A Local Authority v The Mother & Ors

On 6 April 2019, a young girl who I shall refer to as K, died in hospital. She was born in 2016 and so was only three years of age when she died. A special post-mortem and toxicology tests indicated that her death was consistent with cocaine ingestion. Her death has led to both a police investigation by the Metropolitan police and care proceedings commenced by the Local Authority in respect of K’s 4 siblings. Three of them have been in foster care since May 2019, and the fourth who was born during the proceedings has been in foster care since birth. In July 2019 the case was listed before me for fact finding commencing on 21 April 2020. This judgment addresses the question of whether the fact-finding hearing should continue either remotely or semiremotely or whether the case should now be adjourned until an in-person hearing of pre-Covid 19 format can take place; possibly in September or possibly later. Expert evidence from seven witnesses has been heard remotely. No party seeks that police or social work witnesses give oral evidence. The only evidence remaining is the oral evidence of the mother, the father, the paternal grandmother and possibly the maternal grandmother.

The local authority is represented by Mr Tyler QC and Mr Parker, the mother by Ms Isaacs QC and Mr Rawcliffe, the father by Mr Twomey QC and Ms Kelly, the father of the oldest child by Ms Hyatt, the paternal grandmother by Ms Cook QC and Ms Brereton, the maternal grandmother by Mr Larizadeh QC and Ms Cheetham and the children by Mr Howe QC and Ms Stone.

At the commencement of the case the Threshold Criteria relied upon by the local authority contained in broad terms the following elements

At a pre-trial review on 3 April 2020 all parties agreed that the case should continue to be listed and should be heard remotely. I authorised the use of Zoom as I considered there was a pressing business need to use that platform. At that point

On 21 April 2020 the first day of the hearing but nominally set aside for judicial reading a short case management hearing took place. The positions of the parties were in summary terms as follows

I agreed at that stage to proceed with the expert evidence and then to review the position. In the course of the hearing of the seven experts over the seven days from 23^rd April to 1^st May the position in relation to evidence from police (including as to the chain of custody of what had been latterly described as a urine sample) and social work witnesses simplified itself as no party required any of the witnesses to give oral evidence. Thus by 1 May we had reached the close of the oral evidence save for the mother, the father and the grandmothers. In conjunction with the parties legal teams I had agreed that following the completion of the expert evidence I would allow the parties time to reflect upon that evidence before determining whether and if so how much further the case could proceed.

The seven expert witnesses gave their evidence remotely including Dr Cirimele from Strasbourg with the occasional assistance of an interpreter in England. Much of the oral evidence confirmed or expanded upon the contents of the written reports and the joint experts’ agreement. Some of it was complex either scientifically or medically. It was challenging for the legal professionals to grapple with, although no more so than it would have been had it been delivered face to face. However, for the parties attending remotely from their homes and without the ability to have immediate interchanges with their lawyers to enable them to follow and understand the evidence, I am told and I have no difficulty in accepting, that it was much harder for them. Whilst it may not be essential for them to understand and assimilate all of the technical medical or scientific evidence it is essential that they are able to understand the nature of the evidence and its consequences. This also would be the same whether it were in person or remote but the ability to ask questions or to have difficult concepts explained in simple language face to face is much harder to achieve remotely. It is also the experience of those who have participated in the remote hearing process that it seems to be more tiring than a face to face hearing. Occasional failures of Wi-Fi bandwidth also placed some obstacles in the path of all involved albeit overall the remote hearing worked well technically and in particular the E-bundling system and the ability to share screens meant that the documents were easier to follow than would have been the case in a face to face hearing. At the commencement of the hearing I had invited each of the teams to notify me if their clients or lawyers were experiencing difficulties in participating as fully as they wished. In the main, technical issues did not prevent the parties participating as they had intended albeit the difficulties in discussing the evidence face to face became clear as the case progressed. Far harder for the parties was the distressing nature of the evidence being given particularly from the medical experts and I was informed that at various times the parties had elected to leave the hearing. Again, had this been face to face experience suggests that would have been the case in any event.

