The family court has transformed in the last few weeks due to the Covid-19 pandemic. Remote court hearings were once deemed futuristic but as with other public services, the courts have had to adapt. However, in this judgment (Re P (A Child: Remote Hearing)), Sir Andrew McFarlane sent a clear message that not all hearings will be suitable for remote hearing.

In summary, this case arose out of care proceedings for a 7-year-old girl. The care proceedings had lasted a year (during which time the child has stayed with her mother’s friend under an interim care order). Prior to that there were private law proceedings.

The local authority made allegations that this child had been caused significant harm as a result of fabricated or induced illness (‘FII’), based on:

  • A series of referrals to the GP.
  • Attendances and admissions at hospital.
  • What has been said or been seen by the school and school attendance.
  • Observations that the child has made to social workers and others.

There were a number of expert witnesses called for the final hearing, including a paediatrician, an adult psychiatrist, and an adult psychologist.

There had previously been some delays in reaching the final hearing, which contributed to the anxiety of the parties to have this final hearing heard remotely. On 3 April 2020, two weeks after lockdown had been announced, it was agreed by all parties at the pre-trial review that the final hearing would go ahead remotely.

Sir Andrew McFarlane comments that given the allegation of FII, “that category of case is a particular form of child abuse which requires exquisite sensitivity and skill on the part of the court.” He refers to the expert paediatrician describing it as “an extremely complicated case” and saying that FII is “an extremely unusual disorder” and that investigating it is “incredibly challenging”.

Importantly, Sir Andrew McFarlane states:

“it is a crucial element in the judge's analysis for the judge to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined in-chief and cross-examined, but equally when they are sitting in the well of the court and reacting as they may or may not do, to the factual and expert evidence as it unfolds during the course of the hearing.”

The point is clear. It’s not just what you say, it’s how you act in the courtroom. The non-verbal cues are important in determining issues in many court hearings.

In this case, further delays ensued when the mother suspected that she had contracted Covid-19.

At the hearing this judgment emerged from, the Local Authority were keen to proceed with a remote hearing. They stated that the allegations were well-rehearsed in documents, both witness statements and matters of record, as well as being well-known to the mother. It was noted that the witnesses were all professional, except the mother (and perhaps a refuge worker) and so an alternative may be to part-hear the hearing; listening to all of the experts now and the mother at a later in-person hearing. The local authority highlighted that the child is already suffering significant emotional harm by being held in limbo and putting this off to an indefinite date further harms her because of the inability to know her future.

The child’s father (who played no part in the FII part of the case) and the child’s guardian both agreed with the local authority.

There were concerns raised about mother’s ability to consult with her legal representatives during a final hearing. Sir Andrew McFarlane addresses the proposal that the mother could attend a neutral place (not her home) to be with her legal team at an appropriate social distance. However, he rightly comments that asking a barrister or solicitor to sit in a room with someone who suspects they have contracted Covid-19 is beyond what can properly be considered their duty.

Mother’s legal team remained concerned about her health. Whilst they accepted that she initially agreed to a remote hearing (on 3 April), this was shortly after lockdown and there was less appreciation for the difficulties that might be posed. Mother, therefore, opposed a remote hearing.

Sir Andrew McFarlane points to the guidance he issued on 27 March, which said:

"Can I stress, however, that we must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1 'the overriding objective'], part of which is to ensure that parties are 'on an equal footing' [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.”

Some factors were provided for considering whether a remote hearing should take place, these were:

  • Maintaining a hearing in order to avoid delay
  • Resolving issues for a child in order for her life to move forward
  • The resolution of the issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner
  • Local facilities
  • Available technology.
  • Personalities and expectations of the key family members.
  • The experience of the judge or magistrates in remote working.

He adds:

“It is because no two cases may be the same that the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance.”

The key factor for Sir Andrew McFarlane in this case was that whilst a judge may be able to deal with the remote cross-examination of witnesses, the judge needs to see all of the parties when they are in the courtroom, especially the mother.

He states:

“Although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge’s screen at any one time, it is a very poor substitute to seeing that person fully present before the court.”

In addition, he notes the assumption that the person’s link with the court is maintained at all times and choose to have their video camera on. He also recognises the concern raised that mother needs to have the real-time ability to instruct her legal team throughout the hearing not just a phone call at the end of each witness’s evidence.

This case was deemed unsuitable for a remote hearing. The overarching message is clear, remote hearings will not be appropriate for every case because it’s not just what the witness says, it’s how they act in the courtroom.

Alexandra Wilson is a barrister specialising in criminal and family law. Instructing solicitors have been impressed with Alexandra’s excellent client care, her meticulous preparation and advice. She represents clients with the utmost professionalism and proficiency and is often specifically requested by both professional and lay clients.