Lancashire County Council v M & Ors (COVID-19 Adjournment Application) [2020] EWFC 43 is another case (like Re C that we wrote on here) where an extraordinarily large number of professionals spent many hours working on a notion that was dismissed by the judge, although this time in the Family Court, not the Court of Appeal. Although the judge, Mr Justice MacDonald, emphasised that a case management decision about holding a remote or hybrid or full-face hearing should not normally take very long, he also explained why he had to spell out his reasons in more than 60 paragraphs.
Background
Similarly to Re C, the parents here were objecting to the case proceeding at the pace that other parties argued was required for the child, in the context of Covid.
The child was one year and nine months old at the date of the hearing this month. When he was one month old, in October 2018, he had been taken to hospital with multiple injuries. These included:
- bilateral subdural haemorrhages,
- acute ischaemic damage on the medial aspect of the left temporal occipital region,
- extensive retinal haemorrhages to the right eye,
- bruises and multiple fractures, one of which had occurred on a previous occasion.
The child had been in foster care since he was discharged from hospital. Although there is no information about his recovery prospects, he is at one point in the judgment described as flourishing in the care of the foster carers, who (if he wasn’t going to return his parents) wanted to adopt him, a position supported by both the local authority and the Cafcass guardian.
Also similarly to Re C, the issues related to an adjourned fact-finding hearing. The result of the expert evidence given by six medical consultants had led to the local authority asking the judge to make a finding that the baby had been injured by his mother, father or both of them. Each parent and the local authority and the Cafcass guardian were all represented by two barristers, mostly QCs. There wasn’t a raft of extended family here though, as the possible perpetrators were limited to the parents.
19 months’ delay
Despite the stark facts outlined above, when MacDonald J delivered this judgment in mid June, the proceedings had been going on for 19 months, almost the whole of the child’s life. At a hearing listed for five days in March 2019, the father collapsed on the first day and was taken to hospital. He did not attend in October 2019 when the hearing was re-listed. Enquiries by his GP, the mental health crisis team and his lawyers all concluded that he wanted to attend court and had the mental capacity to do so, but had a level of anxiety that meant he should be supported in court by an intermediary. An intermediary is someone who supports a vulnerable person under the court rules – e.g. through a service such as provided by Communicourt .
The hearing was again re-listed in on 16 March this year in the Preston court, but had to be abandoned in the light of the threat of Covid that began that week. In April, MacDonald J, following the guidance issued by the President of the Family Division on 19 March applicable at that time, sought to arrange a remote hearing – but there was strong disagreement about this as the parents apparently had no reliable access to IT and because of uncertainty about bringing in the intermediary.
Finally, a final hearing?
Fortunately, it became possible to list a fully face-to-face hearing safely in a large court room in Manchester; this venue was fully risk assessed. The parents were reluctant to travel there by public transport so the local authority offered to pay for them to travel to court each day by taxi. There was a contingency plan of a hybrid hearing with the father and his barrister and the intermediary all safely in one room in Preston while everyone else was in Manchester.
However, the father argued that he was unable to travel to Manchester because of his anxiety, and the mother supported him in this objection. The parents wanted to wait for a final hearing to take place with everyone being together in Preston. They claimed that the delay would not have an adverse effect on the child because he was placed with foster carers where he would stay for the interim. This might appear a somewhat strange argument for the parents to make because, as the judge explained, if the child could be returned to their care, this should be done with minimal delay. It would only be if the final hearing concluded with a finding that the parents had injured him that he would be permanently removed from them and remain with the foster carers. The judge was emphatic that if a child is to be reunited with his parents, it’s in the child’s welfare to arrange this as soon as possible. There was also the effect of continuing uncertainty on the carers to take into account.
The decision
The judge was faced with three options:
- going ahead with the planned face-to-face hearing in Manchester;
- the hybrid hearing; or
- adjourning the case indefinitely until it was safe for all parties, lawyers, the intermediary and him to attend the small Preston court.
He concluded that it was not necessary to adjourn proceedings for a fourth (italics in the judgment) time. The Manchester hearing will go ahead. He added at para 67:
Finally, the father and the mother must understand that should they choose not to avail themselves of the results of the extensive efforts the court and their legal advisers have made to facilitate their respective participation in these proceedings in the difficult context presented by the COVID-19 pandemic, it remains open to the court to proceed to determine the issues before it without them, including drawing adverse inferences from any failure to give evidence before the court.
Comment
The judgment is useful in a wider sense, because it sets out in detail the chronology of the various guidance that has been issued to family courts since March, with renewed emphasis on the need to make a decision about remote or hybrid hearings according to the individual circumstances in each case. Secondly, the judge has also written out all the factors in making that individual decision in para 45, comprising nine headings and 12 sub headings.
Although only at Family Court level, and MacDonald J saying that most of these case management decisions don’t require a long judgment, the care he has taken here, alongside the Court of Appeal analysis of claims under Article 6 (right to fair trial) in Re C should be very helpful in ensuring fairness in other cases. As MacDonald J said in this case, the child also has his own Article 6 rights to a fair and timely decision making process.
Image of Manchester court building – thanks to CeeQue on flickr
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