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On 19^th October 2022, the Supreme Court handed down its much-anticipated judgment in Guest and another v Guest. Here the court addressed the proper basis for awarding remedies in cases of proprietary estoppel.

Background

“One day my son, all this will be yours”. These words were spoken on numerous occasions and repeated over the years from a father to his son. The son relied on this promise of inheritance spending thirty-two years working and living on the family farm, expecting, one day, to inherit the farm from his father. However, the relationship broke down to such an extent that not only do they now find it impossible to work together but they cannot live within close proximity of one another. The son had no alternative but to leave, find alternative work and rent accommodation for himself and his family elsewhere. Meanwhile, the father cut his son out of his will.

The facts of Guest and another v Guest differ somewhat from the typical example of this kind of case in that the father has two sons as well as a daughter. Therefore, it was not the whole of the farm that was promised but only a sufficient (but undefined) part to enable him to operate a viable farming business on it after the death of his parents.

The trial judge concluded that, until the falling out in 2014, the son was consistently led to believe that he would succeed to the farming business and inherit a substantial share of the farm. As to the remedy, the judge described his task as being to exercise a ‘broad judgemental discretion in an endeavour to do what is necessary to avoid an unconscionable result or, alternatively, to identify the minimum equity to do justice.’ The appropriate ‘clean break’ remedy was deemed to be an immediate lump sum payment to the son comprising:

1. 50% after tax of either the market value of the farming business (as valued in an expert’s report) of the value realised by a sale of the business in consequences of the judgment; plus
2. 40% after tax of either the market value of the freehold land and building at the farm or of the proceeds of sale in consequence of the judgment. In either case the farmhouse was to be treated as subject to a life interest in favour of the parents;
3. The amount payable to the son was to be net of any taxes payable by the parents on the sale of the business and/or farm.

The amount payable to the son was £1.3 million. Permission to appeal was granted only on the question of the remedy. The parents argued that the judge was wrong to fashion a remedy based on the son’s expectation of inheritance and should instead have awarded compensation based either on the extent to which the value of the farm had increased as a result of the son’s contribution or his loss of opportunity to work elsewhere.

Principles of proprietary estoppel

Underpinning this remedy is the principle that equity will not let A resile on a promise made without ensuring that B does not suffer detriment because of B’s reliance on it. The aim is thus to prevent detriment to B in the circumstances that have arisen. The estoppel is premised on the doctrine that equity is concerned to prevent unconscionable conduct, and it is that factor which determines whether an award should be made.

As the judgment of the Supreme Court sets out, there are two methods of achieving this aim. The first is to compel A to perform the promise (or award a sum of money calculated to put B into as good a position, as best money can do it, as if A’s promise had been performed). The other is to award a sum of money calculated to put B into as good a position, as best money can do it, as if B has not relied on A’s promise: in other words, to compensate B’s reliance loss. Since both methods will in principle achieve the aim of preventing detriment to B, if on the facts both are practicable the court should adopt whichever method results in the minimum award necessary to achieve that aim.

Or as Lord Briggs put it: ‘the issue which has divided academic opinion is as to the purpose of the equitable remedy. Is it to give effect to B’s expectation, so that B receives what he’s been promised? Or is it to compensate B for the detriment suffered in reliance on it, or is there some different purpose?’

The Court of Appeal

The appeal was heard on three grounds: 1. That the judge was wrong to hold that the appropriate approach to relief was to base the remedy on the son’s subjective expectations; the judge should have gone no further when granting relief than was necessary to avoid an unconscionable result and/or considered what the parents must, in all the circumstances, be taken to have intended in order to avoid and unconscionable result; 2. The relief granted went beyond what was necessary to avoid an unconscionable result, or, in so far as different, the minimum equity to do justice; 3. In so far as any equity is ‘anticipatory’, such that in the current circumstances it would be unconscionable for the parents not to make provision for the son, such equity can be satisfied by the making of a declaration or by the grant of injunctive relief.

The Court of Appeal applied the methodology used in Davies v Davies [2016] EWCA Civ 463. In this case, Lewison LJ suggested that ‘a useful working hypothesis’ was to apply ‘a sliding scale by which the clearer the expectation, the greater the detriment and the longer the passage of time during which the expectation was reasonably held, the greater would be the weight that should be given to the expectation.’ The Court of Appeal found that, although the assurances given to the son were given in broad, descriptive terms, there was no uncertainty of a kind that would assist the appellant parents.

The Supreme Court

The parents further appealed to the Supreme Court. Their argument was that the amount the son was to receive under the order was more than the amount of the detriment suffered and more than the net value of the contribution he made to the farming in excess of what he was paid.

In Jennings v Rice [2002] EWCA Civ 159, Lord Justice Walker put it this way: ‘The essence of the doctrine of proprietary estoppel is to do what is necessary to avoid an unconscionable result, and a disproportionate remedy cannot be the right way of going about that.’ There is no equitable power to give B more than A promised.

In giving the son 40% of the value of the farm now, the trial judge accelerated the date upon which the parent’s promise was to be enforced, as they may have many years to live. There should have been a discount for early receipt. As a clean break had already been achieved, it would not have been unconscionable to place the farm on trust. Thus, the parents should be entitled to choose between two forms of relief: the first being a clean break, as set out by the trial judge, but discounted for early receipt. The second being a reversionary interest under a trust of the farm, with the parents having a life interest in the meantime.

Comment

In this case, given the fact that both parents were still alive, an allowance should have been made for acceleration. For example, if the parents were to fall ill or require care services later in life, the promise made to the son would have precluded them from using some of their assets to pay for this. In re-assessing the detriment suffered by the son, the court chose to estimate his reliance loss. The objective was to place the son, so far as money can do it, in as good a position as if he had not built his career on the promises made by his father. Given the typically high capital values of farmland, it was likely the land would be worth far more than any value of detriment in this case. The parties both sought a clean break, and the son was awarded £610,000 as equitable compensation.

The judgment in Guest and another v Guest illustrates the importance of checking, prior to granting a remedy, that the remedy will not be out of proportion to the value of the detriment suffered by the claimant.

Adam Jones

FACTS

Sharon Horohoe (W) and Ciaran Horohoe (H) married in 1994 but in 2010 decided to go their separate ways. They had accrued a number of sizeable assets over the past two decades and in 2012 they negotiated an agreement, with the help of a family friend, as to how their assets were to be divided.

This agreement involved W receiving the former matrimonial home and a number of rental properties, whilst H would receive the remaining rental properties and two companies through which he operated as a carpenter and property developer. At the time, the parties believed that the companies held no monetary value, though did not get any valuations.

The agreement was drawn up into a document. W did take this document to a solicitor who advised her not to enter into the agreement without proper valuations, however she chose not to proceed with the agreement in any event.

Over the next few years the properties were transferred, with W receiving properties with a total value of circa £1.82 million, and H £1.14 million.

In 2019 W petitioned for divorce and made an application for financial remedies pursuant to the Matrimonial Causes Act 1973. She claimed that the agreement reached between the parties some 7 years earlier was neither fair nor binding, particularly given that the total pot was now worth over £10 million. H’s companies had expanded considerably since the negotiations and W now sought a further £5 million capital contribution from him. W also claimed that H had ‘cheated’ her at the time of separation and provided erroneous valuations for his company.

W made play on the fact that the document containing the agreement reached in 2012 included the following terms;

‘This proposal has been prepared following meetings with both parties independently and is of course, still open for further discussion amongst the parties pending final agreement’.

W’s argument was that these words negated the possibility that the document could possibly record a final agreement.

DECISION

Holman J found that a binding agreement had been reached between the parties;

‘I am quite satisfied that the agreement was freely entered into by both parties. They were both of full and mature age, and full capacity, and of similar and good intelligence. As I have already commented, of the two, the wife was more numerate. Neither was in a dominant position, and neither exploited their position to gain an unfair or unreasonable advantage over the other’ [91].

As to the wording of the document drawn up in 2012, Holman J agreed that at the time that the agreement was written, either party could have initiated further discussion and if they had done so, that very document would not have contained a final agreement. However, neither party did so, and in fact both parties began implementing the terms of the agreement over the following years. Holman J did not consider it necessary to date when the agreement became final, save to say that it happened prior to W’s financial remedy application.

Despite holding that there was indeed a valid concluded agreement between the parties, different considerations applied to the treatment within the agreement of H’s company and its assets.

H’s contention in 2012 that the company was essentially worthless was incorrect. It was concluded that at the time of separation, the value of the company was in fact at least £1.5 million, of which W ought to have received a half share.

However, Holman J did not agree with W’s contention that H had ‘cheated’ her when he expressed that there was no value to the company in 2012. Instead, he concluded that H was genuinely mistaken as to the company’s true value. Given the fact that W had no real involvement in the company for several years at the point of separation, Holman J found that she was justified in trusting H’s belief in the company value, and therefore W had not failed in respect of not getting a proper valuation.

Holman J did note that at the time of the agreement, the company’s value was volatile and unpredictable, and this played a part in W receiving a greater share of the property. He therefore considered a fair share of the business at that point to W to be £600,000.

Although the rest of the agreement was to stand, for the reasons given above, H was ordered to pay W a further lump sum of £600,000 to remedy any unfairness she faced as a result of the mistaken valuation.

 

Lessons Learnt

The case acts as a caution to parties who attempt to reach agreements without fully exploring the worth of the assets involved. Had W undertaken a proper analysis of the company’s value at the time, she would have ended up with a greater share of the pot, and would not have been engaged in lengthy litigation years later. It also serves as a reminder of the court’s willingness to uphold agreements reached between parties, even if the court may have come to a different conclusion had they been the decision makers at the time.

 

Sophie Cole

On the 21^st July 2022 Sections 65 and 66 were introduced into the Domestic Abuse Act 2021 and apply to the family and civil courts in England and Wales. The effect of these provisions is to prohibit perpetrators and alleged perpetrators of abuse from cross-examining their victims in person and vice versa in specified circumstances.

The provisions are not retroactive, and as such shall only apply to proceedings which are brought on or after the 21^st July 2022. In instances where cross-examination is required, the court may appoint a qualified legal representative who shall conduct the cross-examination instead of the prohibited party. Qualified legal representatives can include barristers, solicitors and CILEX practitioners.

It is widely acknowledged that cross-examination by a perpetrator can potentially diminish the quality of the evidence that a victim gives in court. Furthermore, it can also be a method of perpetuating forms of abuse against a victim, which in turn can cause them further trauma and distress. It is anticipated that the implementation of these measures shall help to protect vulnerable victims whilst they give evidence in court whilst also ensuring that their Article 6 rights are not compromised.

Hannah Scott

Mr Justice Peel and His Honour Judge Hess, with the authority of the President of the Family Vision, have published an amended document titled “Overall Structure of the Financial Remedies Court and the Role and Function of the Lead Judge”. The document represents one of the constitutional documents of the Financial Remedies Court.

The amendments are new paras 12(iii) and (iv) which appear between 12 (ii) and old 12(iii). They provide: first, for  prospective new FRC judges to receive such training and sitting in as may be required by the National Lead Judge of the Financial Remedies Court and the Judicial College; second, that once authorised to sit in a FRC zone, a new FRC judge shall be entitled to hear financial remedies cases in any other FRC zone; and third, that a fee paid judge authorised to sit in the FRC shall be entitled to carry that authorisation over into a full time judicial appointment.

The amendments have been carried out to clarify training requirements and the scope of FRC authorisation.

For the document “Overall Structure of the Financial Remedies Court and the Role and Function of the Lead Judge”, click here.

Supreme Court remits care proceedings for re-hearing following proportionality failings  

H-W (Children) No 2 [2022] UKSC 17

On 15 June 2022, the Supreme Court gave judgment in an appeal concerning ‘the proportionality of care orders made in relation to three children and appellate review of those orders.’ Dame Siobhan Keegan gives the judgment, with which all the other members of the Court agree.

Facts

The Mother (first appellant) has 6 children, including C (aged 14), D (aged 11), E (aged 9) and F. The second appellant was the mother’s partner, who is also F’s father. This case had a long history of Local Authority involvement, primarily due to the mother suffering from domestic abuse in the past and concerns of neglect. Proceedings were issued with the Local Authority seeking to take C, D and E into its care, placing them into separate foster homes and for F to be adopted. The catalyst for proceedings was domestic abuse concerns, perpetrated by the children’s older brother, A, who is described in the judgment as a ‘troubled young man.’

The Local Authority’s application for an Emergency Protection Order to remove C, D and E was refused and a non-molestation order was made against A, preventing him from entering the family home. It was expected that the Mother would ensure A did not enter the family home or be unsupervised around the children.

First instance decision

The Judge at first instance made findings that E had been sexually assaulted by A, but that this was not reported to social services until a few days later. Therefore, it was found that the appellants failed to protect the children and delayed reporting the assault. Care orders were made in respect of C, D and E on 26 July 2021 after a six day hearing and the decision regarding F was postponed. These proceedings included evidence from 10 witnesses, including the guardian who noted that the Mother had a “blind spot in respect of A”.

Court of Appeal

The first instance decision was upheld on 7 October 2021 by a majority (Peter Jackson LJ dissenting).

“The tension between the majority and the minority in the Court of Appeal emerges from the foregoing passages. Jackson LJ raises the adequacy of the proportionality review actually undertaken by the judge and questions whether or not all options were fully considered. The majority, whilst respecting this view, have focussed on their view of the limits of the appellate review and the deference to be afforded to the judge who heard and saw the witnesses and had conduct of the case for some time.” [31]

“Both of these perspectives are understandable in family law terms and of course raise issues as to the correct approach to be taken on appeal. All of the appeal judges refer to the profound effects of decisions taken to remove a child into public care. In this case three children who have never been outside parental care may be removed and one very young child may face adoption. Hence, it is imperative to scrutinise with care the decision made in relation to their future” [32]

Supreme Court

Grounds of appeal

• In order to decide whether those orders were proportionate, was it necessary for the judge as a matter of law to assess the likelihood that if left in M’s care;

1. the children would suffer sexual harm;
2. the consequences of such harm arising;
3. the possibility of reducing or mitigating the risk of such harm;
4. the comparative welfare advantages and disadvantages of the options presented.

• whether the judge erred in law by failing to make any or any proper assessment of those matters

“In outlining the contours of these appeals it is important to state that the appellants do not seek to challenge the primary factual findings made by the judge. They do not argue that his assessment of the risk of harm to the children in their mother’s care was wrong. Rather, they say that the judge erred in failing to consider the proportionality of the orders he made by balancing the risk of harm to the children in the care of their mother with the harm the children would suffer should they be removed from her care and from each other, to separate placements with limited contact with their family and against their clear wish to stay at home.” [6]

The Supreme Court unanimously allowed the appeal and remitted the case for a re-hearing.

Reasoning

The Court found that the first instance Judge had erred in law by failing to make a proper assessment in reaching his decision.

“The judge’s treatment of the facts and the evidence was thorough. He undoubtedly directed himself that his orders were required to be proportionate. However that is not the end of the matter. The difficulty is that one looks in vain for the critical side-by-side analysis of the available options by way of disposal, and for the evaluative, holistic assessment which the law requires of a judge at this stage. Whilst the judge has identified the risk of sexual harm as satisfying the threshold criteria for intervention, there is no evaluation of the extent of the risk of significant harm by way of sexual harm, nor of any available means by which the risk might be reduced for each child. Nor is there any comparison of the harm which might befall the children if left at home with the harm which would be occasioned to them if removed, and separated not only from the parents but from each other.” [60]

“It follows that the decision was insufficiently founded on the necessary analysis and comparative weighing of the options. In the absence of the evaluative analysis which is required this appellate court cannot determine whether the orders made were proportionate and necessary. That being so, it was premature to ask, as Lewison LJ did, whether the order was one which he could say was right or wrong.” [61]

Pietra Asprou

The Marriage and Civil Partnership (Minimum Age) Act 2022 has received Royal Assent, increasing the minimum age of marriage and civil partnerships in England and Wales from 16 to 18 years. The Act makes these changes by amending the Marriage Act 1949 and Civil Partnership Act 2004.

Prior this Act, individuals aged 16 or 17 could enter into a marriage or civil partnership with parental or judicial consent. The new Act raises the age with the aim of combatting child marriage – statistics reveal that in 2018, 147 individuals aged 16 or 17 were married in England and Wales, however this only includes registered ceremonies.

The amendment is in accordance with the UN Committee on the Rights of the Child’s recommendation that no one should be able to marry before they reach the age of 18, even with parental consent. Additionally, the UN Sustainable Development Goals require all countries to “eliminate all harmful practices, such as child, early and forced marriage and female genital mutilations by 2030.”

Further, the Act makes it an offence if a person:

‘carries out any conduct for the purpose of causing a child to enter into a marriage before the child’s eighteenth birthday (whether or not the conduct amounts to violence, threats, any other form of coercion or deception, and whether or not it is carried out in England and Wales)’

The Bill can be viewed here.

Summary

In a bid to clarify any prior misunderstandings, the Court of Appeal has provided guidance as to when fact-finding hearings in private family law proceedings are required when allegations of domestic abuse are raised. The case of K and K [2022] EWCA Civ 468, which was handed down on the 8^th April 2022, highlights that the court is not obliged to hold a fact-finding hearing in every case where domestic abuse is alleged. The decision, which follows on from the seminal case of Re H-N (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, instead makes it clear that the court ought only to embark on a fact-finding hearing if “the alleged abuse is likely to be relevant to what the court is being asked to decide relating to the children’s welfare”[para 8]. Moreover, the court has also sought to emphasise in its judgment “the importance of the requirement in rule 3.3(1) for the court to consider, at every stage in proceedings, whether non-court dispute resolution is appropriate”[para 34].

Facts

The father and mother married in 2005 and later separated in August 2017, during which time they had three children together. The father was having regular unsupervised contact with the children until disagreements occurred between the parents. This prompted the father to make an urgent C100 application which complained of parental alienation and sought to formalise weekend and holiday contact with his children. The urgent nature of the application was due to the fact that Christmas was approaching thus enabling him to successfully by-pass the MIAM. The mother subsequently filed a C1A form alleging minor allegations against the father, but which did not object to his unsupervised contact with the children. A safeguarding letter produced by CAFCASS prior to the FHDRA later raised allegations of rape and the court was invited to conduct a fact-finding hearing. Save for two issues, the judge found each of the allegations proven against the father, and the father subsequently appealed. The father submitted that the judge had not considered parental alienation and that the factual findings failed to “take into account the bigger picture.”[para 2]

Non-court dispute resolution

The court notably referred to it as “unfortunate”[para 6] that the parties did not attend a MIAM and that had they done so the “issues between the father and mother that concerned the logistics of the father’s contact might have been speedily resolved before the inevitable trauma caused to the family by the fact-finding process”[para 6]. The court went further to state that “the father ought to have been required to engage with the MIAM process”[para 35] which is a requirement pursuant to Section 10 of the Children and Families Act 2014. Furthermore, in relation to the FHDRA, the court highlighted how its “essential purpose is as an opportunity for judicially led dispute resolution” [para 37] and emphasised the importance of “proper consideration being given to the possibility of non-court dispute resolution at the FHDRA”[para 40]. The reasoning of the court reflects the importance of engaging in non-court dispute resolution and how the “trauma”[para 6] of the fact-finding process in this case may have been avoided had the parties endeavoured to reach an early settlement on the issues.

Fact-finding hearings

The court echoed the decision laid out in Re H-N by highlighting that the judge ordering a fact-finding hearing should identify “at an early stage the real issue in the case in particular with regard to the welfare of the child”[para 8]. The court reinforced this point by referencing FPR PD12J in its judgment which provides that “[t]he court must ascertain at the earliest opportunity … whether domestic abuse is raised as an issue which is likely to be relevant to any decision of the court relating to the welfare of the child.”[para 8]=

Furthermore, the court helped to clarify the position by stating that the main things a court should consider when deciding whether to order a fact-finding hearing are:

“(a) the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of the child arrangements order,

(b) that the purpose of fact-finding is to allow assessment of the risk to the child and the impact of any abuse on the child,

(c) whether fact-finding is necessary or whether other evidence suffices, and

(d) whether fact-finding is proportionate.”[para 66]

Outcome

The court held that the appeal ought to be allowed and the case is to be remitted to a Circuit Judge to decide on whether a fresh fact-finding hearing is required in light of the principles laid out in Re H-N and this judgment. The court based its decision on inter alia the failure to engage in non-court dispute resolution and a lack of focus afforded to the children’s welfare when deciding both to undertake a fact-finding hearing and whilst considering the allegations.

To conclude, this guidance ought to be welcomed as an attempt to clarify the position relating to fact-finding hearings when domestic abuse is alleged. It also serves as a strong reminder that attempts to engage in non-court dispute resolution and focussing on a child’s welfare are of paramount importance in the context of private family law proceedings.

The full judgment can be found here.

Hannah Scott

Sir Andrew McFarlane, President of the Family Division, has issued new guidance for judges and magistrates in respect of fact-finding hearings in Private law children proceedings. The guidance stresses the importance of determining allegations of domestic abuse only in circumstances where these are relevant to and necessary for the Court’s decision regarding the welfare of the child.

https://www.judiciary.uk/wp-content/uploads/2022/05/Fact-Finding-Hearings-and-Domestic-Abuse-in-Private-Law-Children-Proceedings.pdf

The end of the “blame game” for divorce proceedings?

On 6 April 2022, the Divorce, Dissolution and Separation Act 2020, which reforms the divorce process to remove the concept of fault, came into force. The implementation of this Act was long-awaited and will now introduce no-fault divorces to England and Wales.

This piece of legislation:

1. Replaces the five grounds for divorce and allows couples to divorce without assigning fault;
2. Removes the possibility of the other party contesting the divorce;
3. Introduces an option for a joint application; and
4. Makes sure that the language used is in plain English, for example by changing “decree nisi” to conditional order, “decree absolute” to final order and “petitioner” to applicant.

These developments will apply to the dissolution of civil partnerships too.

The benefit of this piece of legislation is that it will end the need for couples who decide to separate to apportion blame for the breakdown of their relationship and move towards what is now known as a “no-fault” divorce.

Previously, divorce law required one party to show unreasonable behaviour, adultery, or desertion. If none of these reasons could be proved, the separating couple would face years of living apart before they could be granted a divorce. At the time, it did not matter whether the couple had made the mutual decision to separate.

The update to the law now means that one spouse, or the couple jointly, can apply for a divorce by simply stating that their marriage has broken down irretrievably.

This development will be particularly beneficial to victims of domestic abuse, who have previously faced being trapped in their abusive relationship by their partners who have been able to contest the divorce.

The divorce applications can be made online, which avoids the postal delays.

The Act also introduces a new minimum timeframe of 20 weeks between the start of proceedings and when individuals may apply for a conditional order of divorce. This allows a period of reflection, or alternatively a period of getting other affairs in order (children, finances, and property), before the decision is finalised.

After six weeks has elapsed from the date of the conditional order, an application can be made for a divorce or dissolution final order, unless the parties are in the process of resolving financial matters.

Rachel Norgate

Please refer to the below Practice Message, dated March 2022, from Her Honour Judge Gordon-Saker, Lead Judge of the FRC for NES BCH.

Practice Message from the NES BCH Financial Remedies Court March 2022

The President of the Family Division has issued guidance regarding liaison between courts in England and Wales and British Embassies and High Commissions abroad.

Please find a link to download the guidance here. This replaces the previous version dated April 2016.

BY v BX [2022] EWHC 108 (Fam)

On 20 January 2022, the Family Division of the High Court (Cobb J) gave judgment following a five-day fact-finding hearing. In these Children Act proceedings, both parties made cross-allegations of domestic abuse. The proceedings were remitted by the Court of Appeal to the High Court following the conjoined appeals in Re H-N [2021] EWCA Civ 448, where this case was known as B-B.

Facts

The parties began their relationship in August 2015 and have one child, Jane. The mother said in her witness statement that this was her first serious relationship and that she had ‘no real understanding of what it was like to be in a relationship, what to expect from a partner and what was normal’. The Parties separated in May/June 2017 and the evidence of both parties reveals they had a volatile relationship from the outset.

Jane lived with her mother and did not see her father for large periods of time. Both parties issued Children Act proceedings in July 2018 and directions were made for a fact-finding hearing in respect of the parties cross-allegations. Between July 2018 and August 2019, the matter was listed for trial and adjourned on approximately five occasions.

This was the seventh time this case had been listed for a fact-finding, following judicial unavailability, legal aid difficulties and additional allegations made by the mother.

The Allegations

“18. The mother alleges that during the relationship the father abused alcohol, cannabis, and cocaine and that, on one or more than one occasion, he forced her to take cocaine; that he controlled her financially, relying on her income to support him; that he was repeatedly verbally, physically and sexually abusive towards her; that he was controlling in a number of ways, that he wanted to know where she was at all times and that he was unsupportive, unfaithful (conducting relationships with other women) and in many respects irresponsible.

19. It is the father’s case that the mother was verbally and physically abusive towards him; he alleges that she was mentally unstable in that she often threatened to harm herself with medication and knives. He asserts that she was obsessive about him – repeatedly accusing him of cheating and checking his phone; he maintains that she was violent with Jane; that she drank excessively and had taken cocaine on two occasions, once when pregnant with Jane.”

Judgment

At the start of his judgment (para 7), Cobb J emphasised the importance of ‘strict adherence to orders’ and ‘efficient management of family hearings’, following what he termed ‘casual adherence’ to the court-ordered directions by the solicitors for the mother. Cobb J referred to the paragraphs 43-47 of the President of the Family Division’s ‘Road Ahead’ guidance, which were reprised in Re H-N at paragraphs 56-57.

It was also noted:

“13.     Fact-finding in cases concerning alleged domestic abuse are almost always time-consuming and challenging for judges and magistrates; the responsibility placed on the lay and/or professional judiciary to conduct a fair, thorough and above all a considerate and respectful hearing is indeed “weighty”, particularly where the factual issues are often complex, emotions are invariably raw, and the stakes are so high. The exercise in which I have been engaged, as many judges up and down the country daily are involved, is “neither an easy task nor a precise science”. It is right that these challenges are fully recognised by those who have a responsibility for resourcing the family justice system. I recognise that I have been afforded the indulgence of time (five days) to hear this case, and have been fortunate that both parties have been ably represented. I am more than conscious that many judges, coping with extensive and difficult lists, have much less time for these hearings, and must manage the challenges which arise in dealing with unrepresented parties. For all these reasons I wish to emphasise the imperative for judicial continuity in cases of domestic abuse.”

Approach to fact findings

In paragraph 6 of his judgment, Cobb J states that the hearing and preparation of his judgment highlighted the following [emphasis added]:

“i)     The benefit of considering the evidence relevant to each different form of alleged domestic abuse in ‘clusters’: thus, it was useful to ‘cluster’ the evidence which went to the issue of alleged physical abuse; separately I considered the evidence of the allegations relevant to sexual abuse, separately emotional abuse, separately financial abuse and so on. Inevitably, the evidence relevant to each form of abuse overlapped in places, but in looking at the evidence by reference to the different forms of alleged abuse, a picture was built up of the nature of the relationship under scrutiny, and it was easier to see whether patterns of behaviour emerged. This may not have been so apparent had the matters been looked at by reference to individual / free-standing items on a Scott Schedule. I accept the Court of Appeal’s view that it is the cumulative effect of individual incidents within each of those clusters of abuse-type, and of each type of abuse on the other, which give the clearest indication of the experience of abuse;

1. ii) The importance of resolving these issues close in time to the events in question; this hearing took place between three and five years after the key events. The delay in resolving the issues has compromised the quality of the evidence itself, and the delay has inevitably taken a toll on the litigants who have not been able emotionally to get on with their lives;

iii)     The need for flexible arrangements to ensure that participation directions (rule 3AA FPR 2010) truly meet the needs of the parties and the case; the increased use of ‘hybrid’ hearings over the last 18 months (for all types of hearing in the family court) provides a useful template which worked well in this case;

1. iv) The need for advocates to focus on those issues which it is necessary to determine to dispose of the case, and for oral evidence and/or oral submissions to be cut down only to that which it is necessary for the court to hear;
2. v) The evidence of the principal parties is always likely to be far more valuable than the evidence of supporting witnesses; at the case management stage, judges should rigorously test with the parties and/or their advocates (and review for themselves) what (if any) real value is likely to be brought to the enquiry by the evidence of third parties;
3. vi) The importance of judicial continuity in domestic abuse cases; unsurprisingly, I had no prior connection with this case before it was remitted for hearing by the Court of Appeal. But it struck me as I considered the case management of this case prior to the hearing, and indeed as I listened to the evidence itself, that continuity of judicial involvement would have enhanced the efficient and sympathetic management of the process;

vii)     That an abusive relationship is invariably a complex one in which the abused partner often becomes caught up in the whorl of abuse, losing objective sense of what was/is acceptable and unacceptable in a relationship. Like many abused partners, the mother in this case became immunised to the emotional volatility of the damaging relationship which she saw as normal and acceptable; like many abused partners, she clung to what she knew.”

General principles of law (paras 24-30)

Cobb J provided a summary of the general principles of law surrounding allegations of domestic abuse in paragraph 26 of his judgment [emphasis added]:

“i)     The burden of proof lies, throughout, with the person making the allegation. In this case, both the mother and the father make allegations (in some respects overlapping) against each other on which they seek adjudications.

1. ii) In private law cases, the court needs to be vigilant to the possibility that one or other parent may be seeking to gain an advantage in the battle against the other. This does not mean that allegations are false, but it does increase the risk of misinterpretation, exaggeration, or fabrication;

iii)     It is not for either parent to prove a negative; there is no ‘pseudo-burden’ on either to establish the probability of explanations for matters which raise suspicion;

1. iv) The standard of proof is the civil standard – the balance of probabilities. The law operates a binary system, so if a fact is shown to be more likely than not to have happened, then it happened, and if it is shown not to cross that threshold, then it is treated as not having happened; this principle must be applied, it is reasonably said, with ‘common sense’
2. v) Sometimes the burden of proof will come to the judge’s rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But, generally speaking, a judge ought to be able to make up his/her mind where the truth lies without needing to rely upon the burden of proof;
3. vi) The court can have regard to the inherent probabilities of events or occurrences; the more serious or improbable the allegation the greater the need for evidential ‘cogency’;

vii)     Findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation; it is for the party seeking to prove the allegation to “adduce proper evidence of what it seeks to prove”;

viii)     The court must consider and take into account all the evidence available. My role here is to survey the evidence on a wide canvas, considering each piece of evidence in the context of all the other evidence. I must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the person making the allegation has been made out to the appropriate standard of proof;

1. ix) The evidence of the parties themselves is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability;
2. x) It is, of course, not uncommon for witnesses to tell lies in the course of a fact-finding investigation and a court hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. I am conscious that the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720); I have borne firmly in mind what Lord Lane CJ said in Lucas, namely that:

“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.”

1. xi) That my function in resolving disputes of fact in the family court is fundamentally different from the role of the judge and jury in the Crown Court. As the Court of Appeal made clear in Re R [2018] EWCA Civ 198:

“The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge may inform the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established” ([62] Re R).

A point which I myself considered in F v M [2019] EWHC 3177, in a judgment which was referenced with approval in Re H-N (see §69/70).

xii)     At all times, I must follow the principles and guidance at PD 12J of the Family Procedure Rules 2010.”

Evidence

The court found the mother to have been ‘naïve, unworldly, and in the circumstances a vulnerable young woman’. Cobb J noted that when giving evidence, the mother was ‘very confused over the dates, and the sequence, of certain events’. Cobb J did not share the view of the father that this was because the mother was lying but believed this could be attributed to genuine confusion, ‘possibly because of the passage of time since the events occurred, and possibly because of the intense emotional and possibly psychological turmoil associated with them’.

“38. Although her distress was and is almost certainly rooted for the main part in the fact that she has been required in this fact-finding hearing to relive her experiences in her relationship with the father, its breakdown and its aftermath, her distress was not in my finding all attributable to the father. I am satisfied that she was truly intimidated by the family court process, and in all likelihood carried with her considerable distress from her earlier experience of a family court hearing (August 2019) in which the judge threatened the removal of her child, and whose utterances essentially founded her successful appeal to the Court of Appeal”

Nonetheless, Cobb J did not accept the mother’s evidence in entirety, for example he found that the mother minimised her use of drugs and alcohol. However, he stated:

“43. Having indicated in the previous four paragraphs the features of the mother’s evidence which I have found less than satisfactory, I confirm that it is not of course at all uncommon for witnesses to tell lies, and I know that I must look at each aspect of the evidence carefully; lies told on some but not all issues should not cause the rejection of their entire testimony (see what I said above at §26(x)). I find that the mother’s minimisation of her drinking and drug-taking was probably caused by embarrassment. It may be that she realised the hypocrisy of criticising her own mother for excess drinking. Further, it seems likely that she thought that it would serve materially to discredit her in the eyes of the court; perhaps she did not wish to acknowledge that conduct to her own family who she knew were to take part in this hearing. I find that other aspects of her false testimony were motivated by a wish to demonise the father before the court, to bolster her case.”

The court found the father to be ‘an articulate and ostensibly self-disciplined man, whose evidence was polished and clear.‘

“51. During his evidence, he was anxious to score forensic points about the mother’s lack of credibility, and I was increasingly convinced that he did so in part to distract the court from assessing his own evidence and his account of himself. While the ‘defence’ of asserting and maintaining bald denials to matters raised against him is not always easy, I found him to be unconvincing in this exercise. Moreover, he showed minimal empathy in his evidence, for the mother who, on any view, was obviously very distressed; he was brazenly self-justificatory in his explanations of his own behaviour. He showed little insight or contrition in relation to the incidents which had led to the disciplinary process in his prior employment which I consider below.”

Findings

The mother’s allegations

The mother invited the court to consider the father’s disciplinary history at work as probative evidence of the allegations, however the court declined to find this evidence as determinative of the issues in the case. Although it was noted that they ‘lend support for the contention that the father is a man who has a history of inappropriate attitudes towards vulnerable females, and of crossing personal boundaries with such vulnerable people.’

The court considered the mother’s allegations under five subject headings: emotional control/coercion, physical abuse, infidelity, financial control, and sexual abuse.

Emotional control/coercion

“66. I am satisfied on the evidence that the father did indeed repeatedly allege that the mother suffered from bipolar disorder; I further and significantly find that there was no clear medical evidence that she did suffer such a condition…I find that the father made this purported diagnosis in an attempt to characterise her to third parties as mentally unstable and/or unreliable; I find that it was immensely disparaging and undermining of the mother, damaging to the mother’s self-confidence and self-esteem, and caused her to doubt her own mental health (“he made me believe that I was mentally unwell …Dr. Proudman’s use of the term ‘gaslighting’ in the hearing to describe this conduct was in my judgment apposite; the father’s conduct represented a form of insidious abuse designed to cause the mother to question her own mental well-being, indeed her sanity.”

Physical abuse

There was insufficient material to make findings of physical abuse, although the father was found to have taken advantage of the mother’s vulnerability and manipulated the events when she was intoxicated at a barbecue.

Infidelity

The mother alleged that the father had degraded her by being unfaithful. Although this was not proved, Cobb J stated that the father had ‘a chauvinistic attitude to the mother and to their relationship’ which he found ‘underpinned much of his attitude, and his lack of sensitivity, towards her.’

Further it was found,

“72. It seems likely, on the evidence that I have seen and heard, that the father had sexual relations with the mother in 2018 after he had commenced a relationship with a woman who is now his fiancée; this was at a time when the mother was still craving a resumption in her relationship with the father (and she had no relationship with anyone else). I find that the father knew that the mother wished to rekindle the relationship, and by having sexual intercourse with her at this time he wrongly led her to believe that he still had feelings for her. This also illustrates the father’s lack of moral code and his capacity to prey on those who he sees as vulnerable.”

Financial control

“76. I am satisfied that the father was thoughtless and uncaring about taking money from the mother but am not satisfied that he abused her financially to the extent that she claims. However, I do note that during a period in which the father was making no financial contribution for the upbringing of Jane and indeed was in arrears, he made at least two trips to Uganda, ostensibly for family events. Contemporaneous social media messaging suggests that the father was planning to enjoy, while in Uganda, “a few weeks of absolute degeneracy… breaking the laws of decency one party at a time…”. Though he claims that his family funded the trips, this provides a very strong clue about the father’s financial irresponsibility, his lack of empathy for the mother, and his general absence of moral integrity.”

Sexual abuse

“82. Although the mother’s account of sexual abuse is in some respects lacking in detail, is in some respects inconsistent with what she told the police, and is plainly inaccurate on dates, I am satisfied on the evidence which I have received that:

1. i) On occasions the father forced himself on the mother for sexual intercourse, uncaring whether she was consenting or not; this sometimes happened after arguments, as a false display from the father that ‘all was forgotten’;
2. ii) The father initiated ‘rough sex’ with the mother; I reject the father’s account that the mother had initiated this. I am satisfied that it was for his own gratification. The mother was a vulnerable and naïve woman who was inexperienced in relationships and inexperienced sexually. Both parties told me (and I accept) that the mother was self-conscious about her body. All these factors lead to me to the conclusion that sexual intimacy which involved physical abuse of the mother (‘rough sex’) was initiated by the father and was probably not consensual;

iii) The father at times expected the mother to give him oral sex; materially, he told me that he knew that she did not enjoy this experience, but he regarded it as a ‘treat’ for himself;

1. iv) I am not satisfied that the mother overtly or clearly protested at the father’s sexual demands at the time. She was desperate for the relationship to succeed and did not question his conduct in this regard until much later. The delay in voicing her unhappiness, and reporting it to the police, is likely in my judgement to be attributable to a combination of her lack of appreciation that her experience was not ‘the norm’, coupled with shame and embarrassment.”

The Father’s allegations

The father’s allegations involved verbal abuse, physical abuse and controlling behaviour of the mother, in particular that the mother used contact as a form as control.

“84. Verbal abuse: It is of note that the mother does not deny that she has at times been verbally abusive to the father during arguments, but asserts that she was only ever acting in a retaliatory way; she accepted that she had shouted at him so as “to defend myself”. I am not persuaded that the mother ‘abused’ the father verbally any more than he ‘abused’ her in this regard. Both parents were verbally abusive to each other at times, and it would be wrong for me to ascribe blame to one rather than another.

85. Physical abuse: I am satisfied on the evidence that, when drunk or under the influence of drugs, the mother was physically abusive towards the father, and on at least one occasion (May 2017) threatened him with violence using a knife. I am satisfied that she threw water over the father in July 2017, and punched and kicked the father in the following year when he told her that he would not reconcile with her. I emphasise that these incidents occurred when the mother was drunk, and in a heightened state of arousal.
86. 1 May 2017 specific incident: The father referenced the events of 1 May 2017 to illustrate his case that the mother had been abusive towards him. On 1 May 2017, the mother and father had a night out to celebrate the father’s birthday; I find that the father was (as the mother alleges) inattentive to the mother, and flirted with other women. The evidence reveals that the mother became drunk (she was later described by the police as “highly intoxicated” and incoherent), and on return home, she was angry, and they argued; she behaved irrationally and aggressively and threatened the father. I am satisfied that the parents were verbally abusive to each other; I am satisfied that the mother pushed over a television in the argument; I am satisfied that the mother threatened the father with a knife. The father called the police and quite wrongly told them that the mother suffered from a bipolar condition. I do not regard this incident as illustrative of “domestic abuse” of the father by the mother; I find both were responsible for the ugly scene and their behaviour towards each other.”

“93. Control: The father complained that the mother would constantly monitor his whereabouts and be demanding of him; I have seen the phone records which shows that she often tried repeatedly to phone him while he was at work; she texted him often in increasing state of agitation requiring his attention. The mother was forced to accept this, and further accepted that on occasion she threatened to harm herself; she described this as a Cri de Coeur. I find that the mother did indeed become paranoid about the relationship. She was desperate to cling onto the relationship, albeit that it was – as she now sees in hindsight – a thoroughly dysfunctional and unhealthy one.”

Conclusions

The court was clear that each incident alleged was treated as a part of a wider pattern of alleged domestic abuse:

“94.     I have been careful to consider the evidence relevant to each specific incident to which my attention was brought; but I have treated the incidents not as ‘free-standing’ events but as part of a wider pattern of alleged abuse or controlling or coercive behaviour. In this judgment, I have not sought to deal with every argument or detail of the case; it has not been possible to do so. I proceed, as the Court of Appeal contemplated I should, on the basis that the court should consider whether a pattern of coercive and/or controlling behaviour can be demonstrated on the evidence, and have not merely focused on any singular particular factual incident (see Re H-N §31).”

Cobb J concluded that the evidence clearly revealed a ‘power imbalance’ in their relationship and that the father was manipulative of the mother, which tapped into her vulnerability, causing her severe anxiety, depression and trauma.

Further, Cobb J noted that in light of his findings, he must consider the impact the abuse has had on the mother and Jane. Following this, the court should then determine what orders should be made for the protection and welfare of the mother and Jane, keeping in mind paragraph 4 of PD12J.

Pietra Asprou

 

 

Lord Wolfson QC (Parliamentary Under-Secretary of State for Justice) has confirmed his approval of amendments to existing Practice Directions supplementing the Family Procedure Rules 2010, made by the President of the Family Division under powers delegated to him by the Lord Chief Justice. Full details of these amendments can be found in the Practice Direction Update Document here.

The Practice Direction Update Document amends various Practice Directions and inserts one new Pilot Practice Direction as detailed below:

a.       Divorce, Dissolution and Separation Act (DDSA 2020) consequential amendments:

                                           i.     Practice Direction 2C – amended terminology to Practice Direction 2C which are consequential to the introduction of the new Part 7 of the Rules.

                                          ii.     Practice Direction 5A – updated amendments to Practice Direction 5A in reference to amended/new application forms as part of the work to implement the DDSA.

                                         iii.     Practice Direction 6A – amendments to Practice Direction 6A to provide further information on email service to support the amended Part 6 of the Rules.

                                         iv.     Practice Direction 7A – amendments to Practice Direction 7A to provide more information to support Part 7 of the Rules.  

                                          v.     Practice Direction 2A, 6C, 7B, 7C and 9A – updated terminology amendments.

b.         Practice Direction 36M. This Practice Direction underpins HMCTS’s system to enable family public law applications (for example for care orders) to be made and progressed online. This Update amends PD36M to mandate use by Local Authorities in the remaining family court locations (of which there are two) from 28 February 2022, as agreed by the senior judiciary. It also extends the pilot until 31 October 2022.

c.         Practice Direction 36V. This pilot Practice Direction modifies existing rules and Practice Directions to reflect the existence of the mediation voucher scheme and amends the pilot expiration date to 30 September 2022.

d.         Practice Direction 36W. This pilot Practice Direction makes provision for email notifications of forced marriage protection orders and female genital mutilation protection orders to be sent by the court to a centralised police email address once the order has been sealed. The Update will extend PD36W until 1 October 2022.

e.         Practice Direction 36Z. This Practice Direction provides the legal underpinning for the Private Law Reform Investigative Approach Pilots. This update amends a few minor errors and omissions from the pilot Practice Direction introduced in PD Update No. 1 of 2022.

f.          New Pilot Practice Direction 36ZA.  This Pilot Practice Direction underpins a pilot that has been established with the North Yorkshire police to test an improved process for notification of non-molestation orders and occupation orders with powers of arrest attached.

Please see the message from Mr Justice Mostyn, regarding amendments to the standard orders, reproduced from the Courts and Tribunals Judiciary website below:

I make this announcement with the authority of the President.

On 6 April 2022 the Divorce Dissolution and Separation Act 2020 comes into force. Among many other things, this makes changes to the terminology used in divorce, dissolution, nullity and separation proceedings so that, for example, a petition is replaced by an application, a decree nisi by a conditional divorce order and a decree absolute by a final divorce order.

This has necessitated changes to be made to Orders Nos 1.1, 1.2 and 2.1.

Amended versions of these orders are attached to this notice. They take effect on 6 April 2022. Also attached is a zip file of Volume 1 of the standard orders in their up-to-date form.

The revised orders assume that the case in question is either one of divorce or dissolution of a civil partnership. Thus, they refer to “the final [divorce] / [dissolution] order” and “the conditional [divorce] / [dissolution] order”. If the case is one of nullity those references should be altered to “the final nullity order” and “the conditional nullity order”. If the case is one of judicial separation the references should be altered to “the judicial separation order”. If the case is one of a separation order under section 56 Civil Partnership Act 2004 the references should be altered to “the separation order”.

All further amendments will await the full review of the standard orders, the work on which is now underway, the consultation period having concluded on 28 February 2022.

The amended orders may be downloaded from the Courts and Tribunals Judiciary website here.

On 18 February 2022 the President issued a Memorandum in respect of guidance on electronic bundles. A copy of this has been reproduced below.

1. This memorandum is to be read with the general guidance on electronic bundles for all courts issued on 29 November 2021 and the supplementary guidance issued on 21 December 2021.
2. The working group referred to in paragraph 4(a) of the guidance given by me on 21 December 2021 has undertaken considerable research with numerous local authorities as to the practical feasibility, and cost implications, of applying the general guidance of 29 November 2021 to public law care proceedings. I am very grateful to that group and to those local authorities which have responded so promptly to the requests for information. The clear recommendation of the working group is that the temporary suspension referred to in paragraphs 4(a) and 5(a) should be further extended.
3. I accept that recommendation. Public law care proceedings constitute a separate class of civil proceedings where considerable investment has been made by local authorities in software to produce bundles which conform with PD 27A para 4.2. I accept that it will take time for local authorities to make the necessary adjustments to enable them to have the software and resources to comply with the general guidance on electronic bundles.
4. It is clear to me that public law children proceedings should, after a transitional period, have identical standards in the preparation of electronic bundles to other forms of family and civil proceedings. I therefore extend the temporary suspension until 1 January 2023. This should afford sufficient time to local authorities to adjust their systems to adopt those standards.
5. From that date onwards, unless otherwise directed by the court, the general guidance on electronic bundles shall apply to public law children proceedings. The requirement in PD27A para 4.2 for each section to be separately paginated shall not be followed for an electronic bundle. Instead, sequential singular pagination of the entire bundle, corresponding to the PDF numbering, will be required.
6. For the avoidance of any doubt, nothing in this memorandum affects paragraphs 2, 3, 4(c) -(e), 6, 7 and 8 of the supplementary guidance, which continues fully to apply.

Further information is available on the Courts and Tribunals Judiciary website, including links to the general guidance which was issued in November 2021 and the supplementary guidance which was issued in December 2021.

Summary

This case involves a long-running matrimonial dispute between former husband and wife. The background to the dispute can be found in the 2017 judgment here. Mr Justice Mostyn handed down judgment for this matter on 19 January 2021, and the headline events are set out at paragraphs 3 i) to xiv) of his judgment.

At the PTR on 21 December 2021, which was held remotely through Microsoft Teams, the wife sought permission to be assisted by a McKenzie friend. The Judge allowed this and allowed the McKenzie friend to address the court, as the wife was unable to attend herself due to suffering from mental illness.

This raised the question of whether the wife had lost the capacity to conduct the litigation as she was self-representing.

If the wife had lost the capacity to conduct the litigation, then, under the Family Procedure Rules (FPR), r.15.2, she was required to have a litigation friend to conduct the proceedings on her behalf and under FPR, r 15.3, the proceedings had to be stopped until the question had been determined, and, if capacity had been lost, the appointment of the litigation friend had to be made.

In this matter the key issues for determination were:

1. Whether the wife had lost the capacity to conduct proceedings without legal representation, even with the support of a McKenzie friend?
2. Whether the husband’s variation applications should be adjourned?

 

Legal framework

The McKenzie friend acting on the wife’s behalf detailed the wife suffering from severe stress, depression, sleep deprivation, trauma, panic attacks and potential self-harm. The wife had a consultation with a consultant psychiatrist, Dr Bell, to help the Court determine the above issues.

It became clear at the start of the hearing that there was nobody put forward to be a litigation friend on the wife’s behalf if she was deemed not to have capacity. This would mean the Official Solicitor would have had to have been instructed if necessary.

Section 2 and 3 of the Mental Capacity Act 2005 detail the test for incapacity:

2- People who lack capacity

• For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
• It does not matter whether the impairment or disturbance is permanent or temporary.
• A lack of capacity cannot be established merely by reference to:
• a person’s age or appearance, or
• a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.
• In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

3- Inability to make decisions

• For the purposes of section 2, a person is unable to make a decision for himself if he is unable:
• to understand the information relevant to the decision,
• to retain that information,
• to use or weigh that information as part of the process of making the decision, or
• to communicate his decision (whether by talking, using sign language or any other means).
• A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
• The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
• The information relevant to a decision includes information about the reasonably foreseeable consequences of—
• deciding one way or another, or
• failing to make the decision.

Furthermore, it is stated in Court of Protection Practice 2020 at 1.340, that the analytical process when determining a question of capacity is in three stages as follows:

• Is the person unable to make a decision? If yes:
• Is there an impairment or disturbance in the functioning of the person’s mind or brain? If yes;
• Is the person’s inability to make the decision because of the identified impairment or disturbance?

In this case, the wife was presenting with mental illness which was preventing her from engaging in the proceedings.

In Levy v Ellis-Carr & Ors [2012] EWHC 63 (Ch) Norris J laid down at paragraph 36 the evidential requirements which should be met should a medical reason for an adjournment be advanced:

• the evidence should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations);
• the evidence should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process;
• the evidence should provide a reasoned prognosis; and should give the court some confidence that what is being expressed is an independent opinion after a proper examination.

Dr Bell gave oral evidence and he concluded that the wife would have the capacity to make the relevant decisions if, and only if, she had the benefit of legal advice and representation. He did not think the wife would be capable of navigating the legal complexities of each scenario without it. He considered that by acting alone the wife would be disabled by her medical condition from being able to make the necessary decisions [paragraph 22].

The classic test for capacity to conduct litigation is found in the decision of the Court of Appeal in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889, [2003] 1 WLR 1511. At paragraph 75 Chadwick LJ held:

“…the test to be applied….is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedure should require the imposition of a … litigation friend.”

Baroness Hale DPSC in Dunhill v Burgin [2014] UKSC 18, [2014] 1 WLR 933 at paragraph 17 stated:

“Equally, of course, those words [of Chadwick LJ at [75]] could be read in the opposite sense, to refer to the advice which the case required rather than the advice which the case in fact received. In truth, such judicial statements, made in the context of a different issue from that with which we are concerned, are of little assistance. But they serve to reinforce the point that, on the defendant’s argument, the claimant’s capacity would depend on whether she had received good advice, bad advice or no advice at all. If she had received good advice or if she had received no advice at all but brought her claim as a litigant in person, then she would lack the capacity to make the decisions which her claim required of her. But if, as in this case, she received bad advice, she possessed the capacity to make the decisions required of her as a result of that bad advice. This cannot be right.”

The capacity to conduct proceedings cannot depend on whether the party receives no legal advice or good or bad legal advice. A party capable of making necessary decisions with the benefit of legal advice have the capacity whether they benefit from the advice or not.

  

Decision and the future 

All parties accepted that the criteria to adjourn on medical grounds were met [paragraph 39], and the Judge granted the adjournment on the basis that it would be singularly unfair and potentially traumatic and damaging to the wife’s core health status were the case to proceed on Thursday [paragraph 40].

The variation applications will be re-fixed on a date convenient to Counsel, and this adjournment should allow sufficient time for the wife’s new legal representatives to undertake their preparation for the next hearing.

The outcome in this matter demonstrates that the Court is required to keep the parties’ ability to participate fully in proceedings under constant review, particularly when they are not legally represented.

The full judgment can be found here.

 

Rachel Norgate

P v Q (Financial Remedies) [2022] EWFC B9

On 10^th February 2022, the Central Family Court (HHJ Hess) gave judgment following a four day final hearing in financial remedies proceedings. The wife’s legal costs totalled £169,604 and the husband’s reached £87,775.

The judgment provides important guidance on the treatment of family loans, which according to HHJ Hess, “raise some questions of law which are not uncommon in financial remedies cases.”

FAMILY LOANS

“19.  I now turn to an issue which has created a good deal of argument and ill feeling between the parties: the extent to which assets affected by the respective transactions between each party and members of their own family should be included on the asset schedule.

i……

ii….”

The husband’s loan

Initially, the wife asserted that the husband had given his sister £25,000 to which she was not entitled to and should be inserted back into the asset schedule. Following the husband’s evidence, the wife withdrew this assertion and HHJ Hess commented that this was the correct approach to take. The wife also contended that the husband took similar action in relation to his father and this was rejected by the court.

However, the wife also claimed that the husband’s mother in 2010 “generously advanced £150,000 to each of her three children to assist them with their respective housing costs”. No documents were created to establish the terms of this advance and no demand for repayment was ever made. No discussions were had about the circumstances in which repayment would or might be expected, although the husband’s sister had returned some of the money of a voluntary basis.

“In her written statement of 22nd December 2021 the husband’s mother wrote:-

“The agreement with all three of my children was that these were loans within the family, to facilitate their housing improvements, and on the understanding that this is my money that I choose to use to fulfil the needs of individual family members as they arise. The bottom line is that when I am no longer able to look after myself (I am now 76) they would repay the money in a reciprocal, supportive, manner.””

In oral evidence, the husband’s mother said that “she could not envisage any circumstances in which she would pursue the loan debts due from her children to a court by way of litigation and, if they remained unpaid, she would simply rearrange her will to reflect that any child who had not made any repayment had had the benefit of the unredeemed loan.”

The parties disputed over the status of the money advanced and in June 2020, without a request from his mother and without reference to the wife, the husband paid his mother £150,000 asserting it to be the repayment of the loan. The husband argued that this money had gone and should not appear on the asset schedule. The wife stated that the payment was “a cynical manipulative device to remove £150,000 from the asset schedule so that it did not have to be divided 50:50 with the wife on sharing principles.”

The wife’s loan

In October 2004, before the parties had met, the wife received €30,000 from her father to fund her MBA studies. There is a document which recorded the arrangement stating it was an “interest free loan” for which “a date for repayment has not been set.” The arrangement included the term that “as long as the father does not demand any extraordinary urgent repayment, the daughter will repay the loan back at her own discretion”. The wife did not make any repayment and the father never demanded one. The wife did not mention this potential liability in her Form E in December 2020 and it appeared for the first time as an issue in 12 January 2022, with the wife stating that “she had completely forgotten about this liability”. The wife said that she did not expect her father to pursue the debt, but she felt that he could, and she raised the issue in light of the points the husband asserted in relation to the transaction with his mother.

JUDGMENT

Gift or loan?

“19. [emphasis added]:

(viii) The first question is whether these advances should be regarded (in strict legal terms) as gifts or loans. As a matter of general principle, for an advance of money to be a gift there must be evidence of an intention to give – the animus donandi. In neither instance in this case has either party produced persuasive evidence of such intention in the respective advancing parent and I am inclined to accept what the husband’s mother told me and what is contained in the 2004 document. On the face of it, both these transactions are loans which could, in theory, be enforced.”

Hard or soft?

“19.

(ix)            In the family court, however, that is not the end of the matter because the inclusion or exclusion of a technically enforceable debt in an asset schedule can depend on its softness/hardness. This is perhaps an elusive topic to nail down, but it falls for determination in the present case as in many others.”

In consideration of various authorities: M v B [1998] 1 FLR 53; W v W [2012] EWHC 2469; Hamilton v Hamilton [2013] EWCA Civ 13; B v B [2012] 2 FLR 22; Baines v Hedger [2008] EWHC 1587; and NR v AB [2016] EWHC 277, and an article by Alexander Chandler: taking the bank of mum and dad to court [2015] Fam Law 1505, HHJ Hess derived the following principles:

“19.

(x) (a)   Once a judge has decided that a contractually binding obligation by a party to the marriage towards a third party exists, the court may properly wish to go on to consider whether the obligation is in the category of a hard obligation or loan, in which case it should appear on the judges’ computation table, or it is in the category of a soft obligation or loan, in which case the judge may decide as an exercise of discretion to leave it out of the computation table.

(b)   There is not in the authorities any hard or fast test as to when an obligation or loan will fall into one category or another, and the cases reveal a wide variety of circumstances which cause a particular obligation or loan to fall on one side or other of the line.

(c)   A common feature of these cases is that the analysis targets whether or not it is likely in reality that the obligation will be enforced.

(d)   Features which have fallen for consideration to take the case on one side of the line or another include the following and I make it clear that this is not intended to be an exhaustive list.

(e)   Factors which on their own or in combination point the judge towards the conclusion that an obligation is in the category of a hard obligation include (1) the fact that it is an obligation to a finance company; (2) that the terms of the obligation have the feel of a normal commercial arrangement; (3) that the obligation arises out of a written agreement; (4) that there is a written demand for payment, a threat of litigation or actual litigation or actual or consequent intervention in the financial remedies proceedings; (5) that there has not been a delay in enforcing the obligation; and (6) that the amount of money is such that it would be less likely for a creditor to be likely to waive the obligation either wholly or partly.

(f)    Factors which may on their own or in combination point the judge towards the conclusion that an obligation is in the category of soft include: (1) it is an obligation to a friend or family member with whom the debtor remains on good terms and who is unlikely to want the debtor to suffer hardship; (2) the obligation arose informally and the terms of the obligation do not have the feel of a normal commercial arrangement; (3) there has been no written demand for payment despite the due date having passed; (4) there has been a delay in enforcing the obligation; or (5) the amount of money is such that it would be more likely for the creditor to be likely to waive the obligation either wholly or partly, albeit that the amount of money involved is not necessarily decisive, and there are examples in the authorities of large amounts of money being treated as being soft obligations.

(g)   It may be that there are some factors in a particular case which fall on one side of the line and other factors which fall on the other side of the line, and it is for the judge to determine, looking at all of these factors, and maybe other matters, what the appropriate determinations to make in a particular case in the promotion of a fair outcome.”

CONCLUSION

In applying the above principles, HHJ Hess concluded that both of the family loans were at the soft end of the scale. In the case of the debt owed by the wife to her father, HHJ Hess found that it was unlikely the wife would be required to make any repayment, particularly as she had forgotten about the loan until January 2022. Regarding the husband’s debt, his mother was also unlikely to ever demand repayment and it was regarded by them as an advance on the husband’s inheritance.

Further, HHJ Hess found:

“Having heard and read the evidence I am satisfied on a balance of probabilities that the husband’s primary motivation in making the payment of £150,000 to his mother in June 2020 was because he was concerned that the wife would share half of it if he did not do this. I do not accept that he had any significant sense of an obligation to make the payment at this point, either legally or morally.

I do not think it would be right for me to raise the husband’s debt to his mother to hard debt status simply because he has repaid it. To do that would be to reward and encourage manipulative behaviour and would, to my mind, be unfair.

My decision is that both of these debts were very soft and, for me to do fairness between the parties, the consequence of that is that I should not include the wife’s debt to her father on the asset schedule, but should re-credit the £150,000 to the husband’s side of the schedule.”

Pietra Asprou

 

Child maintenance appeals

Section 4 of the Child Support Act 1991 (the Act) enables individuals with the care of any qualifying child or a non-resident parent, to apply for a maintenance assessment with respect to that child. Since 2012, such applications have been dealt with by the Child Maintenance Service (CMS). This article discusses the procedure of appealing a CMS assessment to the social entitlement chamber of the First-Tier Tribunal under section 20 of the Act.

BACKGROUND

Persons with care or non-resident parents can challenge the majority of CMS decisions on grounds of fact or law. Section 20 of the Act lists the decisions which may be appealed:

• maintenance calculations pursuant to section 11 of the Act (whether as originally made or as revised pursuant to section 16)
• default or interim calculations made pursuant to section 12 of the Act (whether as originally made or as revised pursuant to section 16)
• supersession decisions pursuant to section 17 of the Act (whether as originally made or as revised pursuant to section 16)
• decisions not to make maintenance calculations pursuant to section section 11 of the Act
• decisions not to make a supersession
• the imposition of a requirement to make penalty payments or their amount

Mandatory reconsideration

Prior to issuing an appeal a ‘mandatory reconsideration’ must be sought – a request for a revision of the decision within 30 days of its receipt. If an appeal is made without this request, the appeal will be treated as a request for mandatory reconsideration.

If the party is not satisfied with the reconsideration, they may apply for an appeal to the First-Tier Tribunal and a copy of the mandatory reconsideration notice must be sent with the notice of appeal.

PROCEDURE

The Tribunal Procedure (First-Tier Tribunal) (Social Entitlement Chamber) Rules 2008 establish the necessary procedure. Namely, effect must be given to the overriding objective, cases must be dealt with fairly and justly, and all parties must aid the Tribunal in furthering the objective and cooperate.

Preliminary matters

Applications for appeal are made by completing a SSCS2 Form. The form requires information concerning:

1. the parties to the appeal
2. any representative instructed
3. any reasons for delay in issuing the appeal
4. reasons why an appeal is sought
5. the type of hearing sought

Time limits

Appeals must be received by the First-Tier Tribunal within one calendar month of the date on which the mandatory reconsideration notice was sent to the appellant (rule 22 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008).

Requests can be made for this time limit to be extended up to one year after the expiration of the last date for appealing via the SSCS2 Form. Reasons for delay must be provided. Any objections from the CMS and other party to extending the time limit will be welcomed before the Tribunal decides whether to admit the appeal.

Once appeals have been admitted, HMCTS will provide formal acknowledgment and notice will be given to the CMS and the other party. The CMS must respond to the appeal within 42 days of receiving the notice of appeal and this response will be provided to all the parties and the Tribunal. The response should attach a copy of any written record of the decision being challenged and copies of all CMS documents which are relevant to the case. The appellant and any other party are provided the opportunity to make written submissions and supply further documentation in reply to the CMS response.

Disclosure

There are no stringent rules regarding what/when evidence may be disclosed for the hearing. HMCTS guidance states that:

• documents can be provided to support an appeal, these should be sent to the Tribunal as early as possible. Producing documentation at the last moment may result in the Tribunal adjourning the hearing
• witnesses can be called at the hearing (although the Tribunal has no power to force someone to attend)
• if posting documents to the Tribunal, a cover sheet setting out the 16-digit reference number provided must be used
• as a general rule, the DWP and other parties are entitled to see documents sent in as evidence

If the appellant opts not to take part in the hearing, they will be advised to send any further evidence in support of their appeal within 28 days of being informed that the CMS have sent their response.

Practice Direction 12G of the Family Procedure Rules allows a party to communicate information relating to proceedings held in private to the First-Tier Tribunal dealing with an appeal made under section 20 of the Child Support Act 1991. This means that information concerning previous Children Act proceedings, although held in private, may be disclosed in support of an appeal.

TRIBUNAL POWERS

Usually a hearing will be listed to determine the appeal, unless the appeal has been struck out or each party has consented to proceed without a hearing and the Tribunal considers this to be appropriate. Hearings are held in public unless the Tribunal directs otherwise.

Case management powers

The Tribunal has the power to:

• direct the production of documents, information, evidence or submissions
• exclude evidence
• strike out an appeal
• determine that an issue should be dealt with primarily before the appeal proceeds
• summon witnesses to attend the Tribunal to give evidence and/or produce documents
• prohibit disclosure or publication of certain documents or information likely to cause the public to identify individuals who the Tribunal considers should not be identified

Determining the appeal

In making its decision, the Tribunal cannot consider any issue not raised by the appeal, which means an issue raised by one of the parties before or at the hearing. The Tribunal may raise issues itself if it is in the public interest to do so. According to section 20(7)(a) of the Act, the Tribunal must not take into account any circumstances which were not obtained when the CMS made its decision. This means that the Tribunal cannot consider changes of circumstances after the date of decision, however it can consider evidence created after the decision if it relates to circumstances during the relevant period.

The First-Tier Tribunal may allow or refuse the appeal. If the Tribunal allows the appeal, they can either make their own decision or remit the case back to the CMS with directions. If they remit the matter, the substitute decision is still considered to be one made by the Tribunal. This has the effect that an appeal against a decision made on an appeal to the First-Tier Tribunal, whether made by the Tribunal themselves or upon remission by the CMS, lies only to the Upper Tribunal.

The Tribunal has no powers as to costs but may dispose of proceedings by way of a consent order if it considers it appropriate. Decisions may be given orally at the hearing but a written decision notice should be issued as soon as reasonably practicable after the hearing. This notice should include details of any right to appeal and the time limit for doing so.

FURTHER APPEAL

An application may be made for permission to appeal to the Upper Tribunal if it is alleged that the First-Tier Tribunal erred in law. Such applications may be made within one month of the latest date on which the First-Tier Tribunal sends to the person making the application the relevant decision notice, a notification of amended reasons or a notification that an application for the decision to be set aside has been unsuccessful. The First-Tier Tribunal may review its own decision if it is satisfied there has been an error or law, clerical mistakes or other accidental slips. Further, the Tribunal can set aside its own decision where it is in the interests of justice to do so and the necessary conditions are satisfied.

Pietra Asprou

 

Standard Orders

The working party under the leadership of HHJ Moradifar considering the Standard Family Orders Volume 2 (Children and Other Orders) has at the request of Mr Justice Mostyn undertaken a preliminary review of all Volume 2 orders to identify those orders which require urgent, immediate, update and amendment which cannot await the outcome of the overall review. They have identified the following:

1. Those orders where the question of jurisdiction is addressed. The amendments require a case to specify whether it is governed by pre- or post-Brexit jurisdictional rules. The orders which have been updated are:Order 7.2: Private Law Case Management Directions and Orders Precedent Library
   Order 7.3: Private Law Directions at FHDRA (No Allegations of Domestic Abuse)
   Order 7.4: Private Law Directions at FHDRA (Allegations of Domestic Abuse)
   Order 8.3: Public Law Directions and Orders at the First Case Management Hearing
2. Order 23.2 has been renamed to make it clear that it should be used for all hearings except the final hearing, and not merely for the First Hearing. It is now called “Child DoL Orders – Directions at any hearing other than the final hearing”. The substance and terminology of the order has also been amended to reflect recent relevant guidance and case law.

These revised orders, together with the zip file containing Volume 2 in its up-to-date form, are available on the Courts and Judiciary website here.

Advisory Notice

The FRC Efficiency Statement dated 11 January 2022 requires the use of the assets and Income template ES2 at the First Appointment (para 11), the FDR (para 13) and the final hearing (para 21). In our Notice dated 11 January 2022 (as placed on https://www.judiciary.uk/announcements/notice-from-the-financial-remediescourt/ on 12 January 2022) we explained that the FLBA had drafted ES2 and we expressed gratitude to them for doing so.

The feedback that has been received since ES2 was promulgated has generally been highly positive although there have been some teething problems, and in some instances a misunderstanding as to how it should be compiled and used. The FLBA money and property subcommittee has therefore kindly produced guidance on the correct use of ES2, with an attached example. (Click Here)

We are happy to endorse this advice which seems to us to be sensible and helpful. We consider that it should be followed unless it is impractical not to do so.

