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High Court judge adjourns care proceedings so in-person hearing can be held

A High Court judge has adjourned care proceedings after concluding that evidence from the parties should be given at an in-person hearing.

Tina Cook QC of 42 Bedford Row, who acted for an intervenor in the case concerned, said Mr Justice Williams’ “fantastic and detailed” judgment summarised “the very recent and pertinent advice and authorities as to remote hearings and fairness”.

She added: “This is one [case] that is going to be appealed but it gives a good overview to help all practitioners make decisions in the best interest of their clients.”

Mr Justice Williams' ruling in the Family Division of the High Court came in A Local Authority v The Mother & Ors [2020] EWHC 1233, proceedings which were brought after a three-year-old girl died of cocaine ingestion while at home.

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Her death has led to both a police investigation and care proceedings by an unnamed local authority for her four siblings.

The local authority originally said that K died as a consequence of cardiac necrosis caused by the deliberate administration or accidental ingestion of cocaine by or whilst in the care of one or more of her mother, father or grandmothers.

This was alter amended to an allegation that cocaine was ingested whilst in the care of and due to the culpable actions or neglect of either the mother, the father or the paternal grandmother.

“Thus, although still an extremely serious allegation with potential criminal ramifications it was significantly less serious than before,” the judge said.

He noted that at earlier hearings with the expert witnesses legal professionals had coped with remote presentation of evidence and cross-examination but “for the parties attending remotely from their homes and without the ability to have immediate interchanges with their lawyers to enable them to follow and understand the evidence, I am told and I have no difficulty in accepting, that it was much harder for them”.

The children’s future could depend on the mother proving her case that she was able to resume caring for them

“For the mother, the father, paternal grandmother and the children the article 8 rights engaged are potentially at the top end of the spectrum,” the judge said.

The mother had visited her mother’s home while the latter may have been suffering from COVID-19 and so had to self-isolate, while the father said he was ‘shielded’ as an asthma sufferer and one grandmother had hearing difficulties. All had met some technical problems.

A further complication was that the mother’s QC was also in a vulnerable group and could not appear in a live court hearing until September.

Williams J said: "Whilst a delay of a little over 3 ½ months is not huge given the length of time the case has taken to reach this stage, it is“a very significant delay for the younger children and, in respect of the youngest, would mean that she had been in foster care for the entirety of the first year of her life.

“It may be that further delay after already extensive delay in fact magnifies the harm and section 1(2) Children Act 1989 emphasises that delay is prejudicial to children's welfare.”

Suggesting that there was "no perfect solution" to this clash of rights, the judge said: "Any solution is an imperfect solution with some interference with the rights of one or another party; primarily article 6 but also article 8 rights in particular in terms of how rapidly resolution can be achieved for the medium to long term future of the children.

"A delay until September will, if [the QC for the mother] is then able to attend in person, ensure the fullest compliance with the mother's article 6 rights; the minimum standards will be well exceeded. However, such a delay will infringe upon the children's rights to a fair hearing within a reasonable time."

The judge said he accepted that a delay of three months was a significant one and would cause harm to the children. "It is not a reasonable time to adjourn from now until September if some alternative earlier hearing can be achieved without infringing the mother's rights to an extent that outweighs the delay caused infringements of others' rights."

Mr Justice Williams decided that a hearing in June would protect the children's article 6 right to a fair hearing within a reasonable time but wuold infringe to some degree on the mother's competing rights.

"However, I do not consider that the inability of [QC to the mother] to attend will prevent the mother receiving a fair hearing. The personal presence of leading counsel is one part of the framework which contributes to a fair hearing. It is a desirable part, but in my view it is not essential to the provision of a fair hearing."

The judge said the combined effect of the rest of the framework; that provided by the court, that provided by the mother's representation and to an extent the representation of the other parties all play their part in making the hearing fair.

"Inevitably in some cases leading counsel is prevented from playing the expected role – part of junior counsel's role is to take on that role. In fact, in this case [QC for the mother] can continue to play a role and in my view (and experience in this case so far) an effective role by remote participation. Some adjustments may be necessary to allow the most effective communication within the mother's team but this on my experience to date is manageable," he said.

He therefore adjourned to 24 June to facilitate an in-person hearing “which will allow all of the parties remaining to give evidence in court to me.

“If it transpires that I cannot facilitate that hearing…the balance then regrettably would fall in favour of a hearing in September”.

The judge refused to give the QC for the mother permission to appeal.  "I consider that I have applied the Covid Guidance, judgments and the approach to Article 6 and Article 8 properly and that the balancing exercise that I have conducted gives due weight to the relevant competing factors and that the outcome I have settled upon is the right one."

Mark Smulian

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