Arron Thomas writes about the likely approach courts may take when considering whether to conduct a remote final hearing, taking into account today’s decision of A Local Authority v Mother  EWHC 1086 (Fam).
Final Hearings in Care Proceedings during the Pandemic
As Martin Luther King observed:
“Human progress is neither automatic nor inevitable… every step toward the goal of justice requires sacrifice, suffering and struggle; the tireless exertions and passionate concern of dedicated individuals.”
The focus of our attention, it is suggested, should be ensuring the wellbeing and protection of children in the face of the daunting and exceptional challenge of the international Covid 19 pandemic. In my view, it is necessary to consider whether we can find a way to strike a balance between facilitating participation of parents within litigation and assisting children in ensuring that final decisions are made on their behalf. First it is necessary to examine underlying and fundamental principles and to consider whether there is any provision within this jurisdiction which prohibits or restricts the use of remote hearings as a matter of principle.
We are bound by the Family Procedure Rules 2010 and the absolute right to a fair hearing set out in Article 6 ECHR. I shall deal with each in turn:
Family Procedure Rules 2010
It is imperative for the court to “deal with cases justly” and apply the overriding objective set out in FPR 2010 r. 1.1(2), which includes:
(a) ensuring 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 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.”
Article 6 Part 1 Schedule 1 Human Rights Act 1998: Right to a Fair Trial
“1. In the determination of his civil rights or obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the presentation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interest of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the assistance of an interpreter if he cannot understand or speak the language used in court.”
There is nothing in either of the above provisions which compels a judge to adjourn a hearing rather than to deal with it remotely. In the recent decision of the President in Re P  EWFC 32, it is made clear that the question of adjournment is the province of the trial judge alone:
“The decision whether to hold a remote hearing in a contested case involving the welfare of a child is a particularly difficult one for the court to resolve. A range of factors are likely to be in play, each potentially compelling but also potentially at odds with one another. 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 may or may not turn on the category of case or the seriousness of the decision, but upon other factors that are idiosyncratic of the particular case itself, such as local facilities, the available technology, the personalities and expectations of 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 national guidance”.
How can a remote hearing be a fair hearing?
The President makes it clear that each case will turn on its own facts and, crucially, will depend upon local, practical considerations. What is clear is that the integrity of the proceedings MUST be preserved and it is for the trial judge to consider whether it is possible to conduct a fair hearing remotely. It must be noted that some elements of remote hearings are elements that we are accustomed to using with great success in regular court hearings. For example, we are used to taking evidence from live witnesses by way of video link, usually with the parties in a court room.
Further, pursuant to FPR 2010 PD3AA the court is enjoined to facilitate the best evidence from vulnerable witnesses including considering whether the person’s oral evidence should be given in advance by video recording (PD3AA 5.4) and this may include cross-examination over a video link (PD3AA 5.6). This facility is used as a means to improve the quality of vulnerable witness testimony not reduce it.
Of course, face to face evidence is the gold standard given the gravity of the issues at stake within family proceedings but it is necessary to consider whether it is possible to conduct a fair hearing when all parties are acting remotely. The author has been involved in interim removal hearings wherein the parents have been issued with an invitation to join a hearing through the Microsoft Teams facility. The parents required a smart phone and an email address. The parents in those cases had no cognitive functioning issues and navigated the process with relative ease including in the process of giving evidence. What was clear in those cases was that the court was able to assess the credibility of the parents and other professional witnesses by observing their expressions, both verbal and otherwise, over the video facility. It might be said that giving evidence within one’s home away from the solemnity and gravitas of court buildings might also assist rather than hinder a parent.
As was argued in Re A  EWCA Civ 583, using the words of Hewart CJ in R v Sussex Justices  1 KB 256,
“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”
Is it the case that justice is not done or seen to be done if an adjournment is not granted in a particular case ready for final hearing? Let us consider a care case in which a child has been waiting 60 weeks for resolution of her future at a crucial stage of her development, is it justice for the case to be adjourned to a future date wherein it might not be possible even at that stage to conclude the proceedings? At the heart of the court’s consideration is s.1(2) CA 1989:
“In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”.
As a matter of principle, whilst not ideal, it is not unfair for a final hearing to take place remotely. 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 and district judges concerning remote working during the lockdown. The President considered the guidance and said as follows:
“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.”
It is clearly envisaged by the courts that remote hearings are possible within final hearings in contested Public Law care or placement for adoption applications. The court sets out the pertinent factors at paragraph 9 of Re A to consider when a court is faced with an application to adjourn (my emphasis):
“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. Telephone is less effective than video hearings.