On the afternoon of 1 May Prof Bu’lock, the paediatric cardiologist, completed her evidence. We then considered some of the potential ramifications of the totality of the expert evidence. A number of issues had emerged more clearly from the scientific and medical evidence and which had a potential impact on the approach that the parties and the court might take to the issue of whether to continue or whether to adjourn. Most importantly these were

The local authority indicated, with some support from the Guardian, that they would review the way in which the threshold was put in the light of the expert evidence and would consider whether the maternal grandmother should remain on the list of possible perpetrators. Counsel for the mother and father in particular wished to have time to discuss with their clients and within their respective teams the nature of the evidence that had been given and in particular that of Prof Bu’lock. They also wished then to be able to consider any amended threshold which might emerge from the local authority on Monday, 4 May. As then framed, the threshold alleged the possible deliberate and repeated administration of cocaine to K which as Ms Isaacs described it was tantamount to an allegation of murder. I therefore agreed to adjourn until 2 PM on Tuesday, 5 May in order to allow the parties to digest the expert evidence and to consider their response to the amended threshold and thus to finalise their positions in relation to whether the case could or should proceed and if so how evidence could be heard.

On Monday, 4 May the local authority filed an amended threshold. This contained a very significant change in the nature of the allegations. The local authority replaced the allegation that cocaine had been administered or negligently ingested with an allegation that cocaine was ingested whilst in the care of and due to the culpable actions or neglect of either the mother, the father or the paternal grandmother. Alternatively, they culpably failed to protect her from the same. Thus, although still an extremely serious allegation with potential criminal ramifications it was significantly less serious than before.

The local authority invited me to continue with the hearing and to complete the factfinding. As an alternative they submitted that the hearing should continue including hearing evidence from the parties so as to enable progress to be made in assessing the parties and in particular the mother with a view to listing a further hearing which would be a ‘rolled up’ hearing incorporating the remaining issues of fact and the welfare decisions. The local authority submitted that the court could properly continue to hear evidence from the parties in respect of the circumstances in which K had (as the local authority alleged) ingested cocaine between the 3 and 4 April. That, the local authority submitted, did not involve any significant dispute of fact as between the mother, the father and the paternal grandmother. They could be heard remotely or in a hybrid hearing where the party giving evidence attended in person before me together with

The Guardian also submitted that the fact-finding exercise should conclude as soon as possible to enable assessments to commence. In particular the Guardian was concerned that the children had been in foster care for over 11 months and that if they were to return to the mother’s care it should be decided upon as soon as possible. The Guardian considered that the children were all suffering harm as a result of the delay in the proceedings to date. For the youngest child, she has been cared for by a foster carer since her birth. The Guardian as a fallback position considered that the issues of domestic abuse, drug dealing, and whether the cocaine that K had ingested had been negligently left available by the mother, father or paternal grandmother could be deferred to a later rolled up hearing. Thus, the court could determine whether K had died as a result of cocaine induced cardiac necrosis but not the precise circumstances or level of culpability which led to it. An assessment could take place in those circumstances if the mother, father and paternal grandmother accepted that K had ingested cocaine, that the cocaine had caused damage to her heart and that the heart damage caused her death. Alternatively, an assessment could be done on an either/or basis but this would be unsatisfactory. The Guardian accepted that recent decisions of the Court of Appeal and High Court prescribed that in-person hearings require exceptional circumstances if they are to take place during lockdown. The Guardian submitted that this case was exceptional and that appropriate arrangements could be made for an in-person hearing to take place whilst observing the requirements for social distancing. Each of the children had particular needs for an early resolution. All had good relationships with their mother in particular and the oldest child wished to return to her care having now been in foster care for 11 months. An indeterminate period of adjournment of several months was not acceptable. Arrangements could be made for legal representatives to attend either remotely or in person in a manner which was fair to the parties and to the children and would enable a fair hearing to take place.

