A Family Court judge has refused a father’s application for an adjournment of a part-heard final hearing so the proceedings could continue to be heard in Preston rather than moved to Manchester.
In Lancashire County Council v M & Ors (COVID-19 Adjournment Application) (Rev 1)  EWFC 43 Mr Justice MacDonald said: “The COVID-19 pandemic has resulted in a temporary but fundamental shift in the manner in which the Family Court and the Family Division of the High Court hear and determine family cases. Namely, a very marked increase in the use of remote hearings conducted by means of electronic communications platforms.
“That temporary shift has resulted in the court having to consider, in each case, whether that case is suitable for a remote or, increasingly commonly, a hybrid hearing (whereby certain parties and / or their lawyers attend the court building while others attend the hearing by remote means) or whether the case should be adjourned for what may be an extended period until a fully face to face hearing can be achieved. That, to an extent, is the question in this case.”
The proceedings concern the welfare of C, born in September 2018 and now 1 year and 9 months old. C was admitted to hospital on 7 October 2018 with a number of injuries. Both parents denied responsibility. C has been placed with foster carers.
Mr Justice MacDonald noted that the proceedings were issued on 19 October 2018 and had been the subject of very considerable delay. The judge described the procedural progress of the case as “remarkably ill-starred”.
The final hearing began in Preston on 16 March 2020 with a time estimate of three weeks. That evening the Prime Minister announced the lockdown. At lunchtime on 17 March Mr Justice MacDonald took the decision to adjourn the hearing part heard due to his concerns that he was unable to ensure the safety from infection of the court staff, the parties and their legal teams having regard to the information that had by then become available.
The judge said subsequent enquiries in relation to how to undertake a face-to-face hearing had continued with respect to the Combined Court Centre in Preston but it had quickly become “apparent that, due to current pressures on the court estate in Lancashire arising out of the fact that the requirement to implement social distancing means that the courts cannot operate at full capacity, and the fact that the resulting limited court space is required to be used by all jurisdictions, the Combined Court in Preston would not be able to accommodate the hearing. This remains the position.”
The matter has now been listed for an adjourned part heard final hearing commencing on 13 July 2020 at the Manchester Civil Justice Centre with a time estimate of ten days.
The judge said: “By reason of the size of the largest courtrooms in that court building the case will be capable of being heard fully face to face whilst at the same time complying with the current social distancing requirements put in place by the Government.
“The facilities in the courtroom at Manchester will also permit, as a contingency plan, a 'hybrid' hearing to take place whereby one or more parties can attend the hearing in Manchester remotely without having to step inside the court building.”
The father, however, applied to further adjourn the part heard final hearing until such time as a fully face-to-face hearing could take place in Preston. He submitted that he was unable to travel to participate in a fully face-to-face hearing at Manchester.
No application was made to adduce medical evidence in support of the contention that the father’s mental health prevented him from travelling to Manchester from Preston, but he relied on a number of assertions.
These included that it was to be anticipated that past experience, now exacerbated by COVID-19, was likely to provoke increased anxieties in him with respect to a venue away from Preston.
It was asserted that the father was now unable to contemplate any other option than a fully face to face hearing conducted in Preston.
It was also said that within this context, and given that the father had vulnerabilities which rendered him particularly anxious about court proceedings as recognised by the special measures that the court had previously sanctioned for him, listing the case away from his home and local court, requiring him to travel on public transport before and after court wearing a face mask for ten days at a time when the pandemic continues would exacerbate his anxiety and was inconsistent with a proper recognition of his particular vulnerabilities.
The father also submitted that a number of matters militated against him participating remotely in a hybrid hearing run from the Manchester Civil Justice Centre. These included that he continues to require the assistance of an intermediary, which assistance could only be effected if he was able to participate in a fully face-to-face hearing in Preston.
It was also submitted that an arrangement whereby the father was required to participate remotely when all other parties and the judge were face to face in court was not what was ordinarily meant by a ‘hybrid hearing’, did not have the appearance of a fair trial and would not be ‘even handed’.
