Article by Zara Yusuf
Like other aspects of the Justice System, the courts have had to adapt to the negative impact brought upon by the pandemic, a number of which have had to convert to remote hearings. However, the recent case of Re P (A Child: Remote Hearing)  EWFC 32 seeks to illustrate how remote hearings are not suitable in every case.
This particular case concerns a serious allegation brought forward by the local authority; that a mother had harmed her seven-year-old child by fabricating or inducing illness (FII). Proceedings had reportedly lasted the duration of a year, before which, there were private law proceedings, along with continued delays in the organisation of the final hearing.
Influenced by the The Remote Access Family Court, a publication written by Mr Justice MacDonald, concerning the family procedural rules to be adapted in the case of remote family hearings, it was agreed by all parties on the 3rd April 2020 that the fifteen-day hearing would commence in the form of a remote hearing. Yet, the initial decision to commence this matter by way of a remote hearing was challenged by Sir Andrew McFarlane, President of the Family Division, on the 16th April 2020.
The reasons for this judgement can be summarised as follows:
The Mother had contracted Covid-19 prior to the commencement of the trial, and as a result, there was a need for her to attend the case remotely from her own home. However, it was felt that she may have been unable to provide swift instructions to her legal representatives throughout the course of the lengthy trial, the implications of which may have restricted her ability to effectively engage in the hearing.
MacFarlane J further posited that a Judge needs ‘to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process’, for which the postage stamp sized image available via the video link would be a poor substitute to seeing the individual fully present in the court room. Not to mention the likelihood of connectivity problems, along with other technology related issues that could occur during the hearing, risking justice being achieved.
MacFarlane J further acknowledged how each these points competed with the need to conclude the matter, for the sake and wellbeing of the child, but the need to execute a fair and just hearing prevailed. He also noted how this specific case requires extreme sensitivity and skill in its approach, which is supported by the expert witnesses who commented on the uniqueness and complexity of the case.
The impact of the decision made by MacFarlane J is significant as it highlights that remote hearings may not always be appropriate for every case, especially when such sensitive matters – like the welfare of a child, are involved. While the courts are navigating through uncharted territory, the prospect of determining whether a remote hearing is appropriate should be decided on a case by case basis, rather than assuming a blanket strategy for all cases to be tried remotely. Sir Andrew MacFarlane also rightly issued a reminder of the core function of the Family Justice system: ‘to deal with cases justly, having regard to the welfare issues involved, part of which is to ensure that parties are on an equal footing.’