MOSTYN J

HHJ HESS

1 February 2022

 

Hasan v Ul Hasan (deceased) and Anor [2021] EWHC 1791

In this case Mostyn J examines the law relevant to a wife’s application to continue proceedings for financial remedies in circumstances where the respondent husband died before any order was made on her application.

Summary

 The parties married in Pakistan in 1981 and separated in 2006. The Husband obtained a divorce in Pakistan in 2012.  The wife believed significant sums were accumulated during the marriage.  In August 2017 the wife was given leave to bring proceedings under Part III of the Matrimonial and Family Proceedings Act 1984, which can enable spouses, in certain circumstances, and when there is a connection to England and Wales, to obtain remedies, including financial remedies, following an overseas divorce.  On 18 January 2021, aged 81 the husband died. The wife aged 74 wanted to pursue her application.

The key issue for determination was:

 Whether an unadjudicated claim under Part III survives the death of a spouse and can be continued against their estate?

 Legal analysis

The case was heard on the 21^st July 2021 in the Family Division of the High Court before Mostyn J who handed down his judgment on the 2^nd July 2021.  Counsel for the wife argued that the authorities under Part II of the Matrimonial Causes Act 1973 and the Inheritance (Provision for Family and Dependents) Act 1975 do not bind the Court as they relate to different statutes. Therefore, the above issue for determination has never been considered before and the Court has before it a blank canvas.  The Judge rejected this, concluding that Part II jurisprudence is clearly applicable to this Part III application, and as such, the preceding House of Lords and Court of Appeal jurisprudence is binding.  It, therefore, followed that a financial claim under Part III following an overseas divorce expires with the death of the respondent, much the same as a claim under Part II would following a domestic divorce.

Although Mostyn J announced early on within his judgment that the Court of Appeal case of Sugden v Sugden [1957] P 120 was binding on him [23], the remainder of the judgment focused on why he thought this decision was wrong. The three key reasons he disagreed with Denning LJ’s judgment are as follows:

“1.  A fair textual interpretation of s.1 of the 1934 Act leads to the conclusion that post-divorce ancillary relief is recognised as a cause of action and is not excluded from the scope of the section;

“2. The nature of the claim, especially where it is framed as a sharing claim, is not a mere spes that discretion will be exercised in the claimant’s favour. It is (or may be) a valuable claim, with objective solidity which is in many ways less speculative than a personal injury claim or a claim for an injunction; and

“3. Post-death relief has been awarded following the set-aside of a financial remedy order at the suit of the payer where the payee has died shortly after the making of the order. In this scenario it will be seen that the court, without any inhibition, exercises the statutory discretion under s.25 of the Matrimonial Causes Act 1973. This can only be explained if the right to apply to set aside the order and to seek a full rehearing is a cause of action within the scope of s.1 of the 1934 Act.”

Mostyn J considered the case law which exercised the discretion specified under Part II:

Barder v Barder (Caluori Intervening) [1987] 2 FLR 480, 

Smith v Smith (Smith and others Intervening) [1991] 2 FLR 432, 

Reid v Reid [2004] 1 FLR 736 and 

WA v The Estate of HA (Deceased) and others [2015] EWHC 2233 (Fam), [2016] 1 FLR 1360.

In these cases, one of the parties had died shortly after the order was made, rather than before it was made. Therefore, the matters had already been adjudicated and were considered a cause of action.

Decision and the future  

 The Judge dismissed the wife’s application and concluded that the law, particularly the Court of Appeal case of Sugden, does not allow for an unadjudicated claim under Part III to survive the death of a spouse, and so the claim could not be continued against the husband’s estate.

As he and the Court of Appeal are bound by Sugden, the Judge allowed, however, a leapfrog application for leave to appeal to the Supreme Court.

It is yet to be seen whether the wife will appeal the decision, despite encouragement from the Judge and the obiter observations by Mostyn J, that there is a clash on the authorities between cases where the death has occurred shortly before trial, and those where death has occurred shortly after trial [68].

If this case or a case with a similar factual matrix does reach the Supreme Court and they agree with Mostyn J, this could have wide-reaching implications for divorce litigation. It could, in theory, permit spouses to continue financial claims against their ex-spouse’s estate, even after their death. This would or could remedy the clash which Mostyn J concluded was illogical, arbitrary, and capable of meeting out great injustice [68].

The full judgment can be found here.

Rachel Norgate

 

Griffiths v Tickle & Ors [2021] EWCA Civ 1882

On the 10^th of December 2021 the Court of Appeal (Dame Victoria Sharp (P), Lady Justice King and Lord Justice Warby) heard an appeal against the decision of Lieven J sitting in the High Court that a fact-finding judgment in Children Act proceedings should be published with the names of the father and the mother included.  The father, a former MP, was the appellant and argued that the interests of the child made it necessary that he, the mother, and the child should not be named and there should be additional redaction of some of the details.

Facts

The mother is Kate Griffiths MP, the father, Andrew Griffiths. Their relationship ended and they divorced.   The father was dropped by his constituency party after revelations that he had sent over 2,000 sexually explicit texts to two female constituents. The mother put herself forward as the candidate for what had been the husband’s constituency and was selected and elected.

In the course of proceedings regarding the father’s contact with the child of the marriage Mrs Griffiths made allegations against Mr Griffiths.  At the end of the fact-finding hearing HHJ Williscroft found that Mr Griffiths had abused and physically hurt his wife when drunk.  She found Mr Griffiths had undermined his wife’s self-esteem, threatened her with violence, coerced her into sexual activities she found unpleasant and had raped her when she was asleep.

On 26 November 2020, HHJ Williscroft gave judgment on the application.  In February 2021 two journalists, Ms Tickle and Mr Farmer, applied to HHJ Williscroft for an order releasing the judgment to them. This application was supported by Mrs Griffiths, the child’s Guardian and the organisation Rights of Women.

High Court

Lieven J heard the applications on the agreed basis her task was to strike a balance between the rights that favoured publication and the right of the child to respect for its privacy and family life applying the principles set out by the House of Lords in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47.

Lieven J identified four factors which favoured publication under Article 10 ECHR

• The open justice principle
• The father’s role as an MP and Minister
• The inconsistency between public statements the father had made in 2018 and the findings in HHJ Williscroft’s judgment
• The public interest in showing the workings of the Family Court in such a case where a powerful man was held to account of the abuse he carried out on his female partner

 

Lieven J also noted the mother’s rights included her right to speak to whomsoever she pleased about her experiences.  Anonymity would interfere with those rights and the court should be slow to allow itself to be used as a means of allowing one parent control over the other.  Lieven J considered the mother’s rights were bolstered by the “very unusual” fact the Guardian also supported publication.  She held there is a “significant public interest” in fully informed, open discussion and debate about domestic abuse that would act to redress some of the erosion of public confidence in the family justice system which usually only receives publicity when something has gone wrong.

The applications were granted. The judgment could be published with “only relatively modest redactions”. The child was not to be identified by name, sex, or date of birth but the names of the mother and father could be included.

Court of Appeal

The father was granted permission to appeal the High Court decision and asserted that the whole judgment should be published, unredacted save that all the names in the judgment should be anonymised.

The father argued two main points:

1. Lieven J’s approach was wrong in law as she misinterpreted and misapplied section 97 of the Children Act 1989.

 

1. Lieven J’s analysis of Re S was flawed, her approach was ‘wrongly biased’ or weighted in favour of publication and against the interests of the child’

 

Point 1. The father’s counsel argued the true construction of s97 prohibits the courts authorising the publication of anything likely to identify a child unless it is satisfied the welfare of the child requires publication.  This was not only a complete change of position by the father but before Lieven J, the father had expressly conceded this approach was wrong.  Several of those appearing argued the father should not be allowed to rely on this new argument.  The Father accepted that he would therefore need to first persuade the Court that he should be given permission to rely on this new argument. Having heard the father’s arguments on the merits de bene esse, the Court refused to allow the father to rely on this ground of appeal.

Point 2.  The Court dismissed the appeal holding that Lieven J was ‘clearly right’.  The Court of Appeal will not interfere with such evaluative exercises unless it is satisfied the judge erred in principle or reached a conclusion which was wrong – neither had occurred here:

            ‘The father’s criticisms of Lieven J’s decision amount to little more than disagreement with  the conclusions at which she arrived.’

The Court found Lieven J had correctly followed the balancing exercise in Re S and the father’s criticisms of the balancing exercise she had undertaken were unconvincing.  Decisions of this kind are inevitably case-specific:

            ‘ The critical factors in this case included (1) the father’s decision not to invoke any Article 8 rights of his own but to rely exclusively on the rights of the child; (2) the very young age of the child; (3) the Guardian’s professional assessment, in favour of publication; (4) the mother’s support for publication; and (5) the extent and nature of the information about the father that was already in the public domain. We do not think it can fairly be argued that Lieven J’s conclusion, in the unusual circumstances of this case, was wrong. On the contrary, we consider that she was clearly right.’

The father’s application for permission to appeal to the Supreme Court was refused as was his application for a stay pending an application to the Supreme Court for such permission.  The applications were late, involved a further change of position, had no real prospect of success, and would represent a misuse of the court process.

Pietra Asprou

Mostyn J (National Lead Judge) and HHJ Hess (Deputy National Lead Judge) have today issued a Notice in relation to the conduct of Financial Remedy work. That Notice, together with a number of important documents appended, is available by following the links below.

There are a number of significant changes outlined in the documents which all those practising in this field will want to be familiar.

The documents include standard templates for composite schedules of issues and schedules of assets.

The documents are:

FRC Notice dated 11 January 2022  

FRC Efficiency Statement dated 11 January 2022

FRC Primary Principles dated 11 January 2022

Template ES1: Composite Case Summary (Word format)

Template ES2: Composite asset and income schedule (Excel format) and

Revised Lead Judge Job Description dated 11 January 2022

The President of the Family Division has published new guidance on E-bundles for use in the Family Court and Family Division.

The guidance supplements the general guidance on electronic bundles for all courts issued by the Senior Presiding Judge, the President of the Family Division and the Judge-in-charge of Live Services on 29 November 2021, which is available here.

Please find a link to the new E-bundle guidance here. 

The Family Justice Council held its 14th Annual Debate and panel discussion in London which was live streamed via Microsoft Teams to audiences at home – a first for the event.

Recordings of the live stream are available on the Judiciary website. Please click here for more information.

 

The Cafcass Prioritisation Protocol

 

Why has prioritisation become necessary in Essex, Suffolk and Norfolk?

Prioritisation is intended as a way of averting operational collapse and being transparent with families and courts.  Demand in private law and the way Cafcass is organised in Essex, Suffolk and Norfolk has worked effectively over the years. However, a combination of the backlog created in the early stages of the pandemic, the growing delays in disposing of cases and the way work is organised in the area means that the caseloads of family court advisors (FCAs) have increased to unsafe levels and this is now undermining the capacity of managers and supervisors to oversee the quality of practice and decision-making. Cafcass is holding 22% more open and active cases and it is no longer possible to allocate all private law cases safely within normal timescales.

 

What happens when it is no longer possible to ‘allocate cases within normal timescales’?

The Assistant Director for the service area informs the local judiciary and partners of the problem in advance of the final decision to ‘activate prioritisation’, with the intention of agreeing any additional measures that may help to prevent prioritisation. This commitment to liaison and discussion can take up to 7 weeks before the final decision is made.

 

What does prioritisation mean for the courts?

Cafcass accepts the orders of the courts in the normal way, undertakes an additional risk assessment and decides which cases are prioritised for allocation and which cases can be held in the ‘allocation hub’. The court is informed about which cases we intend to hold in the Hub. The proposed timescale for filing is included in the Safeguarding Letter, along with a request to extend the filing date. Cafcass provides the courts with a weekly update of the cases held in the Hub.

 

What cases will be held in the Hub?

Public law cases are allocated in the normal way, as are private law cases deemed urgent or where there are concerns about the welfare of the child. Only the less urgent private law cases will be held in the Hub. The Hub is managed by a social work Practice Supervisor and a Business Service Officer.

 

How will families be informed and kept informed?

Children and families will be informed by letter and provided with a single point of contact to seek advice, make representations and send in any additional information. We communicate with families every 4-6 weeks. We will do everything we can to allocate their case sooner.

 

How will cases held in the Hub progress to allocation?

Cases are allocated sooner as active cases are closed and the capacity of FCAs to take new cases increases. Cases may also be allocated sooner based on additional information or alerts. Cafcass will write to the relevant court when this happens. Reports on cases held in the Hub will take up to 26 weeks to file and further extensions will only be requested in exceptional circumstances.

 

How does prioritisation end?

The data on pressures (FCA caseloads, the numbers of cases held on duty, the average days it takes to allocate cases, the cases held by service managers and practice supervisors, the proportion of cases held by agency staff and the quality of work) is reviewed monthly. At the first signs that things are returning to normal and look sustainable, the Assistant Director will liaise with the DFJ and a review meeting will be held in Cafcass to discuss de-activating prioritisation and closing the Hub.

 

What can be done to prevent prioritisation in future?

Within the constraints of available resources, the following joint measures will assist in preventing the need for prioritisation: clearing the backlog of cases; reducing requests for s7 reports; agreeing more focused s7 reports; reducing requests for additional experts; reducing delay and associated levels of addendum reports; and reducing requests for FCAs to attend hearings. In addition, Cafcass is committed to reviewing recommendations for s7 reports, narrowing the issues to be explored in s7 reports and improving the efficiency of our allocation processes.

The President of the Family Division, Sir Andrew McFarlane, has published his report on transparency in the family courts. Following a consultation and the appointment of a transparency review panel, he has concluded that there needs to be a ‘major shift in culture and process to increase the transparency of the system.’ The report makes various recommendations, aiming to strike a balance between increasing public confidence in the Family Justice System, and maintaining the anonymity of families and children who turn to it for protection.

Background

When appointed three years ago, the President promised to undertake a full review of transparency. In February 2020, an invitation to submit evidence was issued, particularly in relation to the balance between confidentiality and public transparency. The review was paused in November 2020 due to coronavirus and later resumed in early 2021. The report is the product of written statements and short evidence sessions.

What is transparency and should it be enhanced?

The President explains that to see transparency as a single question is a ‘trap’.

‘A trap, and one into which I and, I suspect, many others may have fallen when first approaching this issue, is to see ‘transparency’ as raising a single question, ‘should the Family Court be open to the public and/or press’, to which there would be a single binary answer of either ‘yes’ or ‘no’… There are in fact many ways that the Family Court can be more open, and provide more information about what takes place there, without altering the current restrictions on reporting and attendance’

Further, a key theme throughout the President’s report is the benefit of enhancing transparency:

“Through open justice, the workings of the justice system are held up to public scrutiny by hearings being open to the public and/or by permitting media reporting of the proceedings. The work of the Family Court is of significant importance in the life of our society, yet, as is plain, the current limited degree of openness does not permit effective public scrutiny.”

According to the President, despite the best intentions of those involved, the current arrangements are not satisfactory in providing ‘at least an adequate degree of openness’ for various reasons:

• Media representatives have not attended many Family Court hearings
• In many cases, the Practice Guidance on ‘Publication of Judgments’ is not being adhered to
• The work of the Family Court is not open to any outside scrutiny or appraisal
• Frequent press reports are published providing anonymous accounts of negative experiences in the Family Court, which the system cannot respond to or assist with
• Justice being conducted in private is very likely to lead to a loss of public confidence and sentiments that there is something to hide, causing reputational damage

These considerations lead the President to draw the conclusion that the court must ‘regard openness as the new norm…there needs to be a major shift in culture and process to increase the transparency of the system.’

Recommendations

Although the President does not shy away from stressing the need for greater openness, he is clear that this must not be at the expense of the interests of children. Media representatives must be able to attend and report publicly on hearings however, reporting should still be subject to clear rules on maintaining the anonymity of children and family members. The President proposes the creation of a Transparency Implementation Group (TIG), which will support him in actioning the following:

1. The creation of rules to mitigate the impact of section 12 of the Administration of Justice Act 1960

These rules will enable journalists and legal bloggers to attend Family Court proceedings and report on their events subject to the following:

• It is always at the judge’s discretion whether non-parties should be excluded
• Reporting what happened in court must maintain the anonymity of the children and family
• Consideration will be given to whether the proposed ‘Family Court Reporting Pilot’ should be incorporated or adapted into the new scheme
• Proposed rule changes or PDs will be subject to government ministerial approval

2. Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings under FPR r 12.75(1), PD12G and PD14E

This communication would be limited to discussion of the case and informing the journalist/blogger of details of proceedings.

3. The publication of judgments

The President explains that, in the majority of cases, there will not be a legitimate reason for the public to be provided with detailed accounts of child abuse and how to withhold this information requires consultation. He suggests that either this information is removed from published judgments and replaced with a brief factual summary, or the sensitive information is provided in an annex which is not published with the judgment.

Judges are asked to publish anonymised versions of at least 10% of their judgments annually. Due to the practical restraints on judges, the President will encourage the establishment of an Anonymisation Unit within HMCTS.

4. A ‘standard reporting permission order’ for use in FRC proceedings

Mr Justice Mostyn and His Honour Judge Hess have undertaken work to enhance transparency in financial remedy proceedings which the President supports.

5. The need to establish a relationship of trust and confidence to ensure the reporting of family proceedings is reliable and well informed

The President intends to create a Media Liaison Committee comprised of journalists, media lawyers and judiciary, aiming to enhance journalists’ understanding of the Family Court. It is also suggested that MPs be invited to the Court to develop their understanding as they regularly receive complaints about the operation of the Court.

6. A scheme of compulsory data collection at the end of cases

The President believes data collection will aid in understanding decisions, including by the recognition of patterns and issues, which will lead to improved outcomes. In the longer term, data collection can focus on what happens to children after final orders are made.

7. Court listings should be made available in advance to journalists/bloggers

This aims to help journalists/bloggers understand what cases may be of interest and recognise the nature of proceedings.

8. The creation of a Family Court online resource

This development would explain the work of the Family Court, how cases are dealt with, options for dispute resolution and how to make applications.

9. Providing the public with access to an annual report on the operation of the Family Court

This report would include data setting out case numbers, categories of proceedings and outcomes, in addition to an annual audit on the progress of the various transparency initiatives to be launched.

Conclusion

The TIG will take forward the proposed changes, but the President has insisted that he will remain closely involved. The proposals will also be subject to consultation concerning the detail and not the overall direction of travel, which was the subject of the Review.

Pietra Asprou

 

Re C (Looked After Child) (Covid-19 Vaccination) [2021] EWHC 2993 (Fam)

The High Court was asked to detemine whether a child should receive vaccinations for coronavirus and winter flu.  Poole J considered the legal principles and concluded that the same approach should be undertaken as with other standard/routine vaccines, providing guidance on s.33(3)(b) of the Children Act 1989, as well as the inherent jurisdiction and Gillick competence in these circumstances.

Facts

C is a boy of nearly 13 years old.  He is subject to a care order made in 2015.  C wished to be vaccinated with the coronavirus and winter flu vaccines and his wishes were supported by his Guardian, the Local Authority and C’s father. C’s mother strongly objected to his being vaccinated.

The Local Authority’s position was it was in C’s best interests to receive the vaccinations and as it held parental responsibility for C under s.33 of the Children Act 1989 it had the right to exercise its parental responsibility and arrange for C to be vaccinated.  However, the Local Authority made an application to the High Court for confirmation of its authority for three reasons:

• C’s mother held strong objections to C being vaccinated
• Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 held that a Local Authority with a care order can arrange and consent to a child in its care being vaccinated when in the best interests of the child. However, this has not been applied in regards to the coronavirus or winter flu vaccines
• If the Local Authority is incorrect in its explanation of its power under s.33, it seeks permission to apply for a declaration under the High Court’s inherent jurisdiction that it is in C’s best interests to have the vaccinations

Local Authority powers under s.33 of the Children Act 1989

In discussing s.33, Poole J referred to the principles in Re H and M v H and PT [2020] EWFC 93. However, Poole J noted that Re H and M v H and PT differed from the case before the court as they concerned vaccinations which had been recommended for children in the routine immunisation schedule. Further, the cases did not involve a 12 year old expressing clear views on the proposed vaccinations.

In considering these principles, Poole J concluded that the exceptions to the general power in s.33 do not apply to this case and the Local Authority could arrange and consent to C receiving the vaccinations under s.33(3)(b). Although “a local authority should not use s.33(3)(b) to override the wishes or views of a parent in relation to serious or grave matters with profound or enduring consequences for the child…The administration of standard or routine vaccinations cannot be regarded as being a ‘serious’ or ‘grave’ matter.”

Overarching principles

Poole J confirmed that a “local authority with a care order can decide to arrange and consent to a child in its care being vaccinated for Covid-19 and/or the winter flu virus notwithstanding the objections of the child’s parents, when

• such vaccinations are part of an ongoing national programme approved by the UK Health Security Agency
• the child is either not Gillick competent or is Gillick competent and consents, and
• the local authority is satisfied that it is necessary to do so in order to safeguard or promote the individual child’s welfare.”

Nonetheless, Poole J cautioned that “s.33(3) of the Children Act 1989 does not give a local authority carte blanche to proceed to arrange and consent to vaccinations in every case,” as

1. the statute cannot be relied on regarding ‘grave’ decisions, as explained above
2. pursuant to s.33(4), Local Authorities must make ‘individualised’ welfare decisions concerning the child prior to arranging vaccination

• there is always the option for objecting parents to make an application to invoke the inherent jurisdiction and perhaps an injunction under section 8 of the Human Rights Act.

Poole J notes that in the majority of cases involving looked after children, no application will need to be made by the Local Authority to the court regarding the provision of such vaccinations under national programmes, even if there are parental objections.

Further matters

National vaccination programmes and children

Despite the information put before it, the Court concluded that it was inappropriate for it to determine the merits of whether national vaccine programmes for children are in their best interests. Poole J concluded that Re H does apply to both the coronavirus vaccine for 12-15 year olds and the winter flu vaccine for 7-11 year olds.

“The court can be satisfied, without the benefit of expert evidence, that the decisions to include the vaccinations in national programmes are based on evidence that they are in the best interests of the children covered by the programmes…administering a vaccine gives rise to a risk of harm to a child. Not giving a vaccine gives risk to a risk of harm to a child. Voluminous evidence establishing the extent and balance of risks and benefits needs to be obtained before a decision is made to roll out a national programme of vaccination for children.”

Gillick competence

Regarding the views of C, Poole J stated that an assessment of C’s Gillick competence is not necessary as there is no conflict between his views and the local authority. If a case arises where a child refuses a vaccination, the questions of “whether the local authority with parental responsibility could override the child’s decision and whether the issue should be brought before the court” would arise – it is not confirmed how the court would approach these questions.

Inherent jurisdiction

The court noted that in the circumstances before the court it was unnecessary for it to exercise the inherent jurisdiction. However, if it had been necessary, the Poole J stated that he “would have had no hesitation in concluding that it is in C’s best interests to have both vaccinations given all the circumstances including the balance of risks of having and not having the vaccinations, and C’s own wishes and feelings.”

Pietra Asprou

The Senior Presiding Judge, President of the Family Division and Judge-in-charge of Live Services have issued new guidance on electronic court bundles. A copy of the guidance note is reproduced below.

GENERAL GUIDANCE ON ELECTRONIC COURT BUNDLES

This general guidance is intended to ensure a level of consistency in the provision of electronic bundles for court hearings (but not tribunal hearings) in a format that promotes the efficient preparation for, and management of, a hearing.  It is subject to any specific guidance by particular courts or directions given for individual cases. It updates and replaces previous guidance published in May 2020.

1. E-bundles must be provided in pdf format.
2. All pages in an e-bundle must be numbered by computer-generated numbering, not by hand. The numbering should start at page 1 for the first page of the bundle (whether or not that is part of an index) and the numbering must follow sequentially to the last page of the bundle, so that the pagination matches the pdf numbering. If a hard copy of the bundle is produced, the pagination must match the e-bundle.
3. Each entry in the index must be hyperlinked to the indexed document. All significant documents and all sections in bundles must be bookmarked for ease of navigation, with a short description as the bookmark. The bookmark should contain the page number of the document.
4. All pages in an e- bundle that contain typed text must be subject to OCR (optical character recognition) if they have not been created directly as electronic text documents. This makes it easier to search for text, to highlight parts of a page, and to copy text from the bundle.
5. Any page that has been created in landscape orientation should appear in that orientation so that it can be read from left to right. No page should appear upside down.
6. The default view for all pages should be 100%.
7. If a core bundle is required, then a PDF core bundle should be produced complying with the same requirements as a paper bundle.
8. Thought should be given to the number of bundles required. It is usually better to have a single hearing e-bundle and (where appropriate) a separate single authorities e-bundle (compiled in accordance with these requirements), rather than multiple bundles (and follow any applicable court specific guidance ʹ see eg CPR PD52C Section VII).
9. The resolution of the bundle should not be greater than 300 dpi, in order to avoid slow scrolling or rendering. The bundle should be electronically optimised so as to ensure that the file size is not larger than necessary.
10. If a bundle is to be added to after it has been transmitted to the judge, then new pages should be added at the end of the bundle (and paginated accordingly). An enquiry should be made of the court as to the best way of providing the additional material. Subject to any different direction, the judge should be provided with both (a) the new section and, separately, (b) the revised bundle. This is because the judge may have already marked up the original bundle.

Delivering e-bundles

Filename: The filename for a bundle must contain the case reference and a short version of the name of the case and an indication of the content of the bundle – eg “CO12342021 Carpenters v Adventurers Hearing Bundle” or “CO12342021 Carpenters v Adventurers Authorities Bundle”.

Email: If the bundle is to be sent by email, please ensure the file size is not too large. For justice.gov e-mail addresses the maximum size of email and attachments is 36Mb in aggregate. Anything larger will be rejected. The subject line of the email should contain the case number, short form case name, hearing date and name of judge (if known).

Uploading bundles: Bundles should be sent to the court in accordance with the court’s directions. Where the bundle would otherwise be sent by email (rather than being uploaded to a portal) but is too large to be sent under cover of a single email then it may be sent to the Document Upload Centre by prior arrangement with the court ʹ for instructions see the Professional Users Guide.

Unrepresented litigants

Ordinarily the applicant is responsible for preparing the court bundles. If the applicant is unrepresented then the bundles must still if at all possible, comply with the above requirements. If it is not possible for an unrepresented litigant to comply with the requirements then a brief explanation of the reasons for this should be provided to the court as far in advance of the hearing as possible. Where possible the litigant in person should suggest a practical way of overcoming the problem. If the other party is represented then that party should consider offering to prepare the bundle.

Other internet guidance

There is guidance available freely available on the internet on how to use software to create bundles. See, for example, this YouTube video, prepared by QEB, and this video prepared by St Philips Chambers.

 

Lord Justice Haddon-Cave

Senior Presiding Judge

 

Sir Andrew Mcfarlane

President of the Family Division

 

Mr Justice Johnson

Judge-in-charge of Live Services

 

15 November 2021

 

Standard Orders: Non-molestation order

Order No. 10.1 (Non-molestation order) is amended to include in paragraph 1 the respondent’s date of birth, the omission of which has caused occasional identification problems and unnecessary automated alerts from the Police National Database.

The application form FL401 requires the applicant to provide the respondent’s date of birth.

The amended order takes effect immediately.

Please see a link to the amended order here. Zip files containing volumes 1 and 2 of the standard orders in their up-to-date form are also available via the Courts and Tribunals Judiciary Website.

On 16 October 2021, The President of the Family Division, Sir Andrew McFarlane, considered some of the issues that are of current interest in the Family Justice System in an address at the FLBA National Conference in Manchester. A summary of the President’s views relating to the issue of remote working and whether it is ‘here to stay’ is set out below.

The Future of Remote Hearings

1. The President and Baker LJ (who is overseeing ‘recovery’ in the Family Court and Court of Protection) remain firmly of the view that the circumstances around each case and each local court centre vary to such a degree that any firm ‘black-letter’ direction or guidance would be inappropriate. The decision as to the format for each hearing should be taken by the Judge in charge of the case.
2. The President acknowledged the desire of those who work in the Family Court to know what is now expected in general terms with respect to remote working.  He set out some broad parameters within which judicial discretion will continue to be applied and to describe the general direction of travel which courts should expect to follow, depending on the individual circumstances as they apply in each case and other local factors.
3. The central theme running through the President’s approach was that the parties and their lawyers should normally be physically present at court on those occasions when an important decision may be taken. A balance has to be struck in each case, but generally that balance should come down in favour of the parties and their lawyers attending all hearings where an important decision in the case may be taken.
4. There are a number of positives about remote hearings, but one clear negative is the absence of that time outside court, when the presence of ‘the court door’ and the proximity of the other parties and their lawyers will not infrequently lead to a focussing of issues or even settlement.   He stressed it is important that this valuable opportunity for advice, negotiation and possible settlement is regained.  Also it is clear that, at least some lay parties afford less respect to the court process, and the outcome of it in terms of any order, when the hearing is online or by phone.  Remote is not necessarily more efficient and quicker and it is possible to process more cases at court than it is to do so remotely.
5. The obvious benefits of an attended, in court, process before a judge or magistrates who make an important decision in a family case do not need to be stated.  Remote platforms are good for undertaking transactional communications, but there is more to a Family Court hearing than simply transacting business.  Much that goes on has a ‘human’ perspective, which can often be lost online, but is fully present in a court room.
6. There are clear detriments to attended hearings in terms of travel time and the inability to attend to other cases at other centres during the extended time needed for physical attendance.  There are also unwelcome collateral consequences in terms of additional expense, carbon foot-print and other factors.  Remote hearings, for the right case, are here to stay.
7. As to different types of proceedings:
   1. in public law children cases, the hearings where an important decision may be made are likely to include the first CMH, ICO hearings, the IRH and final hearings;
   2. in private law children cases, those hearings are likely to include the FHDRA, fact-finding, DRAs and final hearings;
   3. in the FRC, they are likely to include FDRs and final hearings; and
   4. in all three categories of work, a straight-forward directions or case management hearing is likely to be appropriate for a remote hearing.
8. Further, he considered that:
   1. although the granting of an injunction is obviously an important decision, the benefit of conducting Family Law Act cases remotely, or at a hybrid hearing, are likely to outweigh the need for an attended hearing;
   2. a fact-finding hearing in a FAA case is likely to require attendance; and
   3. whilst an important decision will normally be taken at the end of an appeal hearing, the question of whether an appeal is heard remotely or in person may turn upon the issues to be raised and whether both parties are represented or in person. The format of an appeal hearing is therefore a matter for judicial discretion in each case.
9. The President noted that there is a common view that it is beneficial for expert evidence to be given remotely and, subject to individual factors in any particular case, this is now likely to be the default position.
10. As to attendance of professionals, the President considered that:
    1. CAFCASS and local authority social services are currently under extreme pressure and that judges and magistrates will take these matters into account when deciding whether a CAFCASS officer or local authority social worker should attend an in-person hearing remotely and, if so, whether they need to attend for all or only part of it; and
    2. when deciding whether or not to hear a case remotely, judges and magistrates should take account of health related issues raised by a party or professional. Such issues may not be determinative in the choice of format, but must be taken into account in the exercise of judicial discretion.

For the full address, please click here. 

HHJ Stuart Farquhar (Lead Judge of the Kent, Surrey & Sussex Financial Remedies Court (FRC)) was asked by The Honourable Mr Justice Mostyn earlier in 2021 to convene and lead a committee (consisting of a geographically diverse collection of judges at all levels of the judiciary and practitioners).

The committee was to consider in depth and report on the role of remote courts in the post-pandemic environment (Part 1) and the procedures of the Financial Remedies Court (Part 2).

Please find links to Parts 1 and 2 of Report of the Farquhar Committee below.

Report of the Farquhar Committee Part 1

The Financial Remedies Court – The Way Forward
A Paper to consider the future use of Remote Hearings in the FRC

Report of the Farquhar Committee Part 2

The Financial Remedies Court – The Way Forward
A Paper to consider changes to the Practices and Procedures in the Financial Remedies Court

In E v L [2021] EWFC 60, Mostyn J dealt with a financial remedies application for a short and childless marriage. In his judgment, Mostyn J provides clear guidance on whether a childless or short marriage justifies a departure from the equal sharing principle and gives information on the valuation of business assets. This article focuses on the principles adduced from the judgment concerning the relationship between short/childless marriages and the sharing principle.

Facts

W made an application for financial remedies following a marriage which lasted approximately two years and resulted in no children. W was a housewife, who had previous experience modelling and as a proprietor of a lingerie, nightwear, and swimwear company. Contrastingly, H had reached the “pinnacle” of his career as a successful production manager for live music events, maintaining interests in numerous companies.

The difference between the positions of the parties was “extraordinary”, as W sought a lump sum of £5.5m and H believed £600,000 was appropriate. Mostyn J noted that this difference was “the product of imprecision within the case-law combined with intransigence and dogmatism by the parties in the pursuit and defence of the claim.”

H’s position was that the “short childless marriage” of the parties does not warrant the application of the equal sharing principle but raises a case where W “should be confined to very conservatively assessed needs.”

Childless marriage

Counsel for H addressed the issue of whether a childless marriage requires a departure from the equal sharing principle in his skeleton argument:

“There is a consistency of judicial reservation about the sharing principle applying to assets generated over a short childless marriage that sings out from [the] authorities…We say that the factual matrix of this case is a paradigm example of a case where the sharing of marital acquest, if indeed there is, on proper analysis, any acquest, is unjustified. This is a husband who, in his autumn years, through this marriage continued in a business in which he has worked for the whole of his adult life. The foundation of that business, the continuation of that business during this short, childless marriage had nothing to do with the joint endeavours of the parties.”

In reaching his decision on this point, Mostyn J referred to various cases including XW v XH [2019] EWCA Civ 2262 and Miller [2006] UKHL 24, insisting that childlessness was not the reason for upholding the unequal division of assets in the latter. In consideration of the case law, Mostyn J concluded that the fact a marriage is childless is irrelevant to whether the equal sharing principle should be departed from, warning that attempting to evaluate the quality of a marriage or arrangements made within it, will “almost inevitably trigger subconscious discriminatory practices”.

Mostyn J cautioned: “In my judgment for the court to start asking why there are no children, and whether this denotes a lesser extent of commitment to the relationship, is to make windows into people’s souls, and should be avoided at all costs.”

Short marriage

The next point to consider was whether the short duration of a marriage justifies a departure from the sharing principle. With reference to GW v RW [2003] 2 FLR 108, in which he appeared, Mostyn J referred to various judicial hints that a short-marriage exception might apply in a small minority of cases. However, Mostyn J confirms that no distinction should be made between accrual of assets over a short marriage and accrual over a longer marriage, stating:

“I now figuratively hold my hand in the flames and recant. There is absolutely no logical reason to draw a distinction between an accrual over a short period and an accrual over a long period. As Lord Nicholls pointed out, the statutory factor of the duration of the marriage will be reflected in the nature of things by the fact that in a short marriage the accrual will almost inevitably be less than in a longer marriage.”

Mostyn J did admit however, that there is a rare exception to this when non-family assets are generated by one spouse alone during a short marriage and those assets have been kept separate, with both spouses being financially and independently active, as acknowledged in Sharp v Sharp [2017] EWCA Civ 408. It was stressed that this is a rare exception, as a case where there can be non-discriminatory unequal sharing of matrimonial property earned in a short marriage is “as rare as a white leopard.”

Decision

Taking these principles into account, Mostyn J insisted “there is no good reason, at all, to depart from equality in the division. This case is not a white leopard.” W was awarded a lump sum of £1.5m on a clean break basis, providing her with 50% of the marital acquest.

Implications

There are two main principles which can be adduced from this judgment, and which will be of significance for financial remedy proceedings concerning short childless marriages:

• whether or not the parties have children does not impact on the level of commitment between them and justify a departure from the equal sharing principle
• the length of a marriage does not impact the sharing principle, the courts should not distinguish between an accrual over a short period and an accrual over a longer period

The full judgment is here.

Pietra Asprou

 

 

The President of the Family Division, Sir Andrew McFarlane, has issued a memorandum setting out the approach for drafting orders in the Family Court, in order to mitigate a number of problems. Please click here for more information.

Although there is no Practice Direction in force dealing with the drafting of orders specifically, the President has warned that this may need to be considered if the principles in the memorandum are not observed. A summary of these are set out below:

Summary of principles

1. Use the standard order templates, adapted as appropriate to the facts of the case.
2. Where the order follows a hearing, its terms, including its recitals, must reflect the result of the hearing: no more, no less.
3. The purpose of a recital is not to summarise what happened at a hearing, but rather to record those essential background matters which are not part of the body of the order.
4. While it remains necessary in children’s cases, both domestic and those with an international element, to record the essential background matters, it is essential that this is done as shortly and as neutrally as possible and that the parties should not seek to introduce adversarial and partisan statements in their favour in the recitals to the order.
5. It is not necessary in a financial remedy order to record any background matters, although the court in its discretion may permit the parties to do so. In this event it is, again, essential that this is done as shortly and as neutrally as possible.
6. The practice of parties seeking to attribute views to the court which did not form part of the court’s decision is surprisingly prevalent and must cease.
7. The practice of a party’s representative seeking to record that party’s position before, or during, the course of the hearing can give rise to much conflict and is wholly superfluous. This must cease.
8. More latitude is permissible as regards consent orders but, again, restraint in relation to the content of recitals must be exercised given the cost to the parties and the time of the court that is spent approving them.
9. Where one or both parties has legal representation at a particular hearing, the order must be agreed, drafted and lodged before the parties leave the court building or, on remote hearings, on the day of the hearing, unless this is wholly impracticable, in which event the order must be agreed, drafted and lodged within two working days of the hearing.
10. The date for the next hearing must be fixed by the parties with the court and stated in the order before the parties leave the court, unless the court otherwise orders.

Following criticism of the standard of witness statements filed in the family courts the President issued a memorandum giving guidance to practitioners on the preparation of witness statements [here].

This guidance comes with with the warning that unless it it is followed he will issue a Practice Direction similar to CPR PD 57AC issued by the Business and Property Courts.   Attached to the memorandum is an optional template for the guidance of litigants in person acting in non-complex private law welfare cases.

 

 

 

 

The Marriage of Gia Celine-Shelby and Alfie David Yorston and 27 other related cases

This case is short enough not to require a synopsis or any analysis other than set out by Moor J in dismissing 28 petitions as “improper” where each (prepared by iDivorce) cited  identical facts in supprt of an allegation of irretrevable breakdown under MCA 1973 s1(2)(b).

The case also shows that a fulsome apology at the right time can defuze a difficult situation.

 

 

This blogpost was published by The Transparency Project

Re A (Domestic Abuse: Incorrect Principles applied) [2021] EWFC B30.

First, the context:

June 2020: The Ministry of Justice published the ‘Harm Report’, a 200-page document detailing criticisms of the way family courts minimised issues of domestic abuse in proceedings relating to children; the lack of adherence to the procedure rules and guidance on handling of domestic abuse; allowing cross examination of a complainant by an alleged perpetrator etc. A reform implementation plan was announced by Government.

January 2021: The Court of Appeal dealt with appeals in four separate cases and gave guidance in Re H-N [2021] EWCA Civ 448 all family courts on cases about children’s welfare that feature issues of domestic abuse. This judgment made several references to specialist judicial training on domestic abuse, implying that all judges and magistrates had, at that point in time, undertaken relevant training in the ‘modern’ approach since the four cases were originally heard in 20192020 ‘This bespoke Family training feeds in turn into, and is further developed within, the extensive training programmes that are run in relation to domestic abuse by the Judicial College for the fee paid and salaried judges. These courses have been in place for some years and play a key role in both induction courses for newly appointed Family judges and continuation courses run for Family judges who are already in post.‘ [para 68]

Between January 2019 and April 2021, the Domestic Abuse Bill, now the Domestic Abuse Act 2021, was drafted and passing through Parliament. We explained the relevance of the Act to family cases here.

It is unlikely that anyone with an interest in the family justice system was unaware of these developments.

However, in November 2020, a hearing took place in Hastings Family Court where Deputy District Judge Watson failed to follow the fundamental principles then in place, but instead applied ‘outdated attitudes’. This has just been revealed by a new publication of a judgment, Re A, from a circuit judge in that court, HHJ Ahmed, who upheld an appeal by the mother of seven-year-old A, earlier this month. The information about the November hearing shows that not all judges were as fully aware as the President had assumed just two months later in Re H-N.

The hearing in November 2020 had included evidence from the mother about alleged abuse toward her by the father. HHJ Ahmed concluded that that the Deputy District Judge (DDJ) had failed to follow the correct procedure, as outlined below. HHJ Ahmed also cited the current definition of domestic abuse under s 1 of the Domestic Abuse Act 2021 and (section 3) that a child who sees, hears or experiences the effect of such abuse is also a victim – although that part of the 2021 Act was not in force at the date of the earlier hearing. However, the terminology in sections 1 and 3 of the 2021 Act do reflect the ‘modern’ approach and is very similar to the definition of domestic abuse in the longstanding guidance for family court judges (Practice Direction 12J), as confirmed by the President in Re H-N. Children who have been exposed to abuse of adults in their household have been legally recognised as potentially at risk of harm since 2005. That is why such allegations need to be investigated by the family court, before a decision about children’s welfare can be made. This is all set out in the Family Procedure Rules and Practice Directions.

HHJ Ahmed described a ‘constellation of failures’ by the DDJ including:

1. The mother had claimed that the father ‘took hold of mother’s hand and broke it’. The DDJ had wrongly evaluated this in terms of a charge of criminal assault. Criminal concepts of guilt and defence have no relevance or function in family courts, according to a case from 2018 where McFarlane LJ declared that the purpose of finding facts in family courts was to establish facts that were relevant to the child’s welfare and that no reference should be made to the criminal law.

2. The DDJ had referred to an absence of violence as suggesting that there had been no abuse, ignoring any possible psychological harm the mother may have suffered. It is not clear how breaking the mother’s hand is consistent with there being an absence of violence.

3. The DDJ had referred to the incident of the fractured hand as ‘highly situational’ without explaining what he meant by this. He had referred to the parents being on holiday at the time, although the decision to go on holiday together was not relevant to what took place during the holiday.

4. A separate allegation was made by the mother that the father had, in A’s presence, shouted at and been verbally abusive to C, who was an older child (aged 16) of the father. The DDJ had ‘condoned’ this behaviour by the father.

5. The DDJ had not identified the mother as a potential vulnerable witness in order to consider special measures she may need to be able to give evidence.

6. He had allowed the father to cross examine the mother to the extent that she had cried in the witness box.

HHJ Ahmed also referred to the mother being restricted in the evidence she could give about the effect on her of the father’s behaviour because the court had allowed her to raise only four individual instances during their relationship. The judge said this meant it was difficult for her to show a pattern of behaviour over time. This restriction appears to have been imposed at an earlier stage than DDJ Watson’s hearing.

It isn’t stated what the application about A was, nor what DDJ Watson’s order was, nor whether he made any findings at all. We are told that his order has been revoked and the matter has been sent back to the Family Court to consider a fact-finding hearing before a different (more senior) judge. Journalist and TP member Louise Tickle has commented on the judgment on twitter:

Some months ago, Louise submitted a Freedom of Information question to the Judicial College, asking about the extent to which the judiciary have indeed received training in the ‘modern’ law on domestic abuse, but was told that the College is not subject to the Freedom of Information Act. That question remains unanswered.

It is very rare for information to reach the public domain about Family Court cases where a finding of fact on domestic abuse should have been considered. We therefore don’t know how typical these ‘outdated attitudes’ by judges who simply ignore the court rules are. The President stated in Re H-N that appeals are rare, but he also acknowledged the seriousness of the consequences for children who are involved in cases where there has been no proper consideration of the evidence.

Administrative Court

ELECTRONIC BUNDLES

(Practice Direction 54A, §§ 4.5 and 15; Practice Direction 54B, §1.3)

Electronic bundles must be prepared as follows and be suitable for use with all of Adobe Acrobat Reader and PDF Expert and PDF Xchange Editor.

1. A bundle must be a single PDF.

2. If the bundle is filed in support of an urgent application (i.e., an application made using Form N463) it must not exceed 20mb, and (unless the court requests otherwise) should be filed by email

3. If the papers in support of any claim or appeal or non-urgent application exceed 20mb, the party should file:

a. A core bundle (no larger than 20mb) including, as a minimum, the Claim Form and Grounds or Notice of Appeal and Grounds, or Application Notice and Grounds; documents regarded as essential to the claim, appeal, or application (for example the decision challenged, the letter before claim and the response, etc.); any witness statements (or primary witness statement) relied on in support of the claim, appeal or application; and a draft of the order the court is asked to make; and

b.  A further bundle containing the remaining documents.

Such bundles should be filed using the Document Upload Centre: see the separate HMCTS “Professional Users Guide” for detailed information about the Document Upload Centre.

4. All bundles must be paginated in ascending order from start to finish. The first page of the PDF will be numbered “1”, and so on. (Any original page numbers of documents within the bundle are to be ignored.) Index pages must be numbered as part of the single PDF document, they are not to be skipped; they are part of the single PDF and must be numbered. If a hard copy of the bundle is produced, the pagination on the hard copy must correspond exactly to the pagination of the PDF.

5. Wherever possible pagination should be computer-generated; if this is not possible, pagination must be in typed form.

6. The index page must be hyperlinked to the pages or documents it refers to. 7. Each document within the bundle must be identified in the sidebar list of contents/bookmarks, by date and description (e.g., “email 11.9.21 from [x] to [y]”). The sidebar list must also show the bundle page number of the document.

8. All bundles must be text based, not a scan of a hard copy bundle. If documents within a bundle have been scanned, optical character recognition should be undertaken on the bundle before it is lodged. (This is the process which turns the document from a mere picture of a document to one in which the text can be read as text so that the document becomes word-searchable, and words can be highlighted in the process of marking them up.) The text within the bundle must therefore be selectable as text, to facilitate highlighting and copying.

9. Any document in landscape format must be rotated so that it can be read from left to right.

10. The default display view size of all pages must always be 100%.

11. The resolution on the electronic bundle must be reduced to about 200 to 300 dpi to prevent delays whilst scrolling from one page to another.

12. If a bundle is to be added to after the document has been filed, it should not be assumed the judge will accept a new replacement bundle because he/she may already have started to mark up the original. Inquiries should be made of the judge as to what the judge would like to do about it. Absent a particular direction, any pages to be added to the bundle as originally filed should be provided separately, in a separate document, with pages appropriately subnumbered.

For guidance showing how to prepare an electronic bundle, see (as an example) this video prepared by St Philips Chambers, which explains how to create a bundle using Adobe Acrobat Pro https://st-philips.com/creating-and-using-electronichearing-bundles/

Any application filed by a legal representative that does not comply with the above rules on electronic bundles may not be considered by a Judge. If the application is filed by a litigant in person the electronic bundle must if at all possible, comply with the above rules. If it is not possible for a litigant in person to comply with the rules on electronic bundles, the application must include a brief explanation of the reasons why.

31 May 2021

 

The gatekeeping system is being changed, in certain cases gatekeeping will be conducted twice.

New orders and documents are being issued in private law proceedings with a view to speed up the passage of some cases.  Where allegations of harm are made more information will be sought and a second gatekeeping review conducted with the aim is of identifying the harm alleged .  In this way reports can be ordered and whether a fact finding hearing is needed can be considered sooner.

The waiting list for FHDRA’s is 4 to 6 months, and the safeguarding will often not being done until near the hearing date.

At the first gatekeeping two documents will be sent out to the parties with the order.  At the second gatekeeping the legal advisor can then, with the benefit of the safeguarding letter (which has to have been sent by day 25 of allocation) and the parties’ responses decide whether to direct for example a section 7 report before listing the case in a PD 12J  list, where the parties will be in attendance.  At that hearing a decision can be made about whether to have a fact finding hearing and if not make other directions.

The documents sent out at the first gatekeeping will be either:

a. Private Law Appendix 1 order, or

b. Private Law appendix 2 order (Allegations of Harm) with:

The letter out to parties with the second gatekeeping paragraph; and

The Applicant’s allegationss of alleged harm; or

The Respondent’s allegations of alleged harm.

If there is a second gatekeeping an Appendix 3 order  will be made and sent out.

Unfortunately the system, though aims to fast track “harm” cases by recognising them early, does not appear to do that.   The schedules of allegations are apparently not being sent out and the reports are not being commissioned early.    The delays in listing persist and do not appear to being reduced.

 

 

 

 

The full text of Mostyn J’s announcement is found here.

The links at the foot of the announcement will take you to the archive of Zip files.  Unfortunately the links cannot be activated directly from this website.

 

 

Rezai-Namaghi v Atapour (Decree Nisi: Formalities) [2020] EWHC 3729 (Fam)

 The partes married in 2011 and separated in 2016.  In August 2016 H issued a divorce petition and in October 2016 W issued her application for financial remedy orders by means of a Form A.  The case continued through  the normal hearings to a final hearing and at all stages the parties reminded the court there had not been a decree nisi.  The case was lited for a 2 day hearing on the 24^th and 25^th January 2018.  On the first day it was pointed out to the court there was still no decree nisi.  At the start of the of the second day of the hearing before the deputy district judge she stated (according to the transcript) “I am sorry I am late..…but I can say that I have dealt with the issue of decree nisi at this point” [8].  This clearly gave the parties grounds to believe there had been a decree, indeed in her judgment the DDJ reaffirmed  “the decree nisi was pronounced by me on day 1 of the trial” [12].

In fact the hearing took 4 days finishing on the 8^th October 2018 when judgment was reserved.  Due to illness and other complexities arising, including the DDJ being given a full time appointment on another circuit, judgment was circulated in draft on 18^th March 2019.  In the draft the DDJ stated  “The decree nisi was pronounced by me on day 1 of the trial, given that this had not previously been attended to, and without which this court would not have jurisdiction to hear this case.”  The parties were in agreement the decree nisi was not made on the 24^th January 2018.  It was not until 10^th June 2019, some 18 months after the hearing began, that the judgment of the district judge was perfected and handed down and a financial remedy order was made on that day.

On 17^th April 2020 Recorder Salter delivered a reserved judgment on 3 applications by both parties to the divorce. Namely, an application by the husband (H) for a stay of execution against the financial remedy order, an application by H to vary the periodical payments contained in said order, and an application by the wife (W) for a declaration that a decree nisi was granted on 25 January 2018.  This last question was central to the proceedings and as the Recorded found that no such decree nisi was pronounced on that date accordingly the financial order was a nullity.  Thus H’s applications were redundant. The appeal in question therefore turned on whether decree nisi had in fact been pronounced on 25 January 2018.

This appeal came before Cohen J on 22^nd October 2020 who found there were a number of procedural hiccoughs:

(1) the judge did, it is now clear, sign a certificate of entitlement on 25 January, very probably just before going into court;

(2) what the judge said was that the matter, the issue, had been “dealt with.” She did not say that the decree nisi had been pronounced;

(3) no notice of the decree hearing had been given to either party;

(4) no determination had been made as to whether or not the decree should not be pronounced in public in the usual way and I mention this only because it is plain that what happened if a decree was pronounced was that it happened in private;

(5) there was no listing of the decree nisi;

(6) there is no tape on which a decree nisi can be heard to be pronounced;

(7) there is no record of the decree nisi anywhere on the file either that it be listed or heard or pronounced;

(8) no decree nisi was ever sent to the parties.

Cohen J stated while it was possible to adjust or abridge formalities by judicial decision, they could not simply be overlooked [26].  He found it remarkable that neither party had questioned the lack of such a certificate and procedural steps thereafter [27]. He added it was “deeply unfortunate” that the parties had between them spent in excess of £100,000 over 4 years.  He made it clear that absent a fundamental change of circumstances or a clear error by the judge a like order would be made by the court  and possibly at an abbreviated hearing.  He recognised “that it is deeply unsatisfactory for the parties, four years after financial remedy proceedings were commenced, not to have a final order but, in my judgment, that is where they are.”[40]

The full judgment can be accessed here.

R (Children: Control of Court Documents) [2021] EWCA Civ 162

In an order made after a fact-finding hearing in care proceedings Jones J directed: “R” should not be provided with a physical copy of the judgment or of written submissions made but should instead receive a summary of the findings and a redacted version of the judgment with explicit sexual references removed.

The order was made under “extreme circumstances” [2] whereby R, the adult brother who intervened in care proceedings relating to his two sisters, was found to be a “predatory paedophile” who had raped his sister. The trial Judge therefore made the above order “to protect the children from sensitive information including allegations of sexual abuse being misused or potentially being circulated amongst paedophiles within the prison”[5].  The trial Judge recognised, using the words of Munby J in Re B, that it “is an exceptional course to restrict a litigant’s access to documents”.  The judge then accepted the burden to restrict disclosure is a heavy one [20] and stated there is “obviously a legitimate public interest in protecting the children…from details of what has occurred from becoming widely shared”, particularly where such distribution was for “sexual gratification”, amounting to “degrading treatment” contrary to their Article 3 rights [20].

R appealed on several grounds, namely: the Judge had given too much weight to the perceived risks of unlawful dissemination of the material and too little to R’s future need to access material for proceedings in prison, and in any event the court did not have the power to prohibit the disclosure in issue.  Jackson LJ held that the Judge had conducted a “conspicuously careful balancing exercise” which led to a “sound” conclusion [22].  R had been provided with “everything he needs to understand the Judge’s decision” [22].  Jackson LJ highlighted the guidance of Baroness Hale in Re A (Family Proceedings: Disclosure of Information) [2012] at [31-32] when considering a subject’s Article 3 rights. He also stated that a party does not “own documents filed on his behalf so that he cannot be deprived of them” [25].

The full judgment can be accessed here.

East Lancashire Hospitals NHS Trust v GH (Out of Hours Application) [2021] EWCOP 18

The health trust made an out of hours application which sought to remove a woman (GH), who was in obstructed labour, from her home to hospital in order to deliver the baby by Caesarean. GH had suffered depression, anxiety and acrophobia which operate to the extent that she had not left the house since 2017 [6]. Although GH had previously indicated that she would go to hospital if necessary, on the evening of the application she declined the advice to go to hospital, after going into labour 72 hours earlier [2].

MacDonald J agreed with Keehan J in An NHS Trust and Anor v FG (By Her Litigation Friend, the Official Solicitor) [2014] EWCOP 30 that there is a heavy burden on Trusts to engage in early and thorough planning in cases of this nature, in order to prevent the need for urgent application to the out of hours judges [5]. However, in this instance he accepted that this was an appropriate circumstance for an out of hours application. Until late that afternoon GH was assessed to have capacity with respect to decisions about managing her pregnancy and had agreed to hospital if necessary. It was only later in the day that it became clear that GH’s anxiety and agoraphobia “had become the dominant feature in her decision making” [5].

In considering GH’s capacity to make decisions pursuant to the section 15(1) of the Mental Capacity Act 2005, MacDonald J stated that “GH simply does not acknowledge the risk of serious injury or death or accept…it is relevant to her as long as she remains in her “safe space” [31]. This demonstrated that GH’s agoraphobia had overwhelmed her ability to use and weigh information as required to agree to be admitted to hospital and undergo an emergency operation.

As to determining the question of best interests under section 4(1) of the act, having balanced the risks of increased anxiety, MacDonald J gave considerable weight to her previous willingness to go to hospital. Which in MacDonald J’s view established that GH wanted for her and the baby to stay alive, which satisfied him that it was in GH’s best interest to be conveyed from her home [33]. To this end, MacDonald J authorised use of reasonable restraint, but echoed his own statement in Cambridge University Hospitals NHS Foundation Trsut v BF [2016] that this was a “grave step indeed to” compel a patient to undergo medical treatment [41].

The full judgment can be accessed here.

SZ v Birmingham City Council & Ors (Children: Summary Dismissal) [2021] EWFC 15

The judgment concerned a father’s (F) application for indirect contract with his children, B aged 16 and (K) aged 14, both of whom had been in the care of the local authority since 2013. At the conclusion of these care proceedings an order pursuant to s.34(4) of the Children Act 1989 was made, granting the local authority leave to refuse contact with the father [4]. The father was deported from the UK in 2017, received a lifetime ban on re-entry, and had also fathered another child (ED) with LM, the half-sister of the two children [8].

The local authority’s statement in response to F’s application recorded how extremely fearful both children were of their father, whereby K feared his father finding and killing him, and B would not travel independently for the same reason [16]. The extent of such a fear was shown by the fact that the existence of F’s application could not be revealed to the children for fear of traumatising them [17]. The statement “could not have been more clear as to the perceived lack of merit of the father’s application” and as such the local authority applied for summary dismissal of the application [20].

Mostyn J pointed out that notwithstanding the complete absence of any rule, in FPR Part 12 to 14, that permits striking out or summary dismissal on the ground of a lack of prospect of success [21]. Munby LJ, in Re C (Children) [2012] EWCA Civ 1489 at [14], confirmed that in cases relating to children the court has wide powers to dismiss on summary application where a case is “if not groundless, lacking enough merit to justify pursuing the matter.”

Mostyn J dismissed the application on the above grounds, based on the fact that the Gillick-competent children made it clear they would “unambiguously refuse to engage in any form of contract with him” [27]. Secondly, the order made under 34(4) did not relieved the local authority of its duty to promote and maintain contact between child and their family (Sch 2, para 15(1)). Thus, F’s application was premature, the correct course of action would be send a letter for his children to the local authority, who would then make a decision in light of the aforementioned duty as to whether to hand it on [30]. The local authority could only refuse if the promotion of contact was objectively and reasonably not practicable or consistent with the children’s welfare.

The full judgment can be accessed here.

FRB v DCA (No 3) (Varying a Financial Order: Evidence) [2020] EWHC 3696

In March 2020 Cohen J made a final order in a long-standing financial remedy proceeding which provided that the husband (H) pay the wife (W) £64 million to include a lump sum by instalments of £49 million.  The lump sum was to be in three instalments: the repayment of the £12 million mortgage on the matrimonial home (which was to be transferred to W mortgage free);  a payment to W of £30 million within 6 months of the order and a further payment of £12 million within 18 months of the order.  The timescale of these payments was proposed by H during negotiations.

H applied to the Court of Appeal for permission to appeal which was refused on 18^th August 2020.  H failed to pay any of the lump sum and transfer the property mortgage free.  On 28^th September 2020 H applied to vary the order both as to quantum and as to time for payment  on the basis the pandemic was a Barder event.  He filed a statement (his 11^th) which claiming there had been an “enormous reduction” in his personal wealth, as a large proportion of his assets were held in countries, or “underpinned by businesses”, which were among “the hardest hit globally during the course of the crisis” [14]. As such, H argued that the “entirely unforeseen and unforeseeable course of events” had “fundamentally undermined the fairness of the award” [15]. H was unable to fully quantify the “enormous reduction”. In support of his application H merely relied on a statement of his “understanding of the current position”, which concentrated on the macro-economic situation arising from Covid-19 [16]. H also sought the revaluation of all the assets in the case, an exercise which would take 6 months to complete and cost between £300,000 and £400,000.

Cohen J held that it was not proper to accede to H’s application to vary the quantum on macro-economic grounds [26].  It was for H to provide prima facie evidence and he had not.  He had given no indication of what he says he is worth nor what he can pay and when.  While no doubt the pandemic had affected industries which formed part of H’s wealth, H provided no documentation containing trading figures or valuations [26].

Cohen J also stressed that the major stock market indices had rebounded to pre-pandemic levels, meaning that any valuation requested by H, done at a significant cost, “would inevitably be even more speculative than that done in pre-Covid time” [30].

The full judgment can be accessed here.

 

Re H-N and Others (children) (domestic abuse: finding of fact hearings) [2021] EWCA Civ 448

The Law Society Gazette reported on 30th March 20121 the Court of Appeal  judgment in a groundbreaking case that is expected to inform the way family courts treat allegations of domestic abuse and coercive and controlling behaviour.

Two months after hearing four linked appeals related to family proceedings involving the welfare of children, Family Division President Sir Andrew McFarlane, Lady Justice King and Lord Justice Holroyde published a 47-page judgment.

The appeal court was last asked to give general guidance on the approach to domestic abuse in child contact cases two decades ago. Practice Direction 12J was subsequently issued, setting out what the family court is required to do in cases where it is alleged or admitted that the child or a party has experienced domestic abuse or that there is a risk of such abuse.

The appeal court said PD12J remained fit for purpose – the challenge related to its proper implementation. The court offered ‘pointers’ to those implementing the Domestic Abuse Act and any subsequent revision of PD12J. These include asking, in every case where domestic abuse is alleged, both parents to describe in short terms, either in a written statement or orally at a preliminary hearing, the overall experience of being in a relationship with each other.

The Scott Schedule is a schedule or table used in family court proceedings to set out the allegations in dispute. The court said there was ‘effective unanimity’ among the dozen oral submissions heard during the appeal ‘that the value of Scott Schedules in domestic abuse cases had declined to the extent that, in the view of some, they were now a potential barrier to fairness and good process, rather than an aid’.

The judges concluded that ‘the process before this court has undoubtedly confirmed the need to move away from using Scott Schedules’.

The court said it was ‘fundamentally wrong’ for the family court to be drawn into an analysis of factual evidence in proceedings relating to the welfare of children based on criminal law principles and concepts. ‘Family courts should avoid analysing evidence of behaviour by the direct application of the criminal law to determine whether an allegation is proved or not proved. A further example can be drawn where the domestic abuse involves violence. The family court may well make a finding as to what injury was caused, but need not spend time analysing whether in a criminal case the charge would allege actual bodily harm or grievous bodily harm’.

The court allowed the appeals in Re B-B, Re T and Re H-N and dismissed the appeal in Re H. The judges stressed that none of their decisions established ‘new law’.

In concluding remarks, the judges said: ‘Each of these appeals are examples in differing ways of the importance of the modern judiciary having a proper understanding of the nature of domestic abuse and in particular of controlling and coercive behaviour and of its impact on both the victims and the children caught up in the atmosphere engendered in such a household. Training together with a proper application of PD12J largely ensures that such errors are the exception rather than the rule, but that that is the case does not lessen the impact on those individuals affected when things do go wrong.’

The judgment states that the appellant mothers had legal aid. The respondent fathers were represented by solicitors and counsel acting pro bono.

The judges said: ‘The court wishes to express its gratitude to all those who have acted pro bono which has also included many of the interveners. As a consequence of their willingness to act without payment, this court has had the inestimable advantage of hearing submissions made from all perspectives.’

Sir Andrew McFarlane, the President of the Family Division, has announced on the 24th February 2021 that the Financial Remedies Courts pilot project has now been completed. Financial Remedies Courts will now be included in the permanent structure of the Family Court in all 18 zones of the Family Court system in England and Wales.

The Financial Remedies Courts will deal with all financial remedy applications, whether arising from divorce, or under the Children Act 1989, Schedule 1, or under the Matrimonial and Family Proceedings Act 1984, Part 3. It will also deal with all applications for enforcement of financial remedy orders.  The Presifdent is hopeful that in due course legislation will be passed which will allow the Financial Remedies Courts to hear applications under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) and the Inheritance (Provision for Family and Dependants) Act 1975.

The zones and membership of the courts are set out in a helpful organogram published by the Ministry of Justice. The key governing constitutional documents of the FRCs are the Good Practice Protocol and the document “Overall structure of the Financial Remedies Courts and the role and function of the lead judge”, both dated 7 November 2019.

The full announcement the Courts and Tribunals Judiciary website.

 

H v An Adoption Agency (Declaration of Parentage following Adoption) [2020] EWFC 74

The child in question (T) became the subject of care and placement proceedings in 2015. Mr H was not named on the birth certificate but a paternity test confirmed that he was T’s father and he was therefore joined to the care proceedings. Mr H was refused permission to appeal placement orders made in April 2016 and adoption orders made in April 2017. Mr H then applied for declaration of parentage, aiming to secure an amendment to the original birth certificate.

MacDonald J was satisfied that the court has a jurisdiction, pursuant to s.55A(1) of the Family Law Act 1986, to grant to a birth parent a declaration of parentage following the lawful adoption of a child.  He concluded that it was possible to read “any person” to include a birth parent in the position of Mr H whose child was subject to an adoption order (s.46 Adoption and Children Act 2002). Macdonald J was further satisfied that s.55A(5) FLA 19896 allowed the court to refuse to hear a preliminary issue on the grounds it is not in the child’s best interest for the application to be determined .  In this instance, the adoptive parents thought it important that the child know her full life story and they had no objections to Mr H’s name on the birth certificate. Therefore, MacDonald J declined to refuse to hear the application and listed that for a final hearing.

Full judgment, click here.

A Local Authority v JK & W (Non-notification) [2021] EWHC 33 (Fam)

These proceedings concerned W, a 10-month-old child, born on 19 February 2020. Three days prior to his birth, his mother (M) notified the local authority that she intended to relinquish W for adoption and that she did not want the father, or any member of the wider families to be told of the birth or adoption proceedings. On 3 September the local authority applied for an order, under FPR Part 19 and rule 14.21, endorsing its decision not to disclose W’s existence to his father, and an order to the same effect in relation to non-notification to the maternal grandparents. The Child’s Guardian opposed the application.

In dismissing the application, Peel J set out a number of “lessons for the future in non-notification cases” [48-54]. Peel J was highly critical of the “utterly unacceptable delay” [43] in making the application 7 months after birth, comparing it to the judgment in A, B and C [2020] EWCA Civ 41  In that case the Court of Appeal emphasised the urgency required in making a part 19 or Rule 14.21 application and concluded that an application made after 4 months was “belated” [48]. Further, Jackson LJ stated at paragraph 86 of A, B and C that decisions relating to non-notification should be taken “at a very early stage.” In the current case Peel J stressed that a “Local Authority should ensure that it explains carefully and sensitively, to a mother every stage”, of the non-notification procedure, “setting out the competing factors and considerations” [48].

At paragraph 22, Peel J included a summary, from A, B and C [86-88], of such principles which the local authority should “closely adhere to” when making decision as to whether a putative father or relative should be informed of a child’s existence. It was stated that while the welfare of the child is an important factor, it was not the “paramount consideration” and other factors such as the likelihood of a family placement being realistic alternative to adoption and Article 8 rights had to be considered.  It was stressed that where there is a “family life” under article 8 “the maintenance of confidentiality is…highly exceptional” [22].

For the full judgment click here.

F v M [2021] (Domestic Abuse: Similar Fact Evidence) EWFC 4

 The need for fact finding arose in relation to the father’s (F) application for contract with his 6 and 3-year-old children who lived with their mother (M). The case was transferred to the High Court following a successful appeal overturning a case management decision to exclude similar fact evidence in relation to a second relationship. As a result of this Court of Appeal Decision, the court also heard about the father’s subsequent relationship with a 40-year-old woman and her 2 children.