On behalf of the mother it was submitted that further time was needed to take instructions and to provide a considered response to the threshold. Given the technical nature of the discussions, and the technical issues arising from taking instructions by Zoom, Ms Isaacs asked for an adjournment of at least two clear working days. However, her ultimate position was that

On behalf of the father Mr Twomey said that the father was not currently prepared to leave his home to attend court. He suffers from asthma and so was shielding himself. It was said that he was in the category of individuals who were considered to be clinically extremely vulnerable. On enquiring further, it has emerged that the father had not received the letter from his GP stating that he was in a high-risk category but rather this was a view he had taken himself. It was accepted that he was living in a house with his mother who herself believed she had suffered from Covid-19. Thus, for safety reasons he was not prepared to attend court and did not consider that a fair assessment of his evidence could take place by anything other than a face to face hearing. Similarly, he considered that a fair evaluation of the mother’s evidence could not take place unless she attended in person. He considered that as the risks continued to abate (assuming no significant change in direction) that he would feel safe to attend court by the end of June. His ability to understand the evidence and give instructions had been hampered by difficulties with his own technology, his dyslexia and the inability to participate in the usual supportive and interactive process with his legal team. It was considered essential for him to meet with his legal team face to face before he gave evidence. It was submitted that a trial which did not take the usual face-to-face format and which was not preceded by a face to face conference could not be a fair one.

The paternal grandmother wished to proceed. She had been provided with a tablet to enable her to participate in the hearing. Although she had found the expert evidence difficult to follow at times due to its content and more importantly its subject matter of K’s death she had also experienced some technological difficulties. In addition, she has a hearing difficulty which has added to the anxiety and her ability to participate. Her legal team have been speaking to her on an almost daily basis seeking to give her an overview relating to the evidence. The process of delivering that message and taking instructions has been difficult given technological issues and the complex nature of the material under discussion. The paternal grandmother considers it is essential that she gives evidence in person to the court and that she is able to engage face-to-face with her legal team in advance and to be supported throughout the process. She would also

The maternal grandmother supported her daughter’s application for an adjournment.

Having heard submissions on 5 May and also having regard to the fact that the next three-week review of the Covid - 19 restrictions was due to be announced on Sunday, 10 May and that the mother, the father and the paternal grandmother wished for time to reflect on the amended threshold and to review the impact of the expert evidence I adjourned the decision on the continuation of the case until Tuesday, 12 May. At that point it appeared possible that the mother may be able to give evidence in person at some point after the 11^th or 15^th of May (if clarity was achieved as to when she saw her mother), though whether this should in principle happen remained opposed by the mother on the grounds of her right to a fair hearing. I listed the case for mention and I

The announcement made on Sunday, 10 May and the subsequent 50-page guidance issued on Monday, 11 May did not bring much greater clarity to the position that the parties and the court faced. Within the guidance there was a tacit recognition that for those in the clinically extremely vulnerable category it was likely that they would be required to shield beyond 30 June. However, the relaxation of the restrictions to encourage the resumption of work supported the possibility of more flexibility in terms of in-person hearings; subject of course to appropriate risk assessments and the implementation of proper safety measures.

On Monday, 11 May Ms Isaacs informed me that the mother had felt obliged to assist the maternal grandmother with her medical equipment on 8 May because the grandmother could not work the equipment and the mother was the only person available to assist her and thus had been exposed again potentially to Covid - 19. It seems that the maternal grandmother first exhibited some symptoms on or about 23 April and was attended by paramedics on 27 April and subsequently diagnosed by her GP with Covid 19 at some point shortly thereafter. That diagnosis by the GP was made over the phone. Thus, the mother’s attendance both in late April or early May and again on 8 May was either within or perilously close to the 14 days within which the maternal grandmother should not have had contact with any other individual. I accepted that this meant that the mother ought to self-isolate for 14 days from 8 May which precluded her attending in person if I resumed the hearing this week and next.

I was able to liaise with HMCTS facilities and IT staff to put in place the technology and safety structures and protocols which would have enabled a Covid 19 safe hearing to take place in two courts in the RCJ at the earliest from the 15^th of May. I had also made enquiries as to my availability which showed I would be unable to accommodate

Prior to resumption of this hearing or in the course of it the mother, the father and the paternal grandmother all responded to the effect of the expert evidence and the redrafted threshold. All accepted that K had ingested cocaine at some point which had caused cardiac necrosis which led to her death. However the parties all made clear that the circumstances in which she had come to ingest that cocaine remained very much in issue together with the very significant issues between the lay parties that had emerged from their witness statements.