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.”
The subject matter of Re A has previously been extensively and compellingly dealt with by Danish Ameen in a previous blog entry. A significant issue in this hearing was the lack of availability for the judge to be able to conduct a contested remote hearing from home. If the necessary technology is not available then that is the end of the matter.
As courts mobilise to respond to the impact of the pandemic, it is likely that the issue of available judicial technology will be a problem of diminishing frequency. A crucial issue for the Court of Appeal was that set out at paragraph 9 in the quotation at i) (above) (emphasised): if a parent is not able to follow and engage in remote proceedings meaningfully then justice will not be done.
This is particularly relevant when one considers the difficulties faced by those with cognitive functioning issues and those for whom English is not a first language. It is difficult to see how the remote hearing procedures could be fashioned to give lay parties access to justice in these situations. Mr A in Re A had limited abilities and some disabilities including being diagnosed with dyslexia. For this reason, the outcome of Re A is not surprising. A further reason why one is not surprised by the outcome of Re A is the lack of reasoning in respect of the ability of Mr A to engage with the proceedings given his difficulties.
The court further found that the separation of the parents from their respective legal representatives through the offer of being able to attend court to give evidence placed them at a disadvantage and was not fair. For these reasons, Re A may well be a case which provides crucial guidance but which is distinguishable on its facts to a ‘typical’ 3-5 day hearing where no considerations such as use of an interpreter or cognitive functioning issues apply.
However, it is interesting to consider how one applies the Re A checklist to a ‘typical’ 3-5 day final hearing before a District or Circuit Judge where the application is for Care and Placement Orders in respect of a child where the proceedings are at week 60. The parents have no learning disability nor do they require an interpreter. It is the view of the author that the FPR rules will also be cited, in addition to the no delay principle. One must consider whether it is in the child’s best interests to wait until the autumn for their future to be resolved. At that stage courts may well be facing a large backlog of cases and struggle to deal with the demand for judicial and courtroom space.
It is increasingly the experience of the author that parents are becoming frustrated at the prospect of lengthy delays before a case is resolved. There is a willingness to embrace new technology from the courts, the advocates and usually from the parents. Recent experience of contested interim care order hearings confirms that if there is a tablet computer in the possession of a parent and an email address with a bundle downloaded onto the tablet, then it is possible to conduct an effective hearing remotely. This is where the FPR and the consideration not just of the individual child but also of the resources of the family justice system as a whole comes in: if ‘typical’ care cases are adjourned then the system faces difficulty further down the track and there is a risk of further delay in any event. In applying the paragraph 9 test to the ‘typical’ case, one can see that, for the most part, the criteria for fairness is likely to be established in respect of a remote hearing.
Times are changing rapidly, we must adapt to such change in the same manner as previously. We have now reached a stage where urgent contested interim care order hearings with evidence tend to be heard remotely. What is key is that in any hearing the quality of the evidence must be maximised by the measures employed through the remote process.
A relevant example is Re EK  EWFC 25, and the observations of Mostyn J:
“The Prime Minister made the national lockdown announcement on the evening of Monday, 23rd March 2020. However, by then I had already directed that the case would be heard by Skype for Business. I am very grateful to the solicitor for the local authority, Shamima Ali, for setting up and testing the remote hearing which proceeded well. I am equally grateful to all the other lawyers for their diligent cooperation with the process. There were a few hitches, which I think were referable to one of the locations having poor internet signal. However, the problems were all overcome. I heard evidence from five witnesses, one of whom was in Scotland. I had an excellent e-bundle, which contained all relevant documents. Counsel were all able to make their submissions without a hitch. This is the second case in consecutive weeks that I have heard in this way. Plainly, for as long as this emergency continues this is the only way in which the majority of cases can be heard. It is reassuring that notwithstanding the national shutdown the wheels of justice have been enabled to turn”.
A judgment handed down today by Mrs Justice Lieven confirms the author’s view about the likely approach to be taken by the courts. This judgment concerns the question of to whether to proceed with the lay evidence in a case remotely or whether to adjourn the case having heard the medical evidence.
In A Local Authority v a mother and a father EWHC 1086, crucially, the court decided it appropriate to proceed with a remote hearing in circumstances in which the father in the case had been the subject of a psychiatric assessment. The issues of self-isolation, lack of support when giving evidence and impact upon the psychological resources of the parents were considered and the court elected to proceed with a complex 15 day hearing. The court considered the Re A paragraph 9 criteria (set out above) and, in so doing, decided that it would be fair to proceed with the trial. The impact upon the child of not proceeding with the trial was a significant factor.
