Case analysis – Re Q (A Child) [2020] EWHC 1109 (Fam)

The President of the Family Division, Sir Andrew McFarlane, (hereafter referred to as the President) recently handed down judgement in an appeal from a private law children decision. The judgement was handed down on 6^th May 2020 and below is a summary of Re Q (A Child) [2020] EWHC 1109 (Fam).

The case was an appeal by the father (F) against the previous Judge’s decision to vacate (dismiss) the final hearing in proceedings for a Child Arrangements Order.

The matter concerns ‘Q’, the child, who is now aged 6 ½ years. F brought the case to Court in October 2018 when contact between him and Q was ceased by the mother (M) due to allegations she made that F had sexually abused Q. These allegations were later determined to be unfounded.

In March 2020 an expert psychological report, following assessment of the parents, was filed. This concluded that it would be in Q’s interests for her primary carer to change from M to F. This is a somewhat unusual situation and indicates that the psychologist considered that M posed a risk of harm to Q, which outweighed the harm that would be caused by changing the status quo.

Contact with F was increased, and the case listed for a final hearing on 22^nd April 2020.

As it happens, the final hearing did not take place on 22^nd April.

Due to the Coronavirus pandemic, most family cases are being conducted remotely, in accordance with the Government’s rules surrounding isolation and social distancing or being adjourned to be heard later in the year. The latter is occurring where cases are considered unsuitable for remote hearings, perhaps because (as in this case) an interpreter is required and/or it is thought that prejudice may be caused to one party by the hearing being held remotely.

In this case, the Judge hearing the matter, DDJ O’Leary, ordered that it be vacated and re-listed for a face-to-face final hearing in due course. This is despite the fact that two days earlier, she considered that a fair hearing could take place remotely and as such it should continue.

The Judge changed her mind after reading F’s pre-hearing position statement and the President’s decision in the case of Re P which was published on 21^st April. In Re P, a final hearing of children matters was vacated and adjourned to be heard face-to-face as the President considered the nature of the case to be such that it could not fairly be heard remotely.

F appealed this decision to vacate the final hearing largely on the basis that indefinite delay (until the Courts are back up and running in person [at which time they will undoubtedly have a large backlog of cases to be heard]) would not be in the best interests of Q and the Judge had failed to apply sufficient weight to this point.

In relation to his position statement, he argued that he was not introducing any new material which was not already in evidence, and therefore it did not require any change in approach nor detailed consideration that could not be dealt with via his counsel’s submissions.

The President, in allowing the appeal (sending the case back to DDJ O’Leary to be re-listed for a final hearing) made it clear that his decision in Re P does not ‘establish a veto to the holding of a remote hearing where a parent objects, or expert evidence is to be called’ (paragraph 24). He states that the decision in Re P is confined to cases involving allegations of Factitious or Induced Illness. However, his reasoning in that case, detailing the matters to be weighed up when considering whether a remote hearing is suitable, can still be considered and referred to in all other cases.

The President also considered in detail the point about Q’s welfare and considered that the Judge’s approach to this point had been inconsistent. Initially, when ordering that the final hearing must proceed remotely, this was on the basis that delay would not be in Q’s best interests as the evidence showed that she was suffering harm in the care of her mother. However, when the Judge subsequently vacated the hearing, she stated that the arrangements for Q during the pandemic were suitable and maintained her welfare.

In relation to the point about F’s position statement, the President considered that the reason this influenced the Judge to adjourn the hearing was that she felt F’s allegations about M’s care of Q would, in order to ensure a fair trial, require M to give oral evidence – to put her side of the story. The error that she made, as detailed by the President, is that she did not allow the parties’ advocates to give submissions on this point.

It follows from this, the President’s Guidance and other Court of Appeal decisions, that each Judge or Magistrate must consider whether a remote hearing is suitable on a case-by-case basis, weighing up the individual circumstances that are before it. The President accepts that this will lead to the inevitable consequence of some inconsistency from court to court, or judge to judge.

For more information about remote hearings, children disputes, any other family issues, or if you have any questions about the issues raised in Re Q (A Child) [2020] EWHC 1109 (Fam), please contact us.