Today the parties resumed their submissions in the light of the slightly altered landscape. It emerged from the advocates’ meeting that some if not all of the parties contemplated an attended hearing taking place in the last week of June. By then the mother would be able to attend in person. However, the mother did not support such a proposal as Ms Isaacs would still not be able to attend in person. This opened up a new possibility and on making enquiries it appeared it might be possible for me to commence the hearing on 24 June. However, I was unable to give any guarantee but it looked a real prospect.

The local authority adopted a flexible approach to the continuation of the hearing this week and next or an adjournment to June if that could be accommodated. The local authority strongly resisted an adjournment to September given the implications for the children remaining in foster care and the lack of progress that could be made in assessments. Having regard to the indications that I had expressed on 5 May they accepted that it would be very difficult to delineate matters of evidence which were less contentious and might proceed by remote hearing or a hybrid hearing and that in reality all factual matters relating to the mother, the father and the paternal grandmother should be heard together. The local authority was prepared to adopt a flexible approach to its presence in court to cross examine. Were the court to list the matter in June it appeared realistic to expect that the final welfare hearing could take place with the benefit of any psychological assessment at the end of September.

The Guardian’s preferred option was to resume the hearing now and to hear evidence from the mother remotely and from the father and the paternal grandmother in person if that was what they wished. The Guardian was concerned that the mother’s visit to the maternal grandmother had deprived the mother of the possibility of attending court in person within a resumed hearing and did not consider that the children’s need for an early resolution should be derailed by the mother’s choice to assist the maternal grandmother rather than to find some alternative means of assisting with her medical equipment. Mr Howe identified the case as an exceptional case which could properly proceed in a hybrid hearing rather than awaiting the resumption of normal service. He emphasised the need to show adaptability and that fair hearings could be provided by various means other than traditional. He observed that Mrs Justice Lieven had proceeded remotely where the issues were of the utmost seriousness. As a default he urged the court to proceed in June and said that in normal circumstances the absence of a party’s leading counsel would not require the court to adjourn for three months where that counsel could either attend remotely and where junior counsel was in attendance.

Ms Isaacs emphasised in robust terms as to the mandatory nature of the mother’s article 6 right to a fair hearing and reminded me of the guidance and the judgments of the Court of Appeal and the President which emphasised the need to provide a fair hearing; a right not compromised or pared back by Covid 19. She drew attention to the parts of the guidance which indicated that the starting point was that remote hearings were unlikely to be appropriate in welfare cases or cases where parents were to be called. She emphasised the seriousness of the issues involved and the importance of the mother’s oral evidence in relation to her drug use and her knowledge of the father’s handling of drugs within the house and the mother’s challenge to the evidence of the father in terms of domestic abuse. She emphasised their relevance to welfare issues moving forward. This was not, she said a hopeless case, but one where the outcome for her client was very much a live issue. She also emphasised the wide ranging nature of the benefits to the mother of having leading counsel present at the court hearing, such encompassing the psychological support for the mother, the forensic benefits of the mother and leading counsel being present in court together and the advantages in adducing and testing evidence. She cautioned against too optimistic an approach to the benefits of remote hearings; what might be appropriate with experts would not necessarily work with lay parties. She emphasised the mother’s article 8 rights which would be infringed if a fair hearing was not delivered with the consequence of the termination or attenuation of her relationship with her children and likewise the impact on the children’s article 8 rights as well. Ms Isaacs submitted that a delay of three months was not a significant delay when balanced against the benefits to the mother and the court process of providing a hearing at which the mother’s leading counsel would be present in person. Although she could not guarantee her presence, she said that the drift appeared to be towards a relaxation of restrictions and that by September it would not be an unrealistic hope or indeed expectation that she would be in a position to attend. Her client’s decision to assist the maternal grandmother was born out of concern, humanity and necessity, and not any desire to avoid giving evidence. She emphasised that the mother was as keen as anyone to reach a conclusion to these proceedings but not at the expense of a fair process.

