go ahead today, starting lay evidence tomorrow, does not mean that I will not continually revisit the issue of the fairness of the proceedings.”