Re A (Children) (Remote Hearing: Care and Placement Orders) (Case No: B4/2020/0626)
- Bench: Sir Andrew McFarlane P:
- Court: Court of Appeal (Civil Division)
For Appellant:
- Karl Rowley QC and Simon Heaney (instructed by Cumbria Family Law Ltd ) for the Appellant Father.
For Respondents:
- 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.
Issue:
Issue of remote hearing in child care matters
Facts:
- In a matter of care proccedings, the long term foster and guardianship plans of 6 children of various ages (from 17 years to 20 months) were to be determind during a conventional final hearing, which was scheduled to happen on 30 March 2020. In the current Covid 19 situations, it was transferred to another court which declared that this matter was to be heard in hybrid form considering the urgency of the matter.
- The hybrid case plan formulated by the Court included remote hearings against which this appeal has been filed.
Court’s observations and decisions:
On 9 April 2020, the Lord Chief Justice (LCJ), 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 message specificially stated that if all parties oppose a remotely conducted hearing, this is a very powerful factor in not proceeding with a remote hearing. In the instant case, all the parties except the Children’s Guardian opposed the remote hearing. Hence, it is impossible to overturn the guidelines without adequate reason. The other factors stated to declare that a hybrid or remote hearing is not necessary is this case are: a)Mr. A’s inability to engage adequately with remote hearing either at his home or in a courtroom; b)imbalance of procedure when only the parties are required to be present before the judge but not their representatives ; (c) the need for urgency was not adequate enough to resort to remote hearing. In addition, the court also considered the fact that the Children’s father had disabilities like dyslexia, short attention span etc. “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.”
Comparative analysis with Indian scenario:
The Supreme Court has issued guidelines for remote hearing of cases in Suo Motu Writ (Civil) No.5/2020 Re: Guidelines For Court Functioning Through Video Conferencing During Covid-19 Pandemic. The guidelines aim at reducing the conventional practices of court activities to prevent further spreading of the virus. The 8-pointer guidelines look into matters from a general point of view. It does include that “In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing.” While the underlying principle remains the same in both the judgments, the approach is not narrowed down to childcare mattersin India. Senior Advocate Shyam Divan and his team of lawyers have prepared a draft legislation to cover up the lacunae existing with regard to a uniform system and set of rules to follow while resorting to virtual courtrooms. What happens with regard to specific kinds of matters like family, constitutional, criminal etc – are yet to be decided.
