McFarlane: Remote hearing on future of child a step too far

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McFarlane: Judge needs to see mother face to face

It is not appropriate for a 15-day hearing into whether a mother has harmed her seven-year-old daughter to be held remotely, the president of the Family Court has ruled.

Sir Andrew McFarlane said that, despite the urgency of the situation, the hearing – which had been due to begin on Monday – could not “properly or fairly be conducted” without the mother’s physical presence before a judge in a courtroom.

This was despite the local authority – which alleges that the child has been caused significant harm as a result of fabricated or induced illness – and the father both supporting a remote hearing because of the coronavirus crisis. The mother opposed it.

There are three expert witnesses while the trial judge is also being invited to fix the final care plan, with the recommendation that she be placed in foster care. Since April last year, the girl has been living with a friend of the mother’s under an interim care order.

The plan had been for the hearing to go ahead, with the mother’s lawyers anticipating having a break either after the evidence-in-chief or at the end of each witness’s evidence, so that they could take instructions from the mother over the telephone or over Zoom or a separate video link.

However, Sir Andrew, who said he was monitoring developments in remote hearings nationally, stepped in.

In his ruling last week, published yesterday, he said: “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.”

There were no national guidelines because the individual circumstances of each case meant the decision should be left to the court, but here he found that the judge had been wrong to accede to a remote hearing.

“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…

“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… 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.”

Such a scenario would not give the judge a proper basis upon which to make a full judgment and meant there was a “significant risk” that the process as a whole would not be fair.

The fall-back positions suggested by the local authority – either to deal with the professional witnesses remotely or for the court to undertake the fact-finding process – were not acceptable as well.

The judge would still “not have the opportunity to engage fully with the parent during the whole of the hearing as would be the case in a courtroom”.

Sir Andrew added: “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.”

The president added that the judge and parties had been wrong to understand advice produced by Mr Justice MacDonald on the conduct of remote hearings as indicating that all hearings must now proceed as remote hearings.

“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.”

He ordered that the case be re-listed once the current restrictions have been lifted.