Mr Justice MacDonald decided that he could not accede to the father’s application to adjourn the “already thrice adjourned” final hearing until such time as a face to face hearing could be held in Preston.
The judge’s reasons included:
- “First and foremost”, the court had now made provision for a face-to-face hearing at the Manchester Civil Justice Centre. “This was done in response to the parents' contention that a remote hearing was not appropriate in this case. The court in which the face to face hearing will take place has been the subject of a full risk assessment…..The court may give such further case management directions as are required to ensure the hearing proceeds safely, for example by stipulating the manner in which parties will arrive and leave the courtroom, the layout of the parties in the courtroom and the length of court sessions during the court day.” [judge's emphasis]
- Not only had the court made available a risk-assessed courtroom enabling all participants in this case to take part in the court hearing by physical attendance in a socially distanced courtroom before the judge but the local authority had made clear that it would if necessary fund private transport for the parents by way of taxi to and from Manchester.
- The court had no up-to-date medical evidence before it demonstrating that the father was unable to travel to Manchester by reason of anxiety “and, indeed he has in the past travelled not only to Manchester but also to London, albeit before the COVID-19 pandemic.”
- Whilst C's welfare was not the court's paramount consideration in the current context, as was made clear in The Family Court and COVID-19: The Road Ahead the child's welfare and the need to avoid delay would always be a most important factor and might well be determinative in many cases. “C is now 21 months old. He has spent the entirety of his young life in foster care. This case has been adjourned three times and is now fast approaching its second anniversary. Within this context, and in the context of the well-known adverse effect of delay and uncertainty on children, it is axiomatic that C has an urgent welfare need for his future to be settled in order that he can settle either in the certain care of his parents and wider family or in the certain care of his current foster carers and develop physically, emotionally and educationally in that settled context.” To expose C to uncertainty for months longer was plainly antithetic to his welfare.
- There was also a further dimension to the detrimental impact of delay. “The court is required in this case to make findings of fact. That exercise will rely in part on an examination of the recollection of events by the parents and others and on determining the credibility of the account of the parents. The parents and C have a right to a fair trial under Art 6. Within the foregoing context, continued further delay will risk prejudicing a fair trial as the events with which the court is concerned continue to recede into the distance and memories dull. In this context I agree with Mr Rowley [counsel for the local authority] that the well-known aphorism that justice delayed is justice denied is particularly apt.”
- The decisions the court was required to take were amongst the most serious to be considered by any court in this jurisdiction. “Within this context, and if it is possible within the constraints imposed by the COVID-19 pandemic, I accept that in this case the optimal method for deciding these issues is a fully face to face hearing. That is now what the court has set up at the Manchester CJC in July. I am also satisfied however that, if rendered necessary in consequence of the position adopted by the parents with regard to that face to face hearing, in this case the alternative of a hybrid hearing as a contingency should the parents continue to refuse to attend the fully face to face hearing that has been arranged will also provide the court with a proper basis upon which to make a full judgment.”
- He accepted that, to date, a hybrid hearing had ordinarily involved lay parties attending court to give evidence whilst other aspects of the hearing continued remotely as a means of addressing certain disadvantages of remote hearings and this was the manner in which a hybrid hearing is characterised in The Family Court and COVID-19: The Road Ahead. “However, there is nothing in principle preventing, where necessary, a hybrid hearing operating the other way round as a contingency, in this case if the parents continue to refuse to attend the fully face to face hearing that has been arranged, provided such a hybrid hearing can be achieved fairly. In the particular circumstances of this case, I am satisfied that it can.”
- Whilst, as the President of the Family Division had made clear in Re P (A Child: Remote Hearing), there would be some cases where it was important for the court to be able see the parent in the courtroom itself, the credibility of the parents' evidence “falls to be evaluated primarily by reference to matters such as the internal consistency of their evidence, its logicality and plausibility, details given or not given and the consistency of their evidence when measured against other sources of evidence (including evidence of what the witness has said on other occasions) and other known or probable facts”.
