Although the remote family justice soup has of late been a right old ‘pea souper’, with some difficult to digest lumps of guidance giving us all a tummy ache, some new letters have floated to the top of family justice broth this week. Re A and Re B are judgments from the President of the Family Division, each dealing with an appeal in an individual case, both of them quite different. They don’t give us a secret recipe to make the perfect soup every time, but they do contain some useful ideas for creative and thoughtful cooks to work with and adapt.

Yes, ok – the soup metaphor is getting a bit difficult to digest too, so here is a brief summary of the actual cases. There are already lots of lawyerly summaries of these cases, aimed at other lawyers who might want to construct clever legal arguments out of them – but this post is an attempt at briefly explaining what the cases and the decisions were about – for non-lawyers interested in how family courts are working right now.

Re A

Re A (Children) [2020] EWCA Civ 583 can be found here.

This was a case where the court was being asked to make care and placement orders at a remote hearing. It was due to happen at the end of March. Shortly after lockdown the trial judge decided that the final hearing should go ahead (largely remotely), at the end of April, albeit slightly delayed from the original date to allow for arrangements to be set up. The plan was for the parents to be in court with the judge but socially distanced, but everyone else to be remote – a ‘hybrid’ hearing. At that point the mother didn’t argue with that, in part because all the lawyers seemed confident they could make it work remotely and guidance that had recently been issued seemed to support it. But, as lawyers and judges have had more experience of remote hearings and some of the difficulties that they can present for achieving a fair trial, and as guidance has been adjusted to reflect that, some people’s views had changed. The mother didn’t want it to go ahead as a remote hearing and it sounds as if several of the lawyers had thought about it more, learnt a bit from experience, and weren’t so sure either – the local authority had previously wanted the hearing to go ahead remotely, but by the time of the appeal accepted it couldn’t be done fairly. Although the guardian wanted to carry on in order to avoid further delay for the children (there had been some considerable delay already), the Court of Appeal agreed that the hearing would just have to wait for a time when things could be done face to face in order for it to be fair.

This doesn’t mean that it will never be fair to go ahead with a remote final hearing in a care and placement application – the court was very clear that everything depends on the individual facts.

One big issue was that the father had dyslexia and cognitive difficulties and would really have struggled with the screens and documents and technology from home. Making a plan for him to be in court removed some of those problems, but created others / left others unsolved – for example the father would still not be in the same place as his lawyers, would be unsupported, and would still not be able to freely communicate with his lawyers except through the remote means that had been identified as difficult for him. Whilst the father would have to deal with the daunting prospect of being in the courtroom on his own, others would not have to deal with this.

The Court of Appeal were very careful not to be critical of the judge, who had thought carefully about what to do but who had nonetheless got it wrong in difficult circumstances – what had seemed like a good idea in the early days of Covid-19 seemed like a less workable plan now more was understood. He had prepared a detailed case plan, setting out how everything would work, and the appeal judges thought this was a really good idea which should be used in other cases.

Part of the difficulty in this case was that it looked as if the judge might have mistakenly thought the older child was almost 5, when in fact he was only almost 4. It is generally true that finding an adoptive placement for a 5 year old is going to be more tricky than for a 4 year old, and the risks of it not working out are probably higher the older the child gets, but the appeal court didn’t think that this made the case an emergency as some of the judge’s remarks had suggested. It wasn’t for example, the case that anyone was arguing that adoption would be a hopeless exercise if the hearing couldn’t proceed (I’ve certainly dealt with one involving an older sibling set, where the elder child was considerably older and this was a real concern).

By the time of the appeal it was only the guardian who was still arguing for the hearing to go ahead, on grounds that delay would prejudice the childrens’ welfare. Not only did the court reject the urgency point, they were very clear that fairness was of critical importance, even though there is a general need to avoid delay :

in addition to the need for there to be a fair and just process for all parties, there
is a separate need, particularly where the plan is for adoption, for the child to be able to
know and understand in later years that such a life-changing decision was only made
after a thorough, regular and fair hearing.

Re B

Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584 can be found here.

The circumstances in Re B were quite different. This was an appeal against an interim care order (and ICO) made at a telephone hearing, and which permitted the removal of a 9 year old boy ‘Sam’ from the care of his grandparents to foster care. The Court of Appeal overturned the order and said

‘The order should not have been made and Sam has now returned home.’

This then is not a story of potential unfairness, but actual unfairness. And the Court of Appeal, again headed up by the President of the Family Division, said that

In the present abnormal circumstances, the fundamental principles of substantive law
and procedural fairness are unchanged.

Or, in layman’s terms : just because we are in extraordinary times doesn’t mean you can chuck fairness out of the window.

That said, the court also recognised that some cases really are urgent, and that hearings will have to go ahead, with the court should make the best possible use of IT to achieve fairness.

The background to this case was that Sam had an older sister (Confusingly given the name ‘Samantha’ in the judgment), and the grandmother, who had been caring for both children, had become unable to manage Samantha’s behaviour. She had gone into foster care and there wasn’t really a disagreement about that. And in fact, at the start of the hearing nobody was asking for Sam to also go into foster too – but when the guardian appointed for him raised concern that he would be more at risk on his own without his sister at home with his grandmother, and that this would be made more risky because of Covid-19 – this prompted a change of position from the local authority half way through the hearing.

The judge was under huge pressure and exhausted from dealing with back to back phone hearings, the lawyers were telling him it was urgent and ultimately the judge made the order. Again, the Court of Appeal were quite sympathetic with the judge and the situation he faced, but they were quite critical of the guardian for effectively driving the removal when she had not met the child or the grandmother and had effectively had a knee jerk and risk-averse reaction to the situation – and wasn’t at the hearing to hear the responses to her last minute position statement and reflect.

Frankly, it sounds as if everyone got themselves in a bit of a tizz – with the local authority being distracted by the guardian’s intervention and losing sight of the bigger picture – and the appeal court were critical of how one sided things were :

We are also troubled by the lack of any balanced analysis in the case for removal that
was put by the Guardian, and also by the local authority. There is no reference to the
emotional detriment to Sam in being removed from his only parental figure without notice or preparation.

There was no reference to Sam’s wishes and feelings about
immediate removal, nor any reminder to the court that these were not known. There
was no credible explanation for why there had to be an emergency decision.

This piece of criticism is particularly stinging :

When we asked [counsel for the child on the appeal] about the above matters he described them as a consequence of this being “an emergency application” in which child protection imperatives had to prevail. We reject that argument. The pressured way in which the proceedings developed may have felt like an emergency to the professionals, but it was not an emergency for Sam. We also firmly dismiss the proposition that the current ‘lockdown’ provides a reason for the removal of a child where none would otherwise exist. It is possible to envisage a case at the margins where face-to-face supervision is so important that a child would not be safe without it, but this case and most others like it fall nowhere near that category. Our overall observation in this respect is that unfortunately Sam’s voice was not heard at a critical moment in the proceedings and his interests were not protected by his Guardian, whose recommendation set in train the sequence of events that followed.

In summary : do not go straight from Covid-19 to removal. Do not pass go and do not collect £200.

So there we are two tasty appellate morsels. We are sure there will be more in weeks to come. We will do our best to summarise them. And we are sure that our magical surprise justice soup will continue to change and evolve. In the meantime, we’ll leave you with this Souper blast from the past : Dr Hook and the Medicine Show – The Wonderful Soup Stone….

Feature pic : By Beanbag Amerika on Flickr – creative commons – thanks!

We have a small favour to ask! 

The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.

Our legal bloggers take time out at their own expense to attend courts and to write up hearings.

We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.

Thanks for reading!