In the instant case Hayden J stated that considering both cases together “illuminate the sinister, domineering” behaviour that would “not have been fully appreciated had the cases been severed” [5]. Following a detailed analysis of the allegations of controlling and coercive behaviour in which it was found M was “subjected to a brutalising, dehumanising regime by which F subjugated her and was profoundly corrosive of her autonomy” [64].

In concluding that F was a “profoundly dangerous young man…to women … and children” [101] Hayden J considered the definitions provided by section 76 Serious Crime Act 2015 and FPR 2010 PDJ12J [105-109]. He said that an “overly formulaic analysis may ultimately obfuscate rather than illuminate the behaviour” [108]. Hayden J stressed that there will frequently be clues, hints, indicators and triggers in what people report which might stimulate wider forensic curiosity and precipitate investigations of greater subtlety and nuance [112].

The full judgment can be accessed here.

Salford CC v W and Ors [2021] (Special Guardians: Religion) EWHC 61 (Fam)

In June 2017 it was agreed that the 5 children, aged 4 to 11, should live with their maternal aunt, Mrs Z and uncle, Mr Y.  In December 2018, a Child Arrangements Order was made in favour of Mrs Z and Mr Y. When the matter was transferred to the Family Court sitting in Manchester, Salford City Council applied for care orders. The biological mother sought a s8 PSO,  prohibiting the proposed special guardian, Mrs Z, from giving effect to her intention to have the children initiated into the Roman Catholic Church. The mother contended that the children had been brought up in the Pentecostal faith.  While in the care of Mrs Z the children attended a Roman Catholic church, spiritual trips and pray the rosary every evening.  As such, the children considered themselves Roman Catholic and displayed crosses around their necks to social workers.

Mrs Z contended that it was difficult to enrol the children in a local Roman Catholic school because of their lack of Catholic Baptismal Certificate and the fact they could not take communion left them feeling left out of the community [31]. The mother contended Special Guardianship Regulations 2005 required the children to be brought up in the context of the parent’s religious beliefs [29].

MacDonald J dismissed the application for a s8 order saying while the 2005 Regulations “make plain that information regarding the children’s religious and cultural upbringing is important” and must be included in the report to the court [46] he was not satisfied that the Regulations intended to “ensure the approach of the special guardian…aligns with that taken prior”. The purpose was to identify the children’s welfare needs with respect to their religious and cultural upbringing. MacDonald J stressed that the conclusion reached in this instance was “not to pronounce judgment on the relative merits” of each denomination, but merely a matter of the children’s welfare [85].

For the full judgment, click here.

London Borough of Lambeth v L (Unlawful Placement) [2020] EWHC 3383 (Fam)

A care order was first made in relation to L in 2016 after his mother’s death; his father disputed paternity and did not have parental responsibility. L suffers from Autistic Spectrum Disorder, Post Traumatic Stress Disorder, and significant issues with regulation of emotions.

Following a series of failed foster placements, L was moved to a residential placement in January 2019. From this point L was subjected to a number of regimes “that may have amounted a deprivation of his liberty, including high levels of supervision and physical restraint” [11]. This included 2:1 supervision in January 2019 which was subsequently increased to 3:1 in November of that year. L moved to his current placement on 28 January 2020, with 2:1 supervision shortly afterwards, yet an application for an order authorising the deprivation of L’s liberty was not issued by the local authority until 28 August 2020.

Although MacDonald J authorised the deprivation of L’s liberty, he strongly reiterated the “vital” requirement that “all local authorities adhere strictly to the proper legal procedures where a child is to be deprived of his or her liberty in a placement”.  As such, Lambeth “failed entirely to take the steps required” to ensure L’s deprivation of liberty was lawful at his current placement. MacDonald pointed to the requisite steps as summarised by Sir James Munby in Re A-F (Children) [2018] EWHC 138 (Fam) which must be “applied with rigour notwithstanding the current accepted difficulties in finding appropriate placement for children with complex needs”. In plain, neither the ongoing public health crisis, nor the emergency nature of a particular case were valid reasons for failing to follow the process set out in Re A-F.

 The full judgment can be accessed here.

M v H (Private Law: Vaccination) [2020] EWFC 93

In a private law dispute the father of two children, aged 6 and 4, sought a specific issue order for their inoculation with the MMR and all other normal childhood vaccinations to include vaccinations for overseas travel and Covid-19. The mother questioned the efficacy of such vaccines [22], for her children in particular and alleged “experts” had concerns about ingredients of the MMR vaccine and their link to autism and Alzheimer’s.

With respect to vaccinations “for possible future travels”, MacDonald J held that it was not appropriate to make an order with “respect to travel vaccinations that may or may not be required in some unspecified point in the future” [3].  This was too speculative as to what vaccines might be necessary according to the “destination identified”.

MacDonald J also declined to a decide the Covid-19 vaccine issue given the “very early stage reached” in the vaccination programme. It is unclear what the official guidance on whether children will receive a vaccine and what vaccine that would be. However, MacDonald J stressed that “it was very difficult to foresee a situation in which a vaccination against COVID-19 approved for use of children would not be endorsed by the court” [4].

 As for inoculation against MMR, MacDonald J granted a specific issue order authorising the administration of vaccinations in accordance with the NHS Vaccination Schedule applying Re H (A Child)(Parental Responsibility: Vaccination) [2020] EWCA Civ 664.  Scientific evidence and Public Health England guidance establishes it “is generally in the best interest of otherwise healthy children” [40]. For a parent to assert otherwise they would have to adduce “credible peer review research” and a reputable “jointly instructed expert” [46] rather than “junk science” (Sedley LJ in Re B (Welfare of Child: Immunisation) [2003] EWCA Civ 1148.

For the full judgment click here.

To all Financial Remedies Practitioners

Financial Remedies Courts now no longer ‘pilot schemes’

1. The Financial Remedies Courts (FRCs) are now up and running in 18 zones in all parts of England and Wales^[1]. The President of the Family Division has confirmed that the FRCs should no longer be regarded as pilot schemes, but instead should be regarded as being an established and permanent part of the Family Court. A formal announcement is expected imminently.
2. An “organogram” the judicial structure of the FRCs has been published which identifies the Lead Judges in the 18 zones and all the FRC Judges in each zone.  Although the list will plainly change over as judges are appointed, relocate and retire, the clear intention of the  is that only judges onthe FRC Good Practice Protocol this list should be hearing Financial Remedies cases.

New procedures for issuing Forms A in the Financial Remedies Courts

3. We are pleased to make public some significant imminent changes to the way in which applications for Financial Remedies should be brought.
4. With effect from 15 February 2021 applications for Financial Remedies should be issued in the hub court of one of the FRC zones (as opposed to a Regional Divorce Centre)^[2].
5. FPR 2010 Rule 5.4 does not stipulate at which zone hub the application must be issued. It merely requires it to be issued in the Family Court. Therefore, in theory at any rate, the applicant can issue the application in the zone hub that he or she prefers. However, were the application to be issued in a non-local zone then the applicant will face the risk that the court will, either of its own motion or on the application of the other party, use its powers under FPR 2010 Rules 29.17 & 29.18 to transfer the case to be heard elsewhere, most likely in a local zone.

Digital applications

6. Many (or most) Financial Remedies practitioners will now have experience of the Digital Consent Orders (DCO) scheme which is now fully up and running. FRC Judges all around the country are now approving consent orders digitally. Approximately 2,000 consent orders per month are currently being approved in this way with a typical turnaround time of about two weeks. We are grateful to practitioners for their part in so rapidly adapting to this scheme. We will do our very best to keep up this level of performance.
7. Following fast behind the DCO scheme is its equivalent for non-consent order cases, the Digital Contested Cases (DCC) scheme. Under the DCC scheme, Forms A are issued on line and all documents (Forms E, Statements, Reports, Bundles etc.) are filed by uploading them on to the portal, to which all legitimate participants will have access. This is already available in some FRC zones and will be rolled out to all FRC zones in the coming months. It is hoped that within a reasonable period of time this will become the routine method of filing documents in Financial Remedies cases. Under this scheme the applicant will nominate his or her preferred FRC zone for dealing with the application, subject to the same comments about transfer as set out above. All practitioners are encouraged to use this scheme at the earliest opportunity.

Allocation

8. One of the new features introduced by the FRCs is the facility for cases to be allocated to an appropriate judicial level. This can only be done if practitioners issuing Forms A routinely use the allocation questionnaire. This is particularly important if the case has complex features and should be heard by an experienced full time District Judge or Circuit Judge. Practitioners are encouraged to make use of this facility by getting used to completing the allocation questionnaire on issue.
9. Where an allocation is made without a hearing (as it almost invariably will be) then a party may request the court to reconsider this decision at a hearing: see FPR 2010 Rule 29.19. In the FRCs the allocation will frequently be made to a level of judge different to that specified by the Family Court (Composition and Distribution of Business) Rules 2014 in order to reflect complexity or the efficient use of local resources. It is unlikely that a court will wish to change such an allocation without very good reason and is unlikely that a separate hearing will be permitted for such a request to be considered.

Nicholas Mostyn

Edward Hess

5 February 2021

Footnotes

[1] Subject to the final administrative ‘go live’ implementation in Lancashire & Cumbria

[2] The hub courts are for these purposes: Central Family Court, Birmingham, Nottingham, Newport, Swansea, Liverpool, Sheffield, Newcastle, Leeds, Medway, Manchester, Peterborough, Oxford, Bristol, Bournemouth, Plymouth, Wrexham & Preston.

A Recap

If a party believes that the disclosure given by the disclosing party is inadequate a party may apply for an order requiring specific disclosure under CPR rule 31.12(1).

CPR rule 31.12(2) provides that an order for specific disclosure is an order that a party must do one or more of the following things:

1. disclose documents or classes of documents specified in the order;
2. carry out a search to the extent stated in the order;
3. disclose any documents located as a result of that search.

The wording of the CPR is clear in that an application for specific disclosure can only be made against ‘a party’ and, therefore, an order for specific disclosure against a respondent will only be effective if the document required is in their possession or control (CPR rule 31.12(2)).

A document will be in control of a party if:

1. it is or was in his physical possession;
2. he has or has had a right to possession of it; or
3. he has or has had a right to inspect or take copies of it. (CPR rule 31.8(1))

As such, when documents belonging to a party are being held by a third party those documents are subject to be disclosed under Part 31 by virtue of the party having a right to possess those documents.    However, documents held by a third party will fall outside the scope of Part 31 if those documents belong to the third party North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11 Per Toulson LJ at [40].

Non-Party Disclosure

In the event that the applicant requires disclosure and inspection of a document held by a third party, and the disclosing party does not have control of the document by having a right to possess it, in most circumstances the most appropriate course of action would be to make an application for non-party disclosure under CPR rule 31.17.

The court may make an order for non-party disclosure if:

1. the documents are likely to support the case of the applicant or adversely affect the case of one of the other parties to proceedings; and
2. disclosure is necessary in order to dispose of the claim fairly or to save costs.

It is important to note that a court will not make an order for non-party disclosure unless both criteria are satisfied. Even if both criteria are satisfied, the court still has a discretion to decide whether it ought to order disclosure from a non-party.

In IC v RC [2020] EWHC 2997 (Fam) Knowles J considered when an order may be amended under the slip rule (rule 29.16(1) FPR) in circumstances where the husband argued that the order ceased to have effect.

In this case, a financial remedy consent order was approved by the court requiring the husband to pay periodical payments to the wife during their joint lives. The husband argued that he had a reduction in his income and, therefore, applied to vary the order. The wife made a cross-application to enforce the order. At the final hearing, it was accepted that the husband’s income had lowered. The order for periodical payments was varied to reflect the husband’s reduced income.

The husband was unrepresented and so counsel for the wife drafted the order that was later approved and sealed by the court. The order provided that one trigger for the end of periodical payments was the ‘applicant’s remarriage’. The husband later re-married and stopped paying. He stated that he understood the order to mean that the periodical payments would stop at his remarriage. The wife issued an application to correct the order under the slip rule. The order was corrected by the court to read ‘the respondent’s remarriage.’

The husband later instructed direct access counsel to apply for permission to appeal (out of time). He argued that the court had no power or jurisdiction to amend the order under the slip rule, as the order ceased to have any effect following his remarriage.

Knowles J held that the slip rule was applicable, and therefore amendments to an order can be made, at any stage in proceedings to ensure that the order properly reflects what the court intended. The reasoning behind the decision being that the words ‘at any time’ in rule 29.16 applies equally to orders that are no longer in existence. It was noted that if the court accepted the husband’s submission, he would benefit from the order in a manner not intended by the court which would be ‘profoundly unjust to the wife’ (at [34]).

This judgment also highlights the dangers of simply referring to the parties as the ‘applicant’ or ‘respondent’. An individual’s party status may change throughout proceedings as occurred in this case where the wife was the original applicant for financial remedies but the husband subsequently became the applicant when he applied to vary the order.

Daniel Proctor

06.01.20

W (Children: Reopening/Recusal) [2020] EWCA Civ 1685

This case came to the Court of Appel on a mother’s application to appeal a decision to set aside findings of fact, concerning her allegation that the father perpetrated domestic abuse against her, because of appearance of judicial bias.

During the fact-finding exercise, conducted in April 2020, DJ Wylie made six of the findings sought, gave directions for further evidence and listed a final welfare hearing. Recorder Searle sought to relist it before DJ Wylie, following two adjournments owing to unavailability of CAFCASS, but discovered she had recused herself due to a “family connection” to a party. No further information was provided.

On the 17^th July 2020 HHJ Dugan set aside the findings of DJ Wylie, concluding that there was an appearance of bias which “infringed” the “test of bias” [16]. The parents were unaware of the details of the “family connection” cited by DJ Wylie in recusing herself.

On the 21^st July 2020 the mother’s solicitor wrote to the court asking three questions which were answered by DJ Wylie on the 29^th July 202 in a response sent to the court office:

1. Please confirm what the “family connection” is that caused District Judge Wylie to recuse herself?     Answer “The judge’s son and the mother were members of the same local hockey club. The mother is a friend of the son on Facebook and each follows the other on Instagram”.
2. Was D J Wylie aware of this connection when sitting on the Finding of Fact hearing in February 2020?’  Answer“Absolutely not. DJ Wylie was unaware of the connection until June 2020.”
3. If District Judge Wylie was aware of the connection, please confirm why it was not raised with the parties then?   Answer “As above, DJ Wylie was not aware of the connection until very recently – had she been then she would have immediately raised it with the parties.”

Unfortunately these responses were not sent to the parties until the 7^th November 2020.  The mother had obtained permission to appeal on the 23^rd October 2020 and the matter was listed to be heard by the Court of Appeal on the 3^rd December 2020.

The mother sought an appeal on a number of grounds [21] including that

1. HHJ Duggan was wrong to conclude there was any bias operating at the time of the decision;
2. he had failed to give proper reasons for his decision; and,
3. had used the wrong legal test.

Additionally, she argued the process prevented her from advancing an argument that there was no apparent bias as she was not given a proper explanation of why the District Judge recused herself.

Lord Justice Peter Jackson, giving the judgment of the court, held that HHJ Duggan’s “unexpected” decision to set aside the findings was “both wrong and unfair” [40] for several reasons:

1. He was not in possession of the basic facts of the case and so could not make any judgment on “apparent bias’; [40(a)]
2. He applied an incorrect and weaker test than “whether the reasonable observer would conclude that there was a real possibility that the judge was biased”, [40(b)]
3. the Judge’s conclusion that the District Judge’s findings were infected by apparent bias is not supported by any sound reasoning more so in the light of District Judge Wylie’s answers to the questions posed of her. [40(c)].

For the full judgment, click here.

Warrington Borough Council v TN (Care Proceedings: Comity) [2020] EWFC 79

In a case concerning care proceedings relating to an 8-year-old child (JN) born in the UK to Lithuanian parents, MacDonald J restated that participants, in such proceedings involving more than one jurisdiction, must “give appropriate weight to the principle of comity as it pertainsto judicial and social care arrangements” [37].

JN came to the attention of the local authority when it was informed that the mother was convicted of “people trafficking” and was subsequently at risk of a significant custodial sentence. In addition, there were welfare concerns due to the child’s exposure to domestic abuse and gaps in her education. After serving a two-year custodial sentence, the Home Office agreed not to deport the mother until the Family Court decided if it was in the interest of the child to accompany her.

The main issues in this instance related to a dispute between the parties about the extent to which the court needed confirmation of the safeguarding measures that would be taken by Lithuanian authorities. Such authorities repeatedly made it clear that it would set out what steps it deemed appropriate upon the child’s arrival in Lithuania, whereas the Children’s Guardian was for some time unable to agree to JN’s relocation without details of what support would be made available.

Macdonald J held that while the English court had “no jurisdiction to compel the Lithuanian State Child Rights Protection and Adoptions service to take a particular course of action” [14]. Given that the principle of comity does not derive solely from Council Regulation 2201/2003, but also in the common law (see Buck v Att-Gen [1965] Ch 745 at 770), it still applies [26]

For the full judgment click here

Re H (Step-Parent Adoption) [2020] EWFC 86

 This case concerns an application for the adoption of a 17-year-old girl (H) under s.46 Adoption and Children Act 2002 by her stepfather. Born in Thailand, H and her mother have lived in the UK since 2011 with the stepfather and their two younger children. H’s birth father was never married to her mother, he was named on the birth certificate but did not acquire parental responsibility.  The Thai authorities were unable to trace him.

Cobb J set out the Thai legal framework with regards to “legitimation” and “parental power” (parental responsibility is not a term used in the relevant Thai statute) [9-14], which is largely similar to s.4 Children Act 1989.  Aside from the fact that naming the father on the birth certificate does not of itself grant legitimation to a father who was not married to the mother. Under Thai law the stepfather was also able to adopt H as there is the required age gap of at least 25 years and H consented to the adoption, as required by a Thai child over 15.

Cobb J held that the father’s consent was not required as he did not appear to have parental responsibility for H (s.52(6) Adoption and Children Act 2002). Had the father’s consent been required, Cobb J stated he would be “contented…to dispense with it on the ground that he could not be found” (s.52(1)) or on the grounds that H’s paramount welfare required such a dispensation per s.52(2) [18].

The full judgment can be accessed here.

An application for the adoption of A, the child of the applicant’s cousin, was made when A was 17, she reached her majority in September 2020. Born in St Lucia, A was brought to England in 2002 by Z at the request of the parents to bring her up alongside her four children. A’s parents signed a deed akin to a document delegating parental responsibility under s.2(9) Children Act. Since then, A has remained in Z’s care and obtained a residence order to counteract her father’s wish, expressed during a 2010 visit, that she return to St Lucia.

As a non-agency adoption, s.44(3) Adoption and Children Act 2002 dictated that a notice of intention to adopt must be given to the local authority “not more than two years…before the date on which the application for adoption is made. In this instance, Z spoke to the local authority about the proposed adoption in June 2018 but applied to adopt in May 2020. This application was returned to the court, owing to a number of errors and in incomplete sections. A second application, supported by the adoption social worker, was made in August.

Keehan J held that it was “manifestly in the welfare best interest of A” for the adoption order to be made in favour of Z, whom A “considers to be her mother” [48]. Applying a purposive reading of s.44(3) Keehan J found that the failure to comply with s.44(3) of the 2002 act was a purely “technical failure” with which the local authority took no issue [13]. Alternatively, A’s Article 8 rights required him to “read down” s.44(3), as to “deny A the transformative benefits of an adoption order such an outcome would be nonsensical and affront to public policy” [50].

Full judgement here.

The Supreme Court has announced that it has declined to hear a case in which a transgender man who had given birth to a child sought judicial review of the decision that had was registered as the “mother” on the birth certificate.

Mr McConnell argued for a declaration that, by virtue of his gender recognition certificate, under domestic law he was to be regarded and entitled to be registered as the child’s “father”. Alternatively, if domestic law required his registration as “mother”, he sought a declaration of incompatibility per s.4 of the Human Rights Act on the ground that the domestic law was incompatible with his or the child’s article 8 and 14 European Convention rights.

In the view of the Supreme Court the aforementioned assertions did not raise arguable points of law which should be currently considered given that the cases were the subject of judicial decision and reviewed on appeal.

To access the Court of Appeal judgment, click here.

This case concerned the application by CB, the husband to set aside two consent orders made in 2010 and 2013, relying on facts which did not satisfy the traditional grounds for setting aside a final order. The former order provided for equal division of assets, including the profits of properties still in development. The latter provided that CB would pay two lump sums of £410,000 and £250,000.

CB argued both orders should be varied due to the financial effect of one of the development properties selling for much less than anticipated in 2016, and the fact that the other property was repossessed and under offer. He additionally asserted that a lump sum payment of £3.5m should be made to him by his former wife.

Mostyn J considered the “traditional grounds” on which financial orders could be varied under s.31 Matrimonial Causes Act 1973 and the common law [17-20]. While Mostyn J reaffirmed the existence of a general ‘set aside’ power in s.31F(6) of the Matrimonial and Family Proceedings Act 1984, as stated in Sharland v Sharland [2015] UKSC 60, Gohil v Gohil  [2015] UKSC 61 and Norman v Norman [2017] EWCA Civ 120.  He did not agree that this provision represented a “brave new world” [55] for setting aside financial orders on grounds outside the traditional grounds. The court had no wide-reaching powers to set aside an order where there had been materially altered circumstances as in this instance.

For the full judgment click here.

The child in question (T) became the subject of care and placement proceedings in 2015. Mr H was not named on the birth certificate but a paternity test confirmed that he was T’s father and he was therefore joined to the care proceedings. Mr H was refused permission to appeal placement orders made in April 2016 and adoption orders made in April 2017. Mr H then applied for declaration of parentage, aiming to secure an amendment to the original birth certificate.

MacDonald J was satisfied that the court has a jurisdiction, pursuant to s.55A(1) of the Family Law Act 1986, to grant to a birth parent a declaration of parentage following the lawful adoption of a child.  He concluded that it was possible to read “any person” to include a birth parent in the position of Mr H whose child was subject to an adoption order (s.46 Adoption and Children Act 2002). Macdonald J was further satisfied that s.55A(5) FLA 19896 allowed the court to refuse to hear a preliminary issue on the grounds it is not in the child’s best interest for the application to be determined .  In this instance, the adoptive parents thought it important that the child know her full life story and they had no objections to Mr H’s name on the birth certificate. Therefore, MacDonald J declined to refuse to hear the application and listed that for a final hearing.

Full judgment, click here.

This important case was heard by Pepperall J in the Administrative Court.  The case was brought by the Public Law Project in conjunction with the Law Society Access to Justice Committee  The Court held that victims of domestic abuse who jointly hold property with their abuser must not automatically be denied legal aid. In reality such capital is trapped, meaning that the LAA may exercise its discretion, pursuant to 31(b) Civil Legal Aid Regulations 2013, to grant legal aid in such cases.

Full judgment click here.

Following the breakdown of the relationship, GR continued to occupy and possess a joint interest in the three-bed family home in London worth £650,000 and subject to a mortgage of £302,000. GR was unable to meet mortgage payments having no assets at her immef=diate disposal.  GR remained the children’s primary carer and the house, which was is in walking distance of their school, met their housing needs.  GR applied  for civil legal aid to fund private family-law proceedings in respect of the custody of the couple’s two children and a dispute as to their jointly owned property.

The Legal Aid Agency refused GR’s application as it assessed her disposable capital at £65,278, comprising of her interest in the home and the balance of her account. The LAA rejected an appeal which contended that the property should have been valued at nil because GR could neither borrow against the asset nor sell it. GR argued that the LAA Director had failed to exercise her discretion to disregard the value of the property.

 

President of the Family Division Issues Addendum to Practice Guidance on Unregistered Placements

 On 1^st December 2020, Sir Andrew McFarlane issued an addendum to the Practice Guidance: Placements in Unregistered Children’s Homes in England or Unregistered Care Home Services in Wales.

 The Practice Guidance outlines the steps that must be followed in circumstances where an application is made to the court to exercise its inherent jurisdiction for an order to authorise the deprivation of liberty of a child.

In summary, those are:

1. Seeking confirmation of the registration status of those seeking to provide the care or accommodation for the child.
2. If those providing care or accommodation are not registered, this must be made clear to the court. The court should also be made aware of the reasons why registration is not required or is delayed. If there is an exemption for registration, the applicant must make the court aware of the steps being taken to ensure that the premises and support provided are suitable and safe.
3. If registration is required, the court will need to be satisfied that the necessary steps are being taken to apply for registration. The court will also need to be assured that the provider of the care has confirmed that they are able to meet the child’s needs. The Local Authority will need to inform the court about the steps being taken in the meantime to ensure that premises and care given by the staff are suitable for the child.
4. Where an application for registration has been submitted the court will need to be made aware of the status of that application.
5. If an order is granted but there is no application for registration, the order should provide that the application for registration should be made within 7 days.

The addendum creates the additional step that the court must include in any order approving the placement of a child in an unregistered placement, a requirement that the Local Authority should immediately notify OFSTED (England) or the Care Inspectorate (Wales) and provide them with a copy of that order and judgment of the court.

Daniel Proctor

Trinity Chambers

2nd December 2020

Practice Guidance: https://www.judiciary.uk/wp-content/uploads/2019/11/PG-Placements-in-unregistered-childrens-homes-in-Eng-or-unregistered-care-home-services-in-Wales-NOV-2019-1.pdf

Addendum: https://www.judiciary.uk/announcements/addendum-to-practice-guidance-placements-in-unregistered-childrens-homes-in-england-or-unregistered-care-home-services-in-wales

Father Refused Permission to Join Care Proceedings

These care proceedings came before HHJ Middleton-Roy in November 2020.  They concern a boy K (9 months old) who is presently living with his mother aged 17 in a specialist foster placement.  David O’Brien of Trinity Chambers, acting on behalf of the Mother (“M”), successfully resisted an application by the Father (“F”) to be joined as a party to the care proceedings involving his son, K.  The application by F was opposed by the Children’s Guardian,  the applicant local authority (“LA”) being  neutral.

Background

It was accepted by all that M was a vulnerable young person. M claimed that K was conceived as a result of rape perpetrated by F. In any event, M was 15 and F was 19 at the time and therefore M could not have legally consented. F denied raping M and asserted that M lied about her age and identity. M also alleged that she was subjected to physical domestic violence by F whilst she was pregnant. M believed F to have an extensive criminal record.

F was arrested and questioned by police before being released on bail. During the investigation, F’s paternity of K was confirmed by way of DNA test. The parties were subsequently made aware that no criminal charges were going to be brought against F.

Care proceedings were brought by the LA and F received notice of the proceedings pursuant to Family Procedure Rules 2010 (“FPR”) Practice Direction 12C. However, he did not have an automatic prima facie right to be joined as a party to the proceedings because, without parental responsibility (“PR”), he did not fall within the scope of FPR, rule 12.3. F therefore made a formal application to be joined to the proceedings.

The application

At a contested hearing, counsel for F argued that he should be allowed to participate in the care proceedings involving his son. Although it was conceded that no family ties existed between F and K, it was asserted that this was due to M denying F the opportunity to be involved in K’s life. It was submitted that for the court to make the correct decision in K’s best interest, it needed all the facts and information before it which would include input from F, who put himself forward as a potential carer for K alongside his mother (the paternal grandmother).

Mr O’Brien on behalf of M asserted that it would cause significant harm to M if F were allowed to participate as a party to the proceedings. Counsel argued that, given the history between M and F, this could undermine the current foster placement of M and K. Furthermore, the case authority indicated that F could not rely on Article 6 and 8 ECHR protection where he did not have PR or no family ties existed, and the latter required more than “mere biological kinship”. It was also submitted that even if F was excluded as a party, this would not prevent the LA from undertaking the relevant viability assessments.

The judgment

The judge relied primarily on the decisions in:

Re P (Notice of care proceedings to father without parental responsibility) [2019] EWFC (11 March 2019  and,

A Local Authority v B (Dispensing with Service) [2020] EWHC 2741 (Fam) (19 October 2020).

In A v B, MacDonald J held that the starting point is that a father should be able to participate in proceedings concerning his child. The court should start with full participation then consider partial participation and then, only as a device of last resort, the father’s exclusion from the proceedings. The court’s task is to identify the nature and extent of the harm in contemplation but there is no requirement that a significant physical risk be demonstrated. Authorities in the Strasbourg ECHR jurisprudence also put a high bar on excluding a parent with parental responsibility.

The court accepted that there had been no findings in relation to the allegations of rape or domestic violence. There was little by way of disclosure from the police. This notwithstanding, the court in this case was satisfied that F’s involvement did pose a risk of harm to M, and that M’s current placement could be “destabilized” due to her vulnerability.  F did not have PR nor did he have a family life with K for the purposes of Article 8 ECHR. F therefore had no protection under Article 6 ECHR. Nevertheless, the judge felt that a balance had to be struck with a high degree of justification. The judge also expressed concern that safeguarding measures would not be appropriate or effective in the circumstances.

The judge was content that, at this point in time, the balance was tipped in favour of F being excluded from the proceedings. He did, however, direct that it be stated on the face of the order that:

1. the LA undertake the necessary viability assessments of both F and his mother; and
2. the issue of F’s participation could be reconsidered by the court at a future date, if necessary.

As per the dictum of Hedley J in Local Authority v M & M & Ors (Rev 1) [2009] EWHC 3172 (Fam) (07 December 2009), it followed that this decision will have to be kept under review and it should be the responsibility principally of the solicitor for the child to restore this matter should circumstances change.

 

James F. Hankinson

Trinity Chambers

25.11.2020

Re P (Discharge of Passport Order) [2020] EWHC 3009 (Fam)

 The proceedings before Cobb J [read here] concerned a 2½ year old child.

Cobb J identified a number of issues for the court to deal with. Namely, there was a dispute over jurisdiction as the parties did not agree on whether the child was habitually resident in Bulgaria or the UK.  Secondly, there was an outstanding application by the father for the discharge of a passport order obtained by the mother without notice.

As for the latter issue, Cobb J held that the passport should immediately returned to the father. The father was directed to execute all necessary documents and travel consent to ensure the mother and child were able to return. Cobb J stated that, “a passport order is a potent order, with significant implications, whose use should be tightly controlled”. As such, a passport order should only ever be made for a finite period of time, likely for a period of six months before it expires unexecuted as in this instance. Moreover, a passport order should not be made where the sole purpose is to coerce a party into a given action.

Cobb J concluded that a passport order, “even on a temporary basis…is a very significant incursion into the individual’s freedom and personal autonomy.” As such, an order of this kind should “rarely if ever be more than a very temporary measure.”

Moutreuil v Andreewitch & Anor (Contempt: Sentence) [2020] EWHC 3085 (Fam)

 Mr Justice Cobb considered [read full report here] the appropriate sanction for “flagrant” breaches of a freezing injunction, whereby 562 withdrawals were made from the shared account of an unmarried couple of 20 years. The circumstances of the case resulted in a 6-month term of imprisonment, suspended for 12 months.

In reaching this conclusion Mr Justice Cobb set out in detail the applicable legal principles to the application of sanctions [paras 7-10]. The court took into account that it was not the female partner’s wish to see her partner receive a custodial sentence, accepting such a sentence as a last resort. The breaches were deliberate, repeated and over an extended period of time. Such breaches had left the funds materially depleted, depriving the family of funds set aside for family therapy. Furthermore, the male partner had, only at a very late stage, admitted his wrongdoing nor accepted responsibility for the beach. The female partners costs were ordered to be paid by the male partner on an indemnity basis.

MG v AG (Appeal Out of Time: Relief from Sanctions) [2020] EWFC B49

Judgment before Mr Recorder Salter [read here].   An application by the ex-husband for permission to appeal out of time against an order for him to pay a lump sum of £3 Million, as well as monthly payments of £4,750 to his wife. He argued that he could not afford the terms of the order owing to the fact that the judge had merely taken half the value of his shareholdings in two private companies and provided no evidence-based justification as to how he could raise the lump sum.

The wife argued that the appeal was not only out of time, but the evidence presented at trial had indicated that the husband had planned to sell his business interests, rather than to rely on dividends to satisfy the lump sum.

Mr Recorder Salter carried out an extensive review of the law and found that due to the fact the delay in this instance was so “serious and lacking any good explanation” against a background of unexplained intentional delay, that he had no hesitation in denying relief from the sanctions. In turn, the application for permission to appeal was also dismissed.

The President of the Family Division, Sir Andrew McFarlane:- “This report [read here] brings together the various lines of thinking of recent years aimed at finding a better way to achieve good co-parenting between separated parents. It is an important and impressive document.

“It should be a matter of concern for society in general to achieve better co-parenting between separating couples. It is thought that about 40% of all separating parents bring issues about their children’s care to the Family Court for determination, rather than exercising parental responsibility and sorting problems out themselves. This figure is both startling and worrying. Where there are no issues of domestic abuse or child protection, parents ought to be able, or encouraged, to make arrangements for their own child, rather than come to a court of law and a judge to resolve the issues.

“The number of these private law applications continues to increase, and the trend is that more and more parents see lawyers and the court as the first port of call in dispute resolution, rather than as the facility of last resort as it should be in all cases where domestic abuse or child protection are not an issue.

“For as long as I can recall, going back to Sir Nicholas Wall’s work on ‘Making Contact Work’ and indeed before that to the philosophy behind the Children Act 1989, 30 years ago, concerted efforts have been made to achieve a major societal shift away from seeing issues about ordinary child care arrangements as involving ‘rights’ or requiring legal redress. The Family Solutions Group are to be commended for mounting a strong case for major change; the courts can only do so much, any major change requires widespread engagement and support. The themes of this report should therefore be of interest to all.”

WS v KL [2020] EWHC 2548 (Fam)

A father’s appeal against an order allowing a mother to relocate two young children to Hong Kong was granted by Knowles J who found the judge had failed to carry out a proper welfare analysis or a proportionality assessment of the available options.

The parents and the children were born in Hong Kong.  They had moved to the UK in 2016.  The father had become concerned the mother would unilaterally take the children back to Hong Kong and applied for a prohibited steps order.  The mother replied with an application to relocate to Hong Kong.  The CAFCASS officer supported the mother’s application.

At appeal it was found that the judge’s decision was fundamentally flawed.  He had  failed to analyse both why the mother’s option was better for the children than the father’s or  the welfare factors relating to all the available options.  There was no consideration of the children remaining in the UK with both parents residing here, with little attention given to the father’s shared care application. The absence of a child-focussed, proportionate and holistic evaluation of each parent’s option for the care of these two children meant it was difficult to discern why the judge had reached his conclusion.

Trinity Chambers

Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44 

HHJ Wildblood QC (the DFJ for Avon, North Somerset and Gloucestershire) released his judgment as a warning to parties and lawyers against unnecessary interim private law applications which amount to ‘wasteful’ litigation which is an ‘inappropriate use of limited court resources’. The Judge warned parties and lawyers that criticism and sanctions would follow when FPR 2010  r1.2e was ignored.

‘Judges at this court have an unprecedented amount of work. We wish to provide members of the public with the legal service that they deserve and need. However, if our lists are clogged up with this type of unnecessary, high conflict private law litigation, we will not be able to do so.

He went on to stress that private law litigation should not be brought to the family court unless ‘it is genuinely necessary to do so’, whereby differences cannot be settled away from court through means such as mediation.

The substantive case which prompted this warning involved an order for disclosure made by a Legal Adviser for 5 years of a mother’s medical records. HHJ Wildblood QC held that such an order was disproportionately invasive of the mother’s right to respect of her private life.

Trinity Chambers

The ABA has put together their guide to maintaining health, wellbeing and reduce stress during quarantine/lockdown/self-isolation or just working at home.

https://www.americanbar.org/groups/litigation/committees/mental-health-wellness/articles/2020/tips-boost-wellness-manage-stress-quarantine/

 

Rothchild v De Souza [2020] EWCA Civ 1215

The Court of Appeal dismissed an appeal of an order made by Mr Justice Cohen following financial remedy proceedings. The appellant husband (H) contended that Mr Justice Cohen, having stated his reasoning was on a ‘needs’ basis, had only taken account of the wife’s needs and rather his decision was based on H’s litigation conduct. Although litigation conduct can be taken into consideration (per s.25(2)(g) MCA 1973), H argued the judgment failed to quantify the financial effect of such conduct in the final award to the Wife.

The Court of Appeal held (after an extensive review of the development of the case law on litigation conduct and whether costs orders are always the appropriate remedy) that Cohen J had made it clear, as he was entitled to do, that H’s conduct had been taken into account after the needs of the children and their primary carer. As for awarding H with less than was required to meet his needs; the Court of Appeal clearly stated that within financial remedy proceedings, litigation conduct can justify awarding less than their needs (R v B and others [2017] EWFC 33, per Moor J).

Lord Justice Moylan echoed his observation in Moher v Moher [2020] Fam 160 at para 114, that financial remedy judgments should clearly lay out how the award was calculated. While this does not require a quantification upon each finding of litigation conduct, a reasonably structured analysis was encouraged.

Particularly relevant to practitioners, the court confirmed that orders for costs are not always the appropriate remedy for litigation misconduct.  In this case the “destructive litigation” and consequent reduction of the available assets should not and could not be remedied by an order for costs, and with regards to distribution of matrimonial assets first consideration is given to the welfare of minors.

Claimant’s Succesful Application for Order for No Order for Costs  –  Defendant’s Unreasonable Behaviour

In this case the Claimant issued a Part 8 claim seeking a declaration that she had a beneficial interest in the property of her cohabitee, who died intestate, as well as issuing a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The Claimant sought to inspect the original deed. After the Claimant received the deed, following delayed responses from the Defendant, the Claimant discontinued her claim but made an application to disapply the rule as to costs when a Claimant discontinues.

The general rule where a Claimant discontinues their claim is that they will be liable for the Defendant’s costs incurred on or before the date on which the notice of discontinuance was served on the Defendant (CPR 38.6).

However, the court must also consider CPR 44.2 which requires the court to have regard to ‘all of the circumstances, including the conduct of the parties’. In order to depart from the regular rule in CPR 38.6, the Claimant should show a change in circumstances which was brought about by ‘some form of unreasonable conduct on the part of the defendant’ (Brookes v HSBC Bank Plc [2011] EWCA Civ 354).

The change in circumstances in this case, it was held, was brought about by the unreasonable behaviour of the Defendant by not engaging properly with the Claimant in pre-action Correspondence. Specifically, it took the Defendant 18 months after the initial request to produce the deed for the Claimant’s inspection. Further, despite requesting the addresses of the second and third defendant’s in this matter, the first defendant failed to disclose this information. As such, the Claimant’s application for no order as to costs was successful.

Daniel Proctor

Trinity Chambers

21.10.20

CENTRAL FAMILY COURT

STANDARD DIRECTIONS ALL TRIALS TAKING PLACE ENTIRELY IN COURT OR “HYBRID”

“The following directions shall apply to this hearing: –

1. This trial is taking place in court.
2. In proceedings where all parties agree the trial shall be conducted remotely, they should inform the court accordingly and submit a draft order.
3. The judge will rule on taking evidence or other remote participation during the hearing.
4. Any party seeking to call evidence or otherwise participate remotely must ensure that witnesses and individuals concerned can access Skype or another video platform agreed by the judge.
5. All participants are expected to observe Government rules on social distancing current at the time of the hearing and to co-operate with members of staff attempting to enforce such rules or guidelines.
6. Any party intending to attend the Central Family Court with personnel other than the following must inform the Central Family Court Office of the fact before the day of arrival and seek the permission of the judge:
a. The parties themselves;
b. One legal representative or McKenzie Friend;
c. Witnesses;
d. An interpreter;
e. An intermediary;
f. In the case of a corporate party, one representative of the corporate body (for example, in the case of a local authority the social worker may attend, but a team manager may not also attend without the permission of the judge).
7. Parties shall supply a list of these attending to the Central Family Court Office by email no later than 24 hours before the hearing.
8. Parties shall make all reasonable efforts to comply with any time given for arrival at the Central Family Court on the day of the hearing.
9. Parties are warned that the listing time for a case may be staggered. Parties should not assume that a case will be listed at 10 a.m.
10. Parties may be allocated a conference room or rooms and, if so, shall utilise those rooms and not any other conference rooms.
11. Parties should leave the court building promptly after concluding all business (which includes any necessary drafting or orders or advice to clients etc.)

Volume 1 of Standard Orders [Financial and Enforcement Orders] has been republished incorporating all amendments to 8th September 2020.   The previous Volume 1 (as at 29 July 2019 )is not to be used and should be deleted.

Volume 2 of Standard Orders [Children and Other Orders] remains current.  It may be updated in the future.

Neutral Citation Number: [2020] EWCA Civ 1070

Case No: B4/2020/0705

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FAMILY COURT AT COVENTRY Her Honour Judge Watson

CV19C01519

Royal Courts of Justice Strand, London, WC2A 2LL

Date: 12 August 2020

Before

LORD JUSTICE DAVID RICHARDS

LORD JUSTICE HICKINBOTTOM

And

LORD JUSTICE PETER JACKSON

———————

N (Children: Interim Order / Stay)

———————

Jonathan Sampson QC and Adelle Eveleigh-Winstone (instructed by Kundert Solicitors LLP) for the Appellant Mother Aidan Vine QC and Sanjay Patel (instructed by Coventry City Council) for the Respondent Local Authority Gemma Bowes (instructed by Hammons Solicitors) for the Respondent Father Abigail Turner (instructed by Jackson West Solicitors) for the Respondent Children by their Children’s Guardian

Hearing date: 29 July 2020

———————

Approved Judgment

Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be at 10:30am on Wednesday, 12 August 2020. Judgment Approved by the court for handing down.

Lord Justice Peter Jackson:

N (Children)

1. On 6 May 2020, the Family Court approved the removal of three children from their mother and their placement in local authority foster care under pre-existing interim care orders. The removal was opposed by the parents and it was not supported by the Children’s Guardian. At the end of the hearing, which took place by video conference, the judge was asked by counsel for the mother to grant a short stay to allow for an urgent application to be made to this court. This was refused and the children were taken into foster care that evening.

2. At the end of the appeal hearing we informed the parties that the appeal would be allowed so that the children, who have not had face to face contact with their mother for three months during the current health restrictions, would return to her care on the following day. My reasons for agreeing with that decision appear below. At the end I restate the practice in relation to the granting of short term stays.

The background

3. The parents come from Afghanistan. The mother speaks no English. The father works as a taxi driver. There are three children: two boys aged 12 and 5, and S, a girl aged 7. S has global learning difficulties. The family came to the attention of the local authority in November 2019, when the older boy came to school with a mark on his face, saying that he had been slapped by his father. He also spoke of being hit on other occasions, including with a cloth belt. A neighbour reported that the mother had visited her for help in March 2018 after being assaulted by the father.

4. The children were taken into police protection on 8 November 2019 and placed together in foster care, where they remained for a week. An application for interim care orders was made. The local authority plan was for the children to stay in foster care pending assessments, but at a hearing before a Circuit Judge on 15 November 2019, it agreed that the children should be returned to their mother on the basis of a working agreement. The parents accepted that the interim threshold under s. 38 Children Act 1989 was crossed, and an order was made under s. 38A of the Act excluding the father from the home.

5. A further hearing took place before a District Judge on 18 December, when the local authority sought the removal of the children on the basis that S had told her teacher that she had been shopping for shoes with her father. The father produced a receipt for the shoes, showing that they had been bought while S was at school. The removal application was not pursued.

6. On 20 February 2020, the local authority made a without notice application requiring the surrender of the family passports on the basis that S had told her teacher that the family was going abroad on holiday and that it was secret. The parents, who denied any such plan, surrendered their passports and a hearing on notice took place on 28 February.

7. On that occasion, when the matter came before Her Honour Judge Watson, the local authority again sought the removal of the children. It relied on a number of features, including: S telling an assessor that she sees her daddy every day and that she had hurt her leg in his taxi, her comments about the holiday, and a report from a neighbour that the father was at the family home on 18 February. The application, opposed by the Guardian on the basis that the evidence was insufficiently clear to justify removal, was withdrawn, again with judicial endorsement. The importance of compliance with the orders were emphasised to the parents.

The local authority’s further application

8. The local authority applied again for the children’s removal at a hearing on 27 April 2020. Its care plan provided for indirect contact only due to the lockdown, and thereafter supervised contact with the mother twice a week. The evidence relied upon this time was: the social worker having seen a pair of adult sandals in the garden of the family home and S asking what time her father was coming over; the mother saying through an interpreter during an assessment that the father had removed a games console from the oldest child as he was using it too much; S saying during a social work visit on 20 April that she had been to the park on Sunday and daddy took them in his taxi.

9. The hearing, which was again before HHJ Watson, sitting as a Deputy High Court Judge, could not take place that day for lack of time and of an appropriate interpreter. It was adjourned to a one-day remote hearing on 6 May 2020. The parties had collectively asked for a longer hearing to allow for evidence to be taken from the main witnesses. However, when adjourning the matter, the judge directed that the only witness to give evidence would be the social worker. The parents were directed to file sworn statements which the judge stated that she would take “at face value.” She also made clear that she would need to have “robust” evidence from the social worker. She also noted that the Guardian, who was unable to attend the adjourned hearing, did not support the removal of the children on the basis of the evidence filed. We were told that the impression left on the parties was that the local authority’s evidence was going to be scrutinised to see whether it was capable of sustaining its revised care plan.

10. The parents filed detailed statements in which they denied every alleged breach of the working agreement or the exclusion order. For example, the mother said that she had “much more problems to think about than a holiday”. She agreed that she had spoken to the father about the eldest child using his computer too much and that the father had told her to remove it, which she did: he did not remove it himself. Likewise, she did take the children to the park, but with another adult, and not with the father. Whenever S sees a taxi she thinks it is her father driving it.

11. At the hearing on 6 May 2020, the social worker gave evidence for 3½ hours, not limited to the three latest allegations, but ranging over alleged breaches going back to December 2019. The mother’s advocate was at something of a disadvantage in that the remote hearing was being interpreted to the mother by an interpreter connected via the judge’s laptop and there was no ready means of taking instructions during the hearing. During the course of the evidence, the solicitor for the father applied for him to be allowed to give evidence, at least in relation to the games console. The judge refused, confirming that she had read the father’s statement and understood that he disputed what the social worker said. During closing submissions, the request was repeated for the parents to be allowed to give evidence if the judge was considering removal of the children.

12. After submissions, the judge adjourned for a short period and then delivered her decision. The hearing ended at 5.40 pm. Counsel for the mother sought permission to appeal and a stay; both were refused. The children were taken from their home sometime later that evening.

13. The main proceedings are currently listed for a substantial fact finding hearing on 23 September 2020.

The judge’s decision

14. The judge set the scene, noting that the safety of the children was dependent on the exclusion order and the written agreement. She set out at some length the local authority’s case and remarked that the ability to monitor during the stressful period of lockdown was limited. She reminded herself that the court was only entitled to make an order for removal where it was both necessary and proportionate and that there was no more drastic step than to take children from their mother and place them with strangers. She continued:

“10. Both [parents] deny the exclusion order has been breached. It is submitted that the children have not been in the unsupervised care of their father, nor have the children seen their father in the family home. It is said on behalf of the parents, supported by the Guardian, that the social worker has brought the case to court on two earlier occasions and the local authority has not pursued removal of the children notwithstanding having concerns that there had been breaches of the safety agreement and that the evidence supporting removal on this occasion, the third occasion the matter comes to court, is insufficient to pass the test of necessity and proportionality that I have referred to.

11. I do not agree with that analysis of the current situation. I look at a pattern of behaviour which begins with the events leading to the first attendance at court and brings us right through to the three specific concerns that have been raised in March/April of this year. It is that pattern of behaviour which builds up a body of circumstantial evidence which individually could be ignored, but together demonstrates a concerning persistent pattern of breaches of safety agreements, flouting a court orders and failure to implement the safety plan put in place for the protection of the children.”

The last sentence contains the core reason for the resulting decision.

15. The judge reminded herself that S has global developmental delay, but found that she was not a child who lies, but who recalls accurately and literally what she has seen, heard or experienced. She then reviewed a series of events and allegations preceding the current application, stating that she was setting out this background chronology from the social worker statement because it showed “a developing pattern of concerns” that were the background to three specific incidents which brought the matter back to court yet again.

16. As to the first allegation, the sandals seen in the garden on 14 April, the judge accepted that this could be explained as being one of a number of belongings left by the father in the home, “but the pattern of behaviour continues because it was S who said in the presence of the social worker, “what time is daddy coming over?””

17. As to the mother’s reference to the games console on 17 April, the judge described this as “another indication, this time from mother, that father was in the family home.” She referred to differences in the parents’ denials, but said that she was entitled to have reasonable grounds to believe that the father had been in the home after lockdown.

18. The judge then turned to the events of 20 April, saying that they caused her the greatest concern that there had been a significant breach of the exclusion order and safety plan. The social worker said that S had said that she had been to the park with daddy and that he had taken them in the taxi and that it was on Sunday; it was the reaction of the other family members, contradicting S, that made her realise that it was a recent incident. The next day she asked S about it at school, but S only giggled and laughed and would not engage with the conversation. The judge said that the court had reasonable grounds to believe that S was telling the truth about a visit to the park with her father in breach of the exclusion order.

19. The judge then concluded in this way:

“28. The risks to the children are that they could be subjected to further physical chastisement or that there could be a repetition of domestic violence and that the risks posed to S and her two brothers set out at the start of this judgement cannot be managed.… I am also satisfied that there is very significant emotional and psychological harm to the children being asked to cover up or to mislead social workers about events that have happened.

29. If father took the children to a park some way from their home as S said there would be less risk of being seen by the authorities.

30. In summary, I cannot be satisfied that if the children remain in the family home that the exclusion order will protect them in the way that was intended when it was made. It is therefore both necessary and proportionate for the children to be removed into foster care until the assessments have been completed and the ability of mother to protect children from harm, has been adjudicated upon.

31. I have set out the pattern of evidence upon which I rely at this interim stage before the factual matters have been fully aired and evidence called. It is, indeed, a holding order which preserves the security and safeguarding of the children, whilst the assessments are completed.”

During the discussions that followed, the judge further said this:

“Clearly, I am satisfied that the pattern of evidence in this case gives the court reasonable grounds to believe that the matters as are set out in the judgment have been established to the standard that is required at this interim hearing.”

20. Counsel for the mother, Ms Adelle Eveleigh-Winstone, sought permission to appeal and a stay of removal so that an application could be made to this court, saying that it would be far more destructive for the children to be removed and then returned a few days later, particularly after they had been removed at the end of last year. The judge responded:

“The difficulty I have with your request that I suspend the operation of the removal is that there are grave risks and concerns to the children in respect of breached exclusion orders and, of course, in this case there is also the additional risk that there has been prohibited steps put in place to prevent the children from being removed from the jurisdiction and the removal of the passport. It would be incredibly difficult for the children to be taken out of the jurisdiction at this time, but they could, of course, be taken away and taken to another part of the country and they would not be easily found in the current circumstances. I am afraid that I’m going to refuse you permission to appeal and I’m also going to refuse your application for a stay of the removal order for the reasons I have set out.”

21. During the hearing, the mother and children were at home, together with the interpreter.

Mr Sanjay Patel, representing the local authority, very fairly suggested that it might be appropriate to have the matter listed for further directions on the following afternoon to allow the parents’ representatives to take instructions. The judge did not take up this suggestion, saying that it was a matter for the local authority as to when it implemented its interim care order. At this point Ms Eveleigh-Winstone had not even been able to take her client’s instructions following the decision because communication with the interpreter came to an end when the judge rose. As a result, an application to the out-of-hours judge in this court was not possible before the children were removed.

22. It is then a matter of regret that the appeal took considerably longer to be heard than is normal. The application for permission to appeal was filed on 11 May, but it was not accompanied by a request for a stay and a transcript of the judgment was not received until 29 May. There was also an application to amend the grounds of appeal. Permission to appeal was granted by King LJ on 29 June 2020 and the matter was listed for hearing in vacation.

The appeal

23. On behalf of the mother, Mr Jonathan Sampson QC, leading Ms Eveleigh-Winstone, distilled the grounds of appeal in this way:

(1) The judge’s decision to hear evidence only from the social worker and not from the parents rendered the hearing unfair. She did not take the parents’ evidence “at face value” as she had said she would, but instead gave no weight to it and made adverse findings of fact without hearing from them.

(2) In consequence, findings were made without disputed matters being tested. That was particularly inappropriate where the language barrier gave rise to a potential for misunderstanding between the family and the social worker and where such reliance was being placed upon comments made by a child with global developmental delay.

(3) The judge should have heard evidence from the Guardian about the level of risk and the proportionality of removal, particularly as the Guardian did not support removal, and where face to face contact during the pandemic was not at the time practicable. More broadly, paragraph 30 was an insufficient balancing-up of the relevant welfare factors, even making allowance for the fact that this was an oral judgment.

(4) In adopting a ‘reasonable grounds to believe’ test, the judge applied the wrong standard of proof. That test applies to the establishment of the threshold, not to fact-finding at the welfare stage.

24. Mr Sampson referred to a number of recent decisions of this court that emphasise that fundamental principles of substantive law and procedural fairness are unchanged in the current circumstances. He accepted that a party has no absolute right to give evidence, but argued that where the issue centres on disputed facts it is inappropriate to refuse to hear evidence in rebuttal. He referred to the decision in Re S (a child) [2018] EWCA Civ 2512, a successful appeal from the interim removal of children on the basis of serious adverse findings that were made without hearing readily available evidence from the parent concerned. He also reminded us of the line of authority on Article 6 from the European Court of Human Rights on the question of equality of arms, of which the decision in Dombo Beheer B.V. v. The Netherlands (Application no. 14448/88) is an example. It was there said at paragraph 33 that:

“The Court agrees with the Commission that as regards litigation involving opposing private interests, “equality of arms” implies that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.

It is left to the national authorities to ensure in each individual case that the requirements of a “fair hearing” are met.”

It was, therefore, Mr Sampson submits, remarkable that the judge decided to hear from the social worker, but not from the parents.

25. For the father, Ms Gemma Bowes, supported the appeal. He was willing to be bound by an order under the Family Law Act 1996 to achieve the effect of the exclusion requirement in the interim care order, if this is required to facilitate the children being returned to their mother’s care.

26. The Guardian was neutral on the appeal. Ms Abigail Turner confirmed to us that the position at the hearing had been that the Guardian did not consider that the evidence adduced by the local authority justified the removal of the children. It had been a surprise to the Guardian that the court had moved to making such an order in the light of the expectations raised at the pre-trial hearing.

27. In response, Mr Aidan Vine QC, leading Mr Patel, argued that the judge had a wide discretion as to what if any oral evidence she heard, provided the hearing was fair. It is not accepted that the judge made findings of fact, nor was she required to do so at an interim hearing. She was required to make an assessment of risk, and it was not necessary for evidence from the parents to be heard for that purpose. Their likely denials would add little. She expressly considered necessity and proportionality, and concluded that interim removal was justified. Read as a whole, the judgment carefully describes the basis for the judge’s decision that the risk matrix had changed and that the children could no longer be safe from their father in their mother’s care. This court should not interfere with that exercise of discretion. Finally, Mr Vine stated in his skeleton argument that the local authority’s case is that the children had “revealed further relevant information in foster care about the threshold events and whether their father continued to live at home”. He submitted that if the appeal succeeds the case should be therefore be remitted for a rehearing.

Conclusion

28. The power to make interim orders in cases involving children allows the court to regulate matters that cannot await the final hearing. Common examples are interim contact orders in a private law case or interim care orders in a public law case. When exercising interim powers the court is inevitably acting on incomplete information and often has to act with urgency. The principles of child welfare, family rights and procedural fairness will apply in the context of the provisional nature of the court’s task.

29. Here, the interim threshold was accepted to have been crossed and the court was making an interim welfare decision. The issue for the judge was the balance of risks and benefits for the children of remaining in their mother’s care. She correctly directed herself as to the test for removal at an interim stage. The fact that the children were already subject to interim care orders on the basis of a placement at home did not alter that.

30. A court considering an interim application in proceedings concerning children is required to undertake a level of investigation that is appropriate to the issues that need to be decided and sufficient to enable it to make a fair and effective evaluation of the advantages and disadvantages for the children of making or not making the interim order. Acting within the framework of the relevant substantive and procedural law, the court has a wide and flexible discretion as to how its investigation and evaluation should be conducted at the interim stage. Depending upon the case and the issues to be decided, the decision may well be properly taken without hearing any oral evidence: the question will be whether it is necessary to hear some, probably limited, oral evidence to enable a fair and effective evaluation to be made.

31. It is understandable that the judge did not feel able to deal with the issue before her on submissions only and that she needed to hear some evidence. However, once she had decided to do that, fairness required that in this situation she should hear from both the accuser and the accused. There will be cases, for example where the court needs to hear and evaluate professional opinion, where it will be proper to hear from witnesses from one side only. This was not such a case. The investigation was a factual one into events where the parents were primary witnesses. It is no answer to say that the court would not have been helped by hearing their denials. They were not making bare denials but giving possible explanations for much of the evidence brought against them and, at least on paper, those explanations were not self-evidently implausible and deserved proper consideration. However, instead of taking them at face value (whatever that might be taken to mean), the judge largely left them out of account. The investigation that was carried out was therefore not fair and effective.

32. As to the process of evaluation, there was insufficient consideration of all aspects of the children’s welfare. The judge was entitled to regard compliance with the working agreement and the exclusion order to be a matter of real significance, but it does not minimise the harm that has been and may be caused to these children to say that the case was not at the upper end of the scale of seriousness and that the welfare evaluation could not depend upon risk alone. In my view the judge’s characterisation of the risks as ‘grave’ was not in keeping with the evidence and her evaluation of the children’s welfare was at a level of generality that was inadequate to underpin an order for their interim removal. Nor did she factor in that the evidence that she did hear was, truth be told, a relatively flimsy basis for such a disruptive order. Though mindful of the limited role of this court, I consider that the test for interim removal could not reasonably have been met on the evidence that the judge received.

33. We allowed the appeal for these reasons. It is unnecessary in the circumstances to enter into a discussion of Mr Sampson’s fourth ground of appeal.

34. In making our order we did not overlook the local authority’s request for a rehearing on the basis that further information had come to light. However it did not identify the information or seek to file any further evidence. In the circumstances, we considered that the proper order was one that allowed for the immediate return of the children to their mother. Upon being informed of our decision, the local authority sensibly agreed with the suggestion that the best form of order was the one that existed before the removal of the children, and the parents were also content. We therefore maintained the interim care orders on the basis that the children would return home on the following day, with the s. 38A exclusion order in respect of the father remaining in full effect and subject to a written agreement with the mother.

35. I would emphasise that the outcome of this interim appeal cannot influence the final outcome of these proceedings, or bind the court in relation to any future interim application that may be made by any party.

Short term stays

36. A short term stay to enable an application to be considered by an appeal court before an order is put into effect is to be distinguished from a stay pending a decision on permission to appeal or a stay pending appeal. Applications for stays of the latter kind will be considered in accordance with the principles set out in Hammond Suddart Solicitors v Agrichem International Holdings Ltd. [2001] EWCA Civ 2065. By contrast, a short term stay is a purely practical remedy, distinct from the decision about permission to appeal. The correct approach for the court to take to an application of this kind was described by Wilson LJ in Re A [2007] EWCA 899 at [27], where he confirmed that the judge should always give serious consideration to allowing an applicant “a narrow opportunity” to approach this court so that the opportunity for a successful appeal is not unfairly eroded:

“27. When a judge considers that a significant change in the arrangements for a child needs to be made in effect forthwith and learns that there is an aspiration to appeal to this court, he should in my view always give serious consideration to making an order which affords the aspiring appellant a narrow opportunity to approach this court for further, temporary, relief before his order takes effect. No doubt the welfare of the child remains paramount; but, subject thereto, the judge needs to consider whether a refusal to afford a narrow opportunity for such an approach unfairly erodes the facility for effective appeal. If he decides to afford it, he can do so either by directing that the change in the arrangements should occur only at the end (say) of the following working day or by directing that the change should occur forthwith but that execution of his order be stayed until the end (say) of the following working day. The difference seems to me to be immaterial. When, however, a judge declines to take either of these courses, there remains the facility for the aspiring appellant to approach this court by telephone and no doubt usually on notice to the other party.”

Wilson LJ then set out the arrangements that then prevailed.

37. The current arrangements are that this court can be contacted during working hours on civilappeals.registry@justice.gov.uk between 9.00 am and 4.15 pm and out of hours through the security officers at the Royal Courts of Justice on 020 7947 6260, who will refer the matter on to the Duty Clerk. Urgent applications should whenever possible be made within court hours. Unless already filed, the applicant or the applicant’s representative will be required to give an undertaking to file the necessary application form and court fee. Instructions may then be given for the transmission of essential information by email so that the application can be considered by a judge, who may decide to grant a stay, for example until the end of the following working day, to enable further documents, such as a note of the judgment and draft grounds of appeal, to be sent to the court for consideration of the merits of a further stay.

38. In this case, I consider that the request for a short term stay should have been granted, particularly where the mother was at a disadvantage in instructing her lawyers. The reasons given by the judge fell short of justifying refusal. The nature of the risks involved in the children remaining at home for a further very short period can be measured by the fact that the court itself had sanctioned them remaining there between 27 April and 6 May for procedural reasons. Further, as the judge herself acknowledged, there was no real risk to the children being taken out of the country and, bearing in mind that the family had not disappeared in the previous six months when it could have done, the prospect of internal flight was hardly likely either.

Lord Justice Hickinbottom

39. I agree.

Lord Justice David Richards

40. I also agree.

The Family Court and COVID 19:

The Road Ahead

INTRODUCTION

1. We have reached a juncture in the Family Court’s journey through the COVID 19 crisis when it is both possible and necessary to take stock and to consider the road ahead. It is possible to do this because, in contrast to the early weeks, there is now a bedrock of experience of remote working. This experience, both positive and negative, was in large part described and teased out in the enormously valuable and impressive report published by the Nuffield Family Justice Observatory  The Nuffield Family Justice Observatory on remote hearings in the Family Court  in early May is necessary to look at the road ahead because any earlier rose-tinted thoughts that ‘this will all be over by July’ have sadly evaporated and it is now clear that, whilst the situation of total lockdown may be gradually relaxed, the need for stringent social distancing restrictions is likely to remain for many months to come.

2. In preparing this document, which seeks to establish a broad framework for the Family Court by attempting to chart the road ahead over the next six months or more, I have been greatly assisted by the NFJO Report, detailed feedback on that report from each Designated Family Judge [‘DFJ’] and Family Division Liaison Judge [‘FDLJ’], HMCTS, CAFCASS and CAFCASS Cymru, the FLBA, Resolution, the Law Society, the ALC and others. In addition I have been given invaluable support by Baker LJ and Judd J, who have led a small judicial group tasked with looking in detail at the ‘recovery’ period for the Family Court; their detailed internal report describing their own wide-ranging consultation brims with helpful insight and practical wisdom.

OVERARCHING THEMES

3. Before turning to matters of detail, I will deal with some of the overarching themes which underpin the framework described in this document.

The Road is Long

4. The most crucial change that must now be understood across the board by all involved in delivering Family Justice relates to the timescale before the court may return to full and ordinary operation.

5. In the early weeks of the COVID crisis most contested fact-finding or final welfare hearings were adjourned (unless they could proceed, for example, with minimal oral evidence). It was no doubt hoped by many that normal working would resume relatively soon and the delay in resolving the contested issues would not be great. It now seems sensible to assume that social distancing restrictions will remain in place for many months and that it is unlikely that anything approaching a return to the normal court working environment will be achieved before the end of 2020 or even the spring of 2021.

6. We must all take on board this significant change in perspective which will have an impact on every case management decision. Apparent potential unfairness which justified a case being adjourned for what was hoped to be a relatively short period of time, must now be re-evaluated against this much longer timescale. The need to achieve finality in decision-making for children and families, the detrimental effect of delay and the overall impact on the wider system of an ever-growing backlog must form important elements in judicial decision making alongside the need for fairness to all parties. More positively, experience of remote hearings in the past two months has identified steps that can be taken to reduce the potential for unfairness (a number are listed at paragraph 49 below and more are set out at paragraph 5.19 of MacDonald J’s Guide to the Remote Family Court, enabling cases to proceed fairly when previously they may have been adjourned.

The Volume of Traffic is High

7. Save for a dip in the first weeks of lockdown, the volume of applications being made to the Family Court in both private and public law children cases has continued at pre-COVID rates. Applications for domestic abuse injunctions have either remained at usual levels or have, in certain inner-city areas, significantly risen. It is anticipated that, once social services are able to function more normally and once more children come out of lockdown and return to school, the volume of child protection cases may surge.

8. It is well known that, prior to COVID 19, the Family Court was already attempting to process an unprecedented level of applications relating to children. President’s Private Law Working Group Report:   and President’s Public Law Working Group Report

9. The reality to be faced is that the Family Court must now, for a sustained period, seek to achieve the fair, just and timely determination of a high volume of cases with radically reduced resources in sub-optimal court settings.

The Child’s Journey Must Not be Delayed

10. It is part of the DNA of all professionals working in Family Justice and embodied prominently in statute that delay in decision making is likely to prejudice the welfare of a child who is subject of court proceedings [CA 1989, s 1(2) and ACA 2002, s 1(3)]. There is a statutory requirement for public law cases to be completed in 26 weeks [CA 1989, s 32(1)].

11. In the early days of lockdown, it was understandable and acceptable for cases to be adjourned for a short period in the hope that a more normal court process could then be undertaken. A short adjournment to meet the needs for fairness and due process might not unduly compromise the need to achieve a final outcome for the child. Now that we are facing many more months of straitened resources it is likely that nettles will need to be grasped for the sake of the child’s welfare, with final hearings fixed for remote or hybrid determination, and with steps taken to maximise the fairness of the process.

12. Whilst a court is not required to hold the child’s welfare as the paramount consideration when making case management decisions, the child’s welfare and the need to avoid delay will always be a most important factor and may well be determinative in many cases. Making a timely decision as to the child’s further care is in essence what each case is about. The child’s welfare should be in the forefront of the court’s mind throughout the process.

The Road Ahead: Work in Progress

13. The fourth theme to stress is that, inevitably, much of what is described here in terms of future working is aspirational, untried and is likely to depend upon the ability of a range of agencies and professionals to deliver resources or to work in ways which will be new. In line with the experience of the past 10 weeks, different courts, judges and professionals will be more, or less, able to deliver change as a result of a range of factors including work-load, staffing and judicial resources, technology and (increasingly) the availability of courtrooms that are compatible with the strictures of social distancing. As has been the case during the past three months, much will depend upon continued communication and cooperation between each agency involved in the delivery of family justice; the importance of collaborative working, both locally and nationally, cannot be overstated.

