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.’
