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Mother loses appeal over fairness of hearing where her shielding QC cannot be physically present

A mother has lost her appeal over a judge’s decision to continue a fact-finding hearing later this month in care proceedings in circumstances where her leading counsel cannot be physically present because she is required to shield from the COVID-19 infection.

The proceedings in A Local Authority v The Mother & Ors [2020] EWHC 1233 were brought after a three-year old girl died of cocaine ingestion at home.

In a 'hybrid' hearing, Mr Justice Williams in the Family Division of the High Court had already taken a substantial amount of expert evidence remotely and it had been decided, with the agreement of all parties, that the remaining lay evidence would be given live in court.

The mother applied for the proceedings to be adjourned until the autumn to allow for the possibility of her QC being able to attend in person.

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Mr Justice Williams, although sympathetic, refused the application and determined that the hearing would resume on 24 June, when the time estimate for completing the evidence is 3½ days, followed by written submissions.

The intention is that assessments will follow and that welfare decisions will be taken at a hearing in September. By that time the four children will have been in foster care for 16 months.

The mother maintains her wish to resume their care. The father and paternal grandmother have stated that they were not putting themselves forward as carers for the children.

The mother’s QC, Liz Issacs, had made clear in April 2020 that if the hearing became an attended hearing, she would offer to return the brief. In the event, her client wished her to continue with her representation unchanged.

Declining to adjourn until September, Mr Justice Williams said he accepted that a delay of three months until September was a significant one and would cause harm to the children.

The judge said he did not consider that the inability of [QC to the mother] to attend would 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."

He concluded that Ms Isaacs could continue to play a role and in his view 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.”

The mother appealed on the following grounds:

  1. The judge's decision in adjourning the part-heard fact-finding hearing to a date at which M's leading counsel was prevented from attending in person to represent her (by virtue of Government guidance) ("the hybrid hearing") was wrong in law because it breached M's Article 6 right to a fair trial.
  2. The judge was wrong in failing to consider properly or at all whether unfairness in the trial process may involve a violation of the Article 8 rights of M and the Article 8 rights of the children.
  3. The judge was wrong in failing to have carried out any proper judicial evaluation of the competing Article 6 rights of the parties.

Before the Court of Appeal Ms Isaacs argued that the judge's decision breached  a very fundamental principle of natural justice and prejudiced her client's right to participate effectively in the hearing. She added that the physical absence of leading counsel excluded the opportunity for immediate dynamic interaction with the client in the courtroom. Ms Isaacs suggested a number of practical issues and challenges that her physical absence might entail.

In C (Children : Covid-19: Representation) [2020] EWCA Civ 734 Lord Justice Peter Jackson said: “It is in the public interest and in the interests of children and families that, wherever it can happen in a safe and fair manner, the work of the courts should continue. This case provides a very strong example.

“These four children are entitled to a decision about their futures without further avoidable delay and the court's obligation is to put in place a fair process to achieve this. The older three have already been in foster care for over a year after suffering the tragic loss of their sister. The eldest child, aged 11, is said by her Guardian to have a strong wish to return to her mother. The youngest was born into foster care and plans for her future are no clearer now than they were then. The decisions that remain to be made will have lifelong consequences for the children and their family. That is the context in which the fairness of these proceedings falls to be assessed.”

Lord Justice Peter Jackson then set out a number of aspects of the right to a fair hearing, guaranteed by common law and Article 6 ECHR, that were relevant:

(1) Fairness is case-specific and is to be assessed in relation to the proceedings in their entirety: Ankherl v Switzerland (2001) 32 EHRR 1 at [38].

(2) There must be protection not only from actual unfairness but also from the risk of unfairness: Kanda v Government of the Federation of Malaya [1962] AC 322 (PC) at p.5.

(3) The right of access to the court must be effective, so that the individual has the opportunity to address all material that might affect the court's decision and is placed in a position to call evidence and to cross-examine: Mantovanelli v France (1997) 24 EHRR 370 at [36].

(4) The importance attached to the welfare of the child must not prevent a parent being able effectively to participate in the decision-making process: L v UK [2002] 2 FLR 322 at 332.