14. The Family Court will now be moving from working almost totally via remote hearings to a situation where at least some, and increasingly more, hearings will be either fully attended by all parties or ‘hybrid’ (where some of the parties attend and the remainder engage with the court process remotely). This change in working practice will develop over time and is very much work in progress. It will in part depend upon the availability of a COVID-safe working environment in courtrooms and court buildings. Such resources will be in short supply and may fall to be shared with the criminal, civil and tribunal jurisdictions.

15. Even if attendance at court increases, it is plain that a good deal of the day to day work of the court will still have to continue to be undertaken remotely during the coming months.

The Road Ahead: Signposts not Directions

16. The overwhelming view of the judiciary and legal profession is that the Family Court does not need any further directive or proscriptive guidance on case management at this time. It is thought that the President’s Guidance issued on 19 March, coupled with the joint letter from the three Heads of Jurisdiction on 9 April and subsequent clarification through the appeal process and otherwise has achieved a workable and settled understanding that allows each judge, magistrate or legal adviser the discretion to make bespoke case management decisions on a case by case basis. I agree with this overwhelming view. Further, given that the court’s capacity to undertake a greater proportion of work via fully attended or hybrid hearings will undoubtedly change and develop differently in each court-centre and over time, it does not seem possible to contemplate directive guidance that would help rather than hinder that process.

17. The only change to the previous guidance that is now necessary is to revise subparagraph (g) in the Heads of Jurisdiction letter to judges dated 9 April which read:

“(g) In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”

This passage should now read:

“(g) In all other cases where the parents and/or lay witnesses etc are to be called, the case may not be suitable for a fully remote hearing. 5 Consideration should be given to conducting a hybrid hearing (with one or more of the lay parties attending court to give their evidence) or a fully attended hearing. Where it is not possible to conduct a hybrid or fully attended hearing, the court may proceed to hold a remote hearing where, having regard to the child’s welfare, it is necessary to do so; in such a case the court should make arrangements to maximise the support available to lay parties.”

18. Save for the change to previous guidance set out in paragraph 17, this document intends to describe the framework within which the Family Court must operate for the foreseeable future. Its aim is to identify the basic priorities and ground rules and to offer a checklist for case management decision making. Given the potential for local resources to change and improve over time, this framework is intended to be supportive rather than restrictive so that the court system can be agile in reviewing how it undertakes its work as the road ahead becomes clearer and the resources or options available may improve.

PRACTICAL MATTERS

Court Buildings and Courtrooms

19. During June court buildings that have been ‘suspended’ or ‘staffed only’ are being reopened so that, by early July, the full Family Court estate should be open for public use once more, albeit that the impact of social distancing will substantially reduce capacity.

20.HMCTS has worked hard to develop and implement a risk assessment process

[https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment _data/file/885607/HMCTS_Organisational_Risk_Assessment_v1.0.pdf]

which has allowed the system to identify a limited number of courtrooms as being appropriate for attended, socially distanced, hearings.

Each open court room will have a limit on the number of people who can attend a hearing, and the safe space for each attendee will have been marked out with vibrant tape. The number allowed in each courtroom is small and, in addition, there will be a limit on the total number of people who can be in the public areas of the court building at any one time in order to meet the Public Health requirements.

21. The call on these limited number of courtrooms will be substantial and will come from across the board from civil (inc Business and Property), crime and tribunals as well as the Family jurisdiction. HMCTS are working hard with the judiciary to 4 6 identify and secure additional temporary courtroom space outside the court estate (for example in conference centres, university or local authority facilities).

Remote Platforms

22.We have all learned a great deal about the various technical options that are available to facilitate a remote hearing. It is clear that there is a hierarchy between these various platforms in terms of their ease of use and effectiveness. But it is also clear that, because of work undertaken urgently by the various providers, additional features are added to one or other from time to time which may alter their place in the hierarchy so that it is not possible to issue firm guidance that one or other platform should always be used (as many respondents to the recent consultation earnestly sought).

23.The situation changes from week to week. Zoom cannot currently be supported by the judiciary and HMCTS, even though many users regard it as the most effective platform. The Cloud Video platform [CVP] favoured and provided by HMCTS, which has much more functionality than Skype for Business, is being prepared for widescale use across the jurisdictions. It is already being used in a number of criminal courts and, from the week commencing the 8th of June, it will be rolled out to Family Court centres. Microsoft TEAMS, which is the successor platform to Skype, is available for use by many judges.

24.Despite the necessarily moving picture that I have described, it is nevertheless possible to provide the following very firm steer:

a. In terms of remoteness, a remote hearing over the telephone is the most remote option other than a paper or an email based process.

b. Telephone hearings may be well suited to short case management or review hearings, they are unlikely to be suitable for any hearings where evidence is to be given or where the hearing is otherwise of substance.

c. Where a suitable video platform is an available and viable option, video, rather than telephone, should be used for the conduct of a remote hearing.

d. It is not a good use of a judge’s time for the judge to be responsible for dialling in each participant for a BT Meet Me hearing. HMCTS has accepted that the task ought to be undertaken by staff and they are working hard to achieve this in all courts.

e. Experience has shown that BT Meet Me Dolby Plug-In (which channels the phone call through the judicial computer) is preferable to the basic BT Meet Me service and it should be used where available when a hearing is to take place over the telephone.

f. The two video platforms currently supported by HMCTS are Skype and CVP; of these two CVP is more effective than Skype and should be used where it is available.

25.There have been regional training sessions for judges and court staff, supplemented by daily national awareness sessions and the issuing of staff guidance in respect of CVP. The HMCTS held three training sessions per day for three weeks commencing on 20 April 2020 to support the roll out of CVP during which nearly 1500 members of staff and judges attended.

26.Where possible, courts should inform the parties which remote platform is to be used for any hearing at least 3 days prior to the hearing.

Support for Lay Parties

27.The NFJO Report demonstrated the difficulty that some lay parties have understandably encountered when attempting to take part in a remote hearing. In the early days of lockdown there was often no option but for a lay party to join a hearing down the phone or over the internet from their home, without any direct real-time contact with their legal team. Easing of the lockdown requirements, development of our common understanding of social distancing, and the gradual reopening of facilities, together with technical workarounds to maintain an open line between lawyer and client during a hearing, have opened up options for enhancing the support that can be given to lay parties. This progress will undoubtedly continue and will mean that some hearings that were adjourned in the early days on the grounds of fairness may now proceed remotely.

28.In all cases active thought should be given to arranging for a lay party to engage with the remote process from a location other than their home (for example a solicitor’s office, barrister’s chambers, room in a court building or a local authority facility) where they can be supported by at least one member of their legal team and, where appropriate, any interpreter or intermediary.

29.The ability for interpreters to undertake their role without unduly interrupting a hearing is plainly a cause of difficulty. Where the process is conducted over an audio or video link, and the interpreter (who is not in the same location as their client) must interpret over the same common link, there will need to be a pause for interpretation after every single sentence or phrase. Even at a hybrid or open hearing, the interpreter must sit at least 2 metres from the client and cannot whisper the interpretation as is usually the case. The need for this stop-start process adds considerably to the length of any hearing. Where possible attempts should be made to provide a workaround, such as interpretation over a separate open phone line with the interpreter and client using earpieces, or typed interpretation over linked computers or email.

30.More generally, in circumstances where the majority of cases must now proceed remotely or semi-remotely, every effort should be made to accommodate and enhance the ability of lay parties to engage fully in the court process.

31. I am very grateful to the Transparency Project who have this week published a simple, nationally available, ‘Remote Court Hearings Guidance Note’ to assist lay parties and litigants in person by explaining what a remote or hybrid hearing in the Family Court may involve. The attention of all lay participants should be drawn to this most useful document.

The Family Judiciary (including Lay Justices) working in Court or at Home

32.The majority of Family judiciary have thus far worked from their homes. As the FJO Report indicates this has, for some, not been an altogether welcome or effective arrangement; for others, the change has been accommodated more easily. In the coming weeks, as all court buildings return to ‘open’ status, and the lockdown restrictions are gradually lifted, it is expected that many judges who have been based at home will return to working in a court building. In a message to the Judiciary dated 4 June 2020, the Lord Chief Justice has said:

“We must continue to look after our own and our families’ health. Some judges will need to continue to shield themselves or a family member. Others will need to isolate if they have coronavirus or have been in close contact with someone who has. In general, though, it is proving to be more efficient for judges to work from a court building, even when hearing cases remotely, where they can be better supported by staff, have space, access to the papers and none of the intrusions of working from home. Judges should aim to work from a court building where it is safe and efficient to do so.”

33.From now on the fee-paid judiciary (deputy district judges, recorders and deputy High Court judges) will be called upon in significant numbers to augment to the judicial resources available in the Family Court. This will be possible, in part, because of the higher number of sitting days allocated to Family for 2020/21 and because during the past two months we have ‘under-sat’ by not using many fee-paid judges. It will be possible for the fee-paid judiciary to work remotely, where this is appropriate and can be supported by sufficient court staff.

34.Lay magistrates play a crucial role in the Family Court, supported by experienced Legal Advisers. They are keen to contribute as much as possible as we tackle the problems caused by the pandemic. I am very pleased that steps are being taken to ensure that they can continue to hear cases and will now do so in increasing numbers.

Lawyers and other Professionals Unable to Come to Court

35.HMCTS has worked closely with professional bodies representing solicitors and barristers to explain and develop the extensive measures that have been, and will continue to be, undertaken in court buildings to comply with advice from Public Health England/Wales. Professionals who are not in recognised vulnerable groups will be expected to attend at court where required.

36.Those professionals who, unfortunately, are required to shield or in some other vulnerable group, are entitled to expect that the judiciary will be sympathetic to their situation and, will take all reasonable steps to make arrangements for the hearing to proceed which take account of their difficulties. Where, however, it is not possible, despite all best endeavours, to accommodate the absence of a professional who must avoid coming to a court building then, unless the interests of the child, fairness and justice can be met in another way, the court hearing should proceed in their absence, with any necessary arrangements being made to cover for the absent professional.

ADR

37.In all Family cases, regard should always be had to alternative means of dispute resolution. At a time when it is clear that the court will struggle to cope with the volume of cases in a restricted working environment, it is all the more important that parties, legal advisers and the judiciary should have express regard to all forms of non-court dispute resolution (in accordance with rule 3.4 FPR 2010) including mediation, conciliation or arbitration. There will be many private law children cases or financial remedy case that may be resolved by one or other of these alternative means.

38.All judges and practitioners are urged to familiarise themselves with these options and be prepared to identify those cases which may be suitable for one or other form of ADR.

WELL BEING AND COMMUNICATION

39.In the past two years those working in the Family Justice system have done much to raise awareness of, and address, pressing issues relating to individual and collective well-being. I have heard it said more than once that ‘with COVID all thoughts of well-being have gone out of the window’. To my mind, whilst such a statement may well have been apt during the early period, it could not be more wrong now that we are engaged on the long haul back to normality. In the present circumstances there is an enhanced need to consider well-being. The FJO report demonstrated some of the additional pressures and points of stress that remote working has placed on the professions and the judiciary. In terms of well-being, these must not be ignored. Steps must be taken, either in planning a hearing, or more generally locally in working practices, to identify strategies for reducing stress and maintaining personal and professional well-being.

40.Many DFJ’s have established regular virtual meetings with representatives of the local professional court users (for example a weekly ‘breakfast club’ or ‘tea’) where common problems can be aired and there can, more generally, be a useful channel of communication as to how things are going. I am keen to encourage these or similar initiatives. In this regard, each LFJB has a role to play and should be active in developing and promoting good practice in their area.

THE KEY MESSAGE:

Time Management – a significant change needed

41. The key message when describing The Road Ahead concerns ‘time management’.

42.Drawing the matters referred to above together, the following is clear:

i. The current restraints (or variants of them) are likely to obtain for many months to come;

ii. The volume of work in the system is very high;

iii. The Family Court was not coping with the pre-COVID workload and radical steps aimed at changing professional culture and working practices were about to be launched when the pandemic struck;

iv. The ability of the system to process cases is now compromised by the need to conduct most hearings remotely;

v. Whilst there will be some capacity for the courts to conduct faceto-face hearings, the available facilities will be limited;

vi. Remote hearings are likely to continue to be the predominant method of hearing for all cases, and not just case management or short hearings;

vii. Delay in determining a case is likely to prejudice the welfare of the child and all public law children cases are still expected to be completed within 26 weeks;

viii. Adjourning cases indefinitely or for a period of many months will not, therefore, be an option.

43.If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.

CASE MANAGEMENT

44.Clear, focussed and very robust management of cases will be vital in the coming months. The case management judge will have the difficult role of balancing the welfare of the child, the need for a fair and just process and the limited resources of space, time and format with the need to conclude the proceedings.

45.Adjourning the case to await a full face-to-face hearing is unlikely to be an option. The court must identify those issues and applications that need to be heard and then move on to determine them.

46.Parties will not be allowed to litigate every issue and present extensive oral evidence or oral submissions; an oral hearing will encompass only that which is necessary to determine the application before the court.

47.It is important at this time to keep the ‘overriding objective’ as set out in Family Procedure Rules 2010, r 1.1 in mind:

 

“The overriding objective

1.1

(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c) ensuring that the parties are on an equal footing;

(d) saving expense; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

In these times, each of these elements is important, but particular emphasis should be afforded to identifying the ‘welfare issues involved’, dealing with a case proportionately in terms of ‘allotting to it an appropriate share of the court’s resources’ and ensuring an ‘equal footing’ between parties.

48.In keeping with the overriding objective and the elements highlighted in paragraph 47, judges should (after canvassing the point with the parties) consider whether giving a short judgment will be sufficient and proportionate in any particular case. In a short judgment the court will not be expected to set out a detailed recital of the evidence, save for those key elements which support the court’s findings and decision. There should not, however, be any reduction in the content and scope of the judge’s description of their analysis and reasoning.

49.Regard should also be had to the following:

COVID Case Management Checklist:

A Narrowing the Issues:

i. What issues are or can be agreed?

ii. Which of the remaining issues in the case is it necessary for the court to determine?

iii. Can those issues be determined without an oral hearing?

iv. If not, for which issues is an oral hearing necessary?

v. What oral evidence is necessary to determine those issues?

vi. The time estimate for each witness (including cross-examination) is to be reduced to the likely minimum necessary for the court to determine the issues to which it relates.

B Hearing Format:

i. Can the issues be determined fairly and justly at a fully remote hearing (having regard to the measures set out at C below)?

ii. Is it necessary to conduct all or part of the hearing with some of the parties in attendance at court [‘a hybrid hearing’]?

iii. Where a remote or hybrid hearing is to be held, it should be undertaken by video link, unless the court determines that a telephone hearing will be sufficient or a video link is not available;

iv. Where a telephone hearing is to take place, it should be undertaken via BT MeetMe Dolby Plug-in, if available;

v. Consideration should be given to access to the hearing by media or legal bloggers [FPR 2010, r 27.11, PD27B and PD36J];

vi. Where in ordinary circumstances arrangements would be made for a child to meet the judge, the court should strive to establish a means by which the judge and the child may ‘meet’, albeit that this may, in some circumstances, have to be via a video link rather face-to-face;

vii. The court should give at least 3 days notice of the platform that is to be used for any remote or hybrid hearing.

C Optimising Fairness of Remote Hearings:

i. The court should consider what options are available to support lay parties and enhance their ability to engage in a remote hearing. The options may include:

a. Attendance at a venue away from the party’s home (for example a room at court, solicitor’s office, counsel’s chambers or a local authority facility);

b. Arranging for at least one of the party’s legal team to accompany them (whilst observing the need for social distancing);

c. Establishing a second channel of communication between the lay party and their lawyers (for example by email, communication app or telephone during the hearing);

ii. Cases should be clearly timetabled with a start and planned finish time – where a witness template has been completed by the advocates and approved by the judge, it must be complied with save in exceptional circumstances;

iii. Regular short breaks should be provided in a hearing of any length;

iv. The overall length of the hearing should be reasonable, taking account of the need for breaks and of the acknowledged additional pressure of engaging in a remote court process;

v. Prior to the start of the hearing, all advocates should have communicated with their clients and with each other in an advocates meeting;

vi. All participants should be logged in and ready to start at the appointed hearing time;

vii. Advocates should ensure that they are available not only for the proposed length of the hearing but also for a reasonable period thereafter to de-brief their client and communicate with other advocates over the drafting of the order and any ancillary matters;

viii. At the start of each hearing the judge should make a short statement explaining the ground rules for the remote hearing;

ix. The judge should ensure that there is a means for a party to give instructions to their advocate during the hearing;

x. Where the hearing involves a litigant in person the judge should ‘check in’ regularly with any litigant in person to ensure that they are hearing, understanding and following the proceedings;

xi. At all times a remote hearing should be conducted with the degree of seriousness and respect that is evident at a fully attended hearing;

xii. The court should consider how best to arrange for the involvement of any interpreter or intermediary in the hearing;

xiii. The court should ensure that lay parties have access to the electronic bundle (unless this is not necessary, for example by reason of the hearing being an interim hearing where a party is represented and not required to give evidence).

BEST PRACTICE: FJO Report Section 6

50.In addition to the specific matters set out in the checklist at paragraph 49, regard should be had to the Best Practice suggestions that are helpfully set out in Section 6 of the FJO Report

CONCLUSION:

The ‘Can Do’ Mentality

51. The task ahead for the Family Court in the coming months is a daunting one of continuing to strive to make correct and timely decisions for children and families, in a just and fair manner, despite very severe restrictions on ordinary working. It is impossible not to have been profoundly impressed by the endeavour of all involved in the past 10 weeks, be they staff members, professionals, lay parties or judiciary, in working so hard and so effectively to deliver an outcome in as many cases as possible. A ‘can do’ approach has been evident at all turns despite the very real difficulties that have been thrown up by the current crisis.

52.I am confident that this positive, problem solving, approach will continue to be seen throughout the period ahead in the Family Court, however long it may be. The song ‘He Ain’t Heavy’, which starts with the words ‘The road is long’, includes the phrase ‘We’ll get there’. If, in the context of Family Justice, ‘there’ means a return to more ordinary working, I am sure that we will get there – even though the road will undoubtedly be long.

Sir Andrew McFarlane

President of the Family Division

9th June 2020

MEDIATION IN LOCKDOWN

In the current unusual circumstances caused by Covid-19 we have all had to think of new ways of working.   During the last nine weeks I have been conducting MIAMS appointments and Mediation sessions via ZOOM and I have to say this has been a success. Two notable benefits are:

• Reduced levels of stress

The fact clients conduct these meetings in the comfort of their own homes, I think reduces the level of anxiety they inevitably feel in having to deal with very difficult issues surrounding their relationship breakdown.

• flexibility of appointments

Another benefit of conducting mediation remotely means clients do not have to travel into chambers and mediation appointments can be conducted outside office opening hours.  So more flexible arrangements around the clients timetable i.e. when the children have been put to bed for example or at weekends.

Ongoing benefits of mediation

The vast majority of claims and family disputes are suitable for mediation, from small value disputes which do not justify the expense of litigation, to high value disputes which require speedy, confidential and commercial solutions.

A mediation can be held at any time, both before and after court proceedings have been issued. However, it is normally sensible to wait to have a mediation once the full nature of the dispute is clear and a proper investigation of the issues has been made by both parties.

Mediation is statistically a very successful way of settling disputes. The fact that the parties are attending a mediation focuses minds on settlement and also the strengths and weaknesses of the case. If a mediation leads to a settlement it can save time and reduce costs for both parties which would otherwise be incurred through the court action.

In my experience, even if the parties don’t settle the dispute at the mediation, it unlocks the deadlock and a settlement can usually be achieved a short while later.

Please remember during these difficult times mediation is still readily available.  Mediation is a useful tool at all times and can be a viable and effective alternative to court proceedings.

 

DAVID O’BRIEN (Accredited Mediator)

Trinity Chambers                                                                                                   

29^th May 2020

Inheritance (Provision for Family & Dependants) Act 1975:

Six-Month Deadline and Standstill Agreements

 

The Inheritance (Provision for Family & Dependants) Act 1975 (‘the Act’) permits certain applicants to bring a claim against a deceased’s estate where no ‘reasonable financial provision’ has been made for them, be it under a will or on intestacy.

Under the Act, the six-month time limit starts running from the moment probate has been granted and any claim must be brought within this period. Claims not commenced within six months will require the court’s permission to be brought, in accordance with section 4 of the Act.

The recent decision of Mr Justice Mostyn in Cowan v Foreman and others [2019] EWHC 349 (Fam) highlights the importance of adhering to the six-month time limit. Further, notwithstanding that standstill agreements may seem desirable because they extend the potential window for pre-action preparation and/or negotiation, parties should be cautious to enter into these in light of Mostyn J’s criticism.

In Cowan, the wife of the deceased delayed bringing her claim against the estate by 13 months, due to a standstill agreement between the parties. Mr Justice Mostyn remarked that, if standstill agreements are common practice, then they should come to an end. “It is not for the parties to give away time that belongs to the court. If the parties want to agree a moratorium for the purposes of negotiations, then the claim should be issued in time and then the court invited to stay the proceedings while the negotiations are pursued. Otherwise it is, as I remarked in argument, simply to cock a snook at the clear Parliamentary intention.”

The decision emphasises the importance of bringing a claim under the Act promptly and that the preferred course of action is for parties to issue and proceedings to be stayed, if necessary. The court will not look kindly on those who seek to take the timetable into their own hands, unless exceptional circumstances apply. As a general guide, Mostyn J remarked in Cowan that “absent highly exceptional factors, in the modern era of civil ligation the limit of excusable delay should be measured in weeks, or, at most, a few months.”

 

Emily Quinn

Trinity Chambers

May 2020

Neutral Citation Number: [2020] EWHC 1233 (Fam)
		Case No: ZC19C00356

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Insert Court Address
		15/05/2020

B e f o r e :

The Honourable Mr Justice Williams
____________________

Between:

	A Local Authority	Applicant
	– and – The Mother Father 1 Father 2 The Children	Respondents
	-and- The Maternal Grandmother The Paternal Grandmother	Interveners

____________________

(Covid-19 – Fair Hearing – Adjournment)
Mr William Tyler QC and Mr Tim Parker (instructed by the Local Authority Legal Dept) for the Local Authority
Ms Elizabeth Isaacs QC and Mr Mark Rawcliffe (instructed by Dawson Cornwell) for the Mother
Mr Mark Twomey QC and Ms Siobhan Kelly (instructed by TV Edwards) for Father 1
Ms Trisan Hyatt (instructed by Faradays Solicitors) for Father 2
Ms Tina Cook QC and Ms Joy Brereton (instructed by Powell Spencer and Partners) for the Paternal Grandmother
Mr Cyrus Larizadeh QC and Ms Lucy Cheetham (instructed by Goodman Ray) for the Maternal Grandmother
Mr Darren Howe QC and Ms Sally Stone (instructed by Creighton and Partners) for the Children
Hearing dates: 12th May 2020
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HTML VERSION OF JUDGMENT
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Covid-19 Protocol:  This judgment was handed down by the judge remotely by circulation to the parties’ representatives by email and release to Bailii.  The date and time for hand-down is deemed to be 16.30PM on 15^th May 2020.Mr Justice Williams:

1. 1. On 6 April 2019, a young girl who I shall refer to as K, died in hospital. She was born in 2016 and so was only three years of age when she died. A special post-mortem and toxicology tests indicated that her death was consistent with cocaine ingestion. Her death has led to both a police investigation by the Metropolitan police and care proceedings commenced by the Local Authority in respect of K’s 4 siblings. Three of them have been in foster care since May 2019, and the fourth who was born during the proceedings has been in foster care since birth. In July 2019 the case was listed before me for fact finding commencing on 21 April 2020. This judgment addresses the question of whether the fact-finding hearing should continue either remotely or semi-remotely or whether the case should now be adjourned until an in-person hearing of pre-Covid 19 format can take place; possibly in September or possibly later. Expert evidence from seven witnesses has been heard remotely. No party seeks that police or social work witnesses give oral evidence. The only evidence remaining is the oral evidence of the mother, the father, the paternal grandmother and possibly the maternal grandmother.
   2. The local authority is represented by Mr Tyler QC and Mr Parker, the mother by Ms Isaacs QC and Mr Rawcliffe, the father by Mr Twomey QC and Ms Kelly, the father of the oldest child by Ms Hyatt, the paternal grandmother by Ms Cook QC and Ms Brereton, the maternal grandmother by Mr Larizadeh QC and Ms Cheetham and the children by Mr Howe QC and Ms Stone.
   3. At the commencement of the case the Threshold Criteria relied upon by the local authority contained in broad terms the following elements

i) that K died as a consequence of cardiac necrosis caused by the deliberate administration or accidental ingestion of cocaine by or whilst in the care of

a) her mother, the first respondent, and or

b) her father, the second respondent, and or

c) her paternal grandmother, and or

d) her maternal grandmother

ii) that one or more of those four individuals alternatively failed to protect her from the administration or accidental ingestion of cocaine

iii) that the children were exposed to emotional abuse as a result of domestic violence perpetrated by the father upon the mother.

1. 1. At a pre-trial review on 3 April 2020 all parties agreed that the case should continue to be listed and should be heard remotely. I authorised the use of Zoom as I considered there was a pressing business need to use that platform. At that point

i) the mother was agreeable to the hearing proceeding remotelyii) the position statement for the father and his submissions made no reference to his having a medical condition which required him to shield or self-isolate or otherwise take additional precautions but did request assistance with hardware to enable better participation in a remote hearing.

iii) The paternal grandmother was experiencing symptoms similar to Covid 19 but wished the hearing to continue and her team were exploring her capability to participate remotely given her laptop had been seized by the police

iv) the maternal grandmother wished to continue albeit she would only be able to participate by phoning into the hearing as she did not have the hardware necessary to participate in an audio-visual manner.

I should emphasise that this was in the very early days of the court, the legal profession and litigants’ experience of the delivery of justice remotely. Arrangements had been made for the trial bundle (comprising some 7 ½ thousand pages of material) to be provided digitally by Caselines.

1. 1. On 21 April 2020 the first day of the hearing but nominally set aside for judicial reading a short case management hearing took place. The positions of the parties were in summary terms as follows

i) Mother:

M has a laptop and suitable internet connection enabling her to participate and join in the fact-finding hearing remotely as required. It is M’s wish to attend as much of the hearing as possible. She doesn’t wish to delay the case.

However, in light of the growing experience of advocates in remote hearings and in light of the most recent guidance by MacDonald J in respect of the Remote Family Court (version 4), the proposal set out in the position statement on behalf of the paternal grandmother is endorsed, namely that at the conclusion of the expert evidence the advocates should be permitted to take stock address the court further as to the efficacy of the hearing proceeding remotely thereafter. At this stage the position on behalf of M in respect of whether it is appropriate or fair for the lay and professional (non-expert) parties to give evidence remotely is reserved; however, her legal team intend to review her instructions about lay and professional (non-expert) evidence at the conclusion of the expert evidence.

ii) Father:

The real issue would be whether the evidence of the main respondents should be taken directly in court and it was likely to be the fathers position that it should be.

iii) Local Authority

We note that no party is suggesting that the hearing cannot fairly begin as planned, but that it would be sensible to review matters at the conclusion of the expert and/or expert and professional evidence.

iv) Maternal Grandmother

She wanted the hearing to be completed as quickly as possible and wished to give evidence by Zoom telephone

1. 1. I agreed at that stage to proceed with the expert evidence and then to review the position. In the course of the hearing of the seven experts over the seven days from 23^rd April to 1^st May the position in relation to evidence from police (including as to the chain of custody of what had been latterly described as a urine sample) and social work witnesses simplified itself as no party required any of the witnesses to give oral evidence. Thus by 1 May we had reached the close of the oral evidence save for the mother, the father and the grandmothers. In conjunction with the parties legal teams I had agreed that following the completion of the expert evidence I would allow the parties time to reflect upon that evidence before determining whether and if so how much further the case could proceed.
   2. The seven expert witnesses gave their evidence remotely including Dr Cirimele from Strasbourg with the occasional assistance of an interpreter in England. Much of the oral evidence confirmed or expanded upon the contents of the written reports and the joint experts’ agreement. Some of it was complex either scientifically or medically. It was challenging for the legal professionals to grapple with, although no more so than it would have been had it been delivered face to face. However, for the parties attending remotely from their homes and without the ability to have immediate interchanges with their lawyers to enable them to follow and understand the evidence, I am told and I have no difficulty in accepting, that it was much harder for them. Whilst it may not be essential for them to understand and assimilate all of the technical medical or scientific evidence it is essential that they are able to understand the nature of the evidence and its consequences. This also would be the same whether it were in person or remote but the ability to ask questions or to have difficult concepts explained in simple language face to face is much harder to achieve remotely. It is also the experience of those who have participated in the remote hearing process that it seems to be more tiring than a face to face hearing. Occasional failures of Wi-Fi bandwidth also placed some obstacles in the path of all involved albeit overall the remote hearing worked well technically and in particular the E-bundling system and the ability to share screens meant that the documents were easier to follow than would have been the case in a face to face hearing. At the commencement of the hearing I had invited each of the teams to notify me if their clients or lawyers were experiencing difficulties in participating as fully as they wished. In the main, technical issues did not prevent the parties participating as they had intended albeit the difficulties in discussing the evidence face to face became clear as the case progressed. Far harder for the parties was the distressing nature of the evidence being given particularly from the medical experts and I was informed that at various times the parties had elected to leave the hearing. Again, had this been face to face experience suggests that would have been the case in any event.
   3. On the afternoon of 1 May Prof Bu’lock, the paediatric cardiologist, completed her evidence. We then considered some of the potential ramifications of the totality of the expert evidence. A number of issues had emerged more clearly from the scientific and medical evidence and which had a potential impact on the approach that the parties and the court might take to the issue of whether to continue or whether to adjourn. Most importantly these were

i) the issue of deliberate administration of an overdose level of cocaine to K was not supported,ii) the ingestion of cocaine on more than one occasion (save in trace amounts by living in a contaminated environment) was not supported

iii) the window within which K may have ingested cocaine had narrowed to a likely window of after nursery on 3^rd April through to the visit to the GP at about 6 PM on 4 April, with a possibly most likely window of after nursery on the third April through to about 9 AM on 4 April,

iv) the most likely causes of death were either an unknown cause or cocaine ingestion leading to cardiac necrosis and subsequent heart failure.

v) The presence of cocaine in the hair strand samples of the maternal grandmother and on items at her property was most likely as a result of contamination and she had played no role in caring for K within the likely window.

1. 1. The local authority indicated, with some support from the Guardian, that they would review the way in which the threshold was put in the light of the expert evidence and would consider whether the maternal grandmother should remain on the list of possible perpetrators. Counsel for the mother and father in particular wished to have time to discuss with their clients and within their respective teams the nature of the evidence that had been given and in particular that of Prof Bu’lock. They also wished then to be able to consider any amended threshold which might emerge from the local authority on Monday, 4 May. As then framed, the threshold alleged the possible deliberate and repeated administration of cocaine to K which as Ms Isaacs described it was tantamount to an allegation of murder. I therefore agreed to adjourn until 2 PM on Tuesday, 5 May in order to allow the parties to digest the expert evidence and to consider their response to the amended threshold and thus to finalise their positions in relation to whether the case could or should proceed and if so how evidence could be heard.
   2. On Monday, 4 May the local authority filed an amended threshold. This contained a very significant change in the nature of the allegations. The local authority replaced the allegation that cocaine had been administered or negligently ingested with an allegation that cocaine was ingested whilst in the care of and due to the culpable actions or neglect of either the mother, the father or the paternal grandmother. Alternatively, they culpably failed to protect her from the same. Thus, although still an extremely serious allegation with potential criminal ramifications it was significantly less serious than before.
   3. The local authority invited me to continue with the hearing and to complete the fact-finding. As an alternative they submitted that the hearing should continue including hearing evidence from the parties so as to enable progress to be made in assessing the parties and in particular the mother with a view to listing a further hearing which would be a ‘rolled up’ hearing incorporating the remaining issues of fact and the welfare decisions. The local authority submitted that the court could properly continue to hear evidence from the parties in respect of the circumstances in which K had (as the local authority alleged) ingested cocaine between the 3 and 4 April. That, the local authority submitted, did not involve any significant dispute of fact as between the mother, the father and the paternal grandmother. They could be heard remotely or in a hybrid hearing where the party giving evidence attended in person before me together with their advocate and an advocate or more than one advocate to cross examine them. In respect of the allegations of the father having subjected the mother to domestic abuse, the father being a drug dealer and the consumption of cocaine by the paternal grandmother these involved very different accounts by the parties where credibility would be important but which were not central to the process of assessing the mother and which could await a return to more normal conditions when a face to face hearing could take place. Mr Tyler was prepared to undertake his cross examination remotely rather than attending in person and considered that justice could be achieved in this way.
   4. The Guardian also submitted that the fact-finding exercise should conclude as soon as possible to enable assessments to commence. In particular the Guardian was concerned that the children had been in foster care for over 11 months and that if they were to return to the mother’s care it should be decided upon as soon as possible. The Guardian considered that the children were all suffering harm as a result of the delay in the proceedings to date. For the youngest child, she has been cared for by a foster carer since her birth. The Guardian as a fallback position considered that the issues of domestic abuse, drug dealing, and whether the cocaine that K had ingested had been negligently left available by the mother, father or paternal grandmother could be deferred to a later rolled up hearing. Thus, the court could determine whether K had died as a result of cocaine induced cardiac necrosis but not the precise circumstances or level of culpability which led to it. An assessment could take place in those circumstances if the mother, father and paternal grandmother accepted that K had ingested cocaine, that the cocaine had caused damage to her heart and that the heart damage caused her death. Alternatively, an assessment could be done on an either/or basis but this would be unsatisfactory. The Guardian accepted that recent decisions of the Court of Appeal and High Court prescribed that in-person hearings require exceptional circumstances if they are to take place during lockdown. The Guardian submitted that this case was exceptional and that appropriate arrangements could be made for an in-person hearing to take place whilst observing the requirements for social distancing. Each of the children had particular needs for an early resolution. All had good relationships with their mother in particular and the oldest child wished to return to her care having now been in foster care for 11 months. An indeterminate period of adjournment of several months was not acceptable. Arrangements could be made for legal representatives to attend either remotely or in person in a manner which was fair to the parties and to the children and would enable a fair hearing to take place.
   5. On behalf of the mother it was submitted that further time was needed to take instructions and to provide a considered response to the threshold. Given the technical nature of the discussions, and the technical issues arising from taking instructions by Zoom, Ms Isaacs asked for an adjournment of at least two clear working days. However, her ultimate position was that

i) the seriousness of the issues involved even after the amendments to the threshold were such that a fair hearing could only take place for the mother if she were able to attend court in person with the judge able to see her give evidence. The same held good for the testing of the evidence of the father and paternal grandmother. The mother wished to see her legal team face-to-face prior to giving evidence and such was essential in order to do justice to her case. Although the mother had a laptop and suitable internet connection this was no substitute for face-to-face conference and evidence giving. She also wished to have the support of her legal team during the process of giving evidence.ii) The mother wished the father’s evidence as to domestic abuse, drug use and what happened to K on 4 April to be tested with the father in court with her present.

iii) The mother did not believe a fair hearing could take place unless her leading counsel was also able to attend a hearing in person. Ms Isaacs, being in a category required to shield until 30 June (as per current government advice) could therefore not attend a hearing within the next two months. The mother could not contemplate attending court without Ms Isaacs.

iv) the mother had had contact with the maternal grandmother who has been told by her GP that she has Covid – 19 (albeit has not tested for it) and thus is required to self-isolate for 14 days. The mother believed that the contact took place on 1 May and so she could not attend a hearing in person until at the earliest 15 May

v) it was proposed that the matter be adjourned part heard to the first available date after 30 June.

1. 1. On behalf of the father Mr Twomey said that the father was not currently prepared to leave his home to attend court. He suffers from asthma and so was shielding himself. It was said that he was in the category of individuals who were considered to be clinically extremely vulnerable. On enquiring further, it has emerged that the father had not received the letter from his GP stating that he was in a high-risk category but rather this was a view he had taken himself. It was accepted that he was living in a house with his mother who herself believed she had suffered from Covid-19. Thus, for safety reasons he was not prepared to attend court and did not consider that a fair assessment of his evidence could take place by anything other than a face to face hearing. Similarly, he considered that a fair evaluation of the mother’s evidence could not take place unless she attended in person. He considered that as the risks continued to abate (assuming no significant change in direction) that he would feel safe to attend court by the end of June. His ability to understand the evidence and give instructions had been hampered by difficulties with his own technology, his dyslexia and the inability to participate in the usual supportive and interactive process with his legal team. It was considered essential for him to meet with his legal team face to face before he gave evidence. It was submitted that a trial which did not take the usual face-to-face format and which was not preceded by a face to face conference could not be a fair one.
   2. The paternal grandmother wished to proceed. She had been provided with a tablet to enable her to participate in the hearing. Although she had found the expert evidence difficult to follow at times due to its content and more importantly its subject matter of K’s death she had also experienced some technological difficulties. In addition, she has a hearing difficulty which has added to the anxiety and her ability to participate. Her legal team have been speaking to her on an almost daily basis seeking to give her an overview relating to the evidence. The process of delivering that message and taking instructions has been difficult given technological issues and the complex nature of the material under discussion. The paternal grandmother considers it is essential that she gives evidence in person to the court and that she is able to engage face-to-face with her legal team in advance and to be supported throughout the process. She would also wish to be able to liaise directly with her legal team when the mother and father are giving their evidence. Subject to confirmation of safe arrangements the paternal grandmother and her legal team were prepared to attend at the RC J to enable her to give evidence and to be present whilst the mother and father gave evidence.
   3. The maternal grandmother supported her daughter’s application for an adjournment. The withdrawal of allegations against her in the threshold left her as a potential witness. She believed that they saw each other on 27 April and so the 14-day isolation period expired on 11 May. However she supports the level of distress that her daughter is experiencing and believes that the combined effect of the strain of these proceedings together with her worries about her own health and her worries about the maternal grandmother’s immediate and future health (I believe she has a terminal condition) meant that it was not fair to proceed.
   4. Having heard submissions on 5 May and also having regard to the fact that the next three-week review of the Covid – 19 restrictions was due to be announced on Sunday, 10 May and that the mother, the father and the paternal grandmother wished for time to reflect on the amended threshold and to review the impact of the expert evidence I adjourned the decision on the continuation of the case until Tuesday, 12 May. At that point it appeared possible that the mother may be able to give evidence in person at some point after the 11^th or 15^th of May (if clarity was achieved as to when she saw her mother), though whether this should in principle happen remained opposed by the mother on the grounds of her right to a fair hearing. I listed the case for mention and I made provision for an advocates’ meeting to take place on 11 May.
   5. The announcement made on Sunday, 10 May and the subsequent 50-page guidance issued on Monday, 11 May did not bring much greater clarity to the position that the parties and the court faced. Within the guidance there was a tacit recognition that for those in the clinically extremely vulnerable category it was likely that they would be required to shield beyond 30 June. However, the relaxation of the restrictions to encourage the resumption of work supported the possibility of more flexibility in terms of in-person hearings; subject of course to appropriate risk assessments and the implementation of proper safety measures.
   6. On Monday, 11 May Ms Isaacs informed me that the mother had felt obliged to assist the maternal grandmother with her medical equipment on 8 May because the grandmother could not work the equipment and the mother was the only person available to assist her and thus had been exposed again potentially to Covid – 19. It seems that the maternal grandmother first exhibited some symptoms on or about 23 April and was attended by paramedics on 27 April and subsequently diagnosed by her GP with Covid 19 at some point shortly thereafter. That diagnosis by the GP was made over the phone. Thus, the mother’s attendance both in late April or early May and again on 8 May was either within or perilously close to the 14 days within which the maternal grandmother should not have had contact with any other individual. I accepted that this meant that the mother ought to self-isolate for 14 days from 8 May which precluded her attending in person if I resumed the hearing this week and next.
   7. I was able to liaise with HMCTS facilities and IT staff to put in place the technology and safety structures and protocols which would have enabled a Covid 19 safe hearing to take place in two courts in the RCJ at the earliest from the 15^th of May. I had also made enquiries as to my availability which showed I would be unable to accommodate a hearing between the first of July and the beginning of vacation and that the earliest dates for a resumed hearing would be the fortnight commencing 28^th September or the fortnight commencing 7^th December.
   8. Prior to resumption of this hearing or in the course of it the mother, the father and the paternal grandmother all responded to the effect of the expert evidence and the redrafted threshold. All accepted that K had ingested cocaine at some point which had caused cardiac necrosis which led to her death. However the parties all made clear that the circumstances in which she had come to ingest that cocaine remained very much in issue together with the very significant issues between the lay parties that had emerged from their witness statements.
   9. Today the parties resumed their submissions in the light of the slightly altered landscape. It emerged from the advocates’ meeting that some if not all of the parties contemplated an attended hearing taking place in the last week of June. By then the mother would be able to attend in person. However, the mother did not support such a proposal as Ms Isaacs would still not be able to attend in person. This opened up a new possibility and on making enquiries it appeared it might be possible for me to commence the hearing on 24 June. However, I was unable to give any guarantee but it looked a real prospect.
   10. The local authority adopted a flexible approach to the continuation of the hearing this week and next or an adjournment to June if that could be accommodated. The local authority strongly resisted an adjournment to September given the implications for the children remaining in foster care and the lack of progress that could be made in assessments. Having regard to the indications that I had expressed on 5 May they accepted that it would be very difficult to delineate matters of evidence which were less contentious and might proceed by remote hearing or a hybrid hearing and that in reality all factual matters relating to the mother, the father and the paternal grandmother should be heard together. The local authority was prepared to adopt a flexible approach to its presence in court to cross examine. Were the court to list the matter in June it appeared realistic to expect that the final welfare hearing could take place with the benefit of any psychological assessment at the end of September.
   11. The Guardian’s preferred option was to resume the hearing now and to hear evidence from the mother remotely and from the father and the paternal grandmother in person if that was what they wished. The Guardian was concerned that the mother’s visit to the maternal grandmother had deprived the mother of the possibility of attending court in person within a resumed hearing and did not consider that the children’s need for an early resolution should be derailed by the mother’s choice to assist the maternal grandmother rather than to find some alternative means of assisting with her medical equipment. Mr Howe identified the case as an exceptional case which could properly proceed in a hybrid hearing rather than awaiting the resumption of normal service. He emphasised the need to show adaptability and that fair hearings could be provided by various means other than traditional. He observed that Mrs Justice Lieven had proceeded remotely where the issues were of the utmost seriousness. As a default he urged the court to proceed in June and said that in normal circumstances the absence of a party’s leading counsel would not require the court to adjourn for three months where that counsel could either attend remotely and where junior counsel was in attendance. He also raised the Guardian’s concern that the court would be faced with a similar situation in June given the uncertainties relating to the recovery from Covid 19.
   12. Ms Isaacs emphasised in robust terms as to the mandatory nature of the mother’s article 6 right to a fair hearing and reminded me of the guidance and the judgments of the Court of Appeal and the President which emphasised the need to provide a fair hearing; a right not compromised or pared back by Covid 19. She drew attention to the parts of the guidance which indicated that the starting point was that remote hearings were unlikely to be appropriate in welfare cases or cases where parents were to be called. She emphasised the seriousness of the issues involved and the importance of the mother’s oral evidence in relation to her drug use and her knowledge of the father’s handling of drugs within the house and the mother’s challenge to the evidence of the father in terms of domestic abuse. She emphasised their relevance to welfare issues moving forward. This was not, she said a hopeless case, but one where the outcome for her client was very much a live issue. She also emphasised the wide ranging nature of the benefits to the mother of having leading counsel present at the court hearing, such encompassing the psychological support for the mother, the forensic benefits of the mother and leading counsel being present in court together and the advantages in adducing and testing evidence. She cautioned against too optimistic an approach to the benefits of remote hearings; what might be appropriate with experts would not necessarily work with lay parties. She emphasised the mother’s article 8 rights which would be infringed if a fair hearing was not delivered with the consequence of the termination or attenuation of her relationship with her children and likewise the impact on the children’s article 8 rights as well. Ms Isaacs submitted that a delay of three months was not a significant delay when balanced against the benefits to the mother and the court process of providing a hearing at which the mother’s leading counsel would be present in person. Although she could not guarantee her presence, she said that the drift appeared to be towards a relaxation of restrictions and that by September it would not be an unrealistic hope or indeed expectation that she would be in a position to attend. Her client’s decision to assist the maternal grandmother was born out of concern, humanity and necessity, and not any desire to avoid giving evidence. She emphasised that the mother was as keen as anyone to reach a conclusion to these proceedings but not at the expense of a fair process.
   13. On behalf of the father Mr Twomey opposed the resumption of the hearing this week and next. Although his client had attempted to ascertain from his GP whether he should properly be characterised as falling in the clinically extremely vulnerable group he had been unable to make contact with his GP despite extensive efforts. He remained concerned that his asthma rendered him vulnerable to an in-person hearing whilst Covid 19 remained at large. He also emphasised the limitations that the father faced in accessing remote technology given his undiagnosed (I think) dyslexia and the importance to the father of being able to give evidence in person which was problematic in a resumed hearing. Mr Twomey also frankly drew my attention to the fact that a resumed hearing would place him in professional difficulties next week in relation to a seven-day remote hearing where he was instructed on behalf of a local authority in a serious non-accidental head injury case. The father accepted that the process to date had been fair but that the giving of evidence from the lay parties was a different matter and a fair hearing could not be provided in circumstances where the mother could not be cross examined in person. The father accepted the mother’s arguments in respect of the fair hearing issues connected with the presence or absence of her leading counsel. Mr Twomey submitted that the court should not conduct what would effectively be an experiment given the parties’ article 6 rights particularly when the propose arrangement would be a previously unexplored landscape.
   14. On behalf of the oldest child’s father, Ms Hyatt did not advocate strongly in favour of any particular option although observed that a September hearing was the safest in terms of fair hearing issues.
   15. Ms Cook on behalf of the paternal grandmother reiterated her client’s desire for an early resolution and her willingness to attend court in person with her legal team in order to resume this hearing.
   16. Mr Larizadeh updated me on his client’s health and whilst accepting that she was no longer the subject of threshold findings sought by the local authority she would continue to play a role as a witness and she continued to support her daughter’s position.

The court’s approach to the hearing of evidence in the current circumstances

1. 1. In a letter from the Lord Chief Justice, Master of the Rolls and President of the Family Division to judges on 9 April 2020, rather than giving formal guidance, a number of parameters were suggested to assist a court in deciding whether or not to conduct a remote hearing. The following three factors were identified as being of particular relevance to Family cases:

“e. Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted

remotely;

f. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;

g. In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”

1. 1. In addition, in guidance that the President of the Family Division issued on 27 March it was 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.”

1. 1. The first reported case dealing with the approach to take in deciding whether to proceed with a hearing in a complex Family Court case is Re P (A Child Remote Hearing) 2020 EWFC 32. In that case the President was considering a case involving a 7 year old child whose mother was alleged to have caused harm to the child by fabricated or induced illness (FII). It had been set down for a 15 day hearing. The child had been under an interim care order for 11 months. Initially all parties had accepted the need for remote hearing in the light of the advice produced by MacDonald J on remote hearings.

8. I have been assisted by counsel at the hearing this afternoon, who have explained that at the hearing on 3 April all parties, and the judge, effectively accepted that this hearing would now have to go ahead and be conducted remotely. I was told that all parties and the court had been influenced by the publication, shortly before 3 April, of advice produced by Mr Justice MacDonald on the conduct of remote hearings which gave an account [at paragraph 2.2.1] of a number of remote hearings that had been successfully accomplished in the early days following the lockdown. It would seem that those involved in this case read that advice as indicating that all hearings must now proceed as remote hearings and, I was told, the discussion during the hearing was about how the remote hearing would be conducted and not whether it should be heard remotely. If that was the understanding of MacDonald J’s document, it was a misunderstanding. MacDonald J’s document is firmly aimed at the mechanics of the process; it does not offer guidance, let alone give direction, on the wholly different issue of whether any particular hearing should, or should not, be conducted remotely. Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.

1. 1. The President then set out the arrangements that had been made for the Mother to engage with the hearing. She was alone at home and it was intended that internet access would be arranged. It is of some relevance that her leading counsel had only been relatively recently instructed. At [11] the President referred to the national situation and said;

“It is a type of hearing which, certainly at first blush, seemed to be well outside the categories of hearing which could be contemplated as being appropriate for remote hearings before the Family Court. I make that observation in the narrow context of this being an 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.”

1. 1. The position of the parties in Re P was that the local authority and the Guardian wished to proceed, in particular because of the impact of further delay on the child. The Father supported that position. The Mother’s counsel argued that the case must be adjourned. She did that largely on the basis that the Mother was not well enough to proceed. Given the nature of the case this was obviously a particularly problematic situation. The President at [20] referred to the possibility in some cases of the parent going to another place such as local authority offices to give evidence. However, this was not an option given that the Mother believed she had Covid 19.
   2. The President then referred to the letter (set out above) and the Guidance and said;

24 The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with each other. The need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for her life to move forward is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working. 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.25 Turning to the particular case now before the court, although I am extremely aware of and sensitive to the position of this young girl and the negative impact that a decision to adjourn will have on her wellbeing and the potential for it to cause her emotional harm, I am very clear that this hearing has to be adjourned. I make the decision also being aware of the impact that this will have professionally on all of those who have had this fixture booked in their professional diaries for a long time and who are now ready for the hearing to take place. That cannot be a factor that weighs very significantly in the decision-making process but it is one of which I am aware.

26 The reason for having the very clear view that I have is that it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely. The judge who undertakes such a hearing may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function. The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and 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. It also assumes that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment. I do not consider that a remote hearing for a final hearing of this sort would allow effective participation for the parent and effective engagement either by the parent with the court or, as I have indicated, the court with the parent. I also consider that there is a significant risk that the process as a whole would not be fair.

27 The observations that I have made in the preceding paragraph apply equally to the options for dividing the hearing process up that have been helpfully suggested by Mr Taylor as, with each option, the judge would not have the opportunity to engage fully with the parent during the whole of the hearing as would be the case in a courtroom.

28 Given the wealth of factual detail that is to be placed before the court in relation to this mother’s actions over the last three or four years, for her to have a full real-time ability to instruct her legal team throughout the hearing, not just by a phone call at the end of each witness’s evidence, seems to me to be a prerequisite for her to be able to take an effective part in a fair process at the trial of issues such as this.

29 For those shortly stated basic reasons, I consider that a trial of this nature is simply not one that can be contemplated for remote hearing during the present crisis. It follows that, irrespective of the mother’s agreement or opposition to a remote hearing, I would hold that this hearing cannot properly or fairly be conducted without her physical presence before a judge in a courtroom. Now that the mother is in fact opposing the remote hearing, the case for abandoning the fixture is all the stronger.

1. 1. The Court of Appeal has now delivered two judgments relating to Family Court cases being heard remotely, Re A (Children) (Remote Hearing : Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Care and Placement Orders) 2020 EWCA Civ 584.
   2. In Re A the Court of Appeal (the President, Peter Jackson LJ and Nicola Davies LJ) said at [3];

3. Against that background we wish to stress the following cardinal points with the utmost emphasis:i) The decision whether to conduct a remote hearing, and the means by which each individual case may be heard, are a matter for the judge or magistrate who is to conduct the hearing. It 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. An appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong.

ii) Guidance or indications issued by the senior judiciary as to those cases which might, or might not, be suitable for a remote hearing are no more than that, namely guidance or illustrations aimed at supporting the judge or magistrates in deciding whether or not to conduct a remote hearing in a particular case

.

iii) The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might, or might not, have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa. For example, it is the common experience of many judges that remote hearings take longer to set up and undertake than normal face-to-face hearings; consequently, courts are now listing fewer cases each day than was the case some weeks ago. On the other hand, some court buildings remain fully open and have been set up for safe, socially isolated, hearings and it may now be possible to consider that a case may be heard safely in those courts when that was not the case in the early days of ‘lockdown’.

1. 1. At [8], [9]and [10] the Court of Appeal said;

“It follows, applying the principles set out above and the guidance that has been given, that:i) Final hearings in contested Public Law care or placement for adoption applications are not hearings which are as a category deemed to be suitable for remote hearing; it is, however, possible that a particular final care or placement for adoption case may be heard remotely;

ii) The task of determining whether or not a particular remote hearing should take place is one for the judge or magistrate to whom the case has been allocated, but regard should be had to the above principles and guidance, as amplified below;

iii) The requirement for ‘exceptional circumstances’ applies to live, attended hearings while the current ‘lockdown’ continues.

9. The factors that are likely to influence the decision on whether to proceed with a remote hearing will vary from case to case, court to court and judge to judge. We consider that they will include:

i) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?

ii) Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;

iii) Whether the parties are legally represented;

iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;

v) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;

vi) The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;

vii) The scope and scale of the proposed hearing. How long is the hearing expected to last?

viii) The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;

ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;

x) Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.

10. It follows from all that we have said above that our judgment on this appeal should be seen as being limited to the determination of the individual case to which it relates. Each case is different and must be determined in the light of its own specific mixture of factors. The import of the decision in this case, in which we have held that the appeal must be allowed against a judge’s decision to conduct a remote hearing of proceedings which include applications for placement for adoption orders, is that, on the facts of this case, the judge’s decision was wrong. As will be seen, one important and potentially determinative factor was the ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair. Such a factor will, almost by definition, be case-specific. Another element, and one that is likely to be important in every case, is the age of the children and the degree of urgency that applies to the particular decision before the court. The impact of this factor on the decision whether to hold a remote hearing will, as with all others, vary from child to child and from case to case.

1. 1. Most recently Mrs Justice Lieven has given judgment in A Local Authority -v-M and F [2020] EWHC 1086 (Fam) in which she decided to hear the parties and other lay witnesses entirely remotely in a care case concerning how a young baby who had suffered very extensive injuries had died and whether the mother or father was responsible. As in this case the medical cause of the death of the child appears to have been in issue as well as the possible perpetrator if non-accidental injury was established. In that she said

“[23] One important factor in a decision whether to proceed, particularly in a fact finding case, is the question of whether the judge will be in a less good position to judge whether or not the witnesses are telling the truth if the case is conducted remotely. This was clearly an issue of particular concern to the President in Re P at [26] where he refers to the benefits of seeing the witness in court. The issue of the weight that a judge should give to the demeanour of witnesses is an intensely complex one and has been the subject of considerable judicial debate. ….

1. 1. She referred to observations made by Leggatt LJ in R (on the application of SS (Sri Lanka) v Secretary of State for the Home Department 2018 EWCA Civ 1391, the concluding paragraph of which reads

‘41. No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.

1. 1. She went on to record.

[24] Mr Goodwin and Mr Verdan also referred me to the fact that it is by now fairly common in Family and Criminal courts for lay witnesses of fact to give evidence remotely by video link where those witnesses are considered to be vulnerable. The procedure for doing so is dealt with extensively in PD3AA. It therefore must follow that the giving of evidence in this way does not undermine the fairness of the process either for the individuals concerned or other parties. I do however inject a note of caution here. If it were a case that a vulnerable witness were likely to be subject to complex cross examination, perhaps with references to a large number of documents, it is highly likely that they would have the assistance of an intermediary to assist them in managing the process. Therefore, the fact that evidence is given remotely is not itself sufficient to necessarily protect that witness.[25] There is also a balance to be struck. One of the reasons that vulnerable witnesses often give evidence remotely is to protect them from the stresses of the courtroom. It may therefore be that a compromise is made for that category of witness, in order to balance fair process with the interest of the individual. However, as Mr Goodwin argued, it may also be the case that the vulnerable witness is more likely to give truthful and complete evidence if allowed to give it remotely, rather than in the witness box. So the benefit is not simply to the witness, but also potentially to the judicial process.

1. 1. I should observe that the advantages of physical attendance of a party at court are not confined to the perceived, but perhaps in reality limited, advantage to the judge of being able to look the witness in the eye and assess their demeanour and thus credibility. In common with the views expressed by Leggatt LJ and the distinguished judges he referred to, it seems to me that the credibility of a witness and the truthfulness of their account in the vast majority of cases is reliant principally upon the evaluation of the content of their evidence rather than the evaluation of their demeanour. That is not to say there may not be rare cases where demeanour may be of some importance, particularly where there is no or little contemporaneous or other evidence which bears upon their account. In the 21^st-century where most individuals leave digital fingerprints in the form of messages, photographs, emails, call records and suchlike it is now a rare case where a judge is left without any contemporaneous evidence from the witness himself. Most witnesses will now have recorded their evidence in written or recorded form on one or more occasions prior to giving it in court. In many cases there will be evidence from other sources whether they be the authorities or individuals who may be able to draw on digital or other records. Thus, the evaluation of the credibility of a witness’ account will usually take place against a backdrop where consistency can be judged against earlier accounts, against contemporaneous evidence and against the evidence of others. It is also now well recognised that memory is a fallible instrument. Thus in judging demeanour how does one distinguish between the confident liar, the confident but genuinely mistaken witness and the confident truth teller or alternatively the hesitant and anxious truth teller, the hesitant and anxious but genuinely mistaken witness and the hesitant and anxious liar?
   2. However, the advantages of in-person attendance before the judge are not limited only to the perceived, but often overrated advantages in terms of assessing credibility. That is largely a judge oriented perspective although a party may in some circumstances feel they are better able to tell their story face-to-face in the formal setting of a court. For many though, including but not limited to vulnerable witnesses whether adults or children, the giving of evidence in a court setting in the presence of a judge and of cross-examining lawyers and perhaps in the presence of other individuals who provoke strong feelings whether of fear or otherwise can undermine their ability to give their best evidence. From a party’s perspective though (as referred to by the President in Re P #28) there may very well be advantages to in-person attendance between a party and his legal team in advance of the hearing in order to ensure that clear instructions have been given and understood on the facts and on the approach. There may well be advantages to a party to in-person attendance in being able to see other witnesses give evidence and to provide immediate instructions to counsel in the middle of cross examination. There may be concomitant advantages to the judge in observing the reaction of parties’ to the evidence of others (as the President identified in FII cases) and to how their legal teams are instructed to respond. The appellate court’s reluctance to interfere in fact-finding decisions is not confined purely to the perceived advantage that the judge at first instance had in assessing credibility from demeanour but rather the advantage that a first instance judge may derive from the entirety of the in court process which includes observation of the parties behaviour throughout the process but is far wider than that and takes in all that cannot be included in a judgment as the case develops from the judges’ reading of the papers through to opening, hearing of evidence, closing and everything that accompanies the process.
   3. Still more recently in Re Q (A Child) [2020] EWHC 1109 (Fam) the President has said,

[33] On the issue of remote hearings more generally, and the interpretation of Re P in particular, I propose to say little in this judgment. Ironically, although the case has come before me primarily because it was thought that the judge may have fallen into error in her application of Re P, it is clear that she did not do so. The decision in Re P is expressly tied to the small number of cases in which allegations of Factitious or Induced Illness [‘FII’] are made. Paragraph 24 in Re P is of more general, obiter, application and the judge was correct in referring to it.[34] At present, in accordance with the Guidance that has been issued and the decisions handed down last week in the Court of Appeal in the cases of Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, each judge or magistrate must consider the individual case before the court and determine whether or not it should proceed remotely in whole or in part. It is to be accepted that a consequence of this approach is that different courts may take a different view on similar cases and that this may inevitably give rise to some inconsistency from court to court, or even from judge to judge. The Family Justice Observatory’s speedy research into remote hearings in the Family Court will inform a review of the current situation and indicate whether the present guidance needs to be revised. It is not therefore the place to add to the learning on remote hearings in this judgment. The decision in the present case should be seen as an ordinary appeal, where the issue happens to be a remote hearing, but where the appeal has turned upon a failure of process and an error in approaching the issue of welfare.

1. 1. All of the guidance given in relation to hearing cases at this time is intended to ensure that the parties’ article 6 rights to a fair hearing within a reasonable time by an independent and impartial tribunal are not infringed. The article 6 right is unqualified but what constitutes a fair hearing is not an absolute. There is no absolute rule that provides that a fair hearing can only take place if the party is able to attend court in person to give their evidence and to see and hear and respond to the evidence of other important witnesses. It is a question of fact and degree in any particular case. In addition, in cases such as this the article 6 rights of one party may be in conflict with the article 6 rights of another party. In this case the rights of the children and of the paternal grandmother and the local authority to a determination in the near future may be in competition with the rights of the mother and father to give evidence and to hear evidence in the way they consider best promotes their right to a fair hearing.
   2. I also record that Ms Isaacs observed that the restrictions in place in respect of those with health issues could potentially amount to a disability within section 6 of the Equality Act 2010. A person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. At present it does not seem immediately obvious that a person who is in the category of clinically extremely vulnerable and obliged to shield would come within that definition. However, even if that were so the court might then need to make reasonable adjustments. A reasonable adjustment would include providing an alternative means by which an individual could participate but I do not think it would require the court to adjourn the case completely until full face to face participation could be achieved.
   3. I note that in A Local Authority-v-M & F all parties initially wished to complete the hearing with evidence being given remotely both expert and lay. At the beginning of the second week the father sought an adjournment on the basis that his mental state was such that he did not feel able to continue. A psychiatric report concluded that he had capacity to continue, that he suffered from low mood and anxiety on a relatively low scale which would not impede his ability to concentrate and to give evidence and that it would help him enormously to give evidence by video. Lieven J concluded that she could conduct a fair hearing remotely on those facts, notwithstanding the issues involved were at the top of the scale of seriousness.
   4. Bearing all that in mind I turn to the factors which need to be considered.

The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?

1. 1. The nature of the issues now to be determined has developed as a result of firstly the significant change in the way in which the threshold has been pleaded. The removal of the possibility of deliberate and/or repeated administration of cocaine has reduced the seriousness of the allegations the parents and paternal grandmother face. The acceptance of the mother, the father and the paternal grandmother that K’s death was caused by ingestion of cocaine leading to cardiac necrosis and heart failure means that the issue of whether the cause of death could not be determined or arose from cocaine ingestion has been resolved. However, the role that each individual played in how cocaine came to be ingested by K is very much alive and of considerable importance. On the local authority’s case, at the most serious end of the scale is all three individuals being regular cocaine users, its presence in K’s home being frequent and extensive, the parties being reckless as to the children’s exposure, it being knowingly dealt from the mother’s home with her consent or non-objection. On the mother’s case she was an infrequent user herself, told the police that she believed the father used cocaine daily and his bringing the drug occasionally into her home but not exposing the children to it and her being unable to oppose either his dealing or his more frequent use of the drug because of his intimidation and occasional violence. On the father’s case, he was an occasional user, never a dealer, never violent. On the paternal grandmother’s case, she was not a user, was not aware of the scale of the mother and father’s drug usage or of his dealing. The mother is now the only family member seeking to resume the care of the children. If the mother’s evidence established, her case rehabilitation would probably be a real option. On the other hand if the most serious findings against the mother were made, rehabilitation would look a much more uncertain prospect with the possibility of the children facing permanent separation from their family. Whilst the nature of the allegations does not involve complex evidence, they are serious allegations and important in terms of the ultimate welfare outcome. For the mother, the father, paternal grandmother and the children the article 8 rights engaged are potentially at the top end of the spectrum.

Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;

1. 1. The children were removed into foster care nearly a year ago and these proceedings have been underway for nearly twice the 26-week statutory timetable. Determining the facts and obtaining an assessment of the mother and reaching a final decision is thus a matter of some urgency. The Guardian emphasises the extent of the harm she considers the children are suffering by delay. Determining the facts now would enable assessments to be commissioned and a final hearing to take place in September. Regrettably with the summer vacation intervening and another urgent two-week case when vacation ends means I would not be able to timetable a final hearing until late September in any event. An adjournment to late June to determine the facts would lead to a final welfare determination in September in which assessments could be completed. Adjourning the remaining part of the fact-finding until the last week of September and the first week of October would mean that a final welfare hearing would be difficult to timetable before the end of the year and would probably have to be listed in mid-December or January when term resumed. Whilst a delay of a little over 3 ½ months is not huge given the length of time the case has taken to reach this stage, it is a very significant delay for the younger children and, in respect of the youngest, would mean that she had been in foster care for the entirety of the first year of her life. It may be that further delay after already extensive delay in fact magnifies the harm and section 1(2) Children Act 1989 emphasises that delay is prejudicial to children’s welfare.

Whether the parties are legally represented;

1. 1. All of the parties are represented by extremely experienced leading counsel, junior counsel and solicitors. All have been able to make good use of the remote hearing technology. All will continue to be represented by the same teams whichever course I adopt. The most significant issue though is whether Ms Isaacs can be physically present at court together with the mother and the rest of the mother’s legal team. Even were the mother able to attend a hearing in person next week Ms Isaacs would be unable to due to the mandatory shielding that she must follow. She would also be obliged to shield at a hearing in June and thus would only be able to participate remotely. The mother’s junior counsel would be able to attend court with her; her solicitor also has to shield. Assuming the Covid -19 restrictions continue to be relaxed over the summer Ms Isaacs believes there is a realistic possibility of her no longer being subject to the mandatory-shielding and thus being able to attend the hearing in person with the mother. However, there is no guarantee that by September Ms Isaacs will be able to attend in person. If the course of the recovery from Covid 19 is rocky rather than smooth there is a risk that those in the extremely vulnerable group will continue to be obliged to shield themselves and thus Ms Isaacs might not then be available. Whilst September, taking an optimistic view, provides at least a better chance of Ms Isaacs being able to attend with the mother there is inevitably some uncertainty.

The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;

1. 1. All of the lay parties have so far participated remotely in the most complex part of the hearing evidentially. Away from court they have been able to spend some considerable time with their legal teams remotely as a result of the adjournments I have allowed to ensure they were able to engage appropriately with their legal teams to understand the evidence and to take decisions in the light of that evidence. It seems that the mother and the father have both been able to participate effectively by remote means. However, participating by listening to medical expert evidence and participating by giving evidence and by hearing the evidence of the other lay parties and communicating instructions is a different matter. For the paternal grandmother who has hearing difficulties remote participation is more of a challenge even with access to appropriate hardware. She has struggled to operate the remote software and has been heavily reliant on her legal team to keep her engaged within the process by daily summaries. The maternal grandmother, who will continue to play a role as a witness has not so far directly participated in the hearing but rather has relied on summaries from her legal team. She would participate at present only by audio. She currently continues to suffer with ill-health, diagnosed by her GP as Covid 19 albeit not laboratory confirmed. She will continue to have to shield as a result of being within the clinically extremely vulnerable category and so at any future hearing either now or in June would participate remotely by audio. Whether she would be able to attend in person in September remains a matter of speculation.

Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;

The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;

1. 1. The state that we have now reached is that the only remaining evidence to be heard is that of the lay parties. All accept that the process of hearing from the expert witnesses has been effective and has delivered a fair hearing. It is becoming more common for experts to give evidence by remote means even prior to the restrictions necessitated by Covid 19. There is clearly a difference between the giving and challenging of expert evidence and the giving and challenging of lay evidence.
   2. In many cases the existence of a contemporaneous digital fingerprint or other contemporaneous or corroborative documentary or other evidence might affect the importance of the oral evidence. When the court has a host of other sources of evidence against which to measure the veracity or credibility of a party’s evidence the significance of the oral evidence may be reduced. Conversely where other sources of evidence are limited the importance of the oral evidence of the parties assumes a greater prominence and the court’s determination of the parties’ credibility in the round including their demeanour in court as well as their responses to questioning may become crucial. The mother’s evidence as to her drug consumption will have to be weighed alongside the Chemtox analysis which is inconsistent with her account and the Lextox analysis which is more consistent with her account. The mothers evidence as to domestic abuse and the father’s evidence in rebuttal are the central planks of the case on domestic abuse. The mother’s explanation for changes or developments in the accounts she has given over time may be important. The parties’ evidence as to the nature and extent to which cocaine was present in the house is of considerable importance although we also have the oldest child’s account and the police evidence as to the presence of cocaine in the family home and elsewhere. Some of the evidence is hotly contested as between the mother and the father, some as between the mother and father and the local authority, some as between the father and the local authority.

The scope and scale of the proposed hearing. How long is the hearing expected to last?

1. 1. The remaining part of the hearing is anticipated to last 3 ½ days in terms of the evidence. Submissions will take 1 to 2 days. Judgment will be reserved and delivered within a short time thereafter. Given the track record so far it seems probable that submissions will be delivered remotely. Each of the lay parties would give evidence for a day with the maternal grandmother giving evidence for something in the region of half a day. Allowing for appropriate breaks, or other contingencies this would allow each party to give evidence for a day which all are agreed would be sufficient to enable their evidence to be given and tested.
   2. Both the local authority and the Guardian are content to test the evidence by remote means rather than by their counsel attending in person at court.

The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;

1. 1. The use of the Zoom application has so far permitted an effective hearing, without anything more than the occasional and minor technical glitch as bandwidths fluctuated. The vast majority of both evidence giving and the hearing of submissions has so far taken place very effectively from the court’s perspective.
   2. It is undoubtedly the case that the evidence of the mother and the father could be given remotely by Zoom. Screen sharing of documents has been very effective and indeed in almost every way more effective than by use of hardcopy bundles in court. The paternal grandmother however would face a very considerable struggle in giving evidence by Zoom. She has so far been unable to operate it effectively. Given her hearing difficulty audio means alone would be inadequate. Thus, she can only realistically give evidence in person unless some Covid 19 safe arrangement could be implemented somewhere other than her home with technical support being provided to her. At present that does not appear to be an available option. The maternal grandmother is unable to participate by Zoom and can only participate by audio.

The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;

1. 1. Although there was some mention of Luddites and steam enthusiasts being encouraged to adopt electric railways my impression of all concerned has been that the legal teams have rapidly familiarised themselves with the remote technology and have become adept at using it. Cross examination on even the most contentious aspect of the expert evidence was effective. From the perspective of the court and the lawyers I have little doubt that the remote technology would provide an effective means of the evidence being adduced and tested. My one reservation is that some of the parties have experienced bandwidth difficulties at various times which has required them either to resort to audio only participation or has required a degree of repetition. Whilst this has been manageable with the experts, I’m not sure that it would be so easily addressed were it to occur in the middle of a crucial piece of cross examination.

Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.

1. 1. The court spent some considerable time in looking into and making arrangements for the setting up of a Covid safe court room at the Royal Courts of Justice. Undoubtedly the technology can be put in place to allow a semi-remote hearing with some parties and their lawyers attending and others remaining on Zoom.
   2. Those responsible for implementing Covid 19 safe premises have spent some time in two of the RCJ Family Division court rooms ensuring that the physical arrangements in court would maintain proper social distancing requirements and that the access to and egress from the court together with court waiting areas could be configured in such a way as to comply with government guidance. A court monitor could be provided to implement the protocol as to access to presence in and egress from the court.
   3. My understanding is that the processes already undertaken within the RCJ comply with current guidance.
   4. Overall it seemed that the steps taken within the Royal Courts of Justice and further steps that were being taken could ensure that a safe attended hearing could be facilitated by the court. That is probably so by Friday of this week and should certainly be so by June.

Conclusion

1. 1. Drawing all of those strands together, having regard to the Guidance and to the judgments of the Court of Appeal and of the President and balancing the competing arguments I conclude as follows.

i) The issues on which the remaining evidence is to be given are not complex but they are of very considerable importance both to the mother, father and paternal grandmother and to the children and wider family. The outcome of the evidence may have profound implications for the possibilities of rehabilitation and thus for the family life of the children and the parties.ii) The absence of very much contemporary documentary evidence, digital fingerprints, or other corroborative evidence places a considerable focus on and premium on the oral evidence of the parties. Whilst it can be tested remotely, where it is of such importance and where there is the lack of other evidence against which to measure it. the giving of evidence in a court setting in the presence of the judge in my view has an advantage both to the party and to the court. This arises not only from the evidence actually given but also from the interplay between the party and their team and the dynamic that may be observed as between the parties. Thus, on the particular factors which are present in this case I consider that giving evidence in person has a material advantage over remote evidence giving. If giving evidence in person can be facilitated within a reasonable time period that should be facilitated in order to deliver a fair hearing.

iii) I thus do not consider that it is appropriate to continue with the hearing later this week and next week. Although a safe court environment can be provided the mother cannot participate in person as she has been exposed to a person diagnosed with Covid 19. Even were she prepared to attend court in those circumstances, I would not permit her to do so given the risks to herself and to others. The father may be reluctant to attend this week and next but he and his team could attend if I so required them. The paternal grandmother and her team can and indeed urge me to allow her to attend to give her evidence. Were I to allow the father and paternal grandmother to attend in person but to restrict the mother to giving evidence by remote means, on the facts of this case, I do not consider that I would be allowing the parties to participate on an equal footing. The mother inevitably would feel a sense of grievance that she was participating in a manner which she felt was less likely to present her evidence effectively.

iv) The mother, the father and the paternal grandmother can attend a court hearing in June. A safe court environment will then be even more sophisticated or developed for the parties, the lawyers and the court staff. All can then give their evidence in person with the advantage that brings in this case. The difficulty in June is that Ms Isaacs will not be able to attend in person. That I accept will have some impact on how the mother’s case is presented. It is likely to impact on how the mother feels at court, it will mean that interactions between the mother and Ms Isaacs will not be immediate but will be filtered via Mr Rawcliffe and a remote application, and it will mean that Ms Isaacs’ physical presence in court to cross examine the father and the paternal grandmother will be replaced by a remote presence: albeit on screen this may be as prominent, if not more so than being physically present. I accept that this amounts to some interference with how the mother and her legal team would choose to exercise their fair trial rights and objectively is likely to have some impact on the presentation of the mother’s case; however this does not mean that a fair trial cannot be delivered. A party’s subjective perception of what amounts to a fair hearing is not determinative. A fair hearing sets a minimum standard but how it is delivered is not fixed and may vary from one case to another. Some cases involve several leading counsel on each side, others proceed fairly with litigants in person on one side and leading counsel on the other. A fair hearing can be achieved in such circumstances and I am satisfied it can be achieved here.

v) Balanced against the mother’s article 6 rights are the article 6 rights of the other parties to a fair trial within a reasonable time. All, including the mother have emphasised their desire for the case to be resolved as soon as possible. The agreement of a party to proceeding either remotely or in a hybrid hearing does not relieve the court of the responsibility to determine whether a fair hearing can take place any more than the opposition of a party relieves the court of that obligation. The Guardian is concerned at any delay and would prefer to have proceeded immediately from the point of view of the children and achieving a rapid resolution of the case. The paternal grandmother also sought an early resolution by continuing with this hearing. The local authority likewise. I have concluded that whilst desirable such a rapid approach would be a significant interference with the mother’s rights to a fair hearing and would (along with various other obstacles) prevent a fair hearing and that would outweigh the limited delay involved in adjourning to June which would constitute a hearing within a reasonable time. There is thereafter (as between June and September) also a balance to be struck between interfering with the children’s rights to a fair hearing within a reasonable time and the mother’s rights to a fair hearing within a reasonable time. Whilst the particular components engaged from each party’s perspective may differ a balance still must be struck.

vi) There is no perfect solution to this clash of rights. Any solution is an imperfect solution with some interference with the rights of one or another party; primarily article 6 but also article 8 rights in particular in terms of how rapidly resolution can be achieved for the medium to long term future of the children. A delay until September will, if Ms Isaacs is then able to attend in person, ensure the fullest compliance with the mother’s article 6 rights; the minimum standards will be well exceeded. However, such a delay will infringe upon the children’s rights to a fair hearing within a reasonable time. I accept that a delay of 3 months is a significant one and will cause harm to the children. It is not a reasonable time to adjourn from now until September if some alternative earlier hearing can be achieved without infringing the mother’s rights to an extent that outweighs the delay caused infringements of others’ rights. A hearing in June will protect the children’s article 6 right to a fair hearing within a reasonable time but will infringe to some degree on the mother’s competing rights. However, I do not consider that the inability of Ms Isaacs to attend will 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. The combined effect of the rest of the framework; that provided by the court, that provided by the mother’s representation and to an extent the representation of the other parties all play their part in making the hearing fair. Inevitably in some cases leading counsel is prevented from playing the expected role – part of junior counsel’s role is to take on that role. In fact, in this case Ms Isaacs can continue to play a role and in my view (and experience in this case so far) 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.

vii) Having given anxious consideration to these imperfect solutions that which in my evaluation reaches the best balance is to adjourn the hearing until June to enable the mother to participate in person at that hearing albeit without the physical presence of her leading counsel. That hearing can be a fair one to the mother and to the other parties. That will then enable the facts to be determined which will lead to a final welfare hearing in September and will avoid a further 3 to 4-month delay, which acceding to the mother’s submissions would inevitably require; and that assuming Ms Isaacs was then able to attend. If she was not then able to attend would the matter require further adjournment?

1. 1. I therefore decline to resume the hearing of evidence in person from the father and the paternal grandmother and remotely from the mother this week and next. I will adjourn the case until 24 June (which appears to be highly likely to now be available but subject to final confirmation early next week) to facilitate an in person hearing which will allow all of the parties remaining to give evidence in court to me. If it transpires that I cannot facilitate that hearing, the balance seems to me to fall clearly away from seeking to press on with a hearing this week and next. In any event it could not be achieved, even were I to consider it to be potentially fair, by the time I have achieved certainty in relation to the June hearing date. The balance then regrettably would fall in favour of a hearing in September. I will convene a further case management hearing next week after I will have achieved certainty in relation to the June hearing.
   2. All of the lay parties will need to take such steps between now and the resumed hearing to put themselves in the position where they are able to attend that hearing and have prepared with their legal teams well in advance. I am prepared to work today on the basis that the mother’s attendance at the maternal grandmother’s home was appropriate and that the unfortunate consequence in terms of her ability to participate was overborne by her concerns for the maternal grandmother’s health. A similar situation should be incapable of arising in the next few weeks as the maternal grandmother should now be at a stage where she could not infect the mother but there does not seem to be certainty in relation to re-acquisition of the virus or indeed certainty as to how long infection of another may remain a possibility. The mother and the maternal grandmother’s family but also the father and the paternal grandmother need to put in place arrangements which will ensure that they cannot be exposed to someone with Covid 19 in the run up to the adjourned hearing or otherwise find themselves in a position where they cannot attend in person. Their priority must be to their children and ensuring that the uncertainty in which the children have lived since the tragedy of their sister’s death is ended as a rapidly as possible. Of course, one cannot cater for all of life’s uncertainties and misadventures but I expect them to do all they can within their control to put themselves in the position to progress this case. Whilst I cannot pre-determine matters the parties should understand that my decision to adjourn to allow their personal attendance at a hearing in 6 weeks’ time does not mean that if they are unable to attend then that the matter will go over to September. That ‘slot’ will likely no longer be available and what I consider to be the correct balance of rights today will not necessarily remain the same in June.

LATER

1. I have refused Ms Isaacs’ application for permission to appeal. I consider that I have applied the Covid Guidance, judgments and the approach to Article 6 and Article 8 properly and that the balancing exercise that I have conducted gives due weight to the relevant competing factors and that the outcome I have settled upon is the right one.

How to avoid the Family Court Queue Part 1 : Family Law Arbitration

Even without Covid-19, the queue for Final Hearings in family cases has just been getting longer and longer.

There is an answer – stop guessing what a Judge at Court might decide and let a ‘private judge’ actually decide your case instead.

Under the Institute of Family Law Arbitrators (Court Approved) scheme a jointly appointed Arbitrator can determine financial or children cases in a way that becomes a binding decision (almost always) enforceable in the Courts.

Arbitrators are highly experienced lawyers who are specially trained and qualified by the IFLA and the Chartered Institute of Arbitrators.

The Parties just need to agree on 3 simple things first –

1. Do they want to save time and money by going to Binding Arbitration ? (to which any rational answer should be yes)

2. Who the Arbitrator is ? (all profiled on the IFLA website ifla.org.uk)

3. What they want the Arbitrator to decide (the whole case or just some of it)

There are also costs considerations to take into account, including possible costs consequences if a party unreasonably refuses an offer of arbitration.

The Financial Scheme covers all applications under –

The Children Scheme covers –

• Any issue between parents or other persons holding parental responsibility or a sufficient interest in a child’s present or future welfare
• Where a child should live including shared living arrangements
• Visiting arrangements including holiday time to be spent with a non residential parent
• Education
• Disputes concerning routine and non life threatening medical treatment

The IFLA website contains an incredibly helpful Guide to Arbitration http://ifla.org.uk/divi/wp-content/uploads/Public.pdf together with the Forms the parties will both need to sign to start the process.

Richard Balchin is a Barrister & IFLA Arbitrator at Trinity Chambers

NEW FAMILY PROCEDURE RULES  (WHILE WE’VE ALL BEEN IN LOCKDOWN)

While we’ve all been in ‘lockdown’ a whole host of amendments to the Family Procedure Rules have come into force and more will come into force on 6 July 2020.

I’ll deal with the three most consequential.

The full SI is available here http//www.legislation.gov.uk/uksi/2020/135/contents/made

________________________________________________________________________

Rule 5.7 – Now in force

Unilateral Communications with the Court

 

Background

Court staff and Judges have been increasingly bothered by sometimes voluminous emails from Litigants in Person and Solicitors that look rather like they were written to be ‘kept secret’ from the other side. Those days are now, at long last and probably in theory rather than in practice, hopefully over.

The new FPR Rule 5.7 provides that:-

5.7.—(1) Any communication between a party to proceedings and the court must be disclosed to, and if in writing (whether in paper or electronic format) copied to, the other party or parties or their representatives.

(2) Paragraph (1) applies to any communication in which any representation is made to the court on a matter of substance or procedure but does not apply to communications that are purely routine, uncontentious and administrative.

(3) A party is not required under paragraph (1) to disclose or copy a communication if there is a compelling reason for not doing so, and provided that any reason is clearly stated in the communication.

(4) A written communication required under paragraph (1) to be copied to the other party or parties, or their representatives, must state on its face that it is being copied to that person or those persons, stating their identity and capacity.

(5) Unless the court directs otherwise, a written communication which does not comply with paragraph (4) will be returned to the sender without being considered by the court, with a brief explanation of why it is being returned.

(6) In addition to returning a communication under paragraph (5), where a party fails to comply with paragraph (1) the court may, subject to hearing the parties, exercise its case management powers under Part 4.

It is worth noting :

• The requirement to copy in one’s opponent to any communication to the court only applies to communications on a matter of substance or procedure and not to the humdrum inconsequential matters that are “purely routine, uncontentious and administrative”.
• The rules do not specifically require the ‘copying in’ to be simultaneous with the communication to the court.
• Any communication to the court must state on its face that it is: (i) being copied to the other side; and (ii) identify to whom; and in what capacity the communication is being copied.
• Failure to comply with the requirement for the communication to contain a declaration that it has been copied to the other party : (i) will result in the court returning the communication to the sender without considering its contents; and (ii) may result in the court exercising its case management powers under FPR Part 4
• The fact that lockdown is meaning more and more direct communications with Judges on their own judicial e-mails and fewer staff in the Court Office to ‘vet’ emails into the Court raises its own thorny questions.
• The rule will impose yet another burden on Family Court Judges and Court staff already burdened with endless emails and perhaps see the return to anything other than a formal application being considered.

________________________________________________________________________
Rule 9.27A – from 6 July 2020

Open Offers for Financial Remedy Cases

 

Background

The days when the parties could keep their Open Proposal ‘up their sleeves’ until shortly before the final hearing (14 days before the final hearing for the applicant and 7 days thereafter for the respondent in accordance with FPR rule 9.28) is being replaced by a requirement that each party state their open position 21 days after the date of the FDR appointment (unless the court directs otherwise).

Meaning that Open Offers to settle will be admissible and relevant to the issue of costs under FPR rule 28.3(7)(b) as justifying a departure from the normal “no order” principle – and that the earlier in the litigation process they are made – then the greater the amount of costs that may be payable under any order which directs that such costs shall be recoverable from the date upon which an open offer is made.

The new FPR Rule 9.27A provides that:-

9.27A.- (1) Where at a FDR appointment the court does not make an appropriate consent order or direct a further FDR appointment, each party must file with the court and serve on each other party an open proposal for settlement—

(a) by such date as the court directs; or

(b) where no direction is given under sub-paragraph (a), within 21 days after the date of the FDR appointment.

(2) Where no FDR appointment takes place, each party must file with the court and serve on each other party an open proposal for settlement—

(a) by such date as the court directs; or

(b) where no direction is given under sub-paragraph (a), not less than 42 days before the date fixed for the final hearing.”

It is worth noting :

• FPR Rule 9.28, (which requires open proposals from the applicant not less than 14 days before the date fixed for the final hearing and 7 days thereafter in the case of the respondent) remains in force. The parties are therefore under a duty to revise and, if necessary, amend their open proposals shortly before the final hearing.
• The FDR Judge will be required to give under FPR Rule 9.17 (9) namely – as well as giving directions for (a) for filing evidence and up to date information and (b) fixing a final hearing date – to give a direction as to “(c) any necessary directions for the filing of open proposals for settlement under rule 9.27A or rule 9.28”.

________________________________________________________________________

Rule 9.27 – from 6th July 2020

Cost Estimates

 

The parties will be required to file and serve not only a Form H setting out their costs incurred to date (as they do now), but also:-

• an estimate of their future costs to the next stage of the process (i.e. to the FDR at an FDA hearing and to the final hearing at an FDR hearing); and

 

• in the case of a final hearing, each party must file and serve not less than 14 days before the hearing “full particulars of all costs in respect of the proceedings which the filing party has incurred or expects to incur”.
• The costs estimates must include confirmation that:- (a) they have been served on each other party, and (b) they have been discussed with the client.
• Orders will be required to contain a recital recording each party’s estimate of future costs.
• Costs estimates to be accompanied by a Statement of Truth.
• Parties must bring a copy of any estimate of costs filed and served to the hearing itself.
• Failure to comply with these provisions must be recorded on the face of the order and the defaulting party must be ordered to file and serve the costs estimates within 3 days of the hearing (or such other time as directed by the court)                                                                                                                                                                                                                                                   Richard Balchin                                                                                                                                                                                                     13th May 2020
   

Richard Balchin MCIArb is a Family Barrister and IFLA Arbitrator at Trinity Chambers

Can the Court take judicial notice of impact of the Covid-19 crisis on agreed/SJE valuations?

A recent decision of HHJ Booth in S v. H [2020] EWFC B16 has been seen by some as giving support for the argument that the answer is yes.  In the context of an argument that he should take judicial notice of the effect of the crisis when considering the estate agents’ particulars which had been produced in support of a party’s claimed housing need, HHJ Booth was referred to the decision in Piglowska v. Piglowski [1999] 3 AER in which Lord Hoffman cautioned against such an approach but HHJ Booth said:

“I have had cited to me by Mr Maxwell-Stewart a passage from Piglowska v Piglowski [1999] 3 All ER 632 House of Lords, where Lord Hoffmann deprecated the use of taking judicial notice of the cost of accommodation when evidence could be put before the court. In 1999 there was not available on the internet, as it had not then been invented, the sort of information that is readily available at the click of a mouse in 2020. Whilst it is plainly desirable that the court should have evidence, in proper form, it seems to me there must be some practical dilution of Lord Hoffmann’s stern words.”

So, one could argue that a Judge today can properly undertake their own research in considering whether they should accept such evidence.  That is what follows from a “dilution of Lord Hoffman’s stern words”.  But whilst the comments of HHJ Booth may be seen as support for that argument in the context of a “battle of estate agents’ particulars”, it is submitted that it is unlikely his comments or his decision in the case will persuade a Court that it can replace the view of an SJE valuation of assets.

John Brooke-Smith                                                                                                                                                                                              Trinity Chambers                                                                                                                                                                                                      13th May 2020

WHO CAN BE A RESPONDENT UNDER THE FAMILY LAW ACT 1996?

There is a common misconception that an applicant cannot obtain a non-molestation order against their ‘in-laws’, ie against a partner’s or former partner’s family members.

In fact, under the Family Law Act 1996, some in-laws are classed as relatives and therefore can be subject to a non-molestation order if they behave in an abusive or harassing way.

Section 63 of the Family Law Act says that a person’s relative can be ‘(a) the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s spouse, former spouse, civil partner or former civil partner‘ or ‘(b) the brother, sister, uncle, aunt, niece, nephew or first cousin (whether of the full blood or of the half blood or by marriage or civil partnership) of that person or of that person’s spouse, former spouse, civil partner or former civil partner’ [emphasis added].

Section 63 also adds that relatives include ‘in relation to a person who is cohabiting or has cohabited with another person, any person who would fall within paragraph (a) or (b) if the parties were married to each other or were civil partners of each other.’

This means that an applicant can obtain a non-molestation order against their partner or ex-partner’s family members if they are, or have ever been, married, in a civil partnership, or cohabiting.

Section 63 does not, however, include the family members of boyfriends, girlfriends, ex-boyfriends, or ex-girlfriends who have never lived together – even if the couple have a child together.

Where a non-molestation order is not available, an applicant can always seek an injunction under the Protection from Harassment Act 1997. The two remedies have different rules and procedures so it is important to apply for the right order.

If you are being abused or harassed and need a court order for protection, Trinity Chambers are here to help.

 

Jessica Hunter                                                                                                                                                                                                      Trinity Chambers                                                                                                                                                                                                      11th May 2020

The Secretary of State for the Home Department v Yagnesh Devani [2020] EWCA Civ 612 (6 May 2020)

Discusses the uses of the “slip rule” and in particular the proposition that the “The ‘Slip Rule’, rule 31 of the First-tier Tribunal Procedure Rules, cannot be used to reverse the effect of a decision.”

Per Lord Justice Underhill paragraph 23

“The essential distinction to bear in mind in considering the application of the slip rule, in any of its legislative formulations, is between the case where the order in question does not express what the Court actually intended at the moment of promulgation and the case where it does express what the Court intended at the time but it subsequently appreciates that it should have intended something different: see, most recently, para. 18 of my judgment in AS (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 208, [2019] 1 WLR 3065 (p. 3071C). As I say there, how the distinction applies in a particular case may not always be straightforward, but the concept is clear. The proposition which the UT drew from the case to which it referred and from the White Book commentary, namely that the slip rule “cannot be used to change the substance of a judgment or order”, is perfectly apt as a reference to the second of the two classes of case that I have mentioned; but it appears from the UT’s actual decision that it understood it to mean that the slip rule could not be used in a case where the correction would produce a decision with the opposite effect to that promulgated. With all respect, that is simply wrong. In the case of a simple failure of expression – most obviously a straightforward slip of the pen – the error can and should be corrected even if it alters the outcome (as initially expressed) by 180°.”

In the instant case it was clear from the judgement that Judge Sullivan intended to allow the appeal however in error the formal notice of decision recorded that the appeal was dismissed; Underhill LJ confirmed that it was not necessary for this error to be the subject of an appeal and an application under the “Slip Rule” should have been made.

 

 

Miss Josephine Spratt-Dawson

Trinity Chambers

9 May 2020

 

 

Re T (Children) [2020] EWCA Civ 507 (7 April 2020)

This case reminds practitioners of the perils of not following the guidelines for interviewing minors and in the context of acting for an accused the potential value in obtaining a witness statement from any intermediary who was present at the interview.

In the instant case it would appear that the intermediary’s concerns formed part of the transcript of the interview.  However, it cannot be assumed that an intermediary will have voiced all their concerns at the time and it is a line of enquiry that would appear worth considering.

As a matter of practice in my view it is always a useful exercise to listen to or view the actual interview rather than rely on the transcript as the absence of lack or narrative or free recall may not be obvious from the transcript and equally it may not be as easy to observe a child as tired or distracted from the written word.

The relevant passages are set out below – the findings of sexual abuse were set aside.

Per Lord Justice McCombe

“45. “…There were a number of features of those interviews which demonstrated a failure to comply with the applicable Guidance. They will be apparent from what I have said already. Of course, failure to comply with the Guidance will not always render evidence obtained incapable of establishing acts of sexual abuse: see Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006] EWCA Civ 773, per Hughes LJ (as he then was) at [34] – [35] and [40] – [42], cited by McFarlane LJ (as he then was) in Re J (A Child) [2014] EWCA Civ 875 at [73] – [75]. However, deficiencies of this type can be very significant and, in this case, in my judgment, they were just too numerous to be overcome in order to sustain this single finding in the context of the serial sexual abuse that had been perpetrated by W and the Mother against all these children in the immediately preceding 11 week period. For my part, I accept Mr Roche’s submission that the value of the evidence about this single alleged act of abuse, elicited at a very late stage of a long interview and only as a result of a distinct prompt about a conversation with S, was also reduced to vanishing point.

“46.   The transcript and the recorded interview do not sit easily with the judge’s description of X’s statement being clear and spontaneous. Such information as was obtained arose from directed questioning of a distracted and tiring child. There is no narrative or free recall or any details that might make it possible to understand when and in what circumstances such an event might have occurred. This is of particular significance where the possible allegation is so strikingly similar to abuse that the child was in fact recently suffering on a number of occasions at other hands.”

Josephine Spratt-Dawson Trinity Chambers

9 May 2020

Vegetative patients and the withdrawal of life support.

A Clinical Commissioning Group v P (by her litigation friend the Official Solicitor) and TD [2019] EWCOP 18

The Court of Protection was asked to consider whether the patient, P, lacked capacity to make decisions regarding clinically assisted nutrition and hydration (‘CANH’). If P was found to have lacked capacity, the court was asked to consent on P’s behalf to the withdrawal of CANH, which would lead to her death.

P took a heroin overdose in 2014, suffering cardiorespiratory arrest and a severe hypoxic brain injury. The diagnosis was initially one of a vegetative state and was subsequently revised to that of a minimally conscious state.  P was discharged from hospital into a rehabilitation unit where she was tracheostomy-dependent, tube-fed and completely immobile. P had disordered sensory input; no significant functional movement and any experience of pleasure or pain could not be determined. The unit opposed the withdrawal of CANH whereas members of P’s family were in support of withdrawal. The Official Solicitor submitted that P’s wishes, and feelings could be ascertained with sufficient certainty and should prevail over the presumption of preserving life where they were clearly against being kept alive in her current situation.

The application was not opposed by any party to the proceedings, however, in light of differing views expressed by the staff caring for P and the neutral position adopted by her treating clinicians, the matter was brought to the court. This was in accordance with the guidance issued in An NHS Trust v Y [2018] UKSC 46 where the Supreme Court clarified that there is no requirement to go to court to seek approval for the withdrawal of CANH provided that (a) the provisions of the Mental Capacity Act 2005 have been followed, (b) the relevant guidance has been observed and (c) there is agreement as to what is in the best interests of P. Where there is a disagreement as to a proposed course of action or where the approach is finely balanced, an application to the court should be made.

Macdonald J was satisfied that P lacked capacity to make decisions about her medical treatment and about the withdrawal of CANH. He determined that CANH was not in P’s best interests and that the court should withhold its consent for ongoing CANH, upon an end of life care plan being approved by the court. He was satisfied that, on the balance of probabilities, prior to becoming incapacitated P expressed a “clearly and firmly held view that she would not want to be kept alive in circumstances in which she now finds herself”.

Practitioners should be aware that the presumption of the sanctity of life is not absolute and that the court will give due consideration to dignity and to patients’ expressed views, to permit a “carefully managed, palliated and dignified end”.

Emily Quinn

Trinity Chambers

10th May 2020

Neutral Citation Number: [2020] EWHC 1109 (Fam)
		Case No: FA-2020-000064

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
APPEAL FROM CENTRAL FAMILY COURT
ORDER OF DDJ O’LEARY
ZC18P00715

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/05/2020

B e f o r e :SIR ANDREW MCFARLANE
THE PRESIDENT OF THE FAMILY DIVISION
____________________

Re Q

____________________

Ms Deirdre Fottrell QC and Ms Lucy Maxwell (instructed by Hughes Fowler Carruthers) for the Applicant Father
Mr Martin Kingerley QC and (instructed by Osbornes Law) for the Respondent Mother
Ms Catherine Jenkins (instructed by Cafcass) for the Respondent Child by the Children’s Guardian
Hearing date: 30 April 2020
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email and release to BAILII. The date and time for hand-down is deemed to be at 10:30am on Wednesday, 6 May 2020. 

Sir Andrew McFarlane P:

Background

1. 1. This is an appeal from a case management decision made by Deputy District Judge O’Leary sitting at the Central Family Court via a remote hearing on 22 April 2020 in the course of long-running private law proceedings concerning the welfare of a girl, Q, who is now aged 6 ½ years.
   2. At the conclusion of oral submissions I announced my decision, which was that the appeal was to be allowed, the decision to vacate the remote hearing was set aside, and the matter remitted to the deputy district judge to redetermine the question of how and when the final hearing is to take place. This judgment sets out my reasons for that decision.
   3. Q’s parents have been separated for some years. Her mother, who is of European origin and who requires the assistance of an interpreter during the court proceedings, has been her primary carer. Her father, who is English, was seeing Q regularly until October 2018 when all contact was stopped after Q’s mother made allegations that he had sexually abused their daughter. Contact was restarted on a supervised basis in July 2019. In October 2019 Deputy District Judge O’Leary conducted a seven-day fact-finding hearing which concluded with a clear finding that no sexual impropriety had occurred. At the conclusion of that hearing restrictions on contact were relaxed and the case was adjourned for a psychological assessment of the parents.
   4. On 13 March 2020 the expert psychological report was filed. Its primary conclusion was that it was in Q’s interests for there to be a change of primary carer from mother to father.
   5. Following receipt of the expert report, the court directed that contact should be further increased so that Q is currently spending alternate weeks with each parent. That arrangement has continued through the current COVID lockdown.
   6. On 12 December 2019 the case was set down for an ordinary final hearing before Deputy District Judge O’Leary on 22 April 2020.
   7. On 24 March 2020, at the pretrial review conducted remotely before the deputy district judge, the case was set down for a remote final hearing on 22 April with a three-day time estimate.
   8. On 15 April 2020 the Designated Family Judge for Central London, HHJ Tolson QC, in the course of a paper review of pending trials, unilaterally directed that the planned final hearing should be vacated. That decision was reviewed at a further remote hearing before deputy District Judge O’Leary on 20 April 2020. Prior to that hearing, on 10 April, the children’s guardian appointed to represent the interests of Q filed her final report in which she accepted the expert opinion of the psychologist and recommended an immediate change of residence so that Q would reside primarily with her father. At the hearing on 20 April, Mr. Martin Kingerley QC, representing the mother, applied for an adjournment on the basis that the matter could not be determined fairly at a remote hearing. That application was refused.
   9. On 21 April this court handed down judgment in the first reported case concerning remote hearings, Re P (A Child: Remote Hearings) [2020] EWFC 32. On the same date District Judge O’Leary engaged in email correspondence with HHJ Tolson over the question of whether the remote hearing planned for the following day should take place.
   10. At the start of the hearing on 22 April, the judge indicated that she had been reviewing the decision to proceed having read this court’s decision in Re P. After hearing submissions from all parties, the judge concluded that the remote hearing should be vacated and the matter relisted before her for an ordinary face-to-face final hearing in due course.
   11. Q’s father’s appeal is against the decision to vacate the remote final hearing. Permission to appeal was granted by DDJ O’Leary. An appeal from a deputy district judge would normally be heard by a circuit judge. This case has been transferred to be heard by a judge of High Court level [Family Court (Composition and Distribution of Business) Rules 2014, r 6] because of a perceived need to clarify this court’s judgment in Re P and because the DFJ at the Central Family Court had played a part in the case management decisions that had been made regarding the remote hearing of this case.

The 20 April Judgment

1. 1. At the remote hearing on 20 April, which had, in part, been established to ‘test run’ the video platform chosen for the substantive hearing (Zoom), the judge rejected Q’s mother’s application to adjourn the final hearing until it could be heard in a conventional court room. In her judgment the judge rightly drew attention to her close connection to this case resulting from undertaking the fact-finding hearing and conducting virtually every case management hearing over the course of a year. She explained her decision to refuse the application to adjourn in paragraphs 5 and 6 of her judgment:

“5. As far as the adjournment is concerned, I therefore have to consider the competing interests of first of all the welfare of Q, including avoiding any delay for her in a final determination and secondly, the equally important fact that there must be a fair hearing for all parties. The difficulty in this, as far as the mother is concerned, is firstly, she is having to deal with the case remotely, this of course is a common difficulty for litigants at the moment. The second difficulty is that she needs the services of interpretation …. This adds an additional layer of complexity to the case and difficulty or feeling of estrangement of the mother. A case management hearing decision is not a one-off decision, it is a continuing obligation on the judge to look at the competing interests of obtaining finality of decisions in cases for children and making sure that decisions are fair to all parties. Fairness to all parties includes all parties being able to take part in and feel involved in the process. It is for that reason, that the considered wisdom at the Bar on 24th March was that the Zoom platform was probably going to be the most effective for a final hearing. This is the platform that has been used today. I am certain in my mind that a fair hearing can and should take place on 22nd April with its three day time estimate, all advocates have worked hard to do everything they can to make sure that a fair hearing can happen at this time and in my judgement, it is appropriate that it continues.

6. I will of course explain why I have contradicted the order of His Honour Judge Tolson to the learned judge. But I am satisfied that what he has done, has been to make an order in this case, which probably has been made in other similar cases, to adjourn it. There needs to be finality for Q, she has been the subject of litigation for a considerable period of her life. She is displaying evidence of emotional harm as a consequence and this needs to come to an end. I hope that the three-day time estimate will be sufficient. There will need to be breaks built into it because it is an important part of everyone’s welfare that there are breaks in hearings which are as intensely personal and direct as these remote hearings. This is amplified by the need for an interpreter also to have breaks. If I am satisfied in the course of the final hearing that there is any unfairness, or sense of alienation for the mother, I can look at that and consider it as the hearing progresses. This gives the possibility, although I hope it does not happen, for an adjournment for a brief period but I am quite satisfied that the final hearing should continue as it was meant to continue on 22nd April, with its three-day time estimate.”

1. 1. In the course of this appeal, Miss Deirdre Fottrell QC, for Q’s father, who appeared before the judge, draws particular attention to the passage in this judgment where the judge declares that she is ‘certain that a fair hearing can and should take place on 22 April’, in addition to the passage where the judge concludes that Q needs finality and that the present period during which Q is displaying evidence of emotional harm must come to an end.

The 22 April Judgment

1. 1. At the start of the hearing on 22 April the judge reopened the question of an adjournment and, having heard submissions from each of the parties, gave a short but detailed judgment reversing the decision that she had made two days earlier and adjourning the case until a face-to-face hearing could take place. It is helpful to reproduce the entirety of that judgment so that the detailed points made by the judge, and now taken up within the appeal, can be seen in context:

“1. I have heard submissions this morning on the issue of the adjournment of this final hearing in the case. I heard submissions first of all on Monday 20 April and it was my decision on that day that the final hearing should go ahead. I did however say that the role of case management in each and every case is a continuing duty and it is a decision capable of being changed. I am going to accede to the submission to adjourn the final hearing and I am going to explain why.

2. It will be recalled that the decision made by me on 20 April contradicted a general order made by His Honour Judge Tolson QC on 14 April. I make no apology for contradicting that order because it was, on 20 April, my decision and my decision alone what should happen. It remains my decision. Of course, I have been in contact with the designated family judge His Honour Judge Tolson QC about this case. So, what, everyone will ask, has changed my mind? It is not any judicial pressure from His Honour Judge Tolson or anyone else. It is two factors together that have changed my mind. They are a combination of a reading of yesterday’s decision of the President in Re P and last night reading and considering the father’s position statement. The root of the tension in this case is a timely resolution of the matter for the sake of the child, Q, as against the need for fairness in this case. I have to balance those two interests while making it absolutely clear that my paramount concern must be the welfare of Q.

3. At the end of her submissions to me this morning, Ms Fottrell said that the tipping point of my decision should be the fact that the child continues to live with her mother in contrast to the situation that pertained in the case of Re P. Factually that is accurate and there are many levels on which this case is distinguishable from Re P. But I have to decide this case properly and fairly to all parties in order properly to consider what is in the welfare of Q. If I agree with the view that is put forward by [the expert psychologist], which is a view that the guardian invites me to accept and Ms Fottrell, leading counsel for the father, urges me to accept it is going to mean a significant change in the life of Q. Currently, Q’s welfare is being maintained on a very even-handed basis which has been brought about by the problems of lockdown under the coronavirus pandemic and that means that Q spends one week with her father and one week with her mother. This is a situation that has now pertained for approximately four weeks and until this matter can come back to be heard properly, it is fundamental that this arrangement continues even if schools open before the case can be returned to court.

4. Dealing with my reasons for now agreeing to adjournment, they relate to this: The mother is giving evidence and listening to evidence separately from her lawyers with the services of an extremely good interpreter, but she is bound to feel a sense of alienation. That is no different from the situation which existed on Monday. But what is different, is my further consideration of the impact on the mother of any possible change to arrangements. The evidence which I must hear, it has been correctly stated by all parties, is that of [the psychologist] and the guardian but I must hear from the mother and I will of course hear from the father if he wishes to give evidence. It is absolutely correct to say that this is not a fact-finding decision but there are stark matters said on behalf of the father about the mother’s care of Q which came clearly to me from the position statement prepared on the father’s behalf and I will have to give proper consideration to what the mother has to say about her care of the child and her capacity to engage with professionals and with what Miss Fottrell describes as Q’s lived experience.

5. As I read the papers so far, the mother’s present attitude is that she accepts the judgement of November 2019 and that Q is fine. But she has not, it appears, engaged with Q or addressed the issue of what Q may or may not have been saying about allegations beyond the judgement that I delivered in November of last year. All of this underlines that the final welfare hearing in this case has to be undertaken in a proper, forensically sound, fair, just and proportionate manner. I must listen carefully to what all parties have to say. The mother needs access to her lawyers throughout the evidence. It follows that sitting in her home and joining in by means of the internet, with the complication of interpretation, is a much less than satisfactory situation.

6. I am also conscious and very much aware that the father will be very disappointed that I am going to accept an application to adjourn this hearing. It occurred to me this morning that it was to the father’s enormous credit that at no stage within Ms Fottrell’s submissions did she mention a matter, which was in fact already in my mind. That matter was the expense of this hearing for the father. The person who brought the matter up in submissions and, this is not said in any way critically, was Ms Jenkins on behalf of the guardian. Why I say it is of enormous credit to the father, is that he has not said the hearing must go ahead because an adjournment would inevitably mean the mother representing herself. I want to say that I sincerely hope that the father will be able to fund the mother’s continuing representation at an adjourned final hearing because just as it is important that the mother is able to be fully involved, is that she enjoys the excellent representation that she has had so far. All of this will enable the court to come to the right welfare decision for Q. If I was to continue to hear the final hearing at this stage and were I to agree with the submissions made by Ms Fottrell, the mother is very likely to feel a great sense of injustice and she would probably choose to challenge a decision. It is much better that the right decision is made in a proper hearing where all parties are present and all parties are represented.

7. I am looking, among other things, at paragraph 22 where the letter from the Lord Chief Justice, Master of the Rolls and the President of the Family Division dated 9 April of this year is quoted and I am looking at sub paragraph (g):

“In all other cases where the parents and the lay witnesses etc. are to be called, the case is unlikely to be suitable for remote hearing”.

On further consideration of that matter, I do not think that on Monday I gave sufficient weight to that element of the original guidance. Obviously I have been listening to the submissions of all parties and giving this case considerable thought from Monday to now. That thought has been informed by reading Re P and trying to consider how best to balance the competing interests of everyone who is concerned in this final hearing.

8. I am aware that [the psychologist] has been available today to give evidence. I had hoped to hear his evidence today, which would have (a) started the case and (b) avoided the expense of obtaining his attendance on another date. But I have been persuaded that the hearing needs to be heard altogether over three days, with [the psychologist] giving evidence on the first date. I have been assured and indeed “promised” that time will be made available for this case as soon as the lockdown provisions are set aside. Currently, the best estimate of that is three weeks from last Monday (20th April). But it is perfectly foreseeable and, in my judgement, more likely than not that there will be a further three-week period after that. Accordingly, I would like parties to agree dates for three days that they can manage in the weeks commencing three weeks and six weeks from 20 April.

9. I remain concerned that the matter is dealt with as quickly as possible but, in my judgement now, in order to give effect to paragraph 24 of Re P and to do justice to all the competing interests, it would not be appropriate to have that hearing now and in this fashion. I say this, being very well aware that the solicitors instructed by the father have gone to great lengths to make this hearing work but my view is now that the case must happen in a proper court with the attendance of all parties. I should say that in the event that [the psychologist] needs to give evidence by video link that would not be a problem because that is very normal in regular court hearings. It is in Q’s interest that a just hearing is had for all parties and caution prevails that it would not be right to proceed now.”

1. 1. Before moving on, I wish to observe that both of the ex tempore judgments that are in focus in this appeal are models of clarity and form for which the deputy district judge should be praised.

The Father’s Appeal

1. 1. In presenting the father’s appeal, Miss Fottrell relies upon four grounds of appeal which can be summarised as:

i) The judge misapplied the judgment in Re P;

ii) There had been no material change in the circumstances between the two hearings and, insofar as the judge relied upon matters referred to in the father’s Position Statement these arose from evidence that was already before the court on 20 April and, further, the judge did not raise this issue with the parties in order for it to be dealt with in submissions;

iii) Insufficient weight was afforded to Q’s welfare; and

iv) Insufficient regard was given to the overriding objective in Family Procedure Rules 2010, r 1.1.

1. 1. Orally, Miss Fottrell submitted that the judge had been correct on 20 April in holding that it was necessary to proceed and that the proposed remote hearing procedure would be fair to all the parties. Whilst Miss Fottrell accepted that it was open to the judge to review her decision and come to a different conclusion at the later hearing, there was no basis for doing so as nothing had changed over the course of those two days to justify the judge moving from the position of being ‘certain’ on 20 April that it was right to proceed with the hearing.
   2. In her judgment of 22 April, the judge referred to having been in contact with HHJ Tolson. With the agreement of both of those judges, the court and counsel have seen the text of the judicial emails passing between them on 20, 21 and 23 April. Nothing in those emails is relied upon as either being improper or indicating that any pressure was put upon the judge to change her mind on the question of a remote hearing in this case. It is, however, of note that in an email on 23 April, the day after her decision to adjourn the case the deputy district judge wrote to HHJ Tolson:

“Good morning. Further to our telephone conversation yesterday morning where I indicated to you that I had received the PS [position statement] from Ms Fottrell QC on behalf of the father and re[a]ding this was leading me to reconsider my decision about not adjourning this case I heard full submissions yesterday morning and gave a short judgment at 2.00 pm where I explained that I had changed my mind and why.”

1. 1. Miss Fottrell accepts that, in terms of new material, her Position Statement for the final hearing was only submitted on 21 April and was not before the court on the previous day. Whilst the document is clearly based upon evidence that was already before the court, it is right to observe that it sets out a substantial list of detailed criticisms of the mother’s care of Q and includes the following roll-up summary:

“In tandem with these concerning behaviour patterns M has continued to have real difficulties in her own parenting. There is a stark contrast between [Q]’s life with M and with F. Schooling, feeding, imposing boundaries, hobbies and activities are markedly different between the two homes.”

My understanding is that matters of this nature had not been the subject of the fact-finding judgment. It is also right to note that the father had made it plain to the court that there was to be no cross-examination of the mother at the final hearing by his counsel. The impact of this factor on the judge is explained in paragraph 4 [22 April]:

“But what is different, is my further consideration of the impact on the mother of any possible change to arrangements. The evidence which I must hear, it has been correctly stated by all parties, is that of [the psychologist] and the guardian but I must hear from the mother and I will of course hear from the father if he wishes to give evidence. It is absolutely correct to say that this is not a fact-finding decision but there are stark matters said on behalf of the father about the mother’s care of Q which came clearly to me from the position statement prepared on the father’s behalf and I will have to give proper consideration to what the mother has to say about her care of the child and her capacity to engage with professionals and with what Miss Fottrell describes as Q’s lived experience.”

And later at paragraph 6:

“If I was to continue to hear the final hearing at this stage and were I to agree with the submissions made by Ms Fottrell, the mother is very likely to feel a great sense of injustice and she would probably choose to challenge a decision. It is much better that the right decision is made in a proper hearing where all parties are present and all parties are represented.”

1. 1. As the outcome of this appeal is for the case to go back to the deputy district judge to be re-determined, I will deliberately say nothing about the underlying merits of any concern that the judge may have had about these matters being raised in this manner in the father’s Position Statement and how the court might or might not be able to accommodate them fairly in a remote hearing. The point made on appeal is purely one of fairness and process. The judge plainly regarded at least part of the father’s Position Statement as containing material that significantly altered the situation so as to justify, alongside other matters, changing her view on whether the remote hearing should proceed, yet she did not canvas this issue with counsel at any stage during submissions prior to giving judgment (when the point was referred to for the first time). Miss Fottrell’s submission is that for the court to approach the issue in this way was neither a fair nor proper process and, she submits, it led the judge into error in that, by not grounding the issue by consideration during submissions, the judge came to an erroneous conclusion on the point.
   2. The second principal element of the father’s challenge on appeal relates to the judge’s approach to Q’s welfare and its impact upon the decision to proceed with a remote hearing. In her judgment on 20 April, the judge had stated:

“There needs to be finality for Q, she has been the subject of litigation for a considerable period of her life. She is displaying evidence of emotional harm as a consequence and this needs to come to an end.”

Yet in the judgment on 22 April a different approach was taken to the same issue:

“Currently, Q’s welfare is being maintained on a very even-handed basis which has been brought about by the problems of lockdown under the coronavirus pandemic and that means that Q spends one week with her father and one week with her mother. This is a situation that has now pertained for approximately four weeks and until this matter can come back to be heard properly, it is fundamental that this arrangement continues even if schools open before the case can be returned to court.”

1. 1. Both Miss Fottrell and Miss Catherine Jenkins, for the guardian in support of the appeal, have drawn attention to the evidence relating to emotional harm to Q. At paragraph 16 of the Guardian’s final report, under the heading ‘Professional Judgment’, the following is stated:

“16. Q is a child who, in my view has undoubtedly suffered significant emotional harm. The extent to which she is able to effectively move on from this harm is contingent upon the parenting she will receive onwards, and how effectively she can be supported to avoid internalising feelings of blame and shame, which may result in more lasting damage for her.

17. Ultimately, I find the conclusions of [the psychologist’s] report paint a concerning picture for Q’s future emotional wellbeing. In order to recover and move forward, Q requires an environment which provides her with stability and the ability to make sense of what has happened to her in a nurturing, safe, open space. I feel that [the psychologist’s] conclusions about [mother], and the lack of progress on the CIN plan mean that such an environment may simply not available to Q whilst living with her mother.”

1. 1. On the basis of the psychologist’s report which, whilst not directly concluding that Q has suffered emotional harm, recommends a change of residence to the father’s home, and on the basis of the Guardian’s opinion and the judge’s own conclusion of 20 April, both Miss Fottrell and Miss Jenkins submit that the judge made a significant error at paragraph 3 of her judgment of 22 April in holding that Q’s welfare is currently being maintained by the shared care arrangement and that it is fundamental that that arrangement should continue.
   2. Finally, with respect to Re P, Miss Fottrell submits that that decision has had a chilling effect and that the judge placed undue weight upon it in the present case. Neither the guidance that has been issued, nor the decision in Re P, establish a veto to the holding of a remote hearing where a parent objects, or expert evidence is to be called.
   3. Miss Fottrell makes a plea for consistency of approach across the system. She submits that the judge was correct in her analysis and her decision on 20 April and that the appeal against the 22 April order must be allowed.
   4. The appeal is supported by Miss Jenkins, who, in addition to the key point on Q’s welfare referred to above, confirmed that any concern that the judge may have had arising from the father’s Position Statement did not surface during the hearing and, in particular, the judge did not ask for the Guardian’s opinion on that matter. Although this will be a three-day hearing where each parent is to be represented by leading counsel, Miss Jenkins categorised it as a ‘simple short contested case’ of the type referred to the President’s Guidance issued on 19^th March. Finally, Miss Jenkins repeated the call for there to be far greater consistency across the system on the issue of remote hearings.
   5. For the mother, Mr Kingerley opposed the appeal. He submitted that the judge had a continuing duty to keep the overall conduct of the hearing under review and that she had acted properly in doing so on 22 April. A case management decision of this nature is one over which a trial judge enjoys a wide margin of discretion and it is not possible to hold that the judge was wrong in changing her decision on the issue.
   6. On the discrete point now raised about whether the father’s Position Statement was referred to during submissions, Mr Kingerley confirmed that this was not raised during the hearing and that the specific points that are adumbrated within the Position Statement were all contained in evidence that was already before the court and, in that sense, the document did not contain new material.
   7. All counsel also informed the court that the judge did not raise the prospect for the court to hear the case with all parties attending for a normal face-to-face hearing (a facility which is now available in four courtrooms at the Central Family Court) or for the court at least to hear live evidence from the parents at a ‘hybrid’ hearing.

Discussion

1. Despite the clarity of the deputy district judge’s judgments and the obvious care and thought that she brought to bear on these difficult decisions, I have been persuaded that she fell into error with respect to the two matters which are at the centre of this appeal relating to the father’s Position Statement and approach to Q’s welfare.
2. It is common ground that the Position Statement did not contain any new material and that the father’s forensic position for the final hearing remained that his counsel would not seek to cross-examine the mother. It is clear both from her judgment and from her subsequent email to HHJ Tolson that the judge considered that the way that the case for the father was now being put would, or at least might, entail hearing ‘what the mother has to say about her care of the child’ and that, were she ‘to agree with the submissions made by Ms Fottrell, the mother is very likely to feel a great sense of injustice and would probably choose to challenge a decision.’ This was a factor which was plainly influential in the judge’s decision to change her mind. It is relatively clear that the judge’s understanding was that these allegations would lead to a need to hear oral evidence about them from the mother, yet she also knew that the father did not anticipate cross-examining her upon them. In the circumstances, the judge’s failure to raise the issue that was in her mind and bottom it out through submissions, rather than raising it for the first time in her judgment, was a material error in the fair conduct of the proceedings. The appeal therefore succeeds on that basis.
3. I also consider that the criticism of the judge’s approach to the issue of Q’s welfare on 22 April is well made. It is difficult to reconcile the approach to welfare on 20 April, which, in part, was the justification for proceeding to hold an immediate hearing conducted remotely on the basis that the child needed finality and the potential for emotional harm must come to an end, with the approach taken on 22 April which was that Q’s welfare was currently being maintained by the present arrangements. The judge, on 22 April, does not refer to the Guardian’s opposition to the adjournment or to her professional judgment that Q had ‘undoubtedly suffered significant emotional harm’ and needed to move from her mother’s primary care. No explanation is given for the apparent judicial change of approach to the issue of welfare. In the circumstances it is apparent that the judge was in error, as submitted by Miss Fottrell and Miss Jenkins, in her approach to welfare on 22 April. The appeal therefore succeeds on that basis also.
4. On the issue of remote hearings more generally, and the interpretation of Re P in particular, I propose to say little in this judgment. Ironically, although the case has come before me primarily because it was thought that the judge may have fallen into error in her application of Re P, it is clear that she did not do so. The decision in Re P is expressly tied to the small number of cases in which allegations of Factitious or Induced Illness [‘FII’] are made. Paragraph 24 in Re P is of more general, obiter, application and the judge was correct in referring to it.
5. At present, in accordance with the Guidance that has been issued and the decisions handed down last week in the Court of Appeal in the cases of Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, each judge or magistrate must consider the individual case before the court and determine whether or not it should proceed remotely in whole or in part. It is to be accepted that a consequence of this approach is that different courts may take a different view on similar cases and that this may inevitably give rise to some inconsistency from court to court, or even from judge to judge. The Family Justice Observatory’s speedy research into remote hearings in the Family Court will inform a review of the current situation and indicate whether the present guidance needs to be revised. It is not therefore the place to add to the learning on remote hearings in this judgment. The decision in the present case should be seen as an ordinary appeal, where the issue happens to be a remote hearing, but where the appeal has turned upon a failure of process and an error in approaching the issue of welfare.

Satisfying the Equity in Proprietary Estoppel: When is a Promise a Promise?

When a claimant establishes an interest in land by way of proprietary estoppel, the court must then determine the remedy to satisfy that equity. Should the court give full effect to the defendant’s representation or promise? Should the remedy be measured by reference to the claimant’s detrimental reliance? What is the minimum equity to do justice between the parties? How should the court exercise its broad discretion?

These questions of remedy have created much modern jurisprudence, described as a ‘lively controversy’ by LJ Lewison in Davies v Davies [2017] 1 FLR 1286.

The latest word on this issue comes from the Court of Appeal in Guest v Guest [2020] EWCA Civ 387. This was a farming case in which the defendants gave their son a clear enough assurance over a number of years that he would inherit a substantial share of the farm, in reliance upon which the claimant worked on the farm for 33 years receiving low earnings. When relations soured and the claimant was disinherited, he brought his claim in proprietary estoppel.

The Court of Appeal approved LJ Lewison’s sliding scale approach in Davies, by which “the clearer the expectation, the greater the detriment and the longer the passage of time during which the expectation was reasonably held, the greater would be the weight that should be given to the expectation.”

Applying this test, the court awarded the claimant 50% of the value of the farming business and 40% of the value of the land. The court also directed a sale of the farm to satisfy the judgment, with the consequence that the defendant’s expectation in inheritance was accelerated and realised during the life of his parents.

The decisions in Davies and now Guest provide useful tools against which to measure the available remedies in proprietary estoppel cases.

Daniel Attridge

Trinity Chambers

7^th May 2020

REMOTE HEARINGS

NOTES ON RECITALS AND ORDERS

 

INTRODUCTION

1. The template wording as drafted by HHJ Jaren Lewis and approved by HHJ Lynn Roberts is set out below.

 

2. Legal Aid payments. The LAA has published guidance on the information that needs to be included within a court order.  There is no evidence to suggest that the LAA needs (or has needed) anything more than this.

 

3. Remote Hearings. There is no need to repeat the page of standard directions in every order. Once a blanket direction has been given in a case confirming that it is suitable for a remote hearing, the only specific recitals that are needed relate to the mechanics of the remote hearing.

 

4. Costs of the Remote Hearing Provider. Where, for example, BT or Skype are used the costs are met by HMCTS and there is no need to say anything in the court order.  The following wording can be used if necessary: “The charges of the remote hearing provider are to be met by HMCTS”.

 

5. If the hearing is by telephone, there will not be any call costs because the court dials out. If the hearing is by internet, there might be a data charge, particularly for parties who might not have a data plan.  It is unclear who is responsible for this, and this might need further clarification with the LAA (who would usually be required to pay travel expenses).

 

 

TEMPLATE RECITALS AND ORDERS

RECITALS

• The hearing today was conducted remotely by telephone.

 

• As this was a remote hearing, the court could not sign or seal the advocates’ EX606 FAS advocates attendance forms. The court notes the LAA’s “Remote Hearings: Ways of Working” guidance v2 dated 15 April 2020.   In lieu of advocates’ forms, the court confirms the following in respect of the advocates named at the start of this order:
  1. Actual time spent on pre-hearing discussions
  2. Actual time spent on the hearing
  3. Lunch breaks, if any
  4. Actual time spent afterwards finalising the order
  5. TOTAL TIME:
  6. Bolt-ons:

 

 

ORDERS – [ONLY INCLUDE IF NOT ORDERED PREVIOUSLY]

1. All hearings in this matter shall take place by way of remote hearing pursuant to FPR 2010 r4.1 (3)(e) unless the court directs otherwise. The parties and their representatives shall attend all remote hearings by way of BT/[Skype]/[telephone]/[other].

 

ORDERS – TO LIST A REMOTE HEARING

2. The matter shall be listed for a remote hearing on XX XXXXXXX 2020 at …….00 hrs before HHJ/DJ……………….. with a time estimate of 1 hour.

 

3. The parties shall arrange and attend remotely an Advocates’ Meeting no less than 48 hours before the hearing listed above.

 

4. The applicant shall be responsible for arranging with the court’s listing team (via email: chelmsfordcentrali@justice.gov.uk) the necessary facilities to conduct a remote hearing. This will include provision to the court of the necessary contact details for the parties and their representatives where these are needed to facilitate the remote hearing.

 

5. The applicant must confirm the details of the arrangements for the hearing to the other parties by no later than 1000 hrs on the working day prior to the remote hearing taking place.

 

6. The applicant shall by 1600 hrs on the working day before the hearing electronically file a PDF bundle, which must include:
   1. A case summary and chronology
   2. The parties’ position statements
   3. The previous orders that are relevant to the remote hearing
   4. All essential documents that the court requires to determine the issues that fall for determination at the remote hearing
   5. A draft order

Neutral Citation Number: [2020] EWCA Civ 583
		Case No: B4/2020/0626

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT
SITTING AT CARLISLE
HHJ DODD
CA19C00007

		Royal Courts of Justice Strand, London, WC2A 2LL
		30 April 2020

B e f o r e :THE PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE PETER JACKSON
and
LADY JUSTICE NICOLA DAVIES
____________________

Re A (Children) (Remote Hearing: Care and Placement Orders)

____________________

Karl Rowley QC and Simon Heaney (instructed by Cumbria Family Law Ltd) for the Appellant Father
David Rowlands (instructed by Cumbria County Council) for the First Respondent Local Authority
John Chukwuemeka (instructed by Milburns Solicitors) for the Second Respondent
Nicholas Rooke (instructed by Holdens) for the Third Respondent
Richard Hunt (instructed by Bendles Solicitors) for the Fourth to Seventh Respondent Children by their Children’s Guardian

Hearing date: 22 April 2020

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Sir Andrew McFarlane P:

1. 1. This is the judgment of the court to which all three members have contributed.
   2. This case is the first appeal in a case relating to the welfare of children to reach the Court of Appeal on the issue of remote hearings during the COVID 19 pandemic. The appeal was heard on 22 April 2020. On the following day the same constitution heard the second such appeal, Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA (Civ) 584. There will undoubtedly be further appeals in children cases heard in the High Court or the Court of Appeal on the issue of remote hearings in the coming weeks.
   3. Against that background we wish to stress the following cardinal points with the utmost emphasis:

i) The decision whether to conduct a remote hearing, and the means by which each individual case may be heard, are a matter for the judge or magistrate who is to conduct the hearing. It 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. An appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong.

ii) Guidance or indications issued by the senior judiciary as to those cases which might, or might not, be suitable for a remote hearing are no more than that, namely guidance or illustrations aimed at supporting the judge or magistrates in deciding whether or not to conduct a remote hearing in a particular case.

iii) The temporary nature of any guidance, indications or even court decisions on the issue of remote hearings should always be remembered. This will become all the more apparent once the present restrictions on movement start to be gradually relaxed. From week to week the experience of the courts and the profession is developing, so that what might, or might not, have been considered appropriate at one time may come to be seen as inappropriate at a later date, or vice versa. For example, it is the common experience of many judges that remote hearings take longer to set up and undertake than normal face-to-face hearings; consequently, courts are now listing fewer cases each day than was the case some weeks ago. On the other hand, some court buildings remain fully open and have been set up for safe, socially isolated, hearings and it may now be possible to consider that a case may be heard safely in those courts when that was not the case in the early days of ‘lockdown’.

1. 1. The President’s Guidance on Remote Hearings issued on 19 March 2020 lists the types of hearing which may be considered to be suitable for a remote hearing at paragraph 8. The list includes ‘All directions and case management hearings’ and, with respect to Public Law Children cases, the following three categories:

i) Emergency Protection Orders

ii) Interim Care Orders

iii) Issue Resolution Hearings.

Paragraph 10 of the 19 March Guidance goes on to state:

“10. It is possible that other cases may also be suitable to be dealt with remotely. As the current situation is changing so rapidly, and as the circumstances that will impact upon this decision are likely to differ from court to court and from day to day, the question of whether any particular case is heard remotely must be determined on a case-by-case basis.”

1. 1. As paragraph 3.3 of MacDonald J’s remote hearing manual records, on 25 March 2020 the President clarified the position concerning attended hearings by stating that:

“… live court-based hearings should now be confined only to exceptional circumstances where a remote hearing is not possible and yet the hearing is sufficiently urgent to mean that it must take place with those involved attending court in a manner which meets the social distancing requirements.”

1. 1. On 9 April 2020, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division sent a message to all circuit judges and district judges concerning remote working during the ‘lockdown’ [‘the LCJ’s message’]. That message included this guidance:

“Generally:

a. If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing; if parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the ‘green light’ to conduct a hearing in this way;

b. Where the final hearing is conducted on the basis of submissions only and no evidence, it could be conducted remotely;

c. Video/Skype hearings are likely to be more effective than telephone. Unless the case is an emergency, court staff should set up the remote hearing.

d. Parties should be told in plain terms at the start of the hearing that it is a court hearing and they must behave accordingly.

In Family Cases in particular:

e. Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted remotely;

f. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;

g. In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”

1. 1. It was reported to us that sub paragraph (g) has been interpreted as applying to interim hearings. If that is the case, the President wishes to make it plain that, as the text under the heading ‘Generally’ in sub paragraphs (a) to (c) indicates, the parameters set out thereafter, including sub paragraph (g), are intended to apply to final hearings and not to interim hearings.
   2. It follows, applying the principles set out above and the guidance that has been given, that:

i) Final hearings in contested Public Law care or placement for adoption applications are not hearings which are as a category deemed to be suitable for remote hearing; it is, however, possible that a particular final care or placement for adoption case may be heard remotely;

ii) The task of determining whether or not a particular remote hearing should take place is one for the judge or magistrate to whom the case has been allocated, but regard should be had to the above principles and guidance, as amplified below;

iii) The requirement for ‘exceptional circumstances’ applies to live, attended hearings while the current ‘lockdown’ continues.

1. 1. The factors that are likely to influence the decision on whether to proceed with a remote hearing will vary from case to case, court to court and judge to judge. We consider that they will include:

i) The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order?

ii) Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;

iii) Whether the parties are legally represented;

iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;

v) Whether evidence is to be heard or whether the case will proceed on the basis of submissions only;

vi) The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence;

vii) The scope and scale of the proposed hearing. How long is the hearing expected to last?

viii) The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video;

ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;

x) Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.

1. 1. It follows from all that we have said above that our judgment on this appeal should be seen as being limited to the determination of the individual case to which it relates. Each case is different and must be determined in the light of its own specific mixture of factors. The import of the decision in this case, in which we have held that the appeal must be allowed against a judge’s decision to conduct a remote hearing of proceedings which include applications for placement for adoption orders, is that, on the facts of this case, the judge’s decision was wrong. As will be seen, one important and potentially determinative factor was the ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair. Such a factor will, almost by definition, be case-specific. Another element, and one that is likely to be important in every case, is the age of the children and the degree of urgency that applies to the particular decision before the court. The impact of this factor on the decision whether to hold a remote hearing will, as with all others, vary from child to child and from case to case.
   2. It also follows that the decision on this appeal must not be taken as an authority that is generically applicable to one or more category of children cases. We wish to state with total clarity that our decision does not mean that there can be no remote final hearings on an application for a care order or a placement for adoption order. Neither is our decision to be taken as holding that there should be no ‘hybrid’ hearings, where one or more party physically attends at a courtroom in front of a judge. The appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance indicated above to the unique circumstances of the case.
   3. Finally, in addition to the need for there to be a fair and just process for all parties, there is a separate need, particularly where the plan is for adoption, for the child to be able to know and understand in later years that such a life-changing decision was only made after a thorough, regular and fair hearing.

The background

1. 1. The appeal arises in care proceedings originally issued on 15 March 2019 in respect of 6 children. The oldest child has now turned 17 and lives with his mother. The local authority withdrew their application in respect of him on 3 April 2020. On the same date a supervision order was made in respect of the second oldest child, who is now 15 years old and lives with Mr and Mrs A, who are his father and stepmother. The youngest 4 children are currently in foster care; the appeal concerns the final hearing which will determine the long-term plans for their care. The local authority’s plan for the 3^rd and 4^th oldest, who are aged 11 and 8 years respectively, is for them to remain in long-term foster care. The plan for the youngest two, one aged 3 years 10 months and the other aged 20 months, is adoption and they are each the subject of an application for a placement for adoption order.
   2. Mr A is the father of all six children. Ms B is the mother of the oldest 4 children and Mrs A is the mother of the 2 youngest children [initials chosen at random].
   3. The local authority’s concerns relate to emotional and physical harm through exposure to domestic violence, coercive and controlling behaviour, instability, conflict, and volatility. The agreed schedule, upon which it is accepted the threshold criteria under Children Act 1989, s 31 for making a care order have been met, includes instances of neglect and poor supervision (arising from parental alcohol misuse), and difficulties around mitigation of the resulting risks due to a lack of parental honesty. ?
   4. The case had been listed for a conventional final hearing for 5 days in the Family Court sitting in Carlisle commencing 30 March 2020. That hearing was vacated by the Designated Family Judge, HHJ Forrester, at the start of the COVID crisis and listed for further consideration once the status of the public health emergency became clearer, at a hearing which took place before HHJ Dodd on 3 April 2020.

