Walking the tightrope - balancing the right to a fair hearing in childcare proceedings during the COVID-19 pandemic
Lancashire CC v EWFC/HCJ/2020/43
The case involved the admission to hospital of a child with extensive injuries. The parents denied responsibility for the injuries. The local authority sought findings that the child’s injuries were inflicted on him by either the mother or the father or both his parents. The local authority relied on welfare concerns arising out of the parents' alleged use of drugs, their emotional and mental health, their alleged hostility to professional intervention and their alleged inability to work openly and honestly with professionals.
The matter was listed for contested final hearing set up in a hybrid manner at MCJC. Due to COVID-19 restrictions the father sought an adjournment of the hybrid hearing until a face to face hearing could take place.
The father advanced Article 6 ECHR arguments that he would not be able to fully participate in the hybrid hearing in Manchester and sought an adjournment until the matter could be heard in Preston face to face. It was submitted on behalf of the father that only a further adjournment to await a time when a face to face hearing could take place in Preston would afford the father the proper opportunity to properly participate and engage in a court hearing having regard to his particular vulnerabilities, those being severe anxieties. The mother supported the father’s application.
The local authority and the Children’s Guardian strongly opposed a further adjournment. The local authority submitted that the face to face hearing that both parents sought had been made available by the court at considerable effort: a courtroom in Manchester which could accommodate twenty people (thus allowing the parties, leading and junior counsel for the parties, solicitors for the parents and the father's intermediary) to attend a properly socially distanced fully face to face hearing. That court (the MCJC) had also been the subject of a full risk assessment by HMCTS indicating that the building was 'COVID-secure'.
The application to adjourn for a third time was refused.
Paragraph 45 of the judgement sets out the factors that inform the question of whether, in any given case, a hearing should be conducted by way of a remote hearing, or a hybrid hearing or adjourned for a fully face to face hearing. Those nine points include the welfare of the child, delay, requirement to deal with a case justly, extent a remote or hybrid hearing will provide the judge with a proper basis on which to make a judgement, steps that can be taken to reduce unfairness, impact of COVID-19 on the timescales for a fully face to face hearing, giving consideration to whether all parties consent, importance and nature of the issue, whether there is a need for urgency, if the parties are legally represented and the ability of lay parties to access engage and follow remote proceedings.
This case highlights the critical importance of considering each case on its own facts and applying the nine points highlighted in the judgement. Going forward, should a party seek a fully face to face hearing there would have to be submissions surrounding those nine points from all parties if an agreement could not be reached. It is likely that this would involve careful case management and possibly the submission of a case plan to inform practically how a hearing could take place.
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