- All parties in this case were legally represented by advocates of the highest calibre who were well versed in the use of video links for the taking of evidence. “The effectiveness of remote examination and cross-examination by experienced advocates is now well demonstrated. The court also has extensive experience of the same. The court will keep the fairness of the proceedings under ongoing review and the parents benefit from the right to seek permission to appeal if they contend the procedure adopted has been unfair."
- It should be possible in this case to ensure that each parent would be appropriately supported by at least one member of their legal team and, in the case of the father, his intermediary if one or both of the parents chose not to attend the face-to-face hearing.
- Within this context, if the court was required to conduct a hybrid hearing of the type outlined above as a necessary contingency should the parents continue to refuse to attend the fully face-to-face hearing that had been arranged, he was satisfied that neither the father nor the mother would be denied a fair hearing if required to give their evidence from a remote location during the course of such a hybrid hearing.
- He bore carefully in mind that both parents objected to this matter being dealt with by way of a hybrid hearing as a contingency. He also accepted that the father in particular had difficulties with anxiety which the court was duty bound to address by reason of the requirements set out in FPR 2010 Part 3A. All parties accepted and the court had directed that the father have the services of an intermediary throughout the proceedings. “I am satisfied….. that this can be achieved even if the father is participating remotely.”
- Notwithstanding the father's vulnerabilities he was satisfied that in this case that it was possible to take steps to ensure that a hybrid hearing conducted as a contingency should the parents continue to refuse to attend the fully face-to-face hearing that had been arranged was conducted fairly. “In particular, it is clear from the information before the court that steps can be taken in this case to ensure that the parents can participate remotely in the company of one or more of their lawyers and, in the father's case, his intermediary at a location other than their home. The provision of the contingency arrangements canvassed at this hearing, whereby if the parents continued to refuse to attend the face to face hearing they could attend a location or locations away from their home but in Preston with at least one of their lawyers and, for the father, his intermediary will, I am satisfied, ensure that the parents have access to legal advice and support, can give instructions during the course of the hearing and can be supported to use the required technology to participate in the hearing.”
- Whilst it could be argued that this latter approach was not completely optimal when compared to the option of a fully face-to-face hearing in Preston, that argument fell to be evaluated against both the fact that the court had already set up a fully face-to-face hearing in Manchester and the length of the delay that would result in this case if the court adjourned the matter until such time as a fully face to face hearing could be effected in Preston. Balancing the effect of a delay until late 2020 and possibly early 2021 against the disadvantages of a hybrid hearing conducted as a necessary contingency in the event that the parents continued to refuse to attend the fully face-to-face hearing that had been arranged, he was satisfied that, provided the steps to ensure a fair hybrid hearing that he had outlined were taken, the consequences of that delay “far outweighs the disadvantages of holding, as a necessary contingency, the type of hybrid hearing I have described”.
- He reminded himself of the statutory requirement that all public law children cases are to be completed within 26 weeks and that any extension to the 26 week timetable must be necessary to enable the court to resolve the proceedings justly. “Within this context, I am not satisfied that it is necessary to adjourn the final hearing for a fourth time in order to achieve a just final hearing.” [judge’s emphasis]
Refusing the father’s application, the judge said: “In this case, the court is able to conduct a fully face to face hearing in a manner that addresses the parents' anxieties with respect to travel or, as a contingency if the parents still refuse to attend that hearing despite the provision of private transport, to facilitate a hybrid hearing in a manner that permits the parents fully and fairly to participate. I intend to retain those two options for the adjourned part heard final hearing which will proceed as currently timetabled.
“It is earnestly to be hoped that the parents will take advantage of the facility for private transport that will be made available to them to attend the fully face to face hearing that has been arranged in response to their contention that this case is not suitable for a remote hearing.
“If however, the parents continue to maintain their objection to travelling to Manchester, final arrangements will have to be made to implement the contingency plan of holding a hybrid hearing in which the parents attend remotely from an appropriate venue or venues in Preston. Investigations in this regard are well advanced and I will approve the final proposals in this respect in due course.”