The decision under appeal: Summary

1. 1. On 3 April 2020, HHJ Dodd gave directions for the final hearing to go ahead in “hybrid” form, over seven days in late April and early May. Mr and Mrs A were to attend in person to give evidence. In addition, in the light of Mr A’s concern about being unable to access a remote hearing due to dyslexia and a lack of suitable technology in the home, the judge directed that Mr A could attend for the entire hearing in person in a courtroom in front of the judge if he was unable to engage remotely. At that stage, it was also envisaged that his counsel would physically attend with him.
   2. An application for permission to appeal was lodged with the Court of Appeal on behalf of Mr A on 4 April 2020.
   3. This case was relisted before HHJ Dodd in order to give the court the opportunity to review the listing decision in the light of the LCJ’s message of 9 April. At the review hearing on 17 April 2020, the judge maintained the decision to conduct the hearing as a “hybrid” with Mr and Mrs A attending court (separately) to give evidence, with the expectation that they would be accompanied by a representative of their respective firms of solicitors. It was accepted that their counsel would join the proceedings remotely. The court maintained the option of Mr A attending the court throughout the hearing if he was unable to engage with the process remotely.

The judge’s decision: 3 April 2020

1. 1. At the hearing on 3 April, the local authority and the children’s guardian urged the court to make arrangements for a remote final hearing at the earliest possible date on the basis that the adoption plan for the younger two children required determining urgently. The judge considered that a completely remote hearing was not appropriate and that the parents should have the opportunity to give their evidence in person before him sitting in the courtroom. This suggestion was opposed by counsel for Mr and Mrs A, firstly on the ground that they were reluctant to leave their home during the current lockdown, secondly that a remote or hybrid hearing would not be sufficiently fair to meet the requirements of ECHR Articles 6 and 8, and thirdly that it was oppressive to expect their counsel to travel each day from Merseyside to Carlisle (as there were no hotels currently available in Carlisle for an overnight stay).
   2. Despite having taken account of the parents’ opposition, the judge considered that the case was sufficiently urgent to justify listing it in April/May for a hybrid hearing. He considered that the option of adoption would become less achievable with the passage of every month and that, as the children would have to move from their present placement in any event, it was necessary for the hearing to take place now, rather than waiting for the current restrictions on movement to be lifted. He considered that it was reasonable to expect the parents, in common with essential workers and others, to leave their home and come to the court building in Carlisle where it would be possible to maintain safe social distancing. He made it plain that the proposal that they should attend court was an offer of a facility, rather than a compulsory requirement. The judge considered that the suggestion that a remote or hybrid hearing would breach the fair trial requirements of Article 6 as unarguable and that it was commonplace for witnesses to give evidence over a video link. He held that there would be no detriment to the parents and the court would get the full flavour of their evidence by their physical attendance. The judge indicated that it was a matter for counsel whether they attended court in person or remotely, but travel or accommodation difficulties were not a reason for not proceeding with the hearing.
   3. The court therefore directed that the final hearing should commence on the basis described by the judge on 27^th April 2020.

The judge’s review: 17 April 2020

1. 1. Prior to the review hearing on 17 April, the judge prepared and circulated a detailed ‘case plan’ for the final hearing. It is a narrative document which records the salient features of the case and describes the arrangements that had been proposed for the hearing.
   2. It is of note that in the ‘case plan’ the judge records the age of the second youngest child as ‘4 (will be 5 in June)’, whereas the true position is that this child is currently 3 years old and will only become 4 in June 2020. In the body of the ‘case plan’ the following appears:

“The main concern is the effect further delay may have on the chances of a successful adoption for X and Y – X will be 5 in June and research shows that the chances of an adoption being successful decrease significantly around that age.”

1. 1. The ‘case plan’, having described the circumstances leading up to the directions given on 3 April, identifies a range of practical and forensic issues that need to be considered or resolved at the reconvened case management hearing on 17 April. We consider this to be the kind of document that is likely to be useful whenever a court is considering the arrangements for a possible remote hearing of any substance.
   2. At the hearing on 17 April there was a significant shift in the position of the local authority so that it no longer supported the case proceeding as a remote or hybrid hearing. Counsel for the local authority, Mr Rowlands, told this court that the change of position was largely driven by consideration of the LCJ’s message.
   3. Having heard submissions from all parties, the judge gave a short judgment in which he, first of all, stressed that he was not ordering either the parents or a representative of their solicitors’ firm to attend but that this was simply his expectation. The judge noted that the LCJ’s message indicated that final care proceedings which were contested and in which the parents were expected to give evidence would not normally be suitable for a remote hearing. The judge drew a distinction, however, between a fully remote hearing, and the form of hybrid hearing that he had established which would not, he stated, suffer from the deficits with respect to a fair trial that might attach to a fully remote hearing. The judge agreed that a fully remote hearing should not take place.
   4. On the issue of urgency, counsel’s agreed note of the judgment reads as follows:

“Urgency – is closing the adoption ‘window’ ‘X’ will be 4 in June. I don’t have it in mind long delay until the Summer, my thoughts are spurred on that the window for X is closing fast. There is no time to lose.

What I am invited to do by all save CG is vacate and relist for another CMH end of May by that point further guidance as to remote hearings from PFD

If there were even a bit more time for X very tempting

To wait another 6 weeks might then have been appropriate

But it won’t be. It will be a CMH and then find a hearing. That would then depend upon judicial resources and available witnesses, etc X’s position does not allow for that delay.”

1. 1. The judge concluded, after expressing his gratitude for the additional assistance offered by the LCJ’s message and the opportunity to review the arrangements, by holding that the planned hybrid hearing should proceed on 27 April.
   2. It is of note that the judge was sent a copy of counsel’s note of the 17 April judgment and responded by email on 20 April:

“Other than that X will, I believe, be 5 not 4 in June, your Note is approved.”

After counsel had drawn attention to X’s correct date of birth, the judge accepted the position and agreed the Note as reproduced in paragraph 28 above.

The Appeal

1. 1. Permission to appeal against the order made on 3 April was granted by Lord Justice Peter Jackson on 17 April. Although no formal application for permission was made, the court has permitted the Appellant to make submissions which also challenge the judge’s reconsideration of the case at the 17 April hearing which resulted in the judge confirming the 3 April order. It was a considerable achievement by the parties to have ensured that the appeal was ready for a full hearing in less than three working days.
   2. For the Appellant, Mr Karl Rowley QC, leading counsel who did not appear below, and Mr Heaney, who did, relied upon the following primary ground of appeal:

The Learned Judge was wrong not to vacate the listed final hearing:

i) In view of the combination of the Guidance of the President on 19 March and the message from the LCJ of the 9 April;

ii) There was in reality no or no sufficient urgency to make decisions in respect of the children given the ongoing effects of the pandemic.

1. 1. In his submissions, Mr Rowley argued that the judge’s decision to proceed was well outside the margin of reasonable case management decisions that might be made in the circumstances of this case. Determining the question of a child’s adoption, against parental wishes, at a final hearing conducted remotely, must be exceptional. This case was not so urgent that it needed to be heard in this manner, and the judge was in error in apparently believing that X was rising 5 years old, when in fact he is a year younger.
   2. It is apparent that part of the judge’s reasoning was that the hearing would not be ‘remote’ because Mr and Mrs A would attend court and give their evidence in front of him. Mr Rowley submitted that this insight indicated that it was one entirely from the judge’s perspective and failed to take account that for Mr and Mrs A, sitting at home and attempting to follow all of the other evidence that would be given over a video link, the bulk of the process would indeed be remote. Mr Rowley argued that the correct approach when evaluating fairness was to look at the whole hearing, including from the perspective of the parent; it was not just a matter of the court seeing them when they gave their evidence.
   3. An extensive expert psychological assessment has been provided to the court in which Mr A is described as being emotionally fragile and brittle. The report includes the following:

“He is apparently Dyslexic and struggles to process language and symbols but has learnt to compensate to a degree. He does not open his mail or use a diary and tends to hold most information in his head or rely on others reminding him.”

The expert conducted a formal assessment of Mr A’s cognitive ability and reported that he struggled to process some information at normal speed and needed extra time to focus and concentrate. The report continued:

“He was easily distracted and his confidence evaporated almost instantaneously, if he made a mistake. It is suspected this is part of the father’s trouble, he gets frustrated easily and quickly becomes exasperated. If he does this with his family, he may come across as having a short-fuse and being rather abrupt, even volatile.”

The father is unable to access any video technology in his home and would have to share access to the court process by watching on his wife’s iPad. In Mr Rowley’s submission, Mr A’s dyslexia, emotional fragility and poor attention span render it impossible for him to engage with the court process at home, unsupported by lawyers, to any degree that might be regarded as a fair process when the issue before the court is whether any of his four young children can be returned to his care and where the plan is for two of them to be adopted.

1. 1. In line with the local authority, Mr Rowley submitted that the fair way to proceed would be to await such further guidance on remote hearings as may be issued in May 2020 (following an independent review that is currently being under taken at the request of the President of the Family Division by the Nuffield Family Justice Observatory) and for the case to be listed for a further case management hearing at that time.
   2. For the local authority, Mr Rowlands, who appeared before the judge, explained that the Family Finding team had found a possible match for X and Y with prospective adopters, but that the case would not be progressed further prior to the making of a placement for adoption order. If the case were adjourned, then it was possible that this potential match may be lost. It was not, however, the local authority’s case that the ‘window’ of potential adoption would become shut, with the result that X would be seen as unadoptable, if the final hearing were postponed. The local authority case was simply that the sooner the issue of long-term placement is decided, the better it will be for the children.
   3. The local authority had changed its stance before the judge between the two hearings largely as a result of sub paragraph (g) in the LCJ’s 9 April message which indicated that ‘where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing’.
   4. Mr Rowlands drew attention to the manual produced by Mr Justice MacDonald, ‘The Remote Access Family Court‘ [Version 4], paragraph 3.3.
   5. The local authority’s position in this appeal is that it does not agree with the judge that the circumstances of this case are sufficiently exceptional to require the hearing to proceed on 27 April as proposed. Even if a placement for adoption order were made, the ‘family finding’ process would not be able to conclude until after the COVID restrictions have been lifted. The facts of this case, and the ages of the children, do not, in Mr Rowlands’ submission, require urgent and immediate determination. He also concedes that the judge failed to give sufficient consideration to the difficulties that the father would have in engaging with the proposed process as a result of his emotional fragility and other difficulties.
   6. For Mrs A, Mr Rooke, who appeared below, supports the appeal. He submits, in line with Mr Rowley and Mr Rowlands, that the case is not so urgent as to require the imposition of a process which removes from the parents a number of key elements of a fair trial which are normally considered to be either important or essential.
   7. For Mrs B, the mother of the older children, Mr Chukwuemeka, who appeared below, also supported the appeal, whilst accepting that the sole issue in his client’s case related to contact. He submitted that, despite the judge’s requirement for Mr and Mrs A to attend to give live evidence, this was in reality still to be a remote hearing and, as the judge himself concluded, a remote hearing was not appropriate in this case.
   8. The sole party supporting the learned judge’s decision is the Children’s Guardian, who is represented by Mr Hunt, as he was before the judge. In opposing the appeal Mr Hunt accepts that a contested application for the adoption of a child is arguably the gravest order for any parent to face and that such a hearing must be both fair and just. Mr Hunt also accepts, in common with the judge, that it would be inappropriate for this case to proceed as an entirely remote hearing. The appeal is nevertheless opposed on the basis that the regime established by the judge in this case meets the requirements for fairness and justice and should be allowed to proceed.
   9. Mr Hunt, rightly, observes that the guidance and other statements issued in recent times by the President and other senior judges have sought to set out clear principles, but have fallen short of actually prohibiting certain classes of hearing so that the decision in each case is a matter for the discretion of the trial judge. In circumstances where this case is urgent and needs to be heard now, the requirement imposed by the judge for Mr and Mrs A to give their evidence in person means that the hearing is no longer ‘remote’ and will be a fair and appropriate process.
   10. At its core, the issue between the Children’s Guardian and the other parties turns on the urgency or otherwise of the need to determine the placement for adoption application. Mr Hunt submits that the learned judge was right in concluding that the circumstances were sufficiently urgent for X to justify proceeding on 27 April.
   11. Dealing with specific points raised by the court, Mr Hunt is plain that during the hearing on 17 April the judge correctly stated that X would be 4 years old in June, despite the fact that both before and after the hearing the judge seems to have been in error as to the age of X. Separately, Mr Hunt accepted that no thought had been given to the fact that the 15 year old boy, who is subject to a supervision order, will be present in the home of Mr and Mrs A during the hearing. Mr Hunt accepted that, if the parents had been required to give evidence over a video link from their home in circumstances where the older child would be present, this would not be appropriate. He submitted that, now that the point had been raised, this further justified the judge’s decision to require Mr and Mr A to attend court.

Discussion

1. 1. At the conclusion of the appeal hearing we announced our decision that the appeal was to be allowed and that the hearing fixed for 27 April was to be vacated and relisted for a further case management hearing before HHJ Dodd in mid-May on a date to be fixed by the parties with the court. This judgment now records our reasons for that decision.
   2. Although we have clearly come to a different view to that of the learned judge and have taken into account factors in addition to those which were considered at the two hearings before him, there are no grounds for criticism of his handling of or approach to this case. On the contrary, it is plain that at all times he gave most anxious consideration to the question of how these applications might be heard in these extraordinary times.
   3. Our principal reasons for concluding that the judge was wrong and that this case is not currently suitable either for a remote hearing or for the form of hybrid hearing set up by the judge fall under three headlines:

i) Mr A’s inability to engage adequately with remote evidence (either at home or in the courtroom);

ii) The imbalance of procedure in requiring the parents, but no other party or advocate, to attend before the judge;

iii) The need for urgency was not sufficiently pressing to justify an immediate remote or hybrid final hearing.

We will look at each of these factors, briefly, in turn.

1. It was accepted before the judge that Mr A did not have any technology available personally to him at home to enable him to connect with a remote video hearing. At most he would be able to do so by joining with his wife via her iPad.
2. Mr A has limited abilities, and some disabilities, which render him less able to take part in a remote hearing. He has been diagnosed as dyslexic. He is unused to reading. He has a short attention span, is emotionally fragile and brittle and quickly becomes exasperated.
3. The process of joining the hearing from their home would be undertaken by Mr and Mrs A with his 15-year-old son in residence, who would be locked-down with them throughout the days of the remote hearing.
4. It is not clear how Mr A would be able to communicate with his legal team during the remote part of the hearing, but it is likely that any such communication would fall well short of that which normally applies to a lay party who is personally attended at court by a solicitor and counsel.
5. Although the judge offered the facility for Mr and Mrs A to attend at court each day of the hearing so that they might follow the proceedings via the court’s video equipment, that option, whilst meeting the technical deficit that has been identified, would not address the other factors which are likely to inhibit Mr A’s ability to engage with a remote procedure.
6. The concept of fairness and the need for a lay party to ‘engage’ in the process includes the ability of that person to follow and to understand what transpires at a court hearing at least to an adequate degree and then to be able to instruct their lawyers adequately and in a timely manner.
7. Taking these technical, emotional, intellectual and environmental factors together, it is not possible to understand how Mr A could engage sufficiently with the professional evidence that is to be given over a video link to his wife’s iPad in his home over the course of a number of days for that process to be regarded as adequate or fair.
8. Mr Rowley is correct in submitting that the fairness of the process has to be seen as a whole, including from the perspective of the lay party. The judge apparently concluded that it was not appropriate to consider a wholly remote hearing for this case and the Children’s Guardian agrees. In our view, making provision for Mr and Mrs A to give their evidence before the judge in the court room did not significantly alter the position on the facts of this case and did not address the substantial deficits in Mr A’s ability to follow the evidence from his home and to instruct his counsel adequately.
9. Turning to the second headline reason, the judge was correct in identifying the need, if possible, for the parents to give their evidence in person before him at court. Recently, in the judgment given in Re P (A Child: Remote Hearings) [2020] EWFC 32 at paragraph 26 the President stressed the importance of the court being able to see all the parties in the court room. Although that case was specifically directed to the hearing of allegations of Factitious or Induced Illness, the more general point that a judge will be in a better position to assess the evidence of a witness who gives evidence live from a witness box than one who speaks over a video link is plainly right. There is, however, a need for caution when the only witness(es) required to attend court are the lay parties when others, for example the key social worker, are not. 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.
10. Thirdly, and more importantly, whilst the need to determine the long-term plan for these children, and in particular whether the younger two are to move to an adoptive home, is clearly pressing, it is not so urgent as to require an immediate hearing in April/May 2020 where, for the reasons that we have given, that hearing cannot be undertaken remotely.
11. On more than one occasion, both before and after the 17 April hearing, the judge referred to X as being a year older than his true age and there are grounds for holding that he may have inadvertently understood that this was the case. Be that as it may, the local authority position is plainly that X’s age does not establish this case as exceptional and that his age does not justify a remote hearing that would not otherwise be justified. Most importantly, the local authority does not support the judge’s conclusion that the adoption ‘window’ will imminently close for X and that it is necessary to determine his future immediately. This professional social work opinion, coupled with the information that the family finding process is on hold until the current COVID restrictions have been lifted, does not support the judge’s conclusion on timing.
12. Finally, and more generally, we would draw attention to, and endorse, the steer given in the LCJ’s message of 9 April at sub paragraph (a): ‘If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing’. Whilst in the present case it is true that the Children’s Guardian did not oppose proceeding with the planned hearing, all of the other parties, including the local authority, did. In such circumstances, when the applicant local authority itself does not support a remote contested final hearing, a court will require clear and cogent reasons for taking the contrary view and proceeding to hold one.
13. For the reasons that we have now given, and despite our appreciation for the conscientious approach that the judge sought to adopt at every stage, we concluded that his decision to proceed with the planned hearing was wrong and must be set aside. The matter will return to the judge for him to give further directions with a view to the final hearing taking place as soon as may be possible.

Neutral Citation Number: [2020] EWCA Civ 584

Case No: B4/2020/0618

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE WEST LONDON FAMILY COURT

Recorder McCarthy QC

ZW20C00148

 

Royal Courts of Justice

Strand, London, WC2A 2LL

 

Date: 30 April 2020

Before :

 

THE PRESIDENT OF THE FAMILY DIVISION

LORD JUSTICE PETER JACKSON

LADY JUSTICE NICOLA DAVIES

Re B (Children)(Remote Hearing: Interim Care Order)

– – – – – – – – – – – – – – – – – – – –

Stephen Lue (instructed by Jung & Co Solicitors) for the Appellant Maternal Grandmother

Max Melsa (instructed by London Borough of Ealing) for the Respondent Local Authority

Philip Squire (instructed by Thompson & Co Solicitors Ltd) for the Respondent Children by their Children’s Guardian

Hearing date: 23 April 2020

– – – – – – – – – – – – – – – – – – – – –

Approved Judgment

Sir Andrew McFarlane P:

1. This is the judgment of the court to which all three members have contributed.
2. This case, which concerns an interim order, is the second appeal in a case relating to the welfare of children to reach the Court of Appeal on the issue of remote hearings during the COVID 19 pandemic. The appeal was heard on 23 April 2020.  On the previous day the same constitution heard the first such appeal: Re A (Children)(Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583.  In that judgment we summarised current guidance and set out a number of cardinal points and relevant factors with a view to assisting courts to make appropriate decisions in this changing landscape.
3. At the end of the hearing of this appeal, we informed the parties that the appeal would be allowed and that an interim care order made at a telephone hearing in the family court on 3 April would be set aside. The appeal concerned a 9-year-old boy, Sam (not his real name).  As a result of the order he had been removed from the care of his grandmother and placed in foster care.  The order should not have been made and Sam has now returned home.
4. In the present abnormal circumstances, the fundamental principles of substantive law and procedural fairness are unchanged. Alongside other courts and tribunals, the Family Court continues to discharge its duties, particularly in urgent child protection cases.  The effective use of communication technology is indispensable to this ability to continue to deliver justice.  A remote hearing, where it is appropriate, can replicate some but not all of the characteristics of a fully attended hearing.  Provided good practice is followed, it will be a fair hearing, but we must be alert to ensure that the dynamics and demands of the remote process do not impinge upon the fundamental principles.  In particular, experience shows that remote hearings place additional, and in some cases, considerable burdens on the participants.  The court must therefore seek to ensure that it does not become overloaded and must make a hard-headed distinction between those decisions that must be prioritised and those that must unfortunately wait until proper time is available.
5. In our judgement, the events in the present case illustrate why this approach is necessary. The problems here arose because the local authority changed its care plan in the middle of a remote hearing and because an application that was not urgent was treated as if it was.  We will briefly summarise the background, and then describe the course of the proceedings in more detail.
6. Sam has an 11-year-old sister, whom we will call Samantha. Their mother is a drug user with a criminal record and their father, who died in 2019, was also a prolific drug user.  When they were young, the local authority took care proceedings and in July 2013, their maternal grandmother, who is now aged 65, became their special guardian.  The children were then aged 5 and 2, and she had been their primary carer for a long time, indeed for all of Sam’s life.
7. It has not been plain sailing since then. The local authority has continued to be involved and has provided a range of support to the family.  There have nonetheless been concerns about the stability of the placement, the grandmother’s ability to cope, interventions by the children’s mother, and the actions of a maternal aunt and uncle.  The aunt lives with the grandmother.  The uncle lives nearby.  He is also a drug user and has on a number of occasions behaved in a highly inappropriate way towards the children.  Allegations have from time to time been made by Samantha of physical abuse by the uncle and the aunt.  The grandmother did not support these allegations.  In September 2019, the children were placed on child protection plans, particularly because of the risk posed by the uncle to their physical and emotional wellbeing.  The grandmother continued to work with the local authority, including successfully attending a course on attachment in January/February 2020.  In February, she reported that Samantha’s behaviour was deteriorating and that she was struggling to manage it.
8. Up to this point, the picture is one of a family under some strain, with Samantha’s situation causing more concern than Sam’s. Although there had been allegations of physical abuse, the local authority’s main concern was for the children’s emotional well-being.
9. The catalyst for the proceedings was an incident on 20 March, when police were called to the home, where Samantha was outside, screaming. She said that she had been hit by her aunt; the grandmother and aunt denied it and described Samantha’s behaviour as having been particularly challenging since the family had been in confinement.  Samantha was taken into police protection and placed in foster care.  Sam was not directly involved in the incident and he remained with his grandmother.  On 23 March, she signed a section 20 agreement for Samantha.  However, on 27 March, she told social services that she would like Samantha back at some stage.  On Wednesday 1 April, she said she wanted her to return by Friday 3 April.
10. The local authority at that point did not consider that Samantha should return home, nor that Sam should leave. On 2 April, it acted decisively by issuing proceedings for an interim care order in Samantha’s case and an interim supervision order in Sam’s.  Its application drew attention to the grandmother’s request for Samantha’s return the following day and asked for a hearing within 24 hours.
11. Accompanying the application was a substantial amount of documentation arising from the local authority’s knowledge of the family down the years, including a fully pleaded interim threshold document, a comprehensive chronology (16 pages) and a thorough template statement from the children’s social worker (34 pages). Of note, this described a close relationship between the children and their grandmother, with plenty of mutual love and affection being shown.  Given the local authority’s position, the removal of Sam from home did not even feature in the social work analysis as a realistic option, let alone a preferred one.  The case for an interim supervision order was put in this way:

“Whilst [Sam] is not considered to be at immediate risk of physical harm, there have been historical allegations against his Maternal Uncle… who is known to still to be attending the home despite being prohibited by written agreements in place. [Sam] has suffered and remains at risk of suffering emotional harm due to the concerns [about] treatment of him by Maternal Uncle… and Maternal Grandmother.”

The reference to the uncle attending the home was particularly directed at the incident on 20 March, when it is said by the grandmother that he came from his own home to assist when the police were called, but she asserts that he did not enter the property.

12. We will now describe the events on Thursday 2 and Friday 3 April in some detail. In doing so we will make observations from time to time.

13.00     The local authority sends the papers to the court by email for issuing.

15.52     An order is made listing a hearing for the following day at 12.00, appointing a Children’s Guardian, and reducing the time for service on the grandmother.

16.02     A Cafcass Guardian is appointed.

16.40     The Guardian appoints a solicitor.

16.58     The children’s solicitor is granted access to the electronic file.

17.20     The paper bundle (152 pages) is served on the grandmother.  She instructs a solicitor.

18.05     The solicitor instructs counsel, Mr Stephen Lue, for the following day.

23.39     The solicitor for the grandmother obtains access to the electronic file.

13. We have also been provided with a chronology from the perspective of Recorder McCarthy QC, who came to hear the application on 3 April. This shows that he was notified of his list of three cases at 17.25 on 2 April and received the files in a variety of electronic formats at around 18.00.  None of these contained any position statements or case summaries.
14. Pausing at the end of the first day of the proceedings, it can be seen that the system has the ability to respond very quickly. That is critical in a case of genuine urgency, but it does place considerable pressure on the parties.  None of the normal pre-proceedings stages, whereby a family has access to legal advice, can happen.  No evidence in response can realistically be filed.  Here, as we shall show, the request for an urgent hearing, designed to meet the situation that had then arisen regarding Samantha, came to have unexpected consequences for Sam.
15. The local authority was acting responsibly in taking steps to regularise Samantha’s position. Under s.20(8) the grandmother, as a special guardian, was entitled to withdraw her consent to Samantha’s accommodation and to remove her at any time.  The situation was that described by Baroness Hale in Williams v London Borough of Hackney [2018] UKSC 37 at [44-45]:

“44.  Sixthly, subsection (8) makes it absolutely clear that a parent with parental responsibility may remove the child from accommodation provided or arranged by a local authority at any time. There is no need to give notice, in writing or otherwise. The only caveat, as Munby J said in R (G) v Nottingham City Council (para 22 above), is the right of anyone to take necessary steps to protect a person, including a child, from being physically harmed by another: for example, if a parent turned up drunk demanding to drive the child home. In such circumstances the people caring for the child would have the power (under section 3(5) of the 1989 Act) to do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child’s welfare (see para 18 above).

45. It follows that, if a parent unequivocally requires the return of the child, the local authority have neither the power nor the duty to continue to accommodate the child and must either return the child in accordance with that requirement or obtain the power to continue to look after the child, either by way of police protection or an emergency protection order. These can, of course, only be obtained if there is reasonable cause to believe that the child will otherwise suffer significant harm.”
46. Our first observation is that, once the local authority became aware that the grandmother was withdrawing her consent, it would have been desirable for an attempt to have been made to agree a suitable timetable with the grandmother ahead of the service of proceedings upon her. That would have allowed her to take advice and, if proceedings were necessary, to file some evidence.  As it happened (see below) she had by the time of the main hearing the next day come to the position that she did not oppose the making of an interim care order for Samantha.  But by then the proceedings had developed a momentum of their own.
47. We resume the events of Friday 3 April from the point of view of the court. By the time the Recorder started to hear his first case, he had already been working for at least three hours.  The hearings took place by telephone, as was then the practice in that court, with the Recorder at his home address and the other participants at various locations elsewhere.  He was able to contact a member of the court staff by phone or text to coordinate the start and finish of hearings.  The first case was heard between 10.21 and 11.43.  During the course of the morning the Recorder received a continuous stream of bundles, documents and position statements in the other two cases.  These included the Guardian’s position statement in the present case at 11.01.  The significance of that document was that it led to a change in the local authority’s care plan in respect of Sam, which it announced to the other parties at around 11.30.
48. The present case, the second in the list, was first called on at 12.31 and at 12.49 it was adjourned until later in the afternoon. During that hearing Mr Lue asked for an adjournment to another day so that he could take instructions about the change in the local authority’s case.  The Recorder said he would consider that when the hearing resumed.
49. At 14.05 the Recorder received the local authority’s revised position statement in this case.  At 14.06 the hearing in the third case began.  It ended at 16.02.
50. At 16.22 the present case restarted. Submissions lasting one hour were made, during the course of which the Recorder was sent the local authority’s original position statement.  Between 17.20 and 17.41 he gave an extempore judgment.  At 17.52 he refused Mr Lue’s application for permission to appeal and scheduled a further hearing for 21 April.  At 17.57 the hearing concluded.  By that time the Recorder had been working, almost continuously and mainly on the telephone, for 10½ hours.  Our observation is that, although we have found the decision in this case to have been unquestionably wrong, the nature of the workload faced by the Recorder, experienced as he is, was surely a contributory factor.
51. We next mention the position of the Children’s Guardian. Her solicitor, having evidently carried out a lot of work in a short time, filed a six-page position statement at 10.49 that morning.  We quote the concluding paragraphs in full because, as Mr Squire, who did not appear below, frankly asserted, “the Guardian has driven this in terms of immediacy” and because they represent the whole reason why an interim care order was made for Sam.

“Guardian’s Position

25. The Guardian is very concerned with respect to the safety of both children given their cumulative previous experiences and the lack of emotional stability that they seemed to have experienced under a Special Guardianship Order. She is concerned that the maternal grandmother is prioritising the needs of the maternal uncle and aunt over that of the children, or is at least unable to protect them from abusive situations. Most concerningly, the children seem to be blamed when their behaviours are likely to be expression of the experiences they had, and/or additional needs that their care giver/s should be attuned to identify and respond to; [Samantha] being compared to her mother in derogatory manner and [Sam] being called names are particularly emotionally abusive behaviours in the context of the children’s own experiences.
26. There are concerns that maternal grandmother does not appear to be working openly and honestly with professionals since 2014 and it is noted that the written agreements have been breached on a number of occasions and allegedly the uncle reported that he was prompted by the grandmother to breach or ignore such agreements, and not talk to professionals. It appears as if the maternal uncle continues to be a frequent visitor to the family home and is reported to have been involved with the police 3 times this year in relation to drug offences [C25]. It is also not clear where the Mother is presently residing since her release from prison; the local authority statement refers to the children having had unsupervised contact with her.
27. The Guardian is concerned that both children are at risk of ongoing physical and emotional abuse. She is very concerned with the proposal by the Local Authority that [Sam] remain in the family home under an interim supervision order under the current circumstances, when there are severe limitations in what visits and intervention can be provided and uncertainty around how long pandemic-related measures will need to continue. It is not clear how his safety will be monitored as there are very little, if any, direct social work visits being undertaken at present; the presenting concerns cannot be effectively monitored via virtual visits. Schools often provide an oversight into a child’s wellbeing – however the schools are now closed and it is not known when they will re-open; they also often provide an outlet for both children and carers; being constantly at home can greatly escalate the current risks for [Sam], and limits his ability to reach out to professionals or safe adults outside the house for help. The Guardian is concerned that given these exceptional times it will be very difficult to monitor [Sam]’s safety.
28. It may be that [Sam] will be placed at more risk of emotional and physical harm if he is left alone in the family home. [Sam] has already stated that his family matters are confidential and it is therefore not clear whether he will actually disclose any concerns should they arise at the home; [Sam] may also internalise that violence is acceptable and risk perpetrating violence himself, or take matters in his own hands to protect himself or others, such as, for example, his grandmother if she is also subject to abuse from the uncle. The Guardian believes that both children need to be placed in a place of safety whilst assessments are ongoing.
29. The Guardian therefore supports interim care orders for both children. If the Court agrees that an interim care order is appropriate for both children, the Guardian would strongly prefer for both children to be placed in the same foster placement, if possible. A together and apart assessment to look at the sibling relationship and potential split arrangements for them in the longer term needs to be considered. There are also indication of severely distressed behaviours from the children, emotional regulation and ongoing attachment difficulties, which may require psychological assessment to ensure that the parenting they need to meet their individual needs is fully considered in care planning.”
30. Once a Children’s Guardian has been appointed, he or she is obliged to exercise professional judgment, whatever the circumstances of the appointment. The court relies on Guardians to be independent in promoting and protecting the interests of the children in the litigation, and they may take, and not infrequently do take, a different position to that of the local authority.  We acknowledge that, as commonly happens when an interim application is made at the outset of proceedings, this Guardian was having to absorb a mass of information at very short notice.  She had no time to make inquiries, beyond reading the papers and having one conversation with the social worker at about 9 am.  In cases of real urgency that may be unavoidable, but in this case it is, to put it at its lowest, surprising that she and the children’s solicitor felt it appropriate to make such a bold recommendation from such a low knowledge base.  Neither of them had met or spoken to Sam or to his grandmother or his grandmother’s solicitor, nor did they have any information at all coming from that quarter.  We also note that the Guardian was not available for the hearing in the afternoon.  Her solicitor was said to be fully instructed, but the Guardian’s absence left her unaware of such arguments as Mr Lue was able to put to the court in response to her recommendation and deprived her of the opportunity to reflect.
31. We are also troubled by the lack of any balanced analysis in the case for removal that was put by the Guardian, and also by the local authority. There is no reference to the emotional detriment to Sam in being removed from his only parental figure without notice or preparation.  There was no reference to Sam’s wishes and feelings about immediate removal, nor any reminder to the court that these were not known.  There was no credible explanation for why there had to be an emergency decision.  Mr Squire fairly accepted at no less than three points in his appeal skeleton argument that the outcome was “harsh”, though he defended it as not being unfair or unjust.  When we asked him about the above matters he described them as a consequence of this being “an emergency application” in which child protection imperatives had to prevail.  We reject that argument.  The pressured way in which the proceedings developed may have felt like an emergency to the professionals, but it was not an emergency for Sam.  We also firmly dismiss the proposition that the current ‘lockdown’ provides a reason for the removal of a child where none would otherwise exist.  It is possible to envisage a case at the margins where face-to-face supervision is so important that a child would not be safe without it, but this case and most others like it fall nowhere near that category.  Our overall observation in this respect is that unfortunately Sam’s voice was not heard at a critical moment in the proceedings and his interests were not protected by his Guardian, whose recommendation set in train the sequence of events that followed.
32. The local authority had in our view taken a sensible position in seeking an interim supervision order, as reflected in its position statement at 10.37. Yet within the hour it had moved to seeking Sam’s immediate removal.  Nothing relevant had happened to Sam in the fortnight between Samantha’s departure and the hearing.  The only basis for the volte-face was the intervention of the Guardian.  We asked Mr Melsa, for the local authority, about the process leading to the changed decision, which came to him in an email instruction when he was in the middle of an advocates’ meeting.  We learned that the decision was undocumented and the change of plan unreasoned.  There was no evidence about it and no care plan to underpin it.  Not surprisingly that led to confusion.  At 12.48 the other parties were informed that removal would not take place until Monday 6 April because Sam had a cough that might be virus-related.  The social workers then tried to investigate testing, but were unsuccessful.  Despite that, at 13.43 the local authority announced that its plan was again one for immediate removal.
33. Our observation is that it is hard to describe this process as anything other than arbitrary. A local authority must always be responsive to the stance of a Children’s Guardian, but there was no good reason for the plan to have been changed in this case.  The consequence was to wrong-foot the grandmother, with whom it was going to share parental responsibility for Samantha, at least in the short term, without any discussion with her.  Mr Lue was, as he put it, unable to understand the decision-making process and was having to take instructions by telephone on a constantly moving picture.  He gave us examples of matters concerning Sam in the social work statement and the Guardian’s position statement that he has since the hearing been able to establish that the grandmother simply did not accept (for example concerning the arrival of the uncle on 20 March).  We were entirely convinced by his account of feeling, in his words, hopelessly unable to represent his client in the way he would normally be able to do.  It says a lot that throughout the whole process not one page emanating from the grandmother could be placed before the court.  She had no opportunity to file evidence in relation to this serious matter, nor was Mr Lue in a position to marshal a position statement.  In cases of exceptional urgency that may be unavoidable, but here it was unfair.
34. Turning to the court hearing itself, we have read a transcript. The hearing began promisingly, with the Recorder pressing Mr Melsa to point to evidence justifying Sam’s immediate removal.  Mr Lue then made submissions referring to his application for an adjournment, to the shifting sands of the local authority’s case and to the inadequacy of the evidence as a justification for immediate removal.  He was asked by the Recorder whether the grandmother would be prepared to remove the aunt from the home, to which the reply was that this could and should be investigated, but that he had not been asked and had no instructions.  Mr Lue argued that Sam was in no danger.  The grandmother had been his primary carer for his whole life and removal would have a serious impact on him.  His position was distinct from Samantha’s.  The Guardian’s emphasis on the health crisis was misconceived.  We consider those submissions to have been well-made.
35. The Guardian’s solicitor then urged removal, pointing to evidence of marks on Sam that were said to have been caused by the uncle in 2018. She relied on the uncle attending the property when Samantha was removed.  She speculated that Sam may be reluctant to disclose information now that Samantha was out of the house.  She expressed concern that the grandmother has not been open and honest.  The Guardian believed that both the children needed to be in a place of safety while assessments were ongoing.  Mr Lue was allowed to respond, making clear that there had been no recent contact with the uncle and that the grandmother accepted that he represented a risk.
36. Giving judgment, the Recorder described the “re-evaluation” of the local authority’s position as curious but said that:

“5.  The difficulty I have about giving any significant weight to that particular point is that I am not required to assess the adequacy of the local authority’s decision-making process.  If I was then I would not really be carrying out the interim care order exercise at all.”

He had referred to the issue of adjournment in this way

“4.  One of the things I have been asked to do on the grandmother’s behalf mentioned earlier on today and indirectly mentioned by Mr Lue this afternoon, is to adjourn the case for further consideration. This given the limited amount of time that he and his client have had to go through the material. Obviously, as a matter of professional courtesy, I am responsive to that because justice features very largely in these cases brought on at short notice where only one side has had the chance to submit evidence.  But the law is the law and the law requires judges make decisions about whether the threshold is established on an interim basis on the basis of reasonable grounds for believing.  The judge therefore is not at this stage required to have a refined view of what the evidence would ultimately prove later on in the proceedings.”

29. However, the Recorder did not then address the proposal for an adjournment, instead proceeding to the facts and the threshold for intervention:

“5.  I recognise that Mr Lue doing the best he can in very difficult circumstances, has made some comments on the contested facts…  I recognise that it is a point that has to be made on behalf of someone in the grandmother’s position when there has been so little time to call on the details of what could possibly arguably be disproved and what possibly is wrong. But the reality of the situation is that there is an overwhelming body of information available to me in the local authority’s evidence (which I have not been able to spend several days reading).  When I put that against what have been the contested issues in the debate in the past, it leads me to the conclusion that as of the time this application was mounted there were very substantial grounds for believing that these children and each of them would be at risk of significant harm if they were to remain in the care of the maternal grandmother.”

“6 … after the end of hearing all of the submissions and looking at all of the evidence, … the truth is the overall picture of how the grandmother has conducted her role as a special guardian and the overall experience of the children in responding to that is something that is relevant to both of them.  It may be that the consequences are more serious for one child than another but all I am required to do is to consider whether there are reasonable grounds for believing that the section 31 grounds would be established.”

…

“9… Obviously, some years ago she was able to cross the quite high threshold for being approved as a special guardian and appointed as a special guardian.  I am afraid in the evidence that has been put before me, (and I am making allowance for what Mr Lue was able to suggest to me would be contradicted or challenged), there is an overwhelming case for concluding there are reasonable grounds for believing that her parenting and her protective role in relation to these children has been deficient on multiple occasions.

10. Clearly, [Samantha] has been far more on the receiving end of the consequences of that. She is obviously a different personality to  [Sam].  There are a number of things though about the overall conduct of the grandmother and those of her children who have been at home to make me believe that the grandmother on the face of what I have seen so far has lacked and lacks a certain amount of grip in supervising young children of this age and, in the circumstances as they have built up over time, I am satisfied that there are more than reasonable grounds for believing that the section 38 test is satisfied.”
11. We make the observation that the Recorder was clearly entitled to find that the threshold for an interim order was crossed in Sam’s case, and the contrary has not been suggested to us. He then turned to the welfare decision and directed himself in this way:

“12.  In deciding whether to make an order, each of the children’s individual welfare is the paramount consideration.  I have to proceed on the basis that delay in resolving the need for protection by virtue of an order or a decision one way or another would be likely to prejudice the children’s welfare.  I have to apply the individual welfare factors of the welfare checklist and I have to make sure I do not make any order unless satisfied it is better to do so than to make no order.  The key question for me, whichever of the many dozens of cases that have outlined the test on interim care orders, is whether the children’s individual welfare, (and I do not deal with them as a package deal), demands that they be held back from or removed from the grandmother’s care? Does each of their welfare individually demand that that decision is made straight away to protect them?

13. In evaluating the issues I am very conscious of the fact that decisions to make interim care orders impinge very significantly on the children’s Art.6 and 8 rights and also, of course, on the grandmother’s Art.6 and 8 rights. As I have already said, I am very conscious of the fact that this certainly puts the grandmother at a disadvantage that she has not had the time to gather in whatever evidence is available or might be available to deny that certain things were accurately set out and I appreciate Mr Lue did not have a great deal of information to work with but I gave a little bit of time earlier on today for this matter to come back…
14. What I have to do in making the decision is to balance in [Samantha]’s case the risk of being kept away and in [Sam]’s case the risk of being taken away against the risk of them both being in the grandmother’s care. I have to decide whether the consequences of an interim care order on the basis of the local authority’s interim plan is proportionate to the risk of them being at or staying at home.  So I have to balance the harm that may occur on either side and I ask myself the questions: is removal or being held back in relation to these children strictly necessary; is it necessary; is it proportionate; does their physical safety and their emotional welfare demand that an interim care order be made straight away in relation to both their cases?”
15. The Recorder then expressed his decision in this way:

“15.  In considering this I have listened to what everyone said to me.  I have paid very careful attention to the position statements that have been put in front of me.  I found the children’s guardian’s analysis of this to be particularly helpful.  She is not part of the team on the local authority’s side.  She has looked at it independently.  I am not bound to accept her analysis and I think there are certain respects in which I would have expressed myself slightly differently. She says at para.25 she is very concerned with respect to the safety of both children given their cumulative experiences and the lack of emotional stability they seem to have experienced under a special guardianship order. If I had not seen that phrase in a position statement I might very well have been using those words myself.  I think the concerns as she puts them are well phrased… So that will help anyone who is wondering about this afterwards to understand what the level of my concern is.

16. In these circumstances, I am satisfied that it is strictly necessary for an interim care order to be made now both in relation to [Samantha] and in relation to [Sam]. I repeat what I said earlier on.  I do not consider them as a package unit.  The fact that the need for an ICO was proved in relation to one child does not mean that it is proved in relation to the other child.  I have borne in mind the differences between some of what has happened to [Samantha]  and what has happened about [Sam].  But I have to bear in mind that what has happened in relation to both [Sam] and his sister, [Samantha], is relevant to the type of parental operative or the type of parental figure that the grandmother is.  It cannot be expected that, in making a decision about individual children, a judge would ignore how that person behaves in relation to two children who are only separated in age by about two years.  Her lack of sufficient parenting, if I can put it neutrally, in relation to [Samantha] is relevant to [Sam] and vice versa.
17. I am not going to say any more. The more one says, the more one can go round full circle.  In those circumstances, expressed in very unstructured terms, for those reasons I have decided to make an interim care order both in relation to [Samantha] and in relation to [Sam] and that is all I propose to say.”
18. Mr Lue asked for permission to appeal, but this was refused. He did not seek a stay, as he might have done, pending an appeal to this court.  Sam was removed from his grandmother’s home at 7 pm that evening.  The Appellant’s Notice was filed on 9 April and on 17 April permission to appeal was granted.
19. We have already indicated our view of the inadequacy of the evidence in this case to justify the removal of a child from his home. The law, accurately cited in the Guardian’s position statement for the hearing itself, emphasises that removal of a child from a parent at an interim stage of proceedings is a particularly sharp interference with their right to respect for family life, and that a plan for immediate separation is therefore only to be sanctioned by the court where the child’s physical safety or psychological or emotional welfare makes it necessary and where the length and likely consequences of the separation are a proportionate response to the risks that would arise if it did not occur: see e.g. C (A Child) (Interim Separation) [2019] EWCA Civ 1998.
20. The Recorder made some reference to these principles but he did not apply them. Our observation is that this was a case where the central concern related to emotional harm stretching back for years.  On the information then before the court it could not in our view be plausibly argued that something had now happened to make Sam’s removal that evening necessary.  The circumstances in which Samantha had been taken into foster care showed the need for Sam’s situation to be carefully assessed. The evidence did not remotely justify his peremptory removal and there is nothing in the judgment that is capable of persuading us that it did.  Our further observation is that, no doubt partly because of the exigencies of the remote process, there was a loss of perspective in relation to the need for an immediate decision about Sam.  This was a classic case for an adjournment so that a considered decision could be taken about removal, if indeed that option was going to be pursued after reflection.  An adjournment would have enabled the parties and the court to have all the necessary information.   As it was, crucial information was lacking and its absence was overlooked by the court.
21. There is a qualitative difference between a remote hearing conducted over the telephone and one undertaken via a video platform. If the application for an interim care order for Sam had been adjourned, it may well have been possible for the adjourned hearing to have been conducted over a video link and that single factor might, of itself, have justified an adjournment in a case which, in our view, plainly was not so urgent that it needed to be determined on 3 April.  Whilst it may have been the case that the provision of video facilities was limited at the particular court at the time of the hearing, it is now the case that the option of using a video link is much more widely available.  Where that is the case, a video link is likely at this time to be the default option in urgent cases.
22. Finally, what of the grandmother and Sam themselves? They were at home, with the grandmother giving instructions to Mr Lue as best she could.  She speaks English but it is not her first language.  They were ‘meeting’ for the first time, and only by telephone.  She had expected that the hearing would concern Samantha, only to find during the course of the day that it had turned into a hearing about Sam.  She had no opportunity to file any evidence or even to properly consider the evidence filed by others.  At 6 pm she was faced with an order that she had no chance of challenging and within an hour Sam was taken into foster care.  It must have been utterly bewildering for them both.
23. To complete this lamentable story, the children’s foster carers gave notice on 8 April because of Samantha’s behaviour and the children were moved on 15 April. Because there was no available foster home for them both, they were placed apart.
24. Now that Sam has returned to the care of his grandmother, the course of the proceedings has been reset. If it is considered that different interim orders are required for either child, an application can be made and it will be considered in the normal way and given whatever priority is considered appropriate.
25. In explaining why the appeal was allowed, we express our appreciation and understanding of the highly pressured circumstances in which all the participants were working. Those circumstances led to a chain reaction in the course of which fundamental legal and procedural principles came to be compromised despite the best intentions of a range of dedicated professionals.  These days we are all learning from experience and we hope that the observations in this judgment will assist others who find themselves in a similar position.

IN THE FAMILY COURT GUILDFORD                                                                                            No. PO19C00408
SITTING IN THE HIGH COURT

[2020] EWFC 32

Royal Courts of Justice

Strand

London, WC2A 2LL

Thursday, 16 April 2020

Before:

SIR ANDREW MCFARLANE

(President of the Family Division)

(In Private

RE P (A CHILD: REMOTE HEARING)

JUDGMENT

 

APPEARANCES

MR N. TAYLOR  and MR M. HEYWOOD appeared on behalf of the Applicant Local Authority.

MISS A. MUNROE QC and MR W. TAUTZ appeared on behalf of the Respondent Mother.

MR C. STRINGER appeared on behalf of the Respondent Father.

MISS P. HOWE QC and MISS L. RAMADHAN appeared on behalf of the Guardian.

____________________

THE PRESIDENT:

1. The application that I have considered this afternoon, at a remote hearing attended by counsel and solicitors for all parties, arises out of ongoing care proceedings relating to a girl, who is now aged seven, having been born in November 2012. The proceedings are already one year old and they were issued as long ago as April 2019, but it is right to record that this young person has been the subject of contested private law proceedings for a good deal longer than that.
2. The issue which is the focus of the proceedings, and will be the focus of a planned fifteen day hearing which is due to start on Monday, 20 April, is a series of allegations made by the local authority, all aimed at establishing that this young child has been caused significant harm as a result of fabricated or induced illness [‘FII’]. There is a deal of evidence that the local authority seek to rely upon to establish that core allegation against the child’s mother; partly a series of referrals to the GP, partly attendances and, indeed, admissions at hospital, partly what has been said or been seen by the school and school attendance, and partly observations that the young person has made to social workers and others. The issues are all fully contested by the mother and it is, in every sense, a full final hearing.
3. As would be expected, the court also has the benefit of expert evidence from an expert paediatrician, an expert adult psychiatrist and an expert adult psychologist. The hearing is a roll-up hearing in the sense that the judge is being invited not only to determine the factual issues that are in play but to go on then, at the same hearing, to fix the final care plan for this child. The options are, baldly, that the child should return to the mother – that is the mother’s case – or be placed elsewhere. As I understand it, the principal suggestion is that that should be in foster care.
4. Since April last year, this young person has been living with a friend of the mother’s under an interim care order. I think it is accepted that that placement, beneficial though it has been for her as a holding environment, is not a long-term placement and so she will need to move to a different home at the end of this court process in any event.
5. A part of the history is that there was a serious attempt to achieve a final hearing of this matter in the autumn of last year. For reasons that I have not delved into, that had to be aborted and so this is the second time that this seven year old girl has come to understand that a judge is imminently about to determine her future care arrangements.
6. The hearing was fixed to be undertaken by a circuit judge sitting as a deputy High Court in the Family Court at Guildford, and fixed to start on Monday, 20 April, sometime ago. The event that, of course, has intervened in the meantime is the Covid-19 pandemic which has led to a lockdown and led to most Family Court hearings that have gone ahead being undertaken remotely, over the telephone or via some form of video platform.
7. The case came before the court for a case management hearing on 13 March. At that time the potential for there to be a “lockdown” was not overtly on the horizon and the issue of a remote hearing was not considered at that stage. By the time the case came back before the judge for the final pre-trial review, on 3 April, the lockdown implemented by the Government had come to pass and, indeed, had been in place since Monday, 23 March, nearly two weeks earlier.
8. I have been assisted by counsel at the hearing this afternoon, who have explained that at the hearing on 3 April all parties, and the judge, effectively accepted that this hearing would now have to go ahead and be conducted remotely. I was told that all parties and the court had been influenced by the publication, shortly before 3 April, of advice produced by Mr Justice MacDonald on the conduct of remote hearings which gave an account [at paragraph 2.2.1] of a number of remote hearings that had been successfully accomplished in the early days following the lockdown. It would seem that those involved in this case read that advice as indicating that allhearings must now proceed as remote hearings and, I was told, the discussion during the hearing was about how the remote hearing would be conducted and not whether it should be heard remotely. If that was the understanding of MacDonald J’s document, it was a misunderstanding. MacDonald J’s document is firmly aimed at the mechanics of the process; it does not offer guidance, let alone give direction, on the wholly different issue of whether any particular hearing should, or should not, be conducted remotely. Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.
9. There was, therefore, no application to adjourn the hearing on the basis that there should not be a remote hearing. The judge did, however, hear an application for the hearing to be postponed on the basis that the mother, it was said, had unfortunately contracted the Covid-19 virus infection herself and would not be fit to take part in the court process. The judge, understandably, did not accede to that application at that stage but indicated that the mother’s health and her ability as a result of her health to engage in the court process would be kept under review. Arrangements, therefore, went ahead for the compilation of an electronic bundle – that has been done – and for the hearing to be set up to be undertaken over the Skype for Business platform.
10. The arrangements for the mother to engage in the process, as they are currently understood, involve her being in her home, alone as I understand it, and joining the proceedings over the internet. She has some basic internet access but it is proposed, although, as I understand it, nothing has been done to set this up, that she should subscribe to a wi-fi dongle supplied by TalkTalk so as to enhance the internet connection. She will, therefore, join the hearing remotely, as everyone else will, over Skype. Miss Allison Munroe QC, who, together with Mr William Tautz, became instructed on behalf of the mother only during the last three weeks, indicate that they anticipate having a break either after the evidence-in-chief or at the end of each witness’s evidence, so that they can take confidential instructions from the mother over the telephone or over Zoom or a separate video link. And that was the way in which the hearing was being constituted and planned for until the middle of last week.
11. As President of the Family Division, I have been kept informed of developments in remote hearings nationally and I came through that means to understand that this hearing was planned to be undertaken. It is a type of hearing which, certainly at first blush, seemed to be well outside the categories of hearing which could be contemplated as being appropriate for remote hearings before the Family Court. I make that observation in the narrow context of this being an 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. Dr Evans, the paediatrician instructed as an expert witness in this case, at p.E31 of the bundle, describes this as “an extremely complicated case”. And later, at p.E41, he describes FII as “an extremely unusual disorder” and describes the task of investigating it as being “incredibly challenging”.
12. Dr Evans is right to describe it in these terms. These are particularly unusual cases and, from a judge’s perspective and, from experience of having undertaken a number of these cases over a number of years, 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.
13. So, with that background in mind, my reaction on learning that this was a category of hearing which was thought to be appropriate for a remote hearing process was one of surprise. I, therefore, invited the judge to consider adjourning the hearing so that it would be re-listed once the lockdown requirements had been removed and it could be heard in the ordinary way at a full oral hearing. The judge, as I understand it, communicated that to the parties and they, understandably, indicated their concern at that turn of events and thus we have established the short hearing this afternoon to consider whether or not the hearing should be adjourned.
14. The position of the parties is thus: the local authority submit that this is, despite the nature of the allegations, a hearing that can be properly undertaken over the remote system. All of the allegations have been well rehearsed in documents, both witness statements and matters of record, and are well known to the mother. All the witnesses – and there are sixteen or so, bar the parents, as I understand it – are professional (there may be one individual from a refuge) witnesses, members of the medical profession, school staff, social workers, and it should be perfectly possible, submits the local authority, for them to give their evidence remotely over the video link and for the process of examination and cross-examination to take place. I accept that that has become established practice in recent times, for witnesses to be beamed in to the courtroom in the course of ordinary events. What normally goes wrong is the technology rather than the professional interaction of the lawyers and the professional witnesses. The local authority therefore submit that the case is ready for hearing and that the mother is sufficiently aware of all of the issues to be able to have already instructed her legal team with the points she wishes to make and then herself to engage in the process fully.
15. More importantly, as I think they would say and certainly as I would see it, they submit that this young girl is currently already suffering, on their view, significant emotional harm by being held in limbo and that she will only be released from this damaging situation of simply not knowing where she is going to live and spend the rest of her childhood, at least for the foreseeable future, until the court process comes to an end. She needs a decision, she needs it now and to contemplate the case being put off, not indefinitely but to an indefinite date, is one that (a) does not serve her interests, because it fails to give a decision now, but (b) will do harm itself because of the disappointment, the frustration and the extension of her inability to know what her future may be in a way that will cause her further harm. I understand that. All cases are pressing when the welfare of children is to be determined. The Children Act spells that out. But, on the facts of this case, this young person’s welfare particularly requires that a decision be made at this stage if not, frankly, before now. The local authority, therefore, not only says that the case can be heard now but also that it must be heard now to meet her welfare needs.
16. The fallback position put forward by Mr Nigel Taylor QC, who leads for the local authority, is that if the court is concerned about the mother’s ability to engage in the three week hearing and give her best, as it were, by giving evidence in these rather artificial circumstances, then the fallback position should be either that the court, at the very least, hears the professional witnesses at this period in time remotely and then takes stock and may adjourn hearing the lay witnesses, particularly the mother, until an ordinary oral hearing can take place maybe for three days or so in a few months’ time. A further option is for the court to undertake the fact-finding process at this stage but adjourn the final welfare determination. I understand those submissions and why they are put forward.
17. The local authority’s position is supported by Mr Stringer for the father. The father plays no part in the FII part of the case. There are other issues relating to his past involvement with his daughter but they are not to the fore in the proposed hearing. He is concerned for his daughter’s welfare and he wishes the determination to be made now. He, therefore, opposes the adjournment.
18. For the Children’s Guardian, Miss Penny Howe QC, having considered all of the arguments that are now ranged before the court, urges the court to hold to the fixture either for the full hearing or, as the local authority submit, in some way that at least achieves the hearing of the professional witnesses at this stage. Miss Howe submits that if there are technical matters that can be addressed to assist the mother, by perhaps having an open Zoom connection for her to be constantly in touch with her lawyers, or by other means, then that should be done, but that is not a reason of itself for the hearing to be adjourned.
19. For the mother, Miss Allison Munroe QC, leading Mr Tautz, opposes the local authority position and submits that the hearing must now, unfortunately, be adjourned. Miss Munroe frankly explained the journey that she and the mother’s team travelled, both up to the hearing on 3 April, through it and since, and it is plain, and she accepts, that the mother was not objecting to the remote hearing which was being contemplated at the hearing on 3 April. The primary focus for them there was whether their client was simply well enough to take part in it. Miss Munroe explained that during those early days following lockdown the profession was “feeling its way”, to use my phrase, into uncharted territory and there was an understanding that many family hearings would be undertaken remotely and that this, therefore, was one such that had to be now conducted over a video platform rather than face to face. But now, both having considered the difficulties that will be experienced by the mother’s legal team and by the mother in actually taking part in this process, but also because further advice has recently been given to judges by myself and others centrally, the mother’s team now consider that this is a case that falls outside the category of hearings that could be contemplated as being able to be conducted over a remote platform in a manner that meets the requirements of fairness and justice.
20. The mother’s health remains a matter of concern. She has not been well. I have not seen any further medical evidence and it may be that further medical evidence would have to be provided if the case goes ahead, and I am certainly not determining the health issue today save to say this, that an option which has now been developed and is being used, as I understand it, more and more in cases elsewhere is for the parent, as it would be in this case, not simply to be in their home on their own but to go to some neutral venue, maybe an office in local authority premises, maybe a room in a court building, maybe elsewhere, and be with a member of the solicitors firm that they are instructing, keeping a safe socially isolated distance at all times, so that they can be supported both professionally and in ordinary human terms during a remote hearing. It seems to me that that is not possible to contemplate that option in this case simply because, although proving that the mother has had Covid-19 may be a matter for a judge to determine if an adjournment was being sought on that basis may be one thing, but finding a member of the solicitors’ staff or asking a member of the solicitors’ staff to sit in a room with someone who thinks that they have had or are getting over Covid-19 is more than can be properly asked of anyone in that position. So that simply does not seem to be an option here. So I have to proceed on the basis that the mother will join this hearing, if she does, on her own from her home in the manner that I have described.
21. Miss Munroe’s position statement makes it plain that what is proposed now is, in her submission, unable to provide a hearing in which the mother can have effective participation and a hearing that could be fair. The mother therefore objects to the proposed remote hearing. And so the case moves into a category where, rather than all the parties accepting that there would be a remote hearing, to one where the parent, who is at the centre of the allegations, is now objecting to the remote process and it is on that basis that I have to determine the issue.
22. In a letter from the Lord Chief Justice, Master of the Rolls and President of the Family Division to judges on 9 April 2020, rather than giving formal guidance, a number of parameters were suggested to assist a court in deciding whether or not to conduct a remote hearing. The following three factors were identified as being of particular relevance to Family cases:
    1. Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted remotely
    2. Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely
    3. In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.
23. In addition, in guidance that I issued on 27 March I 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.”

24. The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for a court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with each other. The need to maintain a hearing in order to avoid delay and to resolve issues for a child in order for her life to move forward is likely to be a most powerful consideration in many cases, but it may be at odds with the need for the very resolution of that issue to be undertaken in a thorough, forensically sound, fair, just and proportionate manner. The decision to proceed or not may not turn on the category of case or seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as the local facilities, the available technology, the personalities and expectations of the key family members and, in these early days, the experience of the judge or magistrates in remote working. 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.
25. Turning to the particular case now before the court, although I am extremely aware of and sensitive to the position of this young girl and the negative impact that a decision to adjourn will have on her wellbeing and the potential for it to cause her emotional harm, I am very clear that this hearing has to be adjourned. I make the decision also being aware of the impact that this will have professionally on all of those who have had this fixture booked in their professional diaries for a long time and who are now ready for the hearing to take place. That cannot be a factor that weighs very significantly in the decision-making process but it is one of which I am aware.
26. The reason for having the very clear view that I have is that it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely. The judge who undertakes such a hearing may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function. The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and 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. It also assumes that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on. It seems to me that to contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment. I do not consider that a remote hearing for a final hearing of this sort would allow effective participation for the parent and effective engagement either by the parent with the court or, as I have indicated, the court with the parent. I also consider that there is a significant risk that the process as a whole would not be fair.
27. The observations that I have made in the preceding paragraph apply equally to the options for dividing the hearing process up that have been helpfully suggested by Mr Taylor as, with each option, the judge would not have the opportunity to engage fully with the parent during the whole of the hearing as would be the case in a courtroom.
28. Given the wealth of factual detail that is to be placed before the court in relation to this mother’s actions over the last three or four years, for her to have a full real-time ability to instruct her legal team throughout the hearing, not just by a phone call at the end of each witness’s evidence, seems to me to be a prerequisite for her to be able to take an effective part in a fair process at the trial of issues such as this.
29. For those shortly stated basic reasons, I consider that a trial of this nature is simply not one that can be contemplated for remote hearing during the present crisis. It follows that, irrespective of the mother’s agreement or opposition to a remote hearing, I would hold that this hearing cannot properly or fairly be conducted without her physical presence before a judge in a courtroom. Now that the mother is in fact opposing the remote hearing, the case for abandoning the fixture is all the stronger.
30. For the reasons that I have given, I direct that the hearing listed to start on 20 April must now be vacated. This case is to be re-listed once the current restrictions have been lifted, either before a High Court Judge or a deputy, either sitting in the local Family Court or at the Royal Courts of Justice.

 

__________

Remote Family Hearings: updated ways of working

Version 2 15^th April 2020

 

In the light of the significant increase in remote family hearings this document sets out how the Family Advocacy Scheme (FAS) will operate.  This document will be updated on a regular basis as further issues emerge.

 

Arranging remote hearings, conferences and meetings Who is responsible for arranging a remote hearing and how will the costs be covered?

 

1. HMCTS have produced guidance which can be found here: https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirusoutbreak

 

2. The choice of the conferencing platform is a matter of judicial discretion. It is also a matter for the judiciary as to who will arrange the remote hearing. If an advocate incurs costs in setting up a remote hearing e.g. using a BT Meet Me number this can be claimed as a disbursement. These costs relate to individual cases. Where for an example a firm or chambers purchase a Zoom license this is an administrative cost for them and not an individual disbursement.

 

3. Where clients incur additional cost in participating in a remote hearing e.g. additional data charges, then this is claimable as an individual disbursement.

 

Who is responsible for arranging a remote advocates meeting or conference and how is this funded?

 

4. The advocates will decide who should arrange the meeting and set up the telephone or video conference facilities.

 

5. Where possible advocates should use free services such as Skype or Zoom. Where this is not possible the cost of setting up a teleconference and dialling into the meeting are a claimable disbursement.

 

Advocates meetings How many advocates meetings are allowed?

 

6. Annex 2 to the cost assessment guidance which covers the payment of FAS fees, sets out how many advocates meetings would be expected. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/737499/Costs_Assessment_Guidance_2018_-_Version_1.pdf

 

7. Paragraph 14.18 states that although it would usually be expected that two advocates’ meetings would take place in accordance with the Public Law Outline (PLO), provided that the advocates’ meeting is held as directed by the Court and in accordance with the PLO there is no limit to the number of these fees that may be claimed. In the current circumstances there may be an increase in the number of advocates meetings.

 

8. Paragraph 14.19 makes clear that the definition of advocates’ meeting includes meetings held by video conference, webcam or telephone where this appropriate in the circumstances.

 

What evidence is required?

Paragraph 6.11 of the Civil Finance Electronic Handbook

 

9. The evidence required by the LAA is an endorsed brief and a copy of the approved order listing the advocates meeting. The brief can be endorsed digitally without the need for a physical signature. The endorsed brief is something identifiable as a brief specific to the case – e.g. it has the case number, names of clients, solicitor and counsel, etc. An example is set out in Appendix 6 of the Civil Finance Electronic Handbook.

 

10. Advocates meetings may now be arranged through email rather than court order. The provision of email evidence from the court and/or the judge will be treated as the same as providing the order. The LAA will also accept retrospective recording of advocates meetings in orders which follow such a meeting.

 

Payment

Paragraph 6.4 of the Civil Finance Electronic Handbook Paragraph 4.15 of Annex 2 to the Cost Assessment guidance

 

11. An advocates meeting can take place on the same day as an interim hearing, but it may be claimed only if the meeting takes place outside of any time period that is considered in calculating the fee for the interim hearing.

 

12. If the advocates meeting leads to an agreed order, with no need for a hearing and a self- employed advocate has undertaken at least 30 minutes of preparation for the hearing, they are entitled to claim a payment for a one-hour hearing (hearing unit 1) if the cancelled hearing was an interim hearing, or half of the final hearing fee if the cancelled hearing was a final hearing.

 

Hearings

 

What evidence is required that a hearing has taken place?

Paragraph 6.5 of the Civil Finance Electronic Handbook Paragraph 4.18 of Annex 2 to the Cost Assessment guidance

 

13. The guidance sets out that a hearing may take place by any method directed by the court e.g. by either video or telephone conference without attendance at court. If the court directs an alternative method of hearing, then the advocate will receive the appropriate fee as if the hearing had taken place.

 

14. An advocate’s attendance form will not be available in hearings undertaken by video or telephone conference.

 

15. Where a court order sets out all the information that is required i.e. the names of each of the advocates that participated in that hearing, the start and finish times for the hearing (including lunch breaks) and bolt-ons that would be acceptable evidence. The bolt-ons may be anonymised e.g. a bolt-on1 or bolt-on 2 and then a note setting out which bolt-ons these are. If the court order does not contain all the required information then we will require an attendance note as well.

 

16. Bolt-ons may be claimed for telephone/video hearings if appropriate. As there will be no Advocates Attendance Form, notes of the hearing will need to be recorded and the claim justified on CCMS, the CLAIM 1A or the CLAIM 5A.

 

How are hearing fees calculated?

 

17. The hearing time will start from the time that the telephone call/videoconference was ordered by the judge. There may be initial discussions which can happen on a conferencing platform which is different to the hearing itself. This time will be counted towards the hearing time. If the judge attends to ensure everyone is present then absents themselves for pre- hearing discussions and then re-joins the telephone hearing that time will be counted.

 

18. The guidance currently states we expect telephone hearings to be under an hour but this may no longer be the case.

 

19. An advocate’s meeting can take place on the same day as an interim hearing but it may be claimed only if the meeting takes place outside of any time period that is taken into account in calculating the fee for the interim hearing.

 

20. Advocates may also need some time after the hearing is finished to finalise the terms of the order. Time spent on the phone/videoconference finalising the order can be included in the calculation of hearing time. These discussions may be on a conferencing platform different to the one used for the hearing.

 

21. The President’s National Guidance says that remote hearings may also be conducted by way of an email exchange between the court and the parties. How such hearings are conducted will vary from case to case. Some cases may be resolved in a few emails whilst others may only be resolved after many emails. The time spent by advocates may therefore vary from case to case. We will accept a court order that records the total time spent by the advocates discussing/agreeing the order. If this information is not on the court order, then advocates would need to self-certify the amount of time spent reading and responding to emails. We would expect to see copies of emails and a copy of the court order with the advocate’s name recorded.

 

Conferences What evidence is required?

