The court ruled on the basis of the father’s inability to engage properly with remote evidence and his being potentially exposed when giving evidence in front of the judge alone.
The case, Re A (Children) (Remote hearing: care and placement orders) [2020] EWCA Civ 583, which has been ongoing for a year, is the first case on the welfare of children and remote hearings to reach the Court of Appeal.
It was supposed to establish whether the father could again become the legal guardian of the four youngest children. It was listed for eight days at the end of March but could not go ahead as planned due to lockdown. The judge did not think it appropriate for a remote or hybrid hearing due to its length and the number of participants and witnesses involved. However, it was reinstated at the request of the children’s guardian on the basis further delay would jeopardise the youngest two children’s chances of being adopted if the judge ruled that they remain under the care of the state.
The Court of Appeal judgment notes that the father ‘is unused to reading… has a short attention span, is emotionally fragile and brittle and quickly becomes exasperated’. He would have to watch the proceedings on his wife’s iPad at his home, where his 15-year-old son also lived.
Giving his judgment, Sir Andrew McFarlane said: ‘When a lay party is required to attend court, but his or her advocate is not, the cause for concern at the imbalance in the process must be heightened.
‘Consideration must be given to the potentially exposed position of a witness giving live evidence in front of a judge in the absence of his or her lawyers or any of the other parties and in response to questions asked over a video link. The judge does not appear to have considered whether in this particular case it was reasonable to expect these parents to be placed in that potentially daunting position. When this is placed in the balance alongside the other factors which establish a lack of a fair process it gives them additional weight.’
Simon Heaney, barrister at St John’s Buildings (SJB), who represented the father, said: ‘Although many hearings can still go ahead at the moment―indeed SJB is carrying out around 110 remote hearings a day―it’s also important to acknowledge that hybrid or remote hearings are not suitable for every case.
‘In this ruling, the Court of Appeal has stressed the extreme difficulties currently facing judges. They must assess whether remote hearings are suitable when making vitally important decisions that can profoundly affect a child’s life and future.
‘It is important that any child is able to look back and be satisfied that the decision-making process was both thorough and fair. As a result of this appeal, analysis of what constitutes a fair trial will be undertaken on each ongoing adoption case, to ensure that every possible step is taken to ensure fairness to all.’
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