On behalf of the father Mr Twomey opposed the resumption of the hearing this week and next. Although his client had attempted to ascertain from his GP whether he should properly be characterised as falling in the clinically extremely vulnerable group he had been unable to make contact with his GP despite extensive efforts. He remained concerned that his asthma rendered him vulnerable to an in-person hearing whilst Covid 19 remained at large. He also emphasised the limitations that the father faced in accessing remote technology given his undiagnosed (I think) dyslexia and the importance to the father of being able to give evidence in person which was problematic in a resumed hearing. Mr Twomey also frankly drew my attention to the fact that a resumed hearing would place him in professional difficulties next week in relation to a seven-day remote hearing where he was instructed on behalf of a local authority in a serious non-accidental head injury case. The father accepted that the process to date had been fair but that the giving of evidence from the lay parties was a different matter and a fair hearing could not be provided in circumstances where the mother could not be cross examined in person. The father accepted the mother’s arguments in respect of the fair hearing issues connected with the presence or absence of her leading counsel. Mr Twomey submitted that the court should not conduct what would effectively be an experiment given the parties’ article 6 rights particularly when the propose arrangement would be a previously unexplored landscape.

On behalf of the oldest child’s father, Ms Hyatt did not advocate strongly in favour of any particular option although observed that a September hearing was the safest in terms of fair hearing issues.

Ms Cook on behalf of the paternal grandmother reiterated her client’s desire for an early resolution and her willingness to attend court in person with her legal team in order to resume this hearing.

Mr Larizadeh updated me on his client’s health and whilst accepting that she was no longer the subject of threshold findings sought by the local authority she would continue to play a role as a witness and she continued to support her daughter’s position.

In a letter from the Lord Chief Justice, Master of the Rolls and President of the Family Division to judges on 9 April 2020, rather than giving formal guidance, a number of parameters were suggested to assist a court in deciding whether or not to conduct a remote hearing. The following three factors were identified as being of particular relevance to Family cases:

“e.

Where the parents oppose the LA plan but the only witnesses to be called are the SW & CG, and the factual issues are limited, it could be conducted remotely;

f.

Where only the expert medical witnesses are to be called to give evidence, it could be conducted remotely;

g.

In all other cases where the parents and/or other lay witnesses etc are to be called, the case is unlikely to be suitable for remote hearing.”

In addition, in guidance that the President of the Family Division issued on 27 March it was said:

“Can I stress, however, that we must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved [FPR 2010, r 1.1 ‘the overriding objective’], part of which is to ensure that parties are ‘on an equal footing’ [FPR 2010, r 1.2]. In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.”

The first reported case dealing with the approach to take in deciding whether to proceed with a hearing in a complex Family Court case is Re P (A Child Remote Hearing) 2020 EWFC 32. In that case the President was considering a case involving a 7 year old child whose mother was alleged to have caused harm to the child by fabricated or induced illness (FII). It had been set down for a 15 day hearing. The child had been under an interim care order for 11 months. Initially all parties had accepted the need for remote hearing in the light of the advice produced by MacDonald J on remote hearings.

The President then set out the arrangements that had been made for the Mother to engage with the hearing. She was alone at home and it was intended that internet access would be arranged. It is of some relevance that her leading counsel had only been relatively recently instructed. At [11] the President referred to the national situation and said;

The position of the parties in Re P was that the local authority and the Guardian wished to proceed, in particular because of the impact of further delay on the child. The Father supported that position. The Mother's counsel argued that the case must be adjourned. She did that largely on the basis that the Mother was not well enough to proceed. Given the nature of the case this was obviously a particularly problematic situation. The President at [20] referred to the possibility in some cases of the parent going to another place such as local authority offices to give evidence. However, this was not an option given that the Mother believed she had Covid 19.