 

22. Conferences can currently take place by video-conference or by telephone. The LAA requires an endorsed brief and a note of the conference. Provided the brief has the start/finish times (especially if it’s the same day as a hearing) then only a summary of the notes is required. This can be provided on the back sheet.

 

Version 2  –  15^th April 2020

The Remote Access Family Court

Mr Justice MacDonald

Version 4

16 April 2020

(This document will be subject to regular amendment and re-issue)

The aim of this document is to identify clearly the current problems which arise from the urgent need to move to a default position of remote hearings, to identify potential solutions to those problems and to set out operational protocols to govern the position whilst further solutions are being arrived at.  As solutions are found to each problem, updated versions of this document will be circulated.  In each version new additions will be highlighted in red (before being changed to black in any subsequent version) and redactions will be struck through (before being deleted in any subsequent version).

Accordingly, with each new edition only the text that is new to that edition will be shown in red.

 

Contents

Section	Paragraph
1. INTRODUCTION AND EXECUTIVE SUMMARY	1.1
2. CONCEPT	2.1
3. AIMS AND OBJECTIVES
Overall Aims and Objectives	3.1
Fairness and Solemnity	3.2.1
Live Hearings	3.3
Adjourned Hearings	3.4
Judicial Discretion as to Remote Hearings	3.4.1
Cases Concerning Children	3.4.2
Financial Remedy Cases	3.4.3
Post Pandemic Recovery	3.5
4. LEGISLATIVE FRAMEWORK
Statutory Basis for Remote Hearings	4.1
Rules of Procedure	4.5
5. IDENTIFYING AND ADDRESSING CHALLENGES	5.1
Remote Issuing of Applications and Orders	5.2
Judicial Access to Communications Platforms	5.3
E-Bundles	5.7
Witnesses	5.10
Recording	5.12
Use of Interpreters	5.13
Use of Intermediaries	5.15
Transparency	5.16
Access for Parties and Litigants in Person	5.19
Security and GDPR
Illicit Recording	5.20
GDPR and Data Protection	5.20.1
Confidentiality	5.20.3
Legal Aid	5.21
Publicity	5.23
Alternative Dispute Resolution	5.24
6. TIMESCALES	6.1
7. PRIMARY REMOTE COMMUNICATION PLATFORMS
Summary of Current Position	7.1
Court Reform: Fully Video Hearings	7.2.4
MOJ / HMCTS Cloud Video Platform (CVP)	7.3
Judicial Telephony	7.4
Telephone Conferencing / BT MeetMe	7.5
Skype for Business	7.6
Microsoft Teams	7.8
Zoom	7.9
Lifesize	7.11
Facetime	7.12
8. CONCLUSIONS: REFINING THE ‘SMORGASBOARD’	8.1
Appendix 1 – Protocol For Remote Hearings
Appendix 2 – Protocol for Conducting Safe Live Hearings
Appendix 3 – Draft Order

 

The Remote Access Family Court

Mr Justice MacDonald

 

“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.”

President of the Family Division

27 March 2020

 

1. INTRODUCTION AND EXECUTIVE SUMMARY

1.1 The COVID-19 crisis presents an unprecedented challenge to the provision of core public services that are traditionally delivered face to face, including healthcare, education and justice.  At the same time, advances in communications and information technology made during the last 40 years allow us the opportunity to continue to provide these services effectively, through the use of hardware and software communication platforms that are now readily available.  Within this context, it should be possible to continue substantially the full operation of the family justice system, albeit on a remote access basis, notwithstanding the COVID-19 pandemic.

1.1.2 It is important to note that the recommendations and guidance set out in this paper apply in the very particular circumstances of the current public health emergency.  The steps that have been taken to date to establish a Remote Access Family Court would ordinarily have been taken over a very much longer period of time and only following extensive evaluation and consultation.   Within this context, the contents of this document should not be taken as establishing a settled mode of operation for the family courts that will apply without more after the resolution of the COVID-19 crisis. The fact of the COVID-19 crisis, and the need to address that emergency in a manner that ensures the family justice system continues to function as it runs its course, does not diminish the already recognised difficulties presented by undertaking hearings in family cases remotely, which difficulties will in ordinary circumstances likely continue to place limitations on the wider use of remote hearings.

1.2 Information gathered since the Prime Minister’s announcement of the introduction of stringent social distancing measures on 16 March 2020 suggests that the key challenges in implementing a remote access Family Court for the duration of the COVID-19 outbreak centre on the extremely short timescale over which such a system must now be introduced and the need to mediate the very large choice of software and hardware platforms currently available to courts and court users. HMCTS have made telephone conference and Skype available, are introducing a centralised remote access system (the forthcoming ‘Cloud Video Platform’ or CVP) and are accelerating development of a bespoke IT solution for holding fully video hearings designed with the particular features of court hearings rather than meetings in mind.  Beyond this, parties and advocates have also used platforms such as Zoom and Lifesize. In addition, it has become increasingly apparent as remote hearings have been undertaken that there are significant issues to be addressed regarding ensuring effective access to justice and fair hearings within the context of the remote hearing archetype and the negative impact on judges, lawyers and litigants of holding a hearing by remote means, leading to an increasing recognition that some types of hearing may not be suitable for remote determination.  This is dealt with further from paragraph 3.4.1 below.

1.2.1 Within this context, on 14 April 2020 the President of the Family Division announced a two week rapid consultation on the use of remote hearings in the family justice system to be undertaken by the Nuffield Family Justice Observatory.  The Nuffield Family Justice Observatory will seek to gather evidence from families with children and all professionals working in the family justice system, including judges, barristers, solicitors, Cafcass workers, court staff and social workers.  The consultation will run until 28th April, enabling the President to receive a summary of the responses by end April, with a view to issuing guidance in early May.  The consultation can be accessed via the following link https://www.nuffieldfjo.org.uk/news/rapid-consultation-remote-hearings .

1.3 For the reasons set out below, whilst through a Protocol For Remote Hearings in the Family Court and Family Division of the High Court (see Appendix 1) it has been possible to stipulate now and nationally the detailed procedure for remote hearings, it is not yet possible, pending the introduction of CVP and, in the future, a bespoke fully video hearings solution, to arrive at a common agreement as to a single ‘off the shelf’ software platform to be used in the interim in all cases. In the circumstances, this paper proposes that in the interim (and in any event as a continuing contingency to ensure multiple redundancy following the introduction of CVP and a bespoke fully video hearings solution) the court and parties choose from a ‘Suite’ or ‘Smörgåsbord’ of IT platforms, subject always to the cardinal requirement that at the outset of each case the judge and parties consider and settle on the platform that is to be used in that case (see Appendix 3).  It should be noted however, that if parties ask to use other applications, updated guidance to the judiciary issued on 3 April 2020 requires judges to encourage the use of Skype for Business or CVP if at all possible (see paragraph 7.2.1). 

1.4 Within the foregoing context, this paper concludes that the Remote Access Family Court is best realised at the current point in time as a collection of ‘off the shelf’ remote communications platforms being used to achieve the single aim of keeping business going safely in the Family Court and Family Division of the High Court.  In the present exceptional circumstances, the communications platforms that may be used include those for which HMCTS cannot provide technical support for judges and staff, where there is an urgent operational need to do so.   It is suggested that it is plain that the need to deal with family law cases in the context of a global pandemic, using a platform that allows all parties in a given case to participate in a remote hearing, qualifies as an urgent operational need in this context.  However, and again within this context, if parties ask to use other applications, updated guidance to the judiciary issued on 3 April 2020 requires judges to encourage the use of Skype for Business or CVP if at all possible (see paragraph 7.2.1).

1.5 The recommendations made in this paper are based on the inestimable expertise and experience in this area of Nicholas Mostyn J and comprehensive information that has been supplied in exceptionally short order by judges who have been required already to hold remote hearings, the MOJ and HMCTS staff members responsible for technology and the implementation of the technological aspects of the HMCTS reform programme, the Clerk of the Rules, the Press Association, the Family Law Bar Association, the Child Abduction Lawyers Association and the Association of Lawyers for Children.  Particular credit must go to the FLBA and the ALC for providing reports on possible solutions to the difficulties summarised at para 8.3 below.  Finally, the context in which the measures recommended by this paper will be implemented is highly likely to change as more is learnt about COVID-19, and the impact of Government responses and interventions is seen, requiring further review and amendment moving forward.

1.6 This paper should be read with guides that have, and continue to be developed for HMCTS staff in relation to remote hearings. These guides can be found at https://intranet.justice.gov.uk/about-hmcts/operations-directorate/business-continuity/covid-19/guidance-on-using-telephony-and-video-technology-during-the-coronavirus-outbreak/

1.7 An extremely useful introductory guide from Ishan Kolhatkar (to whom I am grateful for permission to use his material) the Director of Group Education Technology at BPP, setting out the basic aspects of video hearings that those new to video links will need to know is also required viewing and can be found at:

https://twitter.com/BPTC_Lecturer/status/1241771982850535424?ref_src=twsrc%5Etfw%7Ctwcamp%5Eembeddedtimeline%7Ctwterm%5Eprofile%3AFamilyLawBar&ref_url=http%3A%2F%2Fflba.co.uk%2Fjoin-us

And:

https://twitter.com/BPTC_Lecturer/status/1239828388212289537?s=20

1.8 The operational principles set out in this paper are now being implemented within the context of a recent change in status of some court buildings.  On 27 March 2020 further information was issued by HMCTS categorising courts as being ‘open’ (or prioritised), ‘staffed’ or ‘suspended’ (see https://www.gov.uk/government/news/priority-courts-to-make-sure-justice-is-served).

1.9 Open courts will remain open for all purposes, where access can be achieved safely, including hearings in which the judge and at least some of the participants may be present, and to which the public and professions have physical access. Staffed courts are still attended by staff and judges but not open to the public.  Judges at staffed courts can conduct remote hearings only.  Finally, suspended courts have no staff or judges.  These changes were implemented from Monday, 30 March 2020.

1.10 In addition, HMCTS has been working to expand capacity for remote hearings across the jurisdiction and has taken the following steps to promote remote hearings:

(a)        Supporting greater use of existing audio and video capabilities, including liaison the legal professional representative bodies.

(b)        Increasing the volume of teleconferences able to be held using the BT Meet Me system and increasing the number of accounts to ensure an account for each courtroom.

(c)        Removing the firewalls in the MOJ system which previously prevented HMCTS and judicial users from using Skype for Business to videoconference with those outside the MOJ network.

(d)        Increasing the number of OVIG licences which enable a ‘bridge’ out from JVS endpoints so that they can connect with users outside the JVS network to an increased capacity of 100 concurrent hearings with the aim to raise this to 500 concurrent hearings.

(e)        Bringing the CVP into wider use, to support videoconferencing in court and tribunal hearings (see paragraph 7.3 et seq below);

(f)         Accelerating work on the video hearings solution which has been used only at small scale to date, to ensure it will be able to support significantly greater volumes of hearings.

(g)        Providing staff with technical and operational guidance on using BT MeetMe and Skype for Business and developing guidance for the judiciary on Skype for Business.

(h)        Establishing an Audio-Video Taskforce, which sits underneath HMCTS’ Gold Command structure.

(i)         Making two dedicated support staff immediately available for remote High Court and Court of Appeal hearings from the week commencing 30 March 2020 (this support cannot yet be made available more widely).

2. CONCEPT

2.1 In the five days following the Prime Minister’s announcement of the introduction of social distancing measures, Mostyn J successfully conducted a contested hearing in the Court of Protection dealing with issues of the utmost gravity concerning a dispute as to whether the end of life arrangements should be made for an elderly stroke victim.  Using Skype for Business, Mostyn J was able to complete, remotely, a final hearing involving five parties, taking evidence from eleven witnesses, including evidence from four expert witnesses (two of whom connected to the Windows based Skype for Business using their Macs), and to conduct the hearing in the presence of the press, who were able to attend remotely and report it to the public.  The feedback from the legal representatives involved has been universally positive.  On 20 March 2020 one of the Queen’s Counsel involved tweeted that the approach was “highly effective”.

The trial was reported on in the Law Gazette (https://www.lawgazette.co.uk/practice/first-all-skype-trial-tests-crisis-working-at-cop-/5103541.article).  One of the journalists who had, again remotely, covered the hearing communicated the following to the Judicial Office on 19 March 2020:

“In light of our unique role covering hearings at the Royal Courts of Justice and the Rolls Building for the Press Association, I’d like to express our appreciation for the measures being taken and the arrangements being considered. I’d further like to express our gratitude for the clear and comprehensive guidance that has been issued by the Lord Chief Justice and the President of the Family Division earlier today.

On Wednesday, one of our reporters (Alison Kershaw) was able to cover a hearing before Mostyn J, sitting in Nottingham, which was conducted entirely over Skype…Alison informs me the hearing worked well and she was able to perform all of the tasks we would usually perform in person to ensure the fair, accurate and contemporaneous reporting of proceedings… I’d like to reiterate our gratitude for the steps that are being taken and the obvious care and hard work going on behind the scenes, in this highly complex and fast-moving landscape.”

2.2 It is important to note however, that feedback provided by a lay party in the proceedings provides a significant counterweight to the foregoing positive assessments, and points up important matters to which those conducting remote hearings, and those participating in remote hearings should pay careful regard (see http://www.transparencyproject.org.uk/remote-justice-a-family-perspective/ and see also http://www.transparencyproject.org.uk/remote-hearings-a-gulf-between-lawyers-and-lay-parties/). Members of the judiciary conducting remote hearings have also raised issues deserving of careful consideration (see for example http://www.transparencyproject.org.uk/remote-justice-a-judges-perspective/).  In addition, the ALC have highlighted issues of social and economic inequality which can prevent lay clients from properly participating in remote hearings concerning important decisions being made about their children.

2.2.1 In addition to the trial conducted and concluded by Mostyn J in the week commencing 16 March 2020, during that initial week there were multiple other examples of hearings being conducted successfully by remote means, including:

(a)        A remote hearing conducted by Skype for Business before Williams J in Leeds on 20 March 2020 involving the judge and three counsel.  The process was described as “working perfectly”.  Theis J also conducted a successful hearing by Skype for Business at the RCJ on 20 March 2020.

(b)        Sir Mark Hedley used Zoom to complete the remaining eleven days of a fifteen day fact-finding hearing that is an urgent second re-hearing.  Judd J also successfully used Zoom for a hearing.

(c)        The Lord Chief Justice of England and Wales hosted a meeting of 151 leadership judges on 19 March 2020 using Skype for Business.

(d)        Since Monday 16 March 2020 there have been multiple successful short hearings across the jurisdiction using telephone conferencing.

(e)        The concept of remote hearings is also being used in other jurisdictions.  The Hon. Justice Victoria Bennett AO commenced a remote hearing in Melbourne on 23 March 2020 involving 11 participants at any one time, including 5 counsel, 3 instructing solicitors and 2 parties.  The trial was due to hear from 19 witnesses, linked in individually at various times for the purpose of giving evidence.

(f)         Dorset Council is already arranging remote facilities at Weymouth and Ferndown, and possibly other venues, where parents can go and use Skype for Business to attend hearings remotely. Enquiries are being made with DfE in an attempt to establish what steps are being taken in other local authority areas.

2.3 Within the foregoing, admittedly anecdotal, context, it would appear that all the steps that are proposed in this paper demonstrated themselves, to a greater or less extent and subject to the matters set out at paragraph 2.2 above, to be successful over the course of the first week after the Prime Minister’s announcement, at the very least as proof of concept.

2.4 On 27 March 2020, Resolution published a survey designed to take an early ‘snapshot’ of the use of remote hearings in family proceedings in this jurisdiction since that time.  The snapshot indicates that remote hearings have taken place in courts on all circuits, that the majority of remote hearings (86.67%) have taken place by telephone, followed by Skype (28.89%) and Zoom (15.56%), that the majority of remote hearings have been set up either by the court (40.00%) or a represented applicant (35.56%) and that the majority of hearings concerned directions or case management hearings and other interim hearings.  The majority of those responding to the survey (69.57%) had not felt under pressure to attend court physically.

2.4.1 Within the foregoing context, and during the currency of the current public health emergency, the family courts are now proceeding to deal with family work according to the President’s national guidance issued on 19 March 2020 entitled and COVID 19: National Guidance for the Family Court and, in consequence, remote hearings are being conducted under the umbrella of that national guidance in accordance with the Protocol For Remote Hearings in the Family Court and Family Division of the High Court dated 23 March 2020 (see Appendix 1) and the Protocol for Conducting Safe Live Court Based Family Hearings during the COVID-19 Pandemic also 23 March 2020 (see Appendix 2).  On 9 April 2020 the Lord Chief Justice, Master of the Rolls and the President of the Family Division issued a communication to the judiciary setting out some indicators that may assist the allocated judge in deciding whether, in his or her discretion, a particular hearing should be heard remotely, and if so what form of remote hearing should be adopted. That communication does not amount to official guidance and is not intended to be directive (see paragraph 3.4.1 below).

3. AIMS AND OBJECTIVES

Overall Aims and Objectives

3.1 As the President of the Family Division made clear in his guidance issued on 19 March 2020 entitled COVID 19: National Guidance for the Family Court, the cardinal operational principle of the Family Court and Family Division of the High Court is “Keep Business Going Safely”.  This means ensuring the safety from infection of judges, court staff, lawyers and litigants whilst at the same time preserving the rule of law and access to justice that is the bedrock of a still functioning society.  As the President observed at Paragraph 19 of the Guidance:

“These are exceptional and unprecedented times. The situation both nationally and in each locality is changing daily, if not hourly. I am well aware of the intensely difficult and highly stressful circumstances that all those working in the Family Justice System are currently experiencing and I am greatly appreciative of their commitment to the continued delivery of justice in circumstances which, only a week or so ago, would have been considered unimaginable. This Guidance is intended to deliver a very significant change of direction in the method of working within the Family Court, whilst at the same time enabling us to continue to operate and to meet the pressing needs of those who turn to the court for protection and justice.”

3.2 Within this context, it is necessary for a remote access Family Court to seek as far as possible to replicate, for all types of hearing up to and including final hearings, the ‘live’ court process (but see paragraph 3.4.1 et seq below for the necessary limits to this approach).  In particular, a remote access Family Court must ensure the safety from infection of judges, court staff, lawyers and litigants whilst at the same time facilitating a hearing that permits the parties to fully participate, that ensures both procedural and substantive fairness in accordance with the imperatives of Art 6 and the common law principles of fairness and natural justice and which maintains, where possible, the recent emphasis on transparency with respect to the operation of the Family Court. The objective should be to make the remote hearing as close as possible to the usual practice in court.

3.2.1 Guidance has now been issued by HMCTS with respect to the prioritisation of certain elements of work in the family jurisdiction.  That HMCTS guidance identifies the following categories of work:

(a)        Work that must be done:

(i)         Emergency protection orders;

(ii)        Interim care orders;

(iii)       Secure accommodation orders;

(iv)       Deprivation of liberty authorisations;

(v)        Urgent applications in private law children cases;

(vi)       Child abduction orders (including Tipstaff orders);

(vii)      Domestic abuse injunctions;

(viii)      Female genital mutilation and forced marriage protection orders;

(ix)       Urgent applications in financial remedy cases and decrees absolute.

(b)        Work that will be done:

(i)         Gatekeeping and allocation of public law cases;

(ii)        Gatekeeping and allocation of private law cases;

(iii)       Processing of orders, documentation and correspondence in public law cases.

(c)        Work that the court will do its best to accommodate:

(i)         Processing of orders, documentation and correspondence in private law cases.

(ii)        Adoption orders.

(iii)       Divorce matters.

(iv)       Financial remedy matters.

Fairness and Solemnity

3.2.1 The primary purpose as a Family Justice system 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). Within this context, the use of remote hearings must not be at the expense of a fair and just process (see further paragraph 3.4.1 et seq below).  Further, remote hearings remain court hearings and the solemnity of the occasion should be observed as closely as it is in a courtroom.  Within this context, and insofar as is possible, the decorum of a court hearing should be maintained commensurate with the gravity and seriousness of the issues being decided in a formal legal arena. Steps should be taken to avoid matters that detract from the ordinary gravitas of a court hearing (see Appendix 1).

 

Live Hearings

3.3 Further with respect to aims and objectives, and importantly, a remote access Family Court must not, subject to the demands of the overriding need to protect the safety from infection of judges, court staff, lawyers and litigants, preclude the possibility of ‘live’ hearings in the Family Court where this can be achieved safely (see Appendix 2).  Within this context, Paragraph 4 of the President’s Guidance of 19 March 2020 provides that “where the requirements of fairness and justice require a court-based hearing, and it is safe to conduct one, then a court-based hearing should take place.” The principles set out in the President’s Guidance dated 19 March 2020 are now supplemented by those set out in his email of 24 March 2020 at 10.16, namely that live court-based hearings should now be confined only to exceptional circumstances where a remote hearing is not possible and yet the hearing is sufficiently urgent to mean that it must take place with those involved attending court in a manner which meets the social distancing requirements. This reflects the Lord Chief Justice’s direction of 23 March 2020 which states at para 6:

“Civil and Family Courts

Guidance has already been given about the use of remote hearings. Hearings requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety.”

Adjourned Hearings

3.4 Finally, given the nature and risk presented by the COVID-19 outbreak, it must also be appreciated that there will be some cases that will need to be adjourned for longer periods of time because a remote hearing is not possible given, for example, the nature of the case and the length of the hearing combined with the number of parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time having regard to the current Government guidelines regarding social distancing as a means of attempting to delay the spread of the disease.  By way of further example, NAGALRO has made clear that it is becoming exceptionally challenging for ISWs to provide reliable evidence when working with families in the current circumstances, where it is not possible to observe and assess the interaction between the parents, parent and child relationship and dynamics between various family members in order to make a fair and reliable assessment of their parenting ability, not appropriate to speak to young children via Skype or video calling as there is no pre-existing relationship with those children and where the children have made serious allegations against their parents and not possible to speak to parents remotely who do not have sufficient credit on their mobile phones to facilitate video calling or Skype.  Within this context, it is recognised that some cases will, inevitably and notwithstanding the unwelcome consequences, have to be adjourned.

Judicial Discretion as to Remote Hearings

3.4.1 It must be remembered that the decision whether to proceed with a remote hearing or to adjourn remains at all times a judicial one.  On 9 April 2020 the Lord Chief Justice, Master of the Rolls and the President of the Family Division issued a communication making clear that the decision of whether a particular hearing should be heard remotely, and if so what form of remote hearing should be adopted, is a matter for the allocated judge, in consultation with their leadership judges, to be decided on a case by case basis and with the overarching criterion being that whatever mechanism is used to conduct a hearing must be in the interests of justice.  The communication of 9 April 2020 does not amount to official guidance and is not intended to be directive.  Rather, it seeks to set out a number of indicators designed to assist judges in deciding which cases might, or might not, be undertaken remotely having regard the circumstances of the particular case, again with an emphasis on the judge exercising his or her discretion in each individual case.

Cases Concerning Children

3.4.2 Within the foregoing context, and having regard to the experience of holding remote hearings since 16 March 2020, the following broad indicators have been identified by the President of the Family Division as assisting the exercise of judicial discretion when deciding whether a given case concerning children is suitable for a remote hearing having regard to the particular circumstances of that case:

(a)        It is likely that case management hearings, or hearings that can be conducted by submissions only can properly be undertaken remotely.

(b)        Particular caution is required before a decision is taken to conduct a remote hearing in a case where the parties do not consent to that course of action.  If all parties oppose a remotely conducted final hearing, this is a very powerful factor in not proceeding with a remote hearing.  If parties agree, or appear to agree, to a remotely conducted final hearing, this should not necessarily be treated as the ‘green light’ to conduct a hearing in this way.

(c)        Video/Skype hearings are likely to be more effective than telephone.  Unless the case is an emergency, court staff should set up the remote hearing.

(d)        Where a final hearing is to be conducted on the basis of submissions only and no evidence, the final hearing could be conducted remotely.

(e)        In public law cases, where the parents oppose the local authority’s care plan but the only witnesses to be called are the social worker and the Children’s Guardian, the final hearing could be conducted remotely.

(f)         Where only the expert medical witnesses are to be called to give evidence, the final hearing could be conducted remotely.

(g)        In all other cases where the parents and/or other lay witnesses are to be called to give evidence the case is unlikely to be suitable for a remote hearing.

Financial Remedy Cases

3.4.3 On 15 April 2020 Mr Justice Mostyn and His Honour Judge Hess published a document clarifying the implication for financial remedies cases of the Lord Chief Justice, Master of the Rolls and the President of the Family Division’s communication of 9 April 2020.  That clarification makes clear that points (e) to (g) above do not apply to financial remedy cases.  With respect to the general points at (a) to (d), these fall to be applied in the context of financial remedy cases.  Within this context the document makes the following points in the context of once again emphasising that decisions as to listing are in for the judge:

(a)        Financial remedy cases below High Court judge level are generally relatively short and straightforward. There will be no question of having to prove liability, as in a civil action. The majority will be needs cases which will not depend on a credibility assessment.

(b)        Even in cases that do require a credibility assessment, for example where non-disclosure is alleged, the case is likely to be relatively short and the relevant issues are likely to be able to be exposed and assessed by remote testimony.

(c)        Generally, the court should start from the position that a remote hearing is likely to be consistent with the interests of justice.

(d)        This will be especially so if the hearing will not involve live testimony; however even in the latter case the court can safely assume in many cases that a remote hearing will be consistent with the interests of justice.

(e)        The court should be alive to the possibility that opposition to a remote hearing is motivated by a desire to delay the resolution of the case.

Post Pandemic Recovery

3.5 The current crisis will pass. Planning for the post Covid-19 period will need to begin early and that period may in many ways be the most difficult logistically.  In circumstances where there will be a number of cases that it is not possible deal with remotely (for example because parties have particular vulnerabilities that make a remote hearing unfair or where a significant number of potential witnesses are engaged in frontline services in the context of the public health emergency) there are likely to be a number of long cases that have to be adjourned and will therefore be out of place in the list and increasingly urgent.  Once the present crisis subsides it will be vital that a clear picture is available of the number and nature of the cases that have had to be adjourned.  This will permit an informed review of the judicial resources available to deal with the backlog, including the extent of the funding required to secure for fee paid judges and the additional courtrooms and courtroom staff needed to accommodate the cases that must be dealt with.  In the circumstances, where a hearing is not able to be dealt with remotely and is unsafe to deal with live, a record of each case adjourned should be kept by each court centre to inform the detailed planning that will inevitably have to follow the resolution of this crisis.  The President of the Family Division has set up a Covid-19 Recovery Team, led by Baker LJ and Judd J.

4. LEGISLATIVE FRAMEWORK

Statutory Basis for Remote Access

4.1 The Coronavirus Act 2020 Part 1 deals, at ss 51 to 55, with the use of video and audio technology in courts and tribunals during the outbreak. At s 53 the Act provides for temporary modifications of s 85 of the Courts Act 2003, which will make it an offence to record a broadcast from the court that has been directed for the purpose of enabling members of the public to see and hear the proceedings and will make it an offence in any event to record or transmit material from participation through a live link on penalty of a fine at Level 3 on the Standard Scale.  Those provisions will apply to the Family Court and the Family Division of the High Court. This is the power that was to be in the Prison and Courts Act 2017, as part of the online court and tribunal reforms. Section 75 of the Act provides that the Act will expire in 2 years. Section 76 provides that the government may, by regulation, provide for the expiry of any provision in the Act earlier than the two years and that the government by regulations may extend the life of a provision for six months beyond the 2 years. There is no power to extend a provision beyond that additional six months.

4.2 Within this context however, there is no specific provision made in the Act in respect of the use of remote hearings by the Family Court or the Family Division of the High Court.  Further, the Act proceeds on the basis of an assumption that court buildings will remain open and it is at those buildings that any remote hearings will be conducted.  It does not deal with the question of the power to hold remote hearings when the court building is closed and the judge and all the parties are located elsewhere.  This gives rise to the question of what is the statutory or common law basis for an entirely remote access Family Court?  Is there in fact any power for a Family Court to sit other than in a court building to deal with a remote hearing and, if so, what is the source of that power?   These questions are not insignificant legally in circumstances where the COVID-19 pandemic is likely to shut parts, and potentially a significant part, of the court estate.

4.3 Section 71(1) of the Senior Courts Act 1981 provides that sittings of the High Court may be held, and any other business of the High Court may be conducted, at any place in England or Wales.  Pursuant to s. 71(2) the places at which the High Court sits outside the Royal Courts of Justice shall be determined in accordance with directions given by the Lord Chancellor after consulting the Lord Chief Justice.  Similar provisions apply in respect of the Court of Appeal pursuant to s. 57 of the 1981 Act.  With respect to the Family Court, s. 31B(1) of the Matrimonial and Family Proceedings Act 1984, as amended by the Crime and Courts Act 2013, provides that sittings of the family court may be held, and any other business of the family court may be conducted, at any place in England and Wales.  Again, pursuant to s 31B(4) of the 1984 Act, places at which the family court sits, and the days and times at which it sits in any place, are to be determined in accordance with directions given by the Lord Chancellor after consulting the Lord Chief Justice.  Within this context the Act, which defines remote hearings, recognises that participants in those hearings will be differently located and that all participants could be in separate locations.  The Act does not require any of the participants to be in a specified location.  Finally, para 2 of Annex 3 to FPR PD22A expressly contemplates the judge sitting at a site remote from the courtroom.

4.4 These provisions taken together suggest that there is no legal requirement for a judge of the Family Court or a judge of the Family Division of the High Court to be in the court building in order to conduct a remote hearing.  They are consistent with the way ‘Out of Hours’ work is currently dealt with.   In so far as there remains any doubt, this can be remedied by directions given by the Lord Chancellor after consulting the Lord Chief Justice, pursuant to s 71(2) of the Senior Courts Act and s31B(4) of the Matrimonial and Family Proceedings Act 1984.

Rules of Procedure

4.5 The Family Procedure Rules 2010 r 1.4(2) provides that the court must further the Overriding Objective to deal with the case justly by actively case managing proceedings, which active case management includes making use of technology (r1.4(2)(l)).  Within this context, FPR r 4.1(3)(e) provides that the court may hold a hearing and receive evidence by telephone or by using any other method of direct oral communication.  Pursuant to FPR r 4.3 the court can order that the matter be dealt with remotely of its own motion.  FPR r 22.3 provides that the court may allow a witness to give evidence through a video link or by other means.

4.6 Whilst Annex 3 to FPR PD22A provides detailed guidance as to how video conferencing should be dealt with in court, that guidance is not ideally suited to the current extreme circumstances rendered by COVID-19 that have generated the need to increase radically the number of remote hearings.  In the circumstances, further a Protocol For Remote Hearings in the Family Court and Family Division of the High Court is attached to this paper at Appendix 1.

5. IDENTIFYING AND ADDRESSING CHALLENGES

5.1 The right of access to a court must be practical and effective, rather than merely theoretical or illusory.  In seeking to replicate the ‘live’ hearing process by way of remote hearings, the use of remote access communications platforms will create particular challenges and problems that will require to be solved.  These may be particularly acute where the remote platform is being used to undertake a hearing extending across a number of days and at which evidence is being called, although as noted this has proved eminently possible.  The following issues will fall to be resolved within that context.

Wellbeing

5.1.2 Conducting remote hearings is qualitatively and quantitatively very different from conducting a live hearing for judges, court staff, advocates and parties.  Individual judges at all levels and the ADJ have provided powerful examples of the additional stress conducting hearings remotely places on judges.  The ALC and the FLBA have likewise highlighted the additional strain that is placed on both lawyers and litigants in that context.  Remote hearings are more complex to arrange, more difficult to run and, it is generally accepted at all levels, more tiring than face to face hearings.  Litigants in person may feel less constrained on a telephone call than in the formal setting of a courtroom. It is also becoming apparent that the time required to set up the hearing, the need to hold all hearings with a fixed start time and the complexities that arise during the course of a remote hearing means that courts cannot get through the same amount of work they can when doing face to face hearings.  Particular challenges also arise from working at home and adapting working practices accordingly.  Finally, it is recognised that by working remotely the demarcation between work and home is breached and matters that are ordinarily held at professional distance in the courtroom are brought into the home.

5.1.3 In these challenging circumstances it is even more important that judges, lawyers and court staff are enabled to apply the imperatives of the wellbeing initiatives that were reaching fruition on each circuit prior to the commencement of the COVID-19 emergency.  In this regard, the following principles should be at the forefront of thinking on the conduct of remote hearings and working from home:

(a)        As made clear by the Lord Chief Justice, Master of the Rolls and President of the Family Division in their communication of 9 April 2020, judges are encouraged to recognise that doing as much as possible remotely does not mean, and cannot mean, trying to do everything remotely.  It is important that listing takes account of the reality that long hours in front of a screen or on the phone concentrating hard are more tiring that sitting in a court room with all the participants present.

(b)        Within this context, it is unrealistic to expect that the lists can be conducted in the same manner as they are with face to face hearings.  Once again, it must be remembered that the decision whether to proceed with a remote hearing or adjourn remains at all times a judicial one.

(c)        For the judiciary, it is important that the leadership judges know what effect remote working is having on their judges.  It is vital that all judges keep their leadership judges informed of their experiences and raise with them any difficulties being created by remote working.

(d)        Working long hours at a desk in front of a screen can result in stress, headaches and fatigue, as can long hours spent on the telephone.  Within this context, the North Eastern Circuit HR has provided the following tips with respect to mitigating the adverse impacts of conducting remote hearings:

(i)         Ensure that you have a comfortable, well-lit workspace in your home and that you have the right equipment.

(ii)        Take regular breaks from your screen and combine this with moving away from your workspace. This could include walking round the garden, going out onto a balcony or going into another room to sit quietly for a few minutes. It’s important for both physical and mental wellbeing to take regular screen breaks and move around.

(iii)       If you wear headphones for phone/Skype calls take the headphones out of your ears when not in use.

(iv)       Take a break to do some quick exercises/stretches.

(v)        Take time out for a proper lunch break.

(vi)       Listen to calming background music when reading.

(vii)      Create a clear demarcation between work time and rest and relaxation.

(viii)      Try to limit use of personal devices when relaxing at the end of the working day

(e)        There are free guided mindfulness exercises from Oxford University’s Professor Mark Williams available at http://franticworld.com/free-meditations-from-mindfulness/ (which derive from Oxford’s University’s eight week mindfulness course) and at http://franticworld.com/coronavirus/ (with specific reference to the difficulties created by COVID-19).

(f)         The LawCare website which also contains advice on working from home at https://www.lawcare.org.uk/information-and-support/working-from-home .

(g)        For judges, following working from home guidelines have been published in the judicial intranet and provide comprehensive advice:

https://intranet.judiciary.uk/wp-content/uploads/2020/03/Health-Management-Working-From-Home-Guidelines.pdf

And

https://intranet.judiciary.uk/wp-content/uploads/2020/04/Tech-advice-for-LCJ-1st-brief-17-March-2020.pdf

(h)        For judges, the Judicial helpline 08000 217 821 is also available to provide confidential help and advice on range of health and wellbeing concerns.

Remote Issuing of Applications and Orders

5.2 As matters stand, the remote operation of the courts has centred on how to conduct hearings remotely in order to protect court users, court staff, lawyers and judges.  This planning has proceeded on the assumption that court buildings, or at least some of them, would remain open and/or that lawyers and litigants would be able to attend to issue proceedings and that court staff will be available thereafter to draw, seal and send out orders.  It is increasingly clear that this assumption is not a safe one.  Indeed, on 27 March 2020 further information was issued by HMCTS categorising courts as being ‘open’ (or prioritised), ‘staffed’ or ‘suspended’ (see https://www.gov.uk/government/news/priority-courts-to-make-sure-justice-is-served).   Within this context, there is an urgent need to consider now, in respect of each court centre, how proceedings will be issued remotely if all courts in a given area are shut down Further, once the courts are shut, any assistance given to judges with respect to remote hearings will have itself to be remote.  Thus, if a court clerk is to be involved in assisting the judge with regard to a remote hearing then that clerk will themselves have to be able to access the judge remotely.

5.2.1. However, with respect specifically to sealing orders, a solution is now available for Family Court orders which are sealed on FamilyMan automatically, kindly provided by HHJ Robin Bedford, which solution will be circulated to all judiciary by way of a separate, secure, email. The Family Division is not yet at this stage.  The Clerk of the Rules advises that an electronic seal for the Family Division of the High Court is still some way off.  The High Court seal is dated, and therefore changes every day.  Whilst the President has given permission to change to an undated version, work is still being undertaken to create a version that can utilised in the approach adopted for Family Court seals.  Further urgent work is now required on this.  I am grateful to HHJ Alison Raeside for raising, and solving the question of whether it is possible to prevent orders sent out in PDF format from being edited by those receiving them.  The Adobe Acrobat programme allows a password protected restriction to be placed on further editing PDF documents before distribution (see the instructions for restricting further editing at https://www.adobe.com/content/dam/acom/en/products/acrobat/pdfs/adobe-acrobat-xi-protect-pdf-file-with-permissions-tutorial-ue.pdf).

5.2.2 There has also been some question regarding whether a ‘wet’ signature is required on applications, consent orders, etc., with some court centres rejecting applications for decree nisi, draft finance consent orders and other documents because they did not have a ‘wet’ signature on them.  On 27 March 2020 the President of the Family Division made clear that the rules do not indicate that a ‘wet’ signature is a procedural requirement and that, within this context, from now on ‘wet’ signatures are not a requirement for applications, consent orders, etc and such documents are not to be rejected by courts on that basis.  Indeed, the authorities indicate that a printed name constitutes a valid electronic signature Bassano v Toft  [2014] EWHC 377 [39]-[41] and Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd [2012] 2 All ER (Comm) 978 at [32]. There is no need for orders to bear a manual signature or even a facsimile of a manuscript one.

5.2.3 HMCTS have now put in place arrangements to ensure that applications for child arrangement orders continue to be processed during the COVID-19 pandemic.  Wherever possible, parents and legal representatives should use the online child arrangements service on GOV.UK  to avoid delay.  Further guidance on child arrangements is available on GOV.UK.  If the matter is urgent (a hearing within the next 3 days or there are serious safety concerns) the online service should not be used and contact should be made with the local court.  Where a parent or legal representative is not eligible to use the online service and the matter is not urgent, paper C100 applications should be sent to C100 Applications, PO Box 4936, 69 Buckingham Avenue, Slough, SL1 0JR.

Judicial Access to Range of Communications Platforms

5.3 At the remote hearing stage, at present the judicial open build laptops come with Skype for Business and Microsoft Teams installed.  The judge benefits from a licence to operate each of those platforms.  However, there are multiple other platforms being used by lawyers and litigants which are not, at present, installed on judicial laptops and for which it is unlikely funding will be made available to the judiciary to purchase licences to use those alternative platforms.  In the circumstances, there has been is a critical need to identify which platforms, in addition to Skype for Business and Microsoft Teams, the judiciary can engage with. The most pressing concerns the limitations presented by DOM1 machines.

5.4 For example, Mostyn J has already established that, whilst it is unlikely that funding will be made available to the judiciary to purchase operating licences for Zoom, Zoom can be downloaded by judges for free and will operate on a judicial laptop without restriction of features provided always that it is the lawyers who set up the Zoom meeting and invite the judge as a guest.  A further problem that remains to be resolved however, is that whilst this solution works for Open Build judicial laptops, it will not work for DOM1 judicial laptops, at least until Chrome is made available on them (see below). Whilst it has been possible to conduct hearings using Skype for Business on a DOM1 laptop by arranging for a represented party to set up the conference and to invite the judge in, and for judges to arrange meetings using Microsoft Teams on DOM1 machines (see below), the current experience of judges is that Zoom will only work on Open Build machines. Within this context, there remains an urgent need for a system of remote hearings that is compatible with DOM1 laptops or, more ideally, for DOM1 laptops to be urgently reconfigured to operate with the available suite of ‘off the shelf’ communications platforms.  Judges using DOM-1 computers can access a Zoom hearing set up by one of the parties via Skype for Business as long as it has been set up using either a Pro, Business or Enterprise licence (i.e. anything above the Basic, free licence) and the administrator of the account has changed their settings to allow for attendees to join via Skype for Business (see paragraph 7.10.1 below).  Once again, it should be noted that updated guidance to the judiciary issued on 3 April 2020 requires judges to encourage the use of Skype for Business or CVP if at all possible (see paragraph 7.2.1). 

5.4.1 Further, some judges have found that using Skype for Business with the dual screens in court means that the sound does not work.  This can be remedied by going to ‘Control Panel’, selecting ‘Sound’ and checking that the default audio device is set at Conexant SmartAudio HD.  Any other device should be disabled. Conversely, seeking to undertake a hearing with just one screen makes it difficult to use an electronic bundle at the same time as seeing the advocate or witness. It is however, understood that whilst 1500 more laptops are to be made available to facilitate remote hearings, HMCTS currently unable to provide two screens for judges working from home within the near future.  Judges have been told that no additional leads / connections are currently available.  This requires urgent remedial action in circumstances where the optimum set up for a remote hearing is the use of two screens.  As a workaround, when on circuit Mostyn J has used an HDMI cable to plug into the television to operate as a second screen. This solution worked well and, indeed, in some ways it was better than having a computer screen because the television’s strong inboard loudspeaker could be utilised. Using this set up, the video hearing can be displayed on the television screen and the e-bundle can be open on the laptop.  Within the foregoing context, it must be emphasised that there is no expectation that judges will use their personal computers in order to work around these issues.

5.4.2 In addition, in the week commencing 23 March 2020 further issues were identified regarding judicial access to the range of communications platforms.  First, a difficulty with ensuring access by the fee paid judiciary to the necessary equipment.  Fee paid DDJs, Recorders and Deputy High Court Judges will be a vital resource in circumstances where considerable numbers of the full time judiciary are or are likely to have to self-isolate at some point. There was an urgent need to work out how access to remote communications platforms was to be assured for the fee paid judiciary, including whether they were to be permitted to conduct remote hearings on their own computers and to do so from home, and how e-bundles were to be conveyed to part time judges who do not have access to a DOM1 or the electronic bundle filing system at each local court.  Within this context, the following steps have now been taken:

(a)        The Senior Presiding Judge and the President of the Family Division have confirmed that (i) the fee paid judiciary can use their personal computers to undertake remote hearings (subject to the guidance set out at paragraph 5.20.3 below) and (ii) can conduct remote hearings from home.

(b)        It is understood that fee paid judges can download Skype for Business through their eJudiciary login which can then be installed on their work computers, signed into with their judicial email address and linked into their online judicial outlook.

5.4.3 Second, a particular difficulty has been identified in making provision for Family Panel Magistrates to be involved in remote hearings. The Family Panel justices are not at present properly equipped to undertake the transition to remote hearings because of the absence of fundamentals, including judicial laptops.  Whilst many lay benches have been issued with iPads in order to receive e-bundles for their cases, they cannot work remotely other than by utilising personal computers and laptops, which is not appropriate, if they are to work from home.  In addition, there are the issues of how they would be assisted remotely as a panel by their Legal Adviser if points of law arise and how written reasons for their decisions are produced in the context of a remote hearing.  An option would be for Family Panel Magistrates to into the court building and sit 2 metres apart but to undertake all cases in this manner is not consistent with current Government guidance.  The possibility of  the panel hearing the case over the phone using separate phone lines with a conference all call with each other and the Legal Adviser to discuss outcome could be considered.  A further potential solution is to use to use Zoom and to set up breakout rooms video-conference for the magistrates to meet privately with their legal adviser.

5.5 In addition, it is not yet known what the impact will be of so many of the population self-isolating and the concomitant pressure on broadband bandwidth.  Experience suggests that, as a minimum, recommended bandwidth for video hearings is 1.5 MBPS in both directions.  It will be vital to monitor the situation to ensure that remote hearings are not being prejudiced by insufficient bandwidth being available to judges and parties connecting from diverse remote locations.  To date, there have been few if any reported problems regarding the availability of bandwidth.

5.6 Finally, it has to be acknowledged that the judiciary contains a cohort of judges who are unfamiliar with the operation of the software and equipment needed to conduct a remote hearing.  Within this context, there is an urgent need for clear, step by step instructions to enable all judges to use the software and equipment they require to successfully hear cases remotely (sometimes called in IT circles the “Press Here Stupid” guidance).  At present there are a number of different initiatives to produce such guidance but it would be helpful to centralise that effort in order to quickly produce the necessary guides for all.  The FLBA has now produced a series of concise technical guides for using Skype for Business, Zoom, Microsoft Teams and Lifesize following successful tests of the various platforms with the assistance of a number of judges both at court and at home.  Step-by-step guidance for Skype for Business is now on both the eJudiciary and judicial intranet sites. HMCTS has also issued guidance on these technical topics that can be found at https://intranet.justice.gov.uk/about-hmcts/operations-directorate/business-continuity/covid-19/guidance-on-using-telephony-and-video-technology-during-the-coronavirus-outbreak/.

E-Bundles

5.7 The ability of the judge and the parties to access an electronic bundle for the hearing comprises an essential element of an effective remote hearing.  Whilst there has been increasing use of electronic bundles, and whilst in some Family Courts, for example Manchester, the use of electronic bundles (accessed through Case Lines) is the default position, the wholesale move to remote hearings as a result of the COVID-19 pandemic means ensuring the availability of e-bundles and the software packages to use them effectively (see paragraph 5.9 below) is a matter of extreme urgency. Not least because the use of a paper bundle is not only incompatible with a remote hearing as a matter of logistics, but also presents a potential avenue of transmission of the virus.

5.8 FPR PD27A para 2.5 permits the use of e-bundles in a hearing before a High Court judge with that judge’s permission and in other cases or classes of case as have been approved by the Designated Family Judge for the relevant area with the agreement of the President of the Family Division and in accordance with the local arrangements.  For financial remedies work, Mostyn J has issued Financial Remedies Courts – e-bundles protocol dated 3 March 2020 which provides for the use of e-bundles in financial remedies cases.  This protocol is substantially repeated in the Protocol for Remote Hearings in the Family Court and Family Division of the High Court (see Appendix 1). By an email dated 23 March 2020 the President of the Family Division made clear that “I am today by this email giving a blanket approval DFJs to approve the use of e-bundles in all remote hearings held pursuant to my guidance of 19 March 2020”.

5.9 As e-bundles become almost mandatory, the need for judges to have access to a reliable software programme with which to navigate e-bundles has also become acute.  The Acrobat Reader that comes pre-installed on judicial laptops is sufficient for this purpose.  Experience, however, suggests that Acrobat Reader is limited in its functionality, particularly with respect to bookmarking.  Other products, such a PDF Exchange Editor have greater functionality, although to take full advantage they must be purchased.  At present, PDF Exchange Editor is not available to judges free via HMCTS due to the constraints of testing and approval that apply.  Urgent consideration needs to be given to lifting these constraints in the circumstances of the current national emergency.  Again, there are further complications with respect to DOM1 machines.  DOM1 users can seek authorisation to download Acrobat Standard although this is a complex process.  These bottlenecks need rapid simplification.

5.9.1 The use of e-bundles can create difficulties for litigants in person and for parties who are remote from their lawyers being able to access the bundle during remote hearings.  These difficulties may be mitigated by the following steps suggested by the FLBA and ALC:

(a)        For interim hearings at which that party is represented and is not giving evidence, it may be unnecessary for that party to have access to the bundle.

(b)        Some video-conferencing platforms enable a ‘screen’ or documents to be shared with one or more of the other participants, and this may be a method by which a party can access the bundle when required, particularly if the platform being used has a breakout room feature that enables instructions to be taken, and enables documents shown to clients, within those breakout rooms.

(c)        Specific documents (such as a party’s statements where they are to give evidence) may, where appropriate, be posted to that party by their representatives or the local authority.

(d)        In exceptional circumstances, where no other option is available and the public health guidance permits it, it may be possible for a party to attend an ‘open’ court building or other facility in order to participate in the remote hearing while having access to the bundle.

Witnesses

5.10 Those attending court normally will have a broad idea of what is expected of them, not least, albeit inaccurately, from television court dramas. Save for expert witnesses however, who are well experienced in giving evidence by video-link, witnesses in family proceedings will have far less idea of what is involved in giving evidence at a remote hearing.  Within this context, the protocol for the conduct of remote hearings at Appendix 1 draws on guidance kindly provided to me by The Hon. Justice Victoria Bennett AO of the Australian Family Court, which guidance is sent out to witnesses in that jurisdiction who will be giving evidence at a remote hearing.

5.11 With respect to the oath, there may be an increased need for the judge to administer the oath or take the affirmation from parties and witnesses if a member of court staff is not also linked to the remote hearing. Mostyn J uses a short form by addressing the witness thus: “do you swear or affirm to tell the truth, the whole truth and nothing but the truth?” There should, for obvious reasons, be no requirement from the court at present to touch any Holy Book.

Recording

5.12 It is axiomatic that any hearing must be recorded in the same way that live hearings are recorded.  A number of the remote communications platforms, including BT MeetMe and other teleconferencing facilities, Skype for Business and Zoom permit remote hearings to be recorded (although Mostyn J has identified a problem with file corruption in Skype for Business that necessitates recording be re-started every 30 minutes to avoid data corruption).  Greater challenges lie in the storage of the recordings that result from remote hearings.  First, given their size, they are apt to monopolise hard drive space if stored on the judge’s computer.  Whilst this is relatively easily addressed by transferring the files to the ‘Cloud’, there remains the challenge of ensuring that all recordings are eventually held centrally (see below).  With judges conducting remote hearings on a variety of platforms, on occasion without the support of court staff due closure of the court, the risk of recordings being mislaid or corrupted is high. Care is also needed where a solicitor or other agency organises more than one remote hearing.  There has been some anecdotal evidence of the same organiser organising two different hearings before different judges, resulting in the recording in the second Skype hearing cancelling the recording in the first.

5.12.1 Urgent consideration needs to be given to the manner in which recordings are to be stored centrally and a record kept of the recordings stored. This is now being considered by the Video Hearings Group chaired by the Chancellor of the High Court with a view to identifying the method by which a central repository of recordings held by HMCTS can be established.  There is no difficulty with a host who is not the judge recording the hearing provided that host is a legal representative and provides to the judge a link to the recording immediately following the hearing.  Pending the identification of the method by which a central repository of recordings held by HMCTS can be established the judge should direct either (a) that the legal representative who hosted the meeting should store the audio recording of the hearing in a secure GDPR compliant data storage facility, to be transferred to HMCTS when a storage facility becomes available or (b) that the legal representative is to send a copy for storage by the local court/judge and thereafter dispose of their own copy.  Any system developed for storing the recordings by HMCTS will need to ensure:

(a)        Responsibility for conveying the recording to the court rests with the party hosting the hearing (where this is not the court).

(b)        Where the recording is an audio or video file, a standardised filename protocol for identifying such files is formulated.

(c)        Communication of the file, link to the recording is in a standardised format that includes the case number, the identity of the judge and the date of the hearing.

(d)        A dedicated HMTCS email address is established to which files of or links to recordings must be sent.

(e)        A clear mechanism for acknowledging safe receipt by HMCTS of files of or links to recordings is established.

(f)         The maintenance of an electronic register of daily hearings and recordings, showing the case number, the date of hearing, the judge, and marking the name of the host and date of receipt of recording.

Where the judge gives an ex tempore judgment, the relevant file or link to the recording can be made available to the transcribers, just as the digital file from a court recording is made available for transcription.  Where a judgment is handed down in writing remotely by email it should contain the following rubric on the front of the judgment:

“Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email.  The date and time for hand-down is deemed to be at [insert time] on [insert date].”

Use of Interpreters

5.13 Interpreters ordinarily sit next to a litigant and provide direct interpretation during the course of the hearing.  This is at present both unrealistic where a remote hearing is taking place and, in any event, inconsistent with the Government guidance on social distancing.  In the circumstances, there is an urgent need to identify a solution to the problem of ensuring simultaneous translation during the course of a remote hearing for those litigants who need an interpreter.  The most likely solution is one based on a communications platform that not only allows multiple parties to attend the hearing remotely but that also permits multiple audio channels for a single user so that the interpretation does not interrupt the course of the hearing.  It would appear that Zoom allows for this, but there remain issues in respect of recording, Zoom’s website stating as follows:

“When the meeting or webinar starts, the host can start the interpretation feature, which will give the interpreters access to their own audio channels. Attendees can select an audio channel to hear their language of choice. Attendees will hear the translated audio and can choose if they want to hear the original audio at a lower volume. Cloud recordings of interpretation sessions will only record the original audio of the meeting or webinar, not the translations. Local recordings of interpretation sessions will record any audio that the person recording can hear, but not multiple audio channels.”

5.14 A further difficulty is that whilst the provider of interpreting services to HMCTS has its own Video Remote Interpreting platform that is available for use, HMCTS firewalls are currently preventing access.  In addition, the platform appears to be a standalone platform geared more towards allowing an interpreter to be connected remotely to a court room, rather than allowing them to access a remote hearing being conducted by one of the available platforms such as Skype for Business or Zoom.  In any event, the provider has indicated to the FLBA that there is no way for an individual interpreter’s contact details to be provided, even to a nominated member of court staff or the judge, in order for them to be “dialled into” or invited to a remote hearing being conducted on an alternative platform.  It remains unclear whether it is practical for arrangements to be made for the interpreter and client to speak via telephone while watching the hearing by video conference.  Within this context, there is an urgent need for HMCTS to ensure that CVP and the fully video hearings platform is further developed to accommodate a separate channel feature to aid the use of interpreters during remote hearings by parties for whom English is a second or more remote language.  Discussions are currently taking place with HMCTS to seek to ensure that these platforms are able to accommodate this feature and to seek to identify solutions to this issue in the interim.  Further information will be made available in due course.

Use of Intermediaries

5.15 FPR Part 3A governing vulnerable adults will continue to apply to remote hearings.  Intermediary companies have stated that they are prepared to work remotely, notwithstanding that on the face of it remote hearings present similar problems for intermediaries as for interpreters.  Communicourt, for example has now however, indicated that, as at 30 March 2020, it has postponed all intermediary assessments (on the basis that an assessment carried out remotely could not be relied upon) although it continues to process referrals, that its intermediaries are no longer attending hearings physically as intermediaries are not listed as ‘keyworkers’ and only its more experienced intermediaries continue to attend some hearings remotely. If intermediaries are to attend a hearing remotely to support a vulnerable litigant who is themselves in a different location then, as with interpreters, there is an issue to be solved regarding the need for a discrete channel between party and intermediary so that the interpretation does not interrupt the course of the hearing.  Again, these issues need resolution as a matter of urgency.  In any event, there will be a particular need for the judge to set out from the outset the clear ground rules (in the broadest sense) for the conduct of the hearing.  Further, it is likely that other common special measures or participation directions are, in large part, capable of being replicated at some remote hearings using the features of video communications platforms.

Transparency

5.16 FPR r 27.11(2)(f) provides that duly accredited representatives of news gathering and reporting organisations may attend a private hearing in the Family Court.  It is likely that FPR 27.11(3), which permits the press to be excluded if justice would be impeded or prejudiced is wide enough to permit the court to exclude the press from a remote hearing if the remote hearing could not, practically, take place if this step were not taken.  It remains however, highly desirable, particularly at a time of national crisis, that the operation of the Family Courts is as transparent as possible in the circumstance.  Within this context, careful thought needs to be given to press access to remote hearings.

5.17 Experience shows that facilitating such access during the course of a remote hearing is eminently possible.  The remote final hearing conducted by Mostyn J in the week commencing 16 March 2020 was attended remotely by journalists who, as noted above, were able to perform all of their core functions notwithstanding that they were not physically in court.  In particular, the following elements are notable:

(a)        Where the hearing is being held on a multi-channel communications platform an invitation is sent to the press by the lead party and the email addresses of the parties’ representatives are provided to the press, the latter enables reporters to raise questions outside of the hearing as they would in the normal course.

(b)        The reporter(s) can dial in at the commencement of the hearing.  At this stage they are able to participate in any discussions regarding reporting restrictions in the normal way. There is an opportunity, as there would be at a live hearing, for the reporter to ask any questions necessary to clarify anonymity concerns with the judge.

(c)        The press can (where appropriate) be provided with electronic copies of documents ahead of the hearing.

(d)        On multi-channel communications platforms such as Skype for Business, the reporter is able to dial in and drop out (as they do in live court hearings) of the hearing without causing disruption.

(e)        Handed down judgments can easily be covered remotely, provided they are available online via Bailii or the Courts and Tribunals website, or via email at the point of hand down.

5.18 To ensure continued transparency of family hearings within the context of a move to remote hearings, it will be vital to ensure that the fact that a hearing is to be a remote hearing and, where possible, the technological method to be employed, be shown in the cause list of the Family Division or the lists in the Family Court.  The court list plays a fundamental part in open justice, even where it is anonymised as it largely is in the family jurisdiction.  It would be of assistance if the Family Division cause list and lists in the Family Courts (or an online equivalent where the court is no longer open) could list the case as “Being Heard Remotely”. This will allow and enquiry to be made by the press (subject to a telephone number or email address being made available) as to the manner in which they might seek to observe proceedings.  Where a judgment is reserved and listed for hand down, the list should state that the case is listed for “handing down judgement by email”. It would also be of assistance if a method of communicating this information to the press and legal bloggers could be arrived at, for example by using the CopyDirect service or routing the information via the Press Association using highcourt@pa.media in advance of a hearing, which would ensure all of PA’s High Court team are notified of the arrangements. However, there is a need to consider all journalists including but not limited to the Press Association. This will also include legal bloggers.

5.18.1 In this regard, some court lists are published on Courtserve (see https://www.courtserve.net/) and, for some courts, on the HMCTS website (see https://www.justice.gov.uk/courts/court-lists).  These can be accessed by journalists and legal bloggers. Within this context, further consideration is being given to a means of ensuring the required information is available in the Family Courts (this will likely require the list in each court to include the type of remote hearing that is taking place and a contact for press enquiries, subject always to their being staff able to prepare such a list given the pressure of resources caused by the COVID-19 outbreak) but the Daily Cause List in the Family Division of the High Court will now contain the following statement:

“For the time being, and save where indicated otherwise, hearings in the Family Division of the High Court are being conducted remotely.

Accredited Members of the press or legal bloggers who wish to attend a remote hearing should email the judge’s clerk.

Details of the judge’s clerk can be requested by email from rcj.familyhighcourt@justice.gov.uk

The present arrangements will be kept under review.”

5.18.1 HMCTS staff should also be reminded of their obligations to provide information to journalists under the HMCTS guidance issued in 2018 in this context, and entitled Jurisdictional Guidance to Support Media Access to Courts and Tribunals – Family Courts Guide which can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/869798/HMCTS_media_guidance_-_Family_Court_Guide_March_2020.pdf .

Access for Parties and Litigants in Person

5.19 Participation of the lay parties continues to be a fundamental element of a fair trial where a hearing is held remotely.  Within this context, it is not appropriate for courts to stipulate ‘advocates only’ remote hearings as a means of dealing with the logistical and practical difficulties caused by the current public health crisis. The current massive increase in litigants in person in the Family Court consequent upon the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 creates a particular challenge in respect of remote hearings.  Within this context, the court will need to address the following potential difficulties for lay parties and/or litigants in person.

5.19.1 First, in any case in which neither party has a solicitor, if a remote hearing is to be held it will need to be set up by the court.  If the court buildings are shut then either a member of staff working remotely or the judge will be required to arrange the remote hearing, the latter involving administrative contact between the judge and the parties if it is to be achieved.  A judge should not send out a video-conference Skype or Zoom invitation to a litigant in person from his or her judicial email.  It must come from his or her clerk or the court staff.  If this is not possible, then the hearing will likely have to take place using the court teleconferencing facilities.  Where both parties are litigants in person, and where staffing levels permit, the following principles should, ideally, be applied to the provision of a remote hearing:

(a)        A judge’s clerk or a member of court staff should participate and be present throughout the hearing.

(b)        The clerk or member of court staff should be the person who initiates and monitors the remote hearing.

(c)        The clerk or member of court staff must ensure that the remote hearing is continuously recorded.

5.19.2 Second, and also potentially affecting lay parties, there is likely to be a not insignificant cohort of parties attending from a different location to their lawyers and litigants in person who lack access to sophisticated communication platforms. In these circumstances, if held, it is likely that significant numbers of private law hearings and an appreciable number of public law hearings will have to take place by means of telephone conferencing, limiting the types of hearing that can be accomplished remotely in the private law context.  As noted above, HMCTS has issued guidance to its staff to help with the process of accessing a hearing in this context and it can be found here: https://intranet.justice.gov.uk/about-hmcts/operations-directorate/business-continuity/covid-19/guidance-on-using-telephony-and-video-technology-during-the-coronavirus-outbreak/

5.19.3 Third, and again also potentially affecting lay parties, it must further be remembered that some parties attending from a different location to their lawyers and litigants in person are likely to face difficulties in achieving any access to a remote hearing including where a party or litigant in person is homeless, does not have a mobile phone or landline, does not have a Wi-Fi connection, or does not have sufficient “credit” on their phone. Alternatively, such difficulties may arise where a party continues to live in the same household as another party, particularly where there are allegations of domestic abuse.  The following solutions have been suggested by the FLBA and the ALC:

(a)        While a party who has a Pay as You Go mobile phone would incur a cost, and therefore require “credit”, to telephone into any hearing, they would not incur a cost, and therefore not require “credit”, if the hearing provider dials out to them.

(b)        Where video communication platforms enable an audio only connection in addition to video connection, a decision can be made on a case by case basis whether a party may join on an audio only basis if adequate for the needs of a party who is unable to join without a video connection.

(c)        Courts can produce plain English guides to assist the litigant in person with basic literacy to connect to a video conference by explaining that they will be sent an invitation with a link or login details, and that they need to follow the link and enter any code 10 minutes before the start of the hearing. Court DSOs could support litigants in person to connect.  Litigants in person could also be offered an opportunity for a ‘dry run’ test connection by the hearing host, 24 hours prior to any hearing wherever possible.

(d)        There may be some hearings where technological challenges mean that the only way to involve a litigant in person in an otherwise remote hearing is to provide a safe space for them to do so.  Subject to the strict social distancing requirements, arrangements could be made for a litigant to attend an ‘open’ court in order to participate in a remote hearing, enabling a party to access the remote hearing without the need to convene a fully face-to-face hearing.

(e)        Subject to the strict social distancing requirements, arrangements could be made by local authorities to provide a space where parents in care proceedings can access hearings remotely, whether by providing access at that location to the necessary equipment, or simply by permitting access to Wi-Fi.  As noted above, Dorset County Council has taken steps to adopt this approach.

(f)         There is no reason in principle why a litigant in person who would otherwise be permitted the support of a McKenzie friend should not be afforded the support of a McKenzie friend when the hearing is conducted remotely, even if the McKenzie friend can’t be in the same location as the litigant in person. In the usual way, a McKenzie friend can be asked for a verbal confirmation they understand and will abide by the McKenzie Friend guidance, having been sent and read that guidance

5.19.4 Fourth, where a party or litigant in person is able to access a remote hearing it should be borne in mind that they are likely to be particularly anxious if having to take part in a hearing without proximity to their, or any legal representation and to simultaneously deal with unfamiliar technology. The use of the technology automatically results in the removal of basic human contact with clients, the ability to read body language and a situation where not all parties may be visible. As the FLBA notes, although some litigants in person will be ‘tech savvy’, many will not. Some will be illiterate, find text or screen-based communication difficult, or find audio only communication difficult (for various reasons such as a disability) and may have language or communication difficulties.  Within this context:

(a)        It is important for clear ground rules to be set at the start of any hearing.  For example, on turn-taking, muting, privacy, alerting the judge if any technical or sound difficulties and in particular making clear that there is a prohibition on recording or broadcasting, which may not be obvious to litigants and which carries a criminal sanction.

(b)        It is important for judges to ‘check in’ regularly with a litigant in person to ensure that they are hearing, understanding and following the proceedings.

(c)        Developing experience suggests that remote hearings are more tiring than face to face hearings. Regular breaks are essential for all participants and particularly litigants in person.

5.19.5 Fifth, it should also be remembered that the current public health emergency means that for solicitors and advocates, meeting with their lay clients represents a significant challenge, particularly those clients who, as a consequences of poverty and social disadvantage, may lack phone credit/data, tablets or computers and wireless access.  Where contact prior to a hearing is possible, the particular needs of certain vulnerable clients may mean that there is insufficient time to explain fully complex evidence and to take instructions thereon.  With respect to the representation of children, solicitors will also face challenges in assessing the competency of children in private and public law proceedings.  These problems may be particularly acute where the proceedings concern an application for the urgent removal of a child from the home.  Within this context, when listing cases the court should be sympathetic to requests for additional time to be built into a remote hearing to permit solicitors and counsel to speak with lay clients ‘at court’ and to requests for breaks during the hearing to take instructions.  Courts should likewise give consideration to how case management timetables can be adapted in respect of filing of evidence and listing to ensure that solicitors have adequate time for case preparation.

5.19.6 Finally, in those cases where a child who is joined as a party to proceedings, is separately represented and will need to access a remote hearing, in public law cases the child may be facilitated to attend a remote hearing by the local authority to ensuring that the child has the means of accessing the hearing remotely from the place in which they are accommodated and in private (for example in a DOLS application).  The situation in private law cases is much more difficult and this will need to be addressed on a case-by-case basis, accepting that in some cases the attendance of the child will not be practicable.

Security and GDPR

Illicit Recording

5.20 The primary security concern in respect of remote hearings centres on the hearing unauthorised recordings being made by a litigant or as a result of malicious third party hacking.  As a result, historically, there has been a reluctance to use ‘off the shelf’ communication platforms and HMCTS has had a policy which deprecates this.  It must be recognised that video Skype hearings carry a significant risk of being recorded by LIPs or parties participating at a separate venue than their solicitors and the photo of the judge/social worker/advocates being posted on social media, however this is a risk that will, for the time being, have to be accepted.  It is important to note however, that this primary security risk has been recognised in the Coronavirus Act 2020.  Section 53 of the Act provides for temporary modifications of the Courts Act 2003 which make it an offence (a) to record a broadcast from the court that has been directed for the purpose of enabling members of the public to see and hear the proceedings and (b) in any event to record or transmit material gained through participation through a live link.  Whilst security vulnerabilities remain, it is clear beyond peradventure that the need to keep the family justice system operational in some form outweighs, in in the current unprecedented circumstances, the security issues of doing so with ‘off the shelf’ remote methodologies.  The perfect cannot be permitted to be the enemy of the good.

GDPR and Data Protection

5.20.1 With respect to GDPR and data protection, information supplied by the FLBA clarifies that the Information Commissioners Office is content that Skype for Business, LifeSize and Zoom (provided in respect of Zoom that the host has indicated that they accept the terms and conditions specifically in relation to GDPR which, in reality, they will have to do as they are not able to set up a meeting unless they have ticked the requisite box) are GDPR compliant.  The position with respect to Microsoft Teams will need to be clarified.  The Information Commissioner’s Office has indicated that reasonable allowances are going to be made during this period of national emergency (see https://ico.org.uk/about-the-ico/news-and-events/icos-blog-on-its-information-rights-work/).