What one may also find interesting is the court’s analysis of whether holding a remote contested hearing impedes the court from dealing with the question of credibility. The court dealt with this decisively, as follows:
“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. Mr Goodwin referred me to the consideration of the approach to witnesses’ demeanour by Leggatt LJ in R (on the application of SS (Sri Lanka) v Secretary of State for the Home Department 2018 EWCA Civ 1391;
Generally speaking, it is no longer considered that inability to assess the demeanour of witnesses puts appellate judges “in a permanent position of disadvantage as against the trial judge”. That is because it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness’s demeanour as to the likelihood that the witness is telling the truth. The reasons for this were explained by MacKenna J in words which Lord Devlin later adopted in their entirety and Lord Bingham quoted with approval:
“I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness’s demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.”
“Discretion” (1973) 9 Irish Jurist (New Series) 1, 10, quoted in Devlin, The Judge (1979) p63 and Bingham, “The Judge as Juror: The Judicial Determination of Factual Issues” (1985) 38 Current Legal Problems 1 (reprinted in Bingham, The Business of Judging p9).
The reasons for distrusting reliance on demeanour are magnified where the witness is of a different nationality from the judge and is either speaking English as a foreign language or is giving evidence through an interpreter…
Ms Jegarajah emphasised that immigration judges acquire considerable experience of observing persons of different nationalities and ethnicities giving oral evidence and suggested that this makes those judges expert in evaluating the credibility of testimony given by such persons based on their demeanour. I have no doubt that immigration judges do learn much in the course of their work about different cultural attitudes and customs and that such knowledge can help to inform their decision-making in beneficial ways. But it would hubristic for any judge to suppose that because he or she has, for example, seen a number of individuals of Tamil origin giving oral evidence this gives him or her a privileged insight into whether a particular witness of that ethnicity is telling the truth. That would be to assume that there are typical characteristics shared by members of an ethnic group (or by human beings generally) which can be relied on to differentiate a person who is lying from someone who is telling what they believe to be the truth. I know of no evidence to suggest that any such characteristics exist or that demeanour provides any reliable indication of how likely it is that a witness is giving honest testimony.
To the contrary, empirical studies confirm that the distinguished judges from whom I have quoted were right to distrust inferences based on demeanour. The consistent findings of psychological research have been summarised in an American law journal as follows:
“Psychologists and other students of human communication have investigated many aspects of deceptive behavior and its detection. As part of this investigation, they have attempted to determine experimentally whether ordinary people can effectively use nonverbal indicia to determine whether another person is lying. In effect, social scientists have tested the legal premise concerning demeanor as a scientific hypothesis. With impressive consistency, the experimental results indicate that this legal premise is erroneous. According to the empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness. On the contrary, there is some evidence that the observation of demeanor diminishes rather than enhances the accuracy of credibility judgments.”
OG Wellborn, “Demeanor” (1991) 76 Cornell LR 1075. See further Law Commission Report No 245 (1997) “Evidence in Criminal Proceedings”, paras 3.9–3.12. While the studies mentioned involved ordinary people, there is no reason to suppose that judges have any extraordinary power of perception which other people lack in this respect.
This is not to say that judges (or jurors) lack the ability to tell whether witnesses are lying. Still less does it follow that there is no value in oral evidence. But research confirms that people do not in fact generally rely on demeanour to detect deception but on the fact that liars are more likely to tell stories that are illogical, implausible, internally inconsistent and contain fewer details than persons telling the truth: see Minzner, “Detecting Lies Using Demeanor, Bias and Context” (2008) 29 Cardozo LR 2557. One of the main potential benefits of cross-examination is that skilful questioning can expose inconsistencies in false stories.
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.
Let it not be said that a remote hearing prevents a court from assessing the evidence as it should. As has been demonstrated by the pandemic, we cannot rest in the moment and expect that everything will be okay. The family justice system is a living, breathing organism and must adapt to societal changes, seismic though they are. There may be further waves of this pandemic and children need the wheels of justice to continue to turn so they are not waiting in limbo for their futures to be determined for lengthy periods of time, unless the fairness of the case dictates otherwise.
Arron Thomas is a member of the Family Department at 18 St John Street Chambers. If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.