Following on from our Alphabet Soup post about Re A and Re B (and our earlier post about Re P), there are two new remote hearing related judgments out :

A Local Authority v Mother & Ors [2020] EWHC 1086 (Fam) and Re Q [2020] EWHC 1109 (Fam). As with A and B, they’ve arrived as a pair and are quite different cases.

Re Q [2020] EWHC 1109 (Fam)

This was an appeal against a decision made by a Deputy District Judge, and it was heard by the President because it involved a question about whether or not the judge had misinterpreted Re P. Before Re P came out the Judge had decided that a final hearing listed to consider a change of residence in an intractable contact dispute should go ahead – but after Re P came out the judge then changed her mind.

The President decided the judge hadn’t in fact misinterpreted Re P, which made clear that it was about very specific types of cases rather than general guidance – but she did get other things wrong (she had given no explanation for the apparent change of approach to the issue of welfare, and had based her decision on factors not canvassed with the lawyers first). Her decision was overturned and the case sent back to the same judge to be re-listed.

A Local Authority v Mother & Ors [2020] EWHC 1086 (Fam)

This is a published interim judgment by a High Court Judge, Mrs Justice Lieven, dealing with a care case, rather than an appeal. The judge was conducting a fact finding hearing into the circumstances of a sibling who had died and who had been found post-mortem to have suffered many fractures. The medical evidence had been successfully completed by video hearing (which meant the court had had a chance to try out what worked and didn’t work on a practical level) – the question was whether the judge should continue to hear the lay evidence (i.e. to hear the evidence of the parents about what they knew about the injuries).

The father wanted to adjourn. He had been in something of a mental health crisis but had been assessed as having capacity to carry on – and in fact said the use of video link was his preference.

The judge reviewed all the pros and cons, and ultimately decided to go ahead on the basis that if things became unfair she could always pause.

One of the things she considered was whether it was harder to get to the bottom of factual disputes and to assess evidence using a video link, whether it was more or less likely people would give accurate and truthful evidence over a link than in a courtroom – the judgment contains an interesting discussion about the already well established use of video links to assist vulnerable witnesses under PD3AA, which is of course intended to improve the quality of their evidence rather than to diminish it.

The judge concluded that it was impossible to say one way or the other, and that

“I do not think that it is possible to say as a generality that a remote hearing is less good at getting to the truth than one in a courtroom.” 

The judge said the process of cross questioning by all the lawyers in this case would be gruelling whatever the format – and in fact the father thought it would be more manageable by video link. Arrangements had been set up so that the lawyers would read documents to him as they asked questions about them, to make sure he could follow and answer properly.

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