5.20.2 Further, the Data Protection Act 2018 Sch 2 para 14(2) states that the listed GDPR provisions do not apply to personal data processed by (a) an individual acting in a judicial capacity, or (b) a court or tribunal acting in its judicial capacity. Paragraph 14(3) of Sch 2 provides that as regards personal data not falling within para 14(2), the listed GDPR provisions do not apply to the extent that the application of those provisions would be likely to prejudice judicial independence or judicial proceedings.  Sch 2 para 1 provides that ‘listed GDPR provisions’ includes the Articles concerned with personal data collected from the data subject and personal data collected other than from the data subject.

5.20.3 On 8 April 2020 the Judicial Data Protection Panel issued further guidance for judges entitled Covid-19 Guidance – Storing Bundles at Home.  That guidance makes the following key points:

(a)     Storing the bundles in a judge’s house during the present pandemic period is inextricably linked to the judge carrying out the administration of justice. A judge could not currently carry out their judicial functions without storing bundles in their home. This is due to public health considerations for judges, court staff and couriers.

(b)    When judges store bundles in their homes they are thus doing so whilst acting in a judicial capacity.

(c)     Such storage is subject to guidance from the Judicial Data Protection Panel rather than the Information Commissioner’s Office and subject to the guidance set out in Data Protection – Responsibilities of the Judiciary (May 2019), Section 2 and the Guidance Note of 8 April 2020. The guidance sets out the steps judges should take to keep court bundles etc secure while working outside court buildings during the COVID-19 pandemic.

(d)    The Guidance makes clear that members of the judiciary should ensure that they take steps to keep personal data secure. Judges who follow the guidance will be indemnified by the Ministry of Justice i.e., in respect of fines or damages arising from any data breaches that occur due to, for example, the loss of court bundles from a judge’s home.  If the judge does not follow the guidance they risk personal liability without indemnity.

(e)    To minimise the risk of data breaches occurring, judges should, in so far as possible, take the following steps to keep court bundles secure in their own homes:

(i)     ensure court bundles are not left open where they could be seen by other members of the household while they are being used;

(ii)     ensure court bundles are not left unattended during the day or night in rooms which have open windows. If windows have locks, ensure the lock is used;

(iii)    ensure that bundles, when not in use, are stored in a room that is not easily accessible at ground level;

(iv)    ensure that bundles, when not in use, are stored in a room that, as far as possible, minimises access to other members of the household;

(v)     if possible lock the door to the room in which the court bundles are stored; and

(vi)    ensure that windows and doors are locked during any periods when your house is empty.

(f)     When the current situation begins to normalise, judges should arrange with HMCTS to return any court bundles back to court buildings for storage.

(g)     Guidance on the use of electronic documents, which will cover the use of e-bundles, is contained in guidance entitled The Responsibilities of the Judiciary IT (Security).  The IT Security Guidance provides that the use of eJudiciary is mandated for all official business.  Judges should therefore ensure that any case-related materials should be stored in eJudiciary and not on their own devices or private cloud storage.

Confidentiality

5.20.3 Particular care must be taken where multi-party discussions take place using any breakout features to ensure the correct channel is selected.  Within this context, greater care with the expression of personal thoughts is also wise when connected. At present there would appear to be no bar on a lawyer conducting a remote hearing from home using an e-bundle, although this remains to be clarified.  It remains important when using CaseLines or other shared bundling software to ensure that lawyers own work remains private.

5.20.4 The ADJ, FLBA and ALC have each raised concerns regarding children being present in households from which remote hearings are being accessed, there being a concern that subject children (or other children) may be present at, or able to hear, the hearings.  This would not be appropriate and steps must be taken to prevent such a situation arising.  In some cases it may be that another family member in a parent’s household is able to provide childcare for the duration of the hearing, with parent accessing the hearing remotely from a quiet location in the home.  Where this is not possible, and where a party is represented, the court may need to take a more flexible approach to the need for a parent to attend interim or procedural hearings.  In any event, the court must be astute to ensure that children are insulated from witnessing or hearing remote hearings.  In many cases this will provide only limited protection in circumstances where parties have young children and no access to childcare within or outside the home in the current public health crisis.  Where it is simply not possible to insulate children from hearing or witnessing inappropriate matters, consideration will have to be given to adjourning the hearing.

Legal Aid

5.21 Anticipating a move to hearings by telephone or video link in the current coronavirus situation,  the Family Bar and solicitors are understandably concerned about the effect on advocacy fees under the FAS scheme.  The Legal Aid Agency issued guidance dated 24 March 2020 and entitled Remote Family Hearings: updated ways of working, which guidance was updated on 15 April 2020.  The following key points should be noted:

Advocates Meetings:

(a)        The definition of advocates’ meeting includes meetings held by video conference, webcam or telephone where this appropriate in the circumstances.

(b)        With respect to the legal aid funding of remote advocates meetings or conferences, where possible advocates should use free services such as Skype or Zoom. Where this is not possible the cost of setting up a teleconference and dialling into the meeting are a claimable disbursement.

(c)        Although it would usually be expected that two advocates’ meetings would take place in accordance with the Public Law Outline, provided that the advocates’ meeting is held as directed by the Court and in accordance with the PLO, there is no limit to the number of these fees that may be claimed. In the current circumstances the Legal Aid Agency accepts that there may be an increase in the number of advocates meetings.

(d)        Advocates meetings may now be arranged through email rather than court order. The provision of email evidence from the court and/or the judge will be treated as the same as providing the order. The LAA will also accept retrospective recording of advocates meetings in orders which follow such a meeting.

(e)        An advocates meeting can take place on the same day as an interim hearing but it may be claimed only if the meeting takes place outside of any time period that is taken into account in calculating the fee for the interim hearing.

(f)         If the advocates meeting leads to an agreed order, with no need for a hearing and a self- employed advocate has undertaken at least 30 minutes of preparation for the hearing, they are entitled to claim a payment for a one-hour hearing if the cancelled hearing was an interim hearing, or half of the final hearing fee if the cancelled hearing was a final hearing.

Hearings:

(g)        If the court directs an alternative method of hearing then the advocate will receive the appropriate fee as if the hearing had taken place.  The LAA accepts that telephone hearings may no longer take under an hour.

(h)        An advocate’s attendance form (a FAS form) will not be available in hearings undertaken by video or telephone conference.

(i)         Where a court order sets out all the information that is required in the FAS form (i.e. the names of each of the advocates that participated in that hearing, the start and finish times for the hearing (including lunch breaks) and bolt-ons) this will be acceptable evidence to the LAA. Where the court order does not have all the required information the LAA will require an attendance note as well.

(j)         Bolt-ons may be claimed for telephone/video hearings if appropriate. As there will be no FAS Form, a note of the hearing will be needed and the claim justified on CCMS, the CLAIM 1A or the CLAIM 5.

(k)        In the ordinary course of events, hearings attended at court routinely include a requirement to attend an hour before for pre-hearing discussions. This is reflected in the advocacy fee payable for the hearing. For remote hearings, the hearing time will start from the time that the telephone call/videoconference was ordered by the judge. There may be initial discussions which can happen on a conferencing platform which is different to the hearing itself. This time will be counted towards the hearing time. If the judge attends to ensure everyone is present then absents themselves for pre- hearing discussions and then re-joins the telephone hearing that time will be counted.

(l)         Advocates may also need some time after the hearing is finished to finalise the terms of the order. Time spent on the phone/videoconference finalising the order can be included in the calculation of hearing time. These discussions may be on a conferencing platform different to the one used for the hearing.

(m)       Where the remote hearing is conducted by way of an email exchange, the LAA will accept as evidence a court order that’s sets out the start and finish time of the hearing and the names of the advocates. If this information is not on the court order the LAA will require advocates to self-certify the amount of time spent reading and responding to emails and will expect to see copies of emails and a copy of the court order with the advocate’s name recorded.

5.22 It has become apparent that there is concern that the stipulation in the legal aid guidance that the applicant must organise the remote hearing can result, particularly with respect to telephone hearings, in considerable expense.  The original LAA guidance was based on HMCTS operational guidance sent to the LAA. Further discussions are taking place with respect to this issue.  The revised guidance of 15 April 2020 states as follows:

“Arranging remote hearings, conferences and meetings

Who is responsible for arranging a remote hearing and how will the costs be covered?

1. HMCTS have produced guidance which can be found here: https://www.gov.uk/guidance/hmcts-telephone-and-video-hearings-during-coronavirusoutbreak
2. The choice of the conferencing platform is a matter of judicial discretion. It is also a matter for the judiciary as to who will arrange the remote hearing. If an advocate incurs costs in setting up a remote hearing e.g. using a BT Meet Me number this can be claimed as a disbursement. These costs relate to individual cases. Where for an example a firm or chambers purchase a Zoom license this is an administrative cost for them and not an individual disbursement.
3. Where clients incur additional cost in participating in a remote hearing e.g. additional data charges, then this is claimable as an individual disbursement.

Who is responsible for arranging a remote advocates meeting or conference and how is this funded?

4. The advocates will decide who should arrange the meeting and set up the telephone or video conference facilities.
5. Where possible advocates should use free services such as Skype or Zoom. Where this is not possible the cost of setting up a teleconference and dialling into the meeting are a claimable disbursement.”

Publicity

5.23 The move to a default position of remote hearings will likely come as a shock to most litigants already dealing with the general anxiety and pressures caused by the COVID-19 pandemic.  Within this context, it is to be anticipated that there will be improved participation in, and co-operation with remote hearings if the fact of the new default position is, when appropriate, more widely publicised by the Judicial Office communications team (by way of a clear notice placed on the judiciary.uk website).  HMCTS should produce online plain English digital ‘leaflets’ or information pages and FAQs explaining to litigants (whether represented or in person) how they can join and participate in a remote hearing, what they will need in order to do so, what support is available and how they can ask for adjustments or a face-to-face hearing.  The FLBA has formulated a document entitled ‘Public Information about Remote Court Hearings’ which explains remote hearings and the rationale for their use.  The Transparency Project has suggested that information could be displayed on the Gov.uk website and that clear, concise Plain English notices should be posted on all official sites which the public are likely to be directed to or consult on family justice matters.

Alternative Dispute Resolution

5.24 At a time when there is a pressing need to reduce the pressure on a reduced judicial resource and to provide priority to the most urgent cases, it is important to explore with parties whether one of the forms of alternative dispute resolution is merited.  With respect to child abduction matters each party will be expected, prior to the first on notice hearing, to make contact with Reunite by email on reunite@dircon.co.uk or by telephone on 0116 2555 345.  Parties to private proceedings should give consideration to the use of arbitration.  The Children Arbitration Scheme will shortly also begin dealing with applications for permission to remove from the jurisdiction where the country involved is a party to the 1980 or 1996 Hague Conventions or BIIA.  Within this context, where a hearing has to be adjourned by reason of the current public health emergency, the provisions of r 3.4 of the FPR should be borne in mind, which provisions provide as follows:

 

“When the court will adjourn proceedings or a hearing in proceedings

3.4

(1) If the court considers that non-court dispute resolution is appropriate, it may direct that the proceedings, or a hearing in the proceedings, be adjourned for such specified period as it considers appropriate –

(a) to enable the parties to obtain information and advice about, and consider using, non-court dispute resolution; and

(b) where the parties agree, to enable non-court dispute resolution to take place.

(2) The court may give directions under this rule on an application or of its own initiative.

(3) Where the court directs an adjournment under this rule, it will give directions about the timing and method by which the parties must tell the court if any of the issues in the proceedings have been resolved.

(4) If the parties do not tell the court if any of the issues have been resolved as directed under paragraph (3), the court will give such directions as to the management of the case as it considers appropriate.

(5) The court or court officer will –

(a) record the making of an order under this rule; and

(b) arrange for a copy of the order to be served as soon as practicable on the parties.

(6) Where the court proposes to exercise its powers of its own initiative, the procedure set out in rule 4.3(2) to (6) applies.”

6. TIMESCALES

6.1 It is self-evident that a remote access Family Court must be available now and for the duration of the COVID-19 pandemic.  This is, happily, largely the case, at least in relation to telephone hearings, in most areas with remote hearings being able to be conducted via ordinary judicial telephony as well as BT MeetMe at 1022 court and tribunal locations.  Less common to date, has been the use of video hearings.  Whilst many courts are equipped with older video links, experience has shown that these are extremely cumbersome to use and often break down or do not work correctly.  Even less common, for reasons that it is not productive to dwell on at this point, has been the use of far more effective ‘off the shelf’ communications platforms for video hearings.

6.2 Within this context, it is clear that we need to cover two key periods to ensure that remote hearings, and in particular remote hearings by video can be the default position during the course of the COVID-19 pandemic.  First, the period prior to the introduction by MOJ / HMCTS of CVP and subsequently the bespoke fully video hearings solution and other remote hearing elements of the reform programme.  Second, the period from the introduction by the MOJ/ HMCTS of CVP and the bespoke solution to the end of the COVID-19 crisis and beyond.  The key point is that these two periods are not mutually exclusive for the following reasons.

6.3 As noted, experience with official IT programmes (and sometimes with ‘off the shelf’ programmes) is that there can be ongoing reliability problems.  Within this context, and given the unprecedented nature of the emergency and the need for a highly robust system of remote hearings, even after the introduction of CVP and the bespoke solution it will be necessary to maintain effective access to the remote platforms used during the first period to ensure the system has available to it multiple redundancies as a contingency, in order to ensure in turn that remote hearings can be maintained as CVP and the bespoke solution beds down or if it they encounters technical issues, in circumstances where its level of immediate and sustained utilisation will be much higher than that envisaged when they were in the planning stages.

7. PRIMARY REMOTE COMMUNICATION PLATFORMS

Summary of Current Position

7.1 One of the saving graces that has become apparent in the first week after the Prime Minister’s announcement has been the extent to which family advocates are equipped for remote access.  A survey conducted by the FLBA has revealed that both in London and the Regions the Bar is well equipped with remote access options in chambers (see Appendix 3 has now been removed as many more chambers and law firms have acquired the remote technology and continue to do so, rendering keeping that Appendix properly up to date an impossible task.  Chambers and law firms can be contacted directly for more information).  Many chambers have systems with a number of licenses,  some of which are capable of being be ‘donated’ to host users in the court, in particular, judges, on a case by case basis.  At the same time, it must be remembered that some solicitors firms, particularly those who rely on legal aid, have been forced to furlough paralegals, assistants and support staff, which has increased the workload for solicitors, and may not be in a position to invest in technology at this time.

7.2 Within this context, and before considering each of the options, and the lessons that have been learnt to date in using each of them, a number of consistent messages have become apparent following the Prime Minister’s announcement on 16 March 2020:

(a)        The number of communication and information technology platforms that are available is sizeable, with at least four (Skype for Business, Microsoft Teams, Zoom and Lifesize) being in regular use by various agencies, barrister’s chambers and solicitors firms;

(b)        There is a very wide range of views as to the ease of use and efficacy of each of the main ‘off the shelf’ each platforms, some views being evidence based, some based on personal preference and experience.  In this context, it will be difficult to identify and promote the use of a single ‘off the shelf’ platform and achieve buy-in from all of the agencies and lawyers involved with respect to the choice.

(c)        Objectively, there are a number of advantages and a number of disadvantages that can be identified in respect of each of the ‘off the shelf’ communication platform solutions.

(d)        Importantly, it is apparent that many ‘off the shelf’ communication platforms allow a user with a licence to ‘invite in’ the judiciary to a video link based on that platform at no charge to the MOJ, subject to equipment compatibility issues that appear commonly to arise in respect of DOM1 machines.

(e)        It is apparent that different court areas have already started to reach their own local solutions with different communications platforms according to local circumstances and local tastes.  For example, a meeting of the Bar and bench in Manchester has resulted in Skype for Business being identified as the preferable platform for use in that court area.

7.2.1 Within this context, on 2 April 2020 HMCTS issued further guidance to court staff and the judiciary. That guidance was further updated on 3 April 2020 to include the requirement that, if parties ask to use other remote communication applications, judges are to encourage the use of Skype for Business or CVP if at all possible. The revised guidance is here produced verbatim:

“REMOTE HEARINGS – IT SOLUTIONS

FURTHER GUIDANCE

1. Many judges, court staff, lawyers and others have asked for further guidance on which apps can be used for remote video and audio hearings.

Recommended: Skype for Business and Kinly Cloud

2. We recognise that are a variety of on-line apps which are theoretically available for use to conduct remote video hearings (and some are perceived to have advantages over others). However, at present, we only recommend Skype for Business (“Skype”), and HMCTS’ Cloud Video Platform (“Kinly Cloud”) are used and these are the only apps for which HMCTS can provide technical support.
3. Skype remains the default video app at the moment because (i) it is loaded on most judicial laptops, (ii) there is detailed and user-friendly guidance about it, (iii) staff are trained to support its use and (iv) it is tried and tested.
4. Kinly Cloud is already used within the criminal courts for remote video links and is now being rolled out more widely for remote video hearings. To make use of this platform in Civil, Family and Tribunals please contact your local listing team who will be given guidance on how to access licenses and training.

Recommended: BT MeetMe

5. BT MeetMe is the recommended default audio app at the moment. There are user guides for conference calling and for the role and responsibilities of the Digital Support Officer.

Other on-line apps

6. Microsoft Teams (“MS Teams”): We know that some eJudiciary users have been able to use MS Teams for some time. Currently, it does not function effectively across all judicial computer systems.  However, it will soon be made available on DOM1.  HMCTS will then be able to carry out cross-domain and functionality testing, and produce guidance for its use across all judicial/ staff device types and arrange the right support.  It is hoped that detailed guidance on MS Teams will be available generally in a few weeks’ time.
7. There are other on-line video apps but only those mentioned in this guidance are supported by HMCTS, namely Skype for Business and Kinly Cloud.  They are the ones that should, therefore, be used. If parties ask to use other apps, you should encourage the use of Skype for Business or Kinly Cloud if at all possible.
8. We are continuing to work to make sure that the best available apps are brought forward for general use as quickly as possible.

Lord Justice Haddon-Cave                                                          

Deputy Senior Presiding Judge of England and Wales

Mr Justice Mann

Judge in Charge of Live Services

Andrew Wright

HMCTS Digital and Technology Services – Head of Judicial and RCJG”

 

7.2.2 It will be seen that this guidance states that the HMCTS recommended applications “should” be used rather than “must” be used.   Whilst it will further be seen that the guidance acknowledges the existence of, and does not expressly prohibit the use of other applications, the guidance was further updated on 3 April 2020 to include the requirement that, if parties ask to use other applications, judges should encourage the use of Skype for Business or CVP if at all possible.  In the circumstances, whilst judges retain their discretion with respect to which platform to use in a given case including, where there is an urgent operational need to do so, those applications for which HMCTS cannot provide technical support, parties can expect judges to encourage the use of Skype for Business or CVP if at all possible.   Again, it is suggested that it is plain that the need to deal with family law cases in the context of a global pandemic using a platform that allows all parties in a given case to participate in a remote hearing qualifies as an urgent operational need in this context.

7.2.3 Finally, and within this context, it is important also to note that at present the court system is operating in exceptional circumstances.  Within this context, the situation set out above is plainly required to keep the family justice system operating and to ensure access to justice and the maintenance of the rule of law.  This forms the justification of the ‘smörgåsbord’ approach.  However, when this crisis passes there will need to be a the process of rationalisation with respect to the technology by which remote hearings are conducted will be one that is continuing.   A considerable amount of work and investment has been undertaken by HMCTS to develop solutions to enable remote hearings to be undertaken. Within this context, in due course, and post COVID-19, any remote hearings that continue to take place will move to being facilitated primarily through the communication platform invested in by the MOJ / HMCTS as part of the reform programme (with the alternative methodologies currently in use meaning that the system has available to it multiple redundancies as a contingency).

Court Reform: Fully Video Hearings

7.2.4 Prior to the COVID-19 emergency, the Reform Programme had already been planning to introduce new video conferencing software to the courts and tribunals that reduced then eliminated the need to rely on the older, unreliable hardware and which contains software features which are particular to court and tribunal hearings, as opposed to video conference meetings.   This new video conference software has been subject to small scale testing in the civil and family jurisdictions and a process evaluation is being completed with respect to this system by the London School of Economics (https://www.gov.uk/government/news/video-hearings-tested-in-domestic-abuse-cases). Additional testing and evaluation with respect to this system had previously been undertaken in the tax tribunal (https://www.gov.uk/government/news/results-of-fully-video-hearings-pilot-published).  With the outbreak of COVID-19, work is being accelerated with a view to ensuring that this platform has the functionality and resilience to enable it to be brought into much wider use.  Further information will follow as regards when the family courts can expect to be able to make greater use of this bespoke video hearings solution where appropriate.

MOJ/HMCTS Cloud Video Platform (CVP/Kinly Cloud)

7.3 The Court Reform Programme had already planned to introduce new video conferencing software to the courts that reduced then eliminated the need to rely on the older, unreliable hardware.   Part of that programme is the ‘Cloud Video Platform (CVP). The ‘Cloud Video Platform’ (CVP) contract is a MOJ-wide contract with a video conferencing provider (Kinly) which provides the courts, prisons, and MOJ with a large number of ‘virtual meeting rooms’.  Using the ‘CVP rooms’ allocated to HMCTS gives HMCTS and the judiciary a secure digital network and the ability to manage and conduct cases digitally with other trial and hearing participants.  It can be accessed from any video and audio capable computer, laptop, phone and tablet that has an internet connection. The cost of using the system is borne by HMCTS and is free to the users. However, it does require an internet connection to work, so if using a portable device, litigants might have to use their mobile data allowance.  It will allow remote hearings to be accessed without the need for video link hardware and will likely fit well with the current need urgently to ramp up the number of remote hearings.   At present, information from Rosie Rand suggests that CVP will be available in days rather than weeks.  An important point is that insofar as CVP remains configurable at this point, a number of lessons are already being learnt in respect of the challenges examined above that could usefully be incorporated into CVP if they have not been already.  In particular, the availability of multiple channels to enable simultaneous interpretation.

7.3.1 There remain a number of issues in respect of CVP that require to be resolved before it can constitute a replacement platform for remote hearings conducted from outside a court building.  The key issue is the current absence of a dedicated recording facility built into the platform (CVP being considered for use in the courtroom alongside the standard digital recording equipment available in each such courtroom).  At present, hearings taking place through CVP outside a courtroom must be recorded by remotely accessing a BT MeetMe line via an HMCTS mobile telephone.   This is unlikely to be possible for the majority of judges conducting hearings from home. Further, as noted above, discussions continue with HMCTS regarding the provision of a facility to allow the effective participation of interpreters.

7.3.2 It is recognised that judges, lawyers and litigants have had a huge amount of change to deal with since the Prime Minister’s statement on 16 March 2020.  Within this context, the move towards greater use of CVP will be a gradual one with no sudden shift to exclusive use of that platform.  Further, alongside the allocation of virtual CVP courtrooms will be the provision of regional training sessions for judges and court staff, supplemented by daily national awareness sessions and the issuing of staff guidance (see below).  Support for judges and court staff will be provided by local Digital Support Officers (DSOs).

7.3.3 Every circuit has now been allocated an initial supply of CVP courtrooms.  More CVP rooms will be allocated when demand arises.  The following are the key features of CVP:

(a)        The court is assigned a virtual CVP courtroom which the judge can configure and from which the court can send meeting invitations via email.  Parties will receive a joining invitation that makes clear the invitation is to a CVP court hearing.

(b)        CVP is a browser based application (compatible with Google Chrome, Mozilla Firefox, Opera, Microsoft Internet Explorer, Microsoft Edge and Apple Safari although note that only Google Chrome and Mozilla Firefox allow multi-media file sharing, the other platforms being limited to PDF file sharing).  Lawyers and litigants have the option of joining the hearing via (a) their web browser, (b) telephone (audio only), (c) Skype for Business or (d) another video meeting room.

(c)        Where the court is using CVP and the CVP courtroom is accessed using BT MeetMe there is provision to use BT MeetMe to record the CVP hearing (which may also enable the hearing to be recorded where CVP is not being accessed from a courtroom setting if remotely access to a BT MeetMe line via an HMCTS mobile telephone is possible).

(d)        Both the judge and those attending the hearing can be assigned access PINS.  The hearing can be ‘locked’ to all others once the judge and those attending have arrived.  The judge can mute all participants or individual participants.

(e)        The judge can promote participants to host the session and leave the session, facilitating discussion between the parties in the absence of the judge.

(f)         CVP allows screen sharing and PDF file sharing.

7.3.4 As noted, with respect to training the judiciary and court staff on the use of CVP, there will be the provision of regional training sessions for judges and court staff, supplemented by daily national awareness sessions and the issuing of staff guidance.  The Operational Transformation Team will hold three training sessions per day for three weeks commencing 20 April 2020. Those daily training and awareness sessions will be provided remotely.

 

 

Judicial Telephony

7.4 It is important to highlight that there is already a facility on the ordinary judicial telephones in a judge’s chambers that enables the judge to dial out and connect up to four people to the call.  Judges have had some success, in addition, of achieving recordings on the court recording equipment of hearings conducted in this way.  This option is obviously subject to a court remaining open and to the judge being able to access the court safely.  However, this facility allows the judge to (a) dial the first person in the normal way and wait until they answer (b) press the right arrow key then press down to highlight ‘start conference’ Press ‘OK’ (c) dial the new participant they wish to add in conference (d) press the right arrow key, use the down arrow key to highlight the ‘Conference’ option and ‘OK’ to confirm and thereafter to conduct the hearing one up four participants have been added.

Telephone Conferencing / BT MeetMe

7.5 BT Telephone Conferencing and BT MeetMe is available at one thousand and twenty two court and tribunal locations nationally.  In addition, there are three other approved telecommunications providers, namely Legal Connect, Kidatu and Arkadin. The following contacts are for the other preferred tele-conferencing provides: LegalConnect 0800 953 0405; Email: support@legalconnect.co.uk, Kidatu 0800 279 4595; Email: info@kidatu.co.uk, Arkadin 0800 279 5596; Email: legalevents@arkadin.co.uk. In its HMCTS guidance for civil work, HMCTS excludes telephone hearings where all parties are represented but this seems unrealistic in the context of the current crisis.  There has been no suggestion to date that a telephone conference involving only litigants in person is impermissible. Under telephone conference accounts the court will arrange the call and dial out to all parties on the numbers provided and then the judge will conduct the hearing.

7.5.1 There is a facility to record.  HMCTS pay the costs of the call and the telecommunications provider will send the court an audio file via email of the hearing and it is stored on the court system in much the say way as in court recordings. Transcripts are available in same way as they are for normal court hearings in that they are sent to the panel of contracted transcribers with the fee being the same.  A request for a transcript of a telephone hearing should be made to the court where the hearing has taken place. Form EX107 (tape transcription request) must be used in all instances. Please see EX107 Info for more information which provides help on completing the EX107 and a full list of court approved transcription companies and prices. The cost of transcripts remain the same whether they are recorded in the standard fashion or as part of a telephone hearing.

7.5.2 There is anecdotal evidence of difficulties with BT connections. If a court or court user wishes to make a complaint about the service provider or their conduct, they must in the first instance contact the relevant court manager and raise this complaint with them in accordance with the procedure set out in the Complaints Leaflet EX343. Work is being done to establish the precise extent of the telephone conferencing resource within the court system.   Telephone conferencing is the service that should be used where telephone hearings are chosen as the appropriate methodology for a remote hearing. Requests for additional BT MeetMe accounts have been made, to enable one account per court room for every site.  Local site DSOs will start to see these requests being fulfilled. The Digital Support Officers (DSOs) can all access these accounts on their work iPhones, so even DSOs who are self-isolating (and not unwell) should be able to provide support from home.  Sites that do not have a BT MeetMe account should email DSOenquiries@justice.gov.uk.

Skype for Business

7.6 Skype for Business is a communication platform developed by Microsoft as part of the Microsoft Office suite. It is designed for use with the on-premises Skype for Business Server software, and the software is offered as part of Office 365 on judicial laptops.  Where a participant does not have Office 365 account, Skype will work via a browser (the main issue in this context is the parties internal security settings preventing them clicking on links in emails which cause a browser to open; this can be addressed by cutting and pasting the link into a browser manually).  Whilst the judicial laptops were previously configured to prevent connections external to ejudiciary.net and justice.gov.uk email addresses, that restriction on external calls have now been removed.  Further, HMCTS have now made Skype for Business interoperable with ordinary Skype.  It is now possible to have both programmes on the judicial computer.  The basic version of Skype for Business is a free app and is compatible with the paid for version used by the Court.  The platform allows document sharing during a remote hearing.  The platform allows the hearing to be recorded and once recording is completed it can be placed in a common cloud storage place such as OneDrive, Dropbox or iCloud.  As set out above, this platform has been used successfully in the past week for hearings up to and including a multiday, multiparty final hearing with lay and expert evidence.  Experience suggests that the most efficacious way to use the platform is for the lead legal representative to set up the Skype meeting and invite the judge into the meeting. For multiday hearings it is useful to keep the ‘meeting’ set up in Outlook 365 open for the duration so that parties can use the same link to join each day.  Additional documents can be circulated by email as it is possible to keep Outlook open and running.  Counsel have reported also that ‘gowns can be tugged’ and ‘notes’ can be passed virtually by using mobile phone texting during the course of the hearing.

7.7 Problems have been identified with using Skype for Business that will require further consideration.  First, in September 2017, Microsoft announced the phasing out Skype for Business in favour of the cloud based Microsoft Teams. In these circumstances, support for Skype for Business Online will end in July 2021, although the Skype for Business Server will receive extended support until October 2025.  There has also been some concern about the sustainability of recording the hearing, with one incident of a recording becoming corrupted after 30 mins. Hence the suggestion of Mostyn J, as a safety measure, that recordings are restarted (“the tape is changed” in old money) every 30 minutes.  However, recording on DOM1 laptops should last for an hour without the need to stop (HMCTS are in discussions to see if this can be extended) and on open build devices the Skype recording limit is 24 hours.  Skype for Business also lacks a side meeting or breakout function, which is useful during the course of a remote hearing.

7.7.1 The FLBA has expressed concerns regarding the inability of barristers to activate Skype for Business using their work email addresses if their chambers does not have a group subscription. This appears to be unfounded as anyone can join a Skype for Business meeting as a guest provided that he or she is provided with the meeting URL. Some judges have expressed a concern that if the meeting is organised by the Judge then the judge’s email address is displayed. This is another reason why it may be better in each case for the meeting to be organised by one of the lawyers where at least one party is represented, although HMCTS have now established a workaround to deal with this problem. There is also a difficulty in getting DOM1 machines to interface with the judicial laptops via Skype for Business.  This latter issue is being investigated by the Judicial Office. Where there are issues either with microphones or speakers, these can often be solved by ensuring that Skype is using the right speakers and microphone on the user’s computer.  This can be established by entering settings via the small ‘cog’ symbol at the top right of the screen.  This allows access to the audio settings.  Connection problems can be resolved by clinking on the “Trouble joining? – try Skype Web App” which takes the user through steps which seek to address connection problems.

 

Microsoft Teams

7.8 Microsoft Teams is what is known as “a unified communication and collaboration platform”.  It provides a facility for video meetings and file storage and, as with Skype for Business, integrates with Microsoft Office 365.  It also features extensions that can integrate with non-Microsoft products. Microsoft Teams is built into the judicial laptops.  Its video conferencing facility seems to have added value compared to that offered by Skype For Business.  There has been little, if any attempt to use Microsoft Teams in the past week as a means of conducting a remote hearing.  It is likely that the Bar will again have a concerns as to the extent to which it is possible to activate Microsoft Teams using their work email addresses if their chambers does not have a group subscription.

7.8.1 Lucy Reed and HHJ Martin Dancey have now undertaken some testing of Microsoft Teams as an option for remote hearings in an endeavour to work out what is and what is not possible from a DOM1 judicial laptop. I am very grateful to them for sending me the results, which I replicate as follows.

7.8.2 A connection was possible on Microsoft Teams between respective eJudiciary accounts.  As DOM1 won’t let judges download software using the Microsoft teams app is not an option.  However, working step by step it is possible for a judge to log into the web based Microsoft Teams using their eJudiciary credentials via the Firefox browser from a DOM1 machine.  From within the web browser it was further possible for the judge on a DOM1 machine to navigate to the ‘Calendar’ feature and set up a new meeting and invite users not in the judicial address book.  With respect to recording, whilst an incoming invitation in Microsoft Teams sent by a lawyer setting up a remote hearing can be accepted by a judge using a Dom1 machine, where the lawyer sets up the meeting and invites the judge the lawyer is able to record the meeting but the judge is not. However, when the judge invites external participants the judge is the participant who has control of the recording with the lawyer having no option to record.  In the circumstances, it would appear to have been established that, if the court or an individual judge wishes to do so, they can set up a hearing using Microsoft Teams, ensure the hearing is recorded and retain control of the recording.  To do so they the judge (or court staff) will need the correct email addresses to send the invitation.  In the circumstances, whilst Microsoft Teams lacks certain features, for example it does not have the separate ‘meeting rooms’ that Zoom does, it is workable for use by all judges with both open build and DOM1 machines.  Links to between eight to ten people have been achieved.

Zoom

7.9 Zoom is a platform that allows users to host a video conference with meetings of up to one thousand participants, with the host controlling secure access.  It allows for the sharing of documents.  It is considered by some to provide the highest quality video and sound of the platforms available.  Break-out rooms as part of the meeting are possible, away from the main hearing.  Accordingly, advocates’ discussions in the absence of the judge can be held under the umbrella of the same meeting with specific participants. Advocates can ‘leave’ the hearing room, take instructions in the ‘meeting room’ and then re-join the hearing. Zoom is a cross-platform software which works across both Windows PCs and Apple Mac products. Online tutorials are available at https://support.zoom.us/hc/en-us/articles/206618765-Zoom-Video Tutorials?_ga=2.60121641.546688394.1585071332-1582296056.1584693973.

7.10 The cheapest version of Zoom that allows up to 100 participants per video conference is £11.99 per month if paid for monthly and the equivalent of £9.99 a month if paid as an annual fee. The free version, the ‘Basic’ version limits the duration of any video conference established by the basic licence holder to 40 minutes, so is not suitable for most video court hearings.  However, any invitee to a video conference organised on Zoom does not need to pay any fee. This means that were the judge to be invited by one of the parties (the judge having installed on the computer the Zoom software) there would be no cost to the MoJ as in such circumstances it would not be necessary to issue additional licences for the judiciary. The host will send the judge an invitation which includes a URL which the judge clicks on to join the hearing Lawyers are anxious as to whether they are authorised to run hearings where they are invited by the court, or required for technical reasons to set up the link and how they should handle the resulting recordings (see now however, Appendix 1).  These anxieties appear to be unfounded.

7.10.1 Some chambers, particularly those dealing with so called ‘big money’ financial remedy cases have offered to make available a ‘clean’ iPad loaded with Zoom for use by the court.  However, this runs the risk of becoming a route of transmission for the virus.  Once again, there remain issues with the installation of this platform on DOM1 machines. Zoom says that: “The Zoom web client allows joining a Zoom meeting without downloading any plugins or software. However, the web client has limited features and functions best on Google Chrome.”   Unfortunately, DOM1 machines are not loaded with Chrome. They have Edge and Firefox but an experiment by Mostyn J and HHJ O’Dwyer using both browsers was unsuccessful.   Judges with DOM1 machines will likely have to use Skype for Business until Chrome is made available.  Both Judd J and Francis J held successful hearings using Zoom on 24 March 2020.  Judges using DOM-1 computers can access a Zoom hearing set up by one of the parties via Skype for Business where the party hosting the Zoom hearing has configured Zoom to enable access via Skype for Business.  The instructions for the setting this configuration, and for joining an appropriately configured Zoom meeting via Skype for Business are set out at https://support.zoom.us/hc/en-us/articles/208219346-Skype-for-Business-Lync-Integration. Once again it should be noted that updated guidance to the judiciary issued on 3 April 2020 requires judges to encourage the use of Skype for Business or CVP if at all possible (see paragraph 7.2.1).  

Lifesize

7.11 Lifesize is a communications platform that allows high definition videoconferencing and a cloud-based video collaboration.  It is understood to be secure and can be set to record proceedings.  It is in use by a number of sets of barristers’ chambers.  As with Zoom, if a judge is invited to participate in a ‘Lifesize’ meting there is no charge to the MOJ. It is understood that there have been issues with connecting chambers’ Lifesize systems to the video link systems used in the RCJ.

FaceTime

7.12 FaceTime is built into all Apple products and is available on supported iOS mobile devices and Macintosh computers that run Mac OS X 10.6.6 and later.  However, it is limited to Apple products and thus not universally available to the wider judiciary or to all members of the legal profession.

8. CONCLUSIONS – REFINING THE ‘SMORGASBOARD’

8.1 The reality is that for foreseeable future remote hearings will become the norm and they must become the norm immediately.  Within this context, and having regard to the matters covered in this paper, whilst through an urgent Protocol it is possible to stipulate now and nationally the procedure for remote hearings (see Appendix 1), it has simply not been possible pending the arrival of the MOJ/HMCTS Cloud Video Platform, and subsequent bespoke solution to reach common agreement as to the single communications platform that should be used in all cases.  Further, even after the introduction of the CVP and subsequent bespoke solution, the need for a high number of remote hearings will continue to be so pressing that the multiple redundancies provided by maintaining multiple ‘off the shelf’ options through which to conduct remote hearings will be so valuable as to require maintaining for the duration of the COVID-19 pandemic.

8.2 In the circumstances, pending the arrival of CVP, it has been important that judges, lawyers and litigants should be able to choose from a suite or ‘Smörgåsbord’ of platforms (most likely BT MeetMe, Skype for Business, Zoom, Microsoft Teams or Lifesize) depending on the circumstances of the court, the parties and of the particular case.  However, as made clear above, the revised guidance to the judiciary means that , if parties ask to use other applications, they can now expect judges to encourage the use of Skype for Business or CVP if at all possible. Within this context, increasing numbers of CVP courtroom will be made available to facilitate remote hearings using that platform.  Again subject to the requirements of the revised guidance requiring the judiciary to encourage the use of Skype for Business and CVP, subsequent to the arrival of CVP, judges, lawyers and litigants should continue to be able to choose from the ‘Smörgåsbord’ of platforms as a contingency and a means of maintaining multiple failsafe redundancies in what will be a vital public service.

8.2.1 Within this context, the Remote Family Court is remains best realised at the current time as a collection of platforms being used to achieve the single aim of safe access to justice and the maintenance of the rule of law but with an increasing emphasis moving forward on CVP as that platform is gradually made available, with training, across the jurisdiction, subject to the resolution of the issues identified above. Flexibility, the use of local resources and expertise and not getting hung up on a single option will, however, continue to be the key operational principles.  Once again, it must be remembered that the decision whether to proceed with a remote hearing or to adjourn remains at all times in the discretion of the allocated judge.

8.3 A number of extremely pressing problems remain that will need continued attention and monitoring if the Remote Access Family Court is to be able to replicate most types of hearing that are currently undertaken live.  In particular, and by no means exhaustively:

(a)        In so far as there remains any doubt about the power of a judge to hold a remote hearing from home or other non-court location this should be resolved and, if necessary directions given by the Lord Chancellor after consulting the Lord Chief Justice, pursuant to s 71(2) of the Senior Courts Act and s31B(4) of the Matrimonial and Family Proceedings Act 1984.

(b)        …/

(c)        There is an urgent need to consider whether, and if so how, court staff are going to be able to support judges undertaking remote hearings if staff are not able to access court buildings.

(d)        There is a critical need to confirm which of the ‘off the shelf’ platforms can be accessed by the judiciary on DOM1 machines and to provide the correct facilitating software (including Chrome) and advice to those judges with DOM1 machines accordingly.

(e)        There will be a need to monitor the use of remote hearings to ensure that they are not being disrupted by insufficient bandwidth in circumstances where, as a minimum, the recommended bandwidth for video hearings is 1.5 MBPS in both directions.

(f)         …/

(g)        …/

(h)        There is an urgent need for the MoJ to authorise the installation on all open build laptops of PDF Exchange Editor and, in the current emergency circumstances, to do so without the constraints of an extended period of testing and approval.  Equally, there is an urgent need to streamline for DOM1 users the acquisition process for Adobe Acrobat Standard on DOM1 machines.

(i)         As pointed out by the ALC, urgent consideration needs to be given within the context of the current social distancing guidance as to how parties located at home can join remote hearings (including how children who are also present at home are to be insulated from the remote hearing), how parties with literacy problems can be assisted to deal remotely with documents and how solicitors are to be provided with time to take instructions from clients prior to and during remote hearings.

(j)         As also highlighted by the ALC, urgent consideration needs to be given to how capacity is to be assessed remotely in respect of adult parties and children and how children with party status are to be facilitated to participate, with appropriate privacy, in remote hearings.

(k)        Urgent consideration needs to be given to the manner in which the recordings of remote hearings are to downloaded to, and stored in a central location and how a record is to be kept of such recordings to allow future access.

(l)         Urgent clarification is required on how best, when using a remote platform, to establish, if possible, a discrete channel between party and interpreter and/or intermediary during the hearing.

(m)       Careful thought needs to be given to how the press are going to continue to be able to observe proceedings pursuant to the rules.  In particular, there is a need to consider how cases are going to be listed in the Family Court so as to ensure the press are aware of the existence of a remote hearing and how to request access to the same.

(n)        Further thought needs to be given to the particular difficulties faced by litigants in person with respect to remote hearings, which problems have not yet been, and may not yet be capable of being fully articulated.

(o)        …/

(p)        Urgent consideration is needed of how the new default position of remote hearings during the currency of the COVID-19 pandemic is to be communicated to the public at large.

(q)        There is an urgent need to address … how the Family Panel Magistrates can be facilitated to carry out effectively remote hearings.  The question of whether the use of personal equipment should be permitted in the particular circumstances of the fee paid judiciary requires resolution.

8.4 Whilst there is no time to delay issuing the Protocol at Appendix 1 whilst these problems are solved, it will be apparent that there remain very substantial problems to solve.  Within this context, the Video Hearings Judicial Working Group is meeting regularly and co-ordinating and monitoring the development of the resources being used to operate consideration will need to be given to establishing a body which will continue to work to solve these problems and which will then monitor the operation of the remote access Family Court, with a view to making changes and additions where necessary.   Further versions of this paper will be issued over the coming days as each of the problems set out above is resolved.

8.5 Finally, whilst the types of hearing dealt with, and the methodologies used to hold those hearings will be continue to be determined on case by case basis subject to the principles set out above, it is important that judges, lawyers, litigants and court staff are able to orientate themselves in the new reality by means of a consistent procedural approach.  In this context, set out below at Appendix 1 is a procedural protocol.  It is modelled, to a certain extent, on the Civil Protocol published by the Master of the Rolls.  Further, where some live hearings remain contemplated, there is a need for a comprehensive protocol to ensure that such hearings are safe.  A Protocol appears at Appendix 2.

8.6 Overall, it is important to note the following three principles set out in the President’s email of 24 March 2020 at 1016hrs:

• In terms of remote working, different Family Courts will be at different stages of modernisation and will be able, or less than able, to move to remote working;

 

• One size, in terms of remote working, will not fit all.

 

• You will need to develop your own way forward, supported by the guidance that has been issued. What is best for Court A may not be best for Court Z.

Further, it is not realistic to expect this all to happen everywhere straight away. As Nageena Khalique QC and Sophia Roper have said in their recent blog on Mostyn J’s remotely conducted COP case (http://ukmedicaldecisionlawblog.co.uk/rss-feed/115-skype-in-the-court-of-protection-the-courts-in-the-time-of-coronavirus) “We will all learn as we go along.  A degree of tolerance will be necessary.”

MacDonald J

16 April 2020

 

 

 

 

 

Appendix 1

 

Protocol For Remote Hearings in the Family Court and Family Division of the High Court

23 March 2020

INTRODUCTION

1. The COVID-19 pandemic necessitates that, for the time being, the default position should be that all Family Court hearings should be undertaken by way of a remote hearing using telephone conferencing or an electronic communications platform.
2. This Protocol sets out the process for arranging, preparing for and holding a remote hearing. It applies to all types of proceedings to which the Family Procedure Rules (FPR) applies and applies to all types of hearing in the Family Court and in the Family Division of the High Court. Hearings conducted in accordance with this Protocol should be treated for all other purposes as hearings in accordance with the FPR.  Any reference in this Protocol to a judge is to be taken as including any judge of the Family Court.
3. The Protocol applies both to a remote hearing conducted by the judge from a courtroom and to a remote hearing conducted by a judge from any other place in the jurisdiction of England and Wales.
4. This Protocol should be applied flexibly. In particular, it should be remembered that whilst the default position is that all hearings in the Family Court should be undertaken remotely, where the requirements of fairness and justice necessitate a court-based hearing, and it is safe to conduct one, then a court-based hearing should take place with appropriate safeguards against infection in accordance with current Government guidance. In these circumstances, regard should also be had to the Protocol for Conducting Safe Court Based Family Hearings during the COVID-19 Pandemic.
5. Equally, given the nature and risk presented by the COVID-19 outbreak, it must also be appreciated that there may be some cases that will need to be adjourned for longer periods of time because a remote hearing is not possible because the nature of the case and/or the length of the hearing and/or the number of parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time, having regard to the current Government guidelines regarding social distancing as a means of attempting to delay the spread of the disease.
6. Whether, and the precise method by which a hearing is conducted remotely is always in the discretion of the judge in the individual case, operating in accordance with the applicable law, Rules and Practice Directions. Nothing in the Protocol should be taken as derogating from the duty of the judge to decide the issues in the case judicially and in accordance with normal principles.

REMOTE HEARINGS GENERALLY

Need for Focus on Timely Preparation

7. Holding a hearing remotely makes it even more essential that proper preparation and planning happens in good time for the hearing. During the currency of the current public health emergency, it will be incumbent on all parties to proceedings to be even more proactive and co-operative with respect to preparation for forthcoming hearings.
8. Consideration of whether a remote hearing or a series of remote hearings is appropriate for a remote hearing should begin early. Further, and in particular:

(a)        Having regard to Paragraph 12 of the President’s Guidance entitled COVID 19: National Guidance for the Family Court issued on 19 March 2020, parties must redouble their focus on identifying the issues that require to be dealt with at the hearing and their efforts to agree and narrow the issues whenever possible and must identify clearly for the judge in advance of the hearing those issues that remain to be determined.

(b)        Within this context, there is a need for a renewed focus on ensuring that, when directed, advocates’ meetings are effective and, in particular are always attended by the advocate who will be conducting the remote hearing.

(c)        Instructions should be taken from clients at soon as practicable to enable proper preparation and always prior to any advocates meeting.  If necessary, solicitors and advocates should stress to clients the difficult circumstances in which the courts are at present operating and the need to co-operate with timely instructions.  Save where a client has no means of remote communication, not being able to meet clients face to face with clients is not an excuse for failing to take full or any instructions for hearings.

(d)        Evidence and other documents must be filed and served in accordance with the relevant case management order or Practice Direction.

9. The listing office, clerks and judges will consider as far ahead as possible how future hearings should best be undertaken. The listing office will also seek to ensure that the judge(s) and the parties are informed, with as much notice as possible, of the identity of the judge(s) hearing the case.

Types of Remote Hearing

10. There is no intention to prescribe which types of hearing will be suitable for being dealt with remotely. This will depend on the circumstances of the particular case and will be a matter for the judge having heard representations from the parties.
11. It is anticipated that all case management hearings will be capable of being dealt with remotely, as well as longer hearings limited to the determination of points of law and longer hearings that do not involve witness evidence, for example final hearings in summary proceedings under the Child Abduction and Custody Act 1985. However, experience suggests that contested multi-day final hearings involving both lay and expert evidence may well, depending on the circumstances of the case, be capable of being dealt with by way of a remote hearing. Committal proceedings (including Judgment Summonses) will always need to be heard physically in court.

Method of Remote Hearing

12. Likewise, there is no intention to prescribe the method by which a remote hearing is to be conducted or the communication platform to be used. There is an extensive ‘suite’ of communication platforms available by which to facilitate a remote hearing (including, non-exhaustively, a standard telephone conference call, BT MeetMe, Skype for Business, Zoom, Microsoft Teams and Lifesize). In addition, court itself will likely add remote hearing technology to its own services in due course as part of the reform programme.  However, if parties request to use other applications, the judge is required to encourage the use of Skype for Business or CVP if at all possible.
13. Within this context, the cardinal rule is that at the outset of proceedings the court and the parties must consider and settle on the identity of the communication platform that is to be used in that particular case.
14. The minimum recommended bandwidth for a successful remote video hearing is 1.5 MBPS in both directions.

PRELIMINARY ARRANGEMENTS

15. Notwithstanding the default position, the court’s permission is still required for all or any part of the proceedings to be dealt with by way of remote hearing.
16. Where the court, of its own motion or by acceding to an application by one or more of the parties, considers that all or any part of the proceedings should be dealt with by way one or more remote hearings, it is vital that there a preliminary hearing is held in order to consider and settle on the identity of the communication platform to be used and resolve the directions required in consequence thereof, including the identity of the lead party. It may be necessary for this initial hearing to take place by way of a telephone conference pending resolution of which electronic communications platform is to be used.
17. Where one or more of the parties is represented, responsibility for making the arrangements for the remote hearing(s) in the case will fall on either the applicant or the first represented party. If no party is legally represented, the court office will contact the parties to explain that the hearing will be held remotely and will send them instructions on how this is to be achieved.
18. Where one party is unable to attend a remote hearing by way of an electronic communication platform (for example, where they do not have access to the relevant technology or have a very poor Internet connection) but can attend by telephone, the remote hearing will be held by telephone conference call, to be arranged by the applicant (or first represented party) or by the court where no party is represented.

PREPARATIONS FOR THE REMOTE HEARING

Role of Lead Party

19. The identified lead party must liaise with the court in advance of the remote hearing to deal with any technical issues. The lead party must provide to all of the other parties the details required to attend the remote hearing as soon as they are available and in any event not later than 24 hours before the hearing is scheduled to begin. In many cases, it may be necessary for the lead party to set up the remote hearing with a view to inviting the judge to join that hearing rather than the court undertaking that task.  Where the court directs that one of the parties hosts the hearing, whether for technical reasons or otherwise, that party shall be treated as being authorised to, and entitled to host the relevant hearing.

Electronic Bundles

20. The parties must agree, and the lead party must prepare and send to the court an electronic bundle of documents (and if appropriate an agreed electronic bundle of authorities) for each remote hearing complying with paragraph 18 of the President’s Guidance entitled COVID 19: National Guidance for the Family Court. The electronic bundle must be prepared with care by somebody with adequate knowledge of the case and the following requirements must be followed:

(a)        PDF format is to be used;

(b)        All documents are to be contained, if possible, within one single PDF file;

(c)        The PDF file must be searchable;

(d)        Pagination must be computer generated within the PDF, not hand-written:

(i)         Original pagination must be by section and page number i.e. A1, A2, A3…. B1, B2, B3 etc;

(ii)        Insertions, after compilation of the original bundles, should be using ‘legal’ numbering (e.g. B13.1, B13.2, B 13.3 to be inserted between B13 and B14);

(e)       Each section of the bundle, and each individual document referenced in the index, should be separately bookmarked;

(f)        Electronic bundles should contain only documents and authorities that are essential to the remote hearing.

21. The electronic bundle must be filed with the court on CE-file (if available) or sent to the court via a cloud-based link (e.g. ShareFile, iCloud, OneDrive, Dropbox or Google Drive) rather than in a series of emails. Delivery by USB stick should be avoided due to the risk of creating a pathway of infection and to protect the integrity of the court IT systems. The electronic bundle should be provided to all other representatives and parties within the timescales provided by the relevant Practice Direction.
22. Nothing in this Protocol limits the parties from agreeing, with the consent of the court, to use an e-bundle service from a commercial provider.

Listing

23. Rather than all cases being listed to commence at 10.30am, where there is more than one remote hearing in the court list, the court will be required to list hearings at a specified time and there will be little or no option to extend the time estimate for the hearing once it has commenced. This means that time estimates provided to the court are critical and must be met. Advocates and parties must be ready to commence the remote hearing at the listed time.

Arrangements for Witnesses

24. Where the remote hearing will involve oral witness evidence, consideration must be given in advance to the documents to which the witness is likely to be referred. The parties should endeavour to agree the list of such documents. It will usually be most convenient for an electronic bundle of the copy documents to be prepared in advance, which the lead party should send to the witness. This means that a person seeking to cross-examine the witness must know in advance what documents will need to be shown to the witness during cross-examination.
25. When administering the oath or taking the affirmation, the court is likely to find it most convenient to ask the witness to repeat the oath at the prompting of the judge. By reason of the risk of creating a pathway of the transmission of infection, there is no expectation that the witness should touch the relevant Holy Book.

Interpreters and Intermediaries

26. Where the case is one that involves the use of an interpreter and / or an intermediary, early and careful consideration will need to be given as to how best to facilitate this involvement in the context of a remote hearing. In doing so, it will be vital that this is done in close consultation with the relevant interpreter and/or intermediary. FPR Part 3A governing vulnerable adults will continue to apply to remote hearings.

Arrangements for Recording

27. Responsibility for recording the hearing will fall on the party or court that has organised the remote hearing. At the conclusion of the hearing (or at such points during the hearing as is necessary) the recording of the hearing will be uploaded to cloud based storage provision and the judge will settle arrangements for how the recording files are to be transmitted and stored centrally by the court.

Security of Hearings

28. Section 53 of the Coronavirus Act 2020 provides for temporary modifications of s 85 of the Courts Act 2003 which make it an offence to record a broadcast from the court that has been directed for the purpose of enabling members of the public to see and hear the proceedings and make it an offence in any event to record or transmit material from participation through a live link on penalty of a fine at Level 3 on the Standard Scale. Those provisions apply to the Family Court and the Family Division of the High Court. The recording by a party or other person of a remote hearing without the permission of the court is strictly forbidden.

Transparency

29. FPR r 27.11(2)(f) provides that duly accredited representatives of news gathering and reporting organisations may attend a private hearing in the Family Court. Whilst FPR 27.11(3) permits the press to be excluded if justice would be impeded or prejudiced, including where the remote hearing could not, practically, take place if this step were not taken, it remains highly desirable that the operation of the Family Courts is as transparent as possible in the circumstances. Within this context, the court and the parties must give consideration to how press access to the remote hearing is to be achieved.  The court must indicate on the cause list that the hearing is a remote hearing and, if possible, the particular methodology that is being used.

THE REMOTE HEARING

30. All parties must ensure that they are ready to linked in promptly at the listed time. It is inevitable, particularly in the early stages of remote hearings, that there will be technical issues. Parties must be sympathetic and flexible regarding any technical difficulties that may be experienced by another party to proceedings. Professional decorum should be maintained at all times and in particular:

(a)        Advocates should dress as if they were attending court but advocates are not required to robe for any remote hearings.

(b)        Participants should ensure that the background visible on the screen is appropriate for a court hearing and that they are adequately lit in order to allow their face to be seen.

(c)        Participants must ensure that they will not be interrupted or distracted during the course of the hearing.

(d)        Participants should not move away from the screen without permission of the judge during the course of a remote hearing.

(e)        The usual restrictions on eating and drinking in a Court room apply.

(f)         All reasonable steps must be taken to preserve the confidentiality of the proceedings.  This will include ensuring that participants are indoors in a room with the door closed and alone, unless they are a party to the proceedings sitting with another party to the same proceedings.

(g)        The use of earphones is permitted and encouraged if their use will assist in preserving the confidentiality of proceedings.

(h)        The judiciary and other advocates should be addressed as if they were in a physical courtroom. It is not however, necessary to stand when the Judge joins the hearing or when addressing the Judge.

31. Anybody attending the remote hearing should ensure they have good connection/signal to avoid a breakdown in connection during hearing. As noted above, the minimum recommended bandwidth for a successful remote video hearing is 1.5 MBPS in both directions. With respect to the hearing itself:

(a)        All participants to the remote hearing should join the remote hearing prior to the Judge.

(b)        The Judge’s camera and microphone should remain on at all times during the hearing.

(c)        Unless addressing the Judge, or otherwise requested to do so, all other participants should have their microphones muted at all times.

(d)        Unless directed otherwise, all participants should leave their cameras turned on at all times.

(e)        At the start of a hearing, the Court identify the name and number of the case and will remind all parties that they are in a court of law, that notwithstanding that the hearing is being conducted remotely this does not change the seriousness and importance of the hearing and that the parties should behave as they would be expected to when physically in a court of law.

(f)         The Court will identify all participants to the remote hearing and give any additional directions the Court wishes to make about the use of cameras and microphones, including the need to mute the microphone when not speaking.

(g)        The Court will give any necessary warnings including warnings to all parties regarding recording and confidentiality. The parties will be asked to turn on their microphones whilst warnings are given, and will be invited to confirm their understanding of the warnings given.

(h)        When a witness gives evidence the Court will warn the witness that they must be in a room on their own and that they must not be prompted by anyone when giving their evidence. When a witness is giving evidence, that witness must keep their camera and microphone on at all times.

(i)         Advocates may need to take instructions during the course of a hearing and time should be provided to do so.

32. Where a witness attends the remote hearing the witness will be sworn or affirmed by the judge prior to commencement of their evidence. The witness is to be alone, in a secure room with the doors closed. The witness is to ensure that there will be no interruptions or distractions for the duration of their appearance at the remote hearing. The witness should have recently re-read all affidavits or statements made by him or her in the proceedings and have a copy of those documents with them.
33. The clerk, court official or the judge(s) must complete the order that is made at the end of the remote hearing. The wording of the order should be discussed and agreed with the parties before the link is terminated.

 

 

 

 

 

 

Appendix 2

 

Protocol for Conducting Safe Live Court Based Family Hearings during the COVID-19 Pandemic

23 March 2020

INTRODUCTION

1. The default position set out in the President’s guidance of 19 March 2020 entitled COVID 19: National Guidance for the Family Court that all hearings will be heard remotely does not preclude the possibility of ‘live’ hearings where this can be achieved safely. Within this context, paragraph 4 of that guidance provides that “where the requirements of fairness and justice require a court-based hearing, and it is safe to conduct one, then a court-based hearing should take place.” The principles set out in the President’s Guidance dated 19 March 2020 are now supplemented by those set out in his email of 24 March 2020 at 1016hrs, reflecting para 6 of the Lord Chief Justice’s direction of 23 March 2020, namely that live court-based hearings should now be confined only to exceptional circumstances where a remote hearing is not possible and yet the hearing is sufficiently urgent to mean that it must take place with those involved attending court in a manner which meets the social distancing requirements.
2. Safe live hearings, if they can be achieved, can only be so by careful and diligent adherence to the Government guidance on measures to combat COVID-19 that are in force at the time of such hearings. That Government guidance advises on social distancing measures that must be taken to reduce social interaction between people in order to reduce the transmission of COVID-19. Within this context, the primary mediator of a safe live hearing is the Government guidance on the PHE website.  Nothing in this Protocol alters that guidance and that guidance takes precedence at all times.
3. The steps outlined below, if followed, are designed to ensure that if a court user is unknowingly infectious, others in the room will continue to be able to comply with the Government guidance on social distancing.

LIVE HEARINGS GENERALLY

4. Once again, the default position is that all hearings should take remotely, subject to the need to hear committal proceedings (including Judgment Summonses) physically in court. Further, and in any event, it would be inappropriate for a live hearing to take place involving a person who is symptomatic or which involved any person who is subject to mandatory social distancing by reason of them being at increased risk of severe illness from COVID-19 according to the Government guidance. In particular:

(a)           Anyone aged 70 or older (regardless of medical conditions);

(b)          Anyone under 70 with an underlying health condition listed below (i.e. anyone instructed to get a flu jab as an adult each year on medical grounds):

(c)           Anyone with a chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis;

(d)          Anyone with chronic heart disease, such as heart failure;

(e)          Anyone with chronic kidney disease;

(f)           Anyone with chronic liver disease, such as hepatitis;

(g)           Anyone with chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy;

(h)          Anyone with diabetes;

(i)           Anyone with problems with their spleen or who have had their spleen removed;

(j)           Anyone who has a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy;

(k)           Anyone who is seriously overweight (with a body mass index (BMI) of 40 or above);

(l)           Anyone who is pregnant;

(m)         Those who have received an organ transplant and remain on ongoing immunosuppression medication;

(n)          Those with cancer who are undergoing active chemotherapy or radiotherapy;

(o)          Those with cancers of the blood or bone marrow such as leukaemia who are at any stage of treatment;

(p)          Those with severe chest conditions such as cystic fibrosis or severe asthma (requiring hospital admissions or courses of steroid tablets);

(q)          Those with severe diseases of body systems, such as severe kidney disease (dialysis).

LISTING A LIVE HEARING

5. Any live hearings from Monday, 23 March 2020 will need to be approved by the judge hearing the matter, if necessary in consultation with their leadership judge.
6. Where, exceptionally, more than one live hearing is held, the court should stagger listings to reduce the number of people waiting in the foyer and to allow for cleaning between hearings. Courtrooms on separate floors should be used for face-to-face hearings if possible, to reduce the number of people waiting in the same area in the foyer.
7. To reduce the length of any face-to-face hearing, where possible, submissions should be reduced to writing and the parties should expect to deal only with those issues that are not capable of prior agreement.

CONDUCT OF A LIVE HEARING

8. COVID-19 is mainly passed on by person-to-person spread between people who are in close contact with one another and by droplets produced when an infected person coughs or sneezes. It can also spread through contact with a surface or object that has the virus on it.
9. Where a live hearing is held, the court should ensure that the following measures are implemented:

(a)        Separation (2m) of people in queue to get into the court building.

(b)        Security screening at the entrance to the court should be staggered appropriately Separation (2m) in the queue for security must be maintained. Security to wear gloves and regularly to clean trays for visitor’s belongings. Security will be instructed to ensure social distancing is observed whilst court attendees are queuing for security.

(c)        Separation (2m) between security guards and people coming into court.

(d)        Separation (2m) of at all times in the court building (including in the assembly areas and when filing to and from court). The court should stagger listings to reduce the number of people waiting in the foyer and to allow for cleaning between hearings. Courtrooms on separate floors should be used for face-to-face hearings if possible, to reduce the number of people waiting in the same area in the foyer.

(e)        A sufficient supply of hand wash and paper towels (or automatic hand dryers) must be supplied for all who will be in the building.  This should allow for handwashing roughly every two hours by every person (obviously not at the same time).  Judges should allow breaks for this to occur.

(f)         There must be no sharing of documents / iPads/ or any other items in the courtroom.

(g)        The layout of the courtroom must accord with the requirements of Paragraph 11 below.

10. At the outset of the hearing the judge should commence the hearing by reminding those present of the operational public health advice and emphasise its continued applicability in the courtroom.
11. During the hearing, the layout of the courtroom must be arranged so as to ensure that all present stay more than 2 metres from all others present. Counsel, solicitors and parties are to adhere to social distancing by sitting in appropriately distanced seats. A courtroom in which this is not possible should not be used for a live hearing.  Where a court building has no courtrooms available that meet this requirement, that court should not be used for live hearings.
12. No party is to enter the court room before their matter is called.
13. Parties are to leave the court room immediately after their hearing has concluded, and then make their way promptly to the court exit.

CLEANING

14. Normal cleaning methods do kill the virus. Objects and surfaces that are touched regularly must be cleaned and disinfected frequently using standard cleaning products.
15. Additional cleaning of courtrooms that are used for face-to-face hearings will occur as often as practicable when the court is adjourned during the day.
16. Any live hearing will have a time estimate of no more than 1 hour. At the conclusion of that hearing, the courtroom will be closed and appropriate surface cleaning will take place before any further hearing is permitted to take place.
17. Where the judge lists a live hearing, the judge should ensure that the Court Manger contacts the cleaning contractor prior to the hearing to ensure that arrangements for cleaning in accordance with this Protocol are put in place.
18. Cleaning must take place in accordance with COVID-19: cleaning in non-healthcare settings (https://www.gov.uk/government/publications/covid-19-decontamination-in-non-healthcare-settings/covid-19-decontamination-in-non-healthcare-settings).

Appendix 3

Appendix 3 has now been removed as many more chambers and law firms have acquired the remote technology and continue to do so, rendering keeping this Appendix properly up to date an impossible task.  Chambers and law firms can be contacted directly for more information.

 

 

 

 

 

 

Appendix 3

 

In the High Court of Justice                                No: _________

Family Division /

The Family Court

 

IN THE MATTER OF __________________________

AND IN THE MATTER OF ________________________ CHILDREN

 

BEFORE _______________________ SITTING AT _______ ON ________.

 

UPON the Court determining that in the exceptional circumstances of the current national public health emergency this case is suitable for hearing remotely (‘remote hearing’) by means of

/[Skype]/[telephone]/[other].

AND UPON the parties and the court having identified and settled on the following communications platform to be used to conduct remote hearings in this case _____________.

 

BY ITS OWN MOTION / BY CONSENT

IT IS ORDERED THAT:

1. All hearings in this matter shall take place by way of remote hearing pursuant to FPR 2010 r 4.1(e) unless the court directs otherwise.
2. The parties and their representatives shall attend all hearings by way of/[Skype]/[telephone]/[other].
3. No unauthorised person may be present at this hearing. When asked, each legal representative must be able to confirm that no unauthorised person is in attendance or able to listen to the hearing.
4. This matter shall be listed for a remote hearing on _____________ at _____________ before ________ sitting at ___________ with a time estimate of _________.
5. The parties shall arrange and attend remotely an Advocates Meeting no less than 48 hours before the hearing listed above.
6. The [applicant / respondent] shall be responsible for arranging with the Judge’s clerk (via ________) the necessary facilities to conduct a remote hearing, allowing sufficient time for any necessary testing to take place. This will include provision to the court of the necessary contact details for the parties and their representatives where these are needed to facilitate the remote hearing.
7. The [applicant / respondent ] must confirm the details of the arrangements for the hearing to the other parties by no later than 24 hours prior to the remote hearing taking place.
8. The applicant shall by 1600 hrs on the day before the hearing electronically file a PDF bundle prepared in accordance with the requirements of paragraph 20 of the Protocol For Remote Hearings in the Family Court and Family Division of the High Court, which e-bundle must include:

(a)        A case summary and chronology;

(b)        The parties positions statements;

(c)        The previous orders that are relevant to the remote hearing;

(d)        All essential documents that the court requires to determine the issues that fall for determination at the remote hearing;

(e)        A draft order;

(f)         Completed advocates’ forms together with the single address that the signed and sealed