(5) The principle of equality of arms entails a reasonable opportunity to present one's case, including one's evidence, in a way that does not place one at a substantial disadvantage to one's opponent: Dombo Beheer BV v The Netherlands (1994) 18 EHRR 213 at [33].

(6) The administration of justice requires not only fairness but the appearance of fairness: R v Leicester City Justices ex p Barrow [1991] 2 QB 260; P, C & S v UK [2002] 2 FLR 631 at [91]. However, the misgivings of individuals with regard to the fairness of the proceedings must be capable of being objectively justified: Kraska v Switzerland (1994) 18 EHRR 188 at [32].

(7) The determination must be made within a reasonable time: Article 6 itself.

Lord Justice Peter Jackson said that, set against this framework, he was in no doubt that, even without such refinements as may arise from the ground rules hearing, the format proposed for the remainder of the hearing did not threaten any breach of the mother's right to a fair hearing, “let alone the fundamental breach that has been claimed”.

The judge's decision was not only plainly open to him but, Lord Justice Peter Jackson thought, correct.

The Court of Appeal judge’s reasons were these:

(1) The single basis of complaint is the fact that leading counsel cannot be physically present in court while other advocates can, at least in theory. That is unfortunate but it will not prevent the mother from participating effectively in the hearing. Perfection in the arrangements for a complex trial of this kind is not always achievable and the contemplated arrangements comfortably satisfy the requirements for a fair hearing. They are not to be described as an experiment. The judge's approach has been meticulous throughout and his decision was the result of principled case management.

(2) There will be no inequality of arms. A difference in the way parties are represented does not of itself amount to inequality in Convention terms. Any disparity created by the physical absence of leading counsel from the courtroom is likely to be slight and cannot amount to a substantial disadvantage rendering the proceedings unfair. A socially-distanced hearing will emulate some but not all of the characteristics of a conventional hearing. The capacity for 'immediate dynamic interaction' is not an indispensable element of a fair hearing and its absence will affect all parties to some extent. The description given at paragraph 15 above of a hearing where everyone except leading counsel will be present is not accurate.

(3) I make no doubt of the mother's anxiety about Ms Isaacs' inability to attend in person. However, the reality of the arrangements does not give rise to any appearance of unfairness. The mother's corner will be fought in a way that fully upholds her rights. Her case will have been prepared to a high standard, she will give her evidence in person in the presence of experienced junior counsel, and her leading counsel will no doubt be engaged before, during and after each stage of the hearing. There is no reason to downplay the effectiveness of remote examination and cross-examination by a skilled advocate. The judge will keep the fairness of the proceedings under ongoing review and any valid complaint about the conclusions of the fact-finding hearing can be made to this court.

(4) As can be seen from reading paragraph 64 of the judgment alone, there is no substance to the argument that the judge's reasons for his order cannot be understood. His reasoning was clear. Nor was his approach contrary to guidance and authority. He did exactly what he was required to do by making a survey of all the relevant considerations at each stage of the process. The level of detail of his ruling no doubt reflects the fact that it was made at a time when the courts have been feeling their way forwards with decisions of this kind. I emphasise though that it is not expected that other rulings of this kind will need to be of similar length.

(5) The submission that the judge was impermissibly speculating when he considered the consequences of granting the adjournment application had an air of unreality. On the contrary, he was bound to set his assessment of fairness in the context of the proceedings as a whole. A short and certain adjournment may sometimes be granted to secure the attendance of counsel where that is important to a party and any delay is not significant. In this case the adjournment was neither short nor certain and I emphatically reject the submission that the length of the delay would be a small price to pay. Time is running against these children and three months or more in the lives of children of pre-school age and a baby is highly significant, particularly given the already disquieting timescale of these proceedings. The real possibility of an indefinite postponement was also something the judge could not fail to take into account.

Lord Justice Peter Jackson concluded: “As was said in Re A, the means by which an individual case may be heard is a case management decision over which the first instance court will have a wide discretion based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children.

“For specialist judges, these are becoming routine decisions, and as time goes on a careful evaluation of the kind made in this case is no more likely to be the stuff of a successful appeal than any other case management decision.”

Lady Justice Asplin and Lady Justice King agreed.

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