Today I attended a Court of Appeal hearing as a member of the public. The Court of Appeal sits in public so if you’re nearby in London, you can go in to see what’s going on. Today’s hearing was however held remotely because of the corona virus restrictions. We’d heard that the case Delia Minoprio wrote about here was being taken to the Court of Appeal by the children’s mother, on the single issue of whether the High Court decision of 15 May – about the dates for continuing the fact-finding hearing – was right or wrong. The remainder of the fact finding is now about how the three-year-old came to ingest the cocaine that caused her death. Because this wasn’t a family court hearing held in private, I didn’t have to attend (i.e. join remotely) as a legal blogger under Practice Direction 36J. All I had to do was email the address shown on the court website for press enquiries about joining a hearing. I copied in all 13 barristers, as listed in the BAILII judgment, in case they wanted to check if their clients might have any objections to my being there. My request was promptly passed to the clerk for Lady Justice King who sent me the Skype joining details.

Here is a short blog post about the hearing but I will write further when the judges’ reasons for their decision made today are published.

As Delia explained in her post, the mother’s QC would not be able to physically attend court alongside her client on the date set for resumption of the hearing because she (the lawyer) was shielding until as least 30 June. The mother was therefore asking for an adjournment, meaning that the case might resume in September. The High Court judge, Mr Justice Williams, undertook a balancing exercise of all the factors which, of course, included the impact on the four children of continuing delay. They have been in foster care for a year already. He concluded that the hearing should resume in June with the mother supported in court by her junior barrister and her QC making submissions and cross examining witnesses through video.

The mother’s lawyer today put forward arguments under Article 6 – the right to a fair trial – as follows. The prospect of a trial where she and her client were in separate places was unfair in the sense that the mother perceived it as unfair. Williams J ‘s balancing exercise in keeping to that date (set out in para 64 of the judgment) was unclear to the mother. A balancing exercise should show all the judge’s ‘workings out’ and reasoning with regard to each factor he had considered. It had been wrong of the judge to speculate about what shielding might look like in September. A hearing conducted in June, with her leading barrister appearing remotely, would not be an effective or equal hearing for the mother.

The father’s QC confirmed that the father supported the appeal. The father wanted the opportunity to distinguish himself from the mother in the trial. There was considerable disagreement between them on alleged facts about domestic abuse and drug use and the father’s QC wanted to be able to conduct what he described as ‘seamless cross examination’ of the mother. The father’s case depended on bringing out the differences between the parties. I’m not sure why the father’s lawyer was making this point so forcefully as my understanding was that he was going to be able to be in court anyway – but it was an interesting line of argument.

The barrister for the father of the oldest child said that he did not support the appeal but wanted the children’s future to be determined as soon as possible. She argued that the judge had kept the children’s welfare at the forefront of balancing the factors on timing. Nor did the paternal grand mother support the appeal. Her barrister stated that the mother had already attended many interim hearings where not all QCs were there and that the mother’s subjective view of what was fair should not be the determining factor. The judge had carried out a proper balancing exercise and there was a risk of no progress until 2021 if the June hearing did not go ahead. The local authority and the Children’s Guardian opposed the appeal and their barristers made a number of points about having to adapt systems to ensure that Article 6 was still respected even if it was a more minimal than our usual Rolls Royce procedures. It emerged that there isn’t a courtroom big enough to hold all the participants 2 metres apart, so more precise ground rules were going to have to be put in place, whenever the hearing was scheduled. The consensus amongst all these parties and interveners was that Williams J had not been wrong, and that his decision to resume in late June should go ahead.

There were 34 participants in this online hearing and I could see and hear the speakers clearly, although I missed the first few minutes because my laptop insisted on joining me on the wrong platform. I don’t think anyone whose attendance was vital had anything like that happen. but at one point, one of the barristers lost her connection while she was speaking and we had a three minute break while she rejoined, King LJ was very gracious about this, saying ‘take your time’ and the person concerned did not seem thrown off course at all, but this was picked up later on by the mother’s barrister as an example of what can go wrong with the fluency of a hearing. Interestingly, although this was a public hearing, on three occasions, names of some of the parties were mentioned. However there is probably an order in place under the Civil Procedure Rules 39(2) that their identities should not be disclosed. [EDITED 7 JUNE: On reflection, s 97 is still in force along with the rubric from the High Court judgment so a new anonymity order isn’t required.]

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