The President then referred to the letter (set out above) and the Guidance and said;

The Court of Appeal has now delivered two judgments relating to Family Court cases being heard remotely, Re A (Children) (Remote Hearing : Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Care and Placement Orders) 2020 EWCA Civ 584.

In Re A the Court of Appeal (the President, Peter Jackson LJ and Nicola Davies LJ) said at [3];

At [8], [9]and [10] the Court of Appeal said;

“It follows, applying the principles set out above and the guidance that has been given, that:

i)

Final hearings in contested Public Law care or placement for adoption applications are not hearings which are as a category deemed to be suitable for remote hearing; it is, however, possible that a particular final care or placement for adoption case may be heard remotely;

ii)

The task of determining whether or not a particular remote hearing should take place is one for the judge or magistrate to whom the case has been allocated, but regard should be had to the above principles and guidance, as amplified below;

iii)

The requirement for ‘exceptional circumstances’ applies to live, attended hearings while the current ‘lockdown’ continues.

9.

The factors that are likely to influence the decision on whether to proceed with a remote hearing will vary from case to case, court to court and judge to judge. We consider that they will include:

i)

The importance and nature of the issue to be determined; is the outcome that is sought an interim or final order? ii) Whether there is a special need for urgency, or whether the decision could await a later hearing without causing significant disadvantage to the child or the other parties;

iii)

Whether the parties are legally represented; iv) The ability, or otherwise, of any lay party (particularly a parent or person with parental responsibility) to engage with and follow remote proceedings meaningfully. This factor will include access to and familiarity with the necessary technology, funding, intelligence/personality, language, ability to instruct their lawyers (both before and during the hearing), and other matters;

v)

Whether evidence is to be heard or whether the case will proceed on the basis of submissions only; vi) The source of any evidence that is to be adduced and assimilated by the court. For example, whether the evidence is written or oral, given by a professional or lay witness, contested or uncontested, or factual or expert evidence; vii) The scope and scale of the proposed hearing. How long is the hearing expected to last? viii) The available technology; telephone or video, and if video, which platform is to be used. A telephone hearing is likely to be a less effective medium than using video; ix) The experience and confidence of the court and those appearing before the court in the conduct of remote hearings using the proposed technology;

x)

Any safe (in terms of potential COVID 19 infection) alternatives that may be available for some or all of the participants to take part in the court hearing by physical attendance in a courtroom before the judge or magistrates.

10.

It follows from all that we have said above that our judgment on this appeal should be seen as being limited to the determination of the individual case to which it relates. Each case is different and must be determined in the light of its own specific mixture of factors. The import of the decision in this case, in which we have held that the appeal must be allowed against a judge's decision to conduct a remote hearing of proceedings which include applications for placement for adoption orders, is that, on the facts of this case, the judge's decision was wrong. As will be seen, one important and potentially determinative factor was the ability of the father, as a result of his personality, intellect and diagnosis of dyslexia, to engage sufficiently in the process to render the hearing fair. Such a factor will, almost by definition, be case-specific. Another element, and one that is likely to be important in every case, is the age of the children and the degree of urgency that applies to the particular decision before the court. The impact of this factor on the decision whether to hold a remote hearing will, as with all others, vary from child to child and from case to case.

Most recently Mrs Justice Lieven has given judgment in A Local Authority -v-M and F [2020] EWHC 1086 (Fam) in which she decided to hear the parties and other lay witnesses entirely remotely in a care case concerning how a young baby who had suffered very extensive injuries had died and whether the mother or father was responsible. As in this case the medical cause of the death of the child appears to have been in issue as well as the possible perpetrator if non-accidental injury was established.

She referred to observations made by Leggatt LJ in R (on the application of SS (Sri Lanka) v Secretary of State for the Home Department 2018 EWCA Civ 1391, the concluding paragraph of which reads

She went on to record.

I should observe that the advantages of physical attendance of a party at court are not confined to the perceived, but perhaps in reality limited, advantage to the judge of being able to look the witness in the eye and assess their demeanour and thus credibility. In common with the views expressed by Leggatt LJ and the distinguished judges he referred to, it seems to me that the credibility of a witness and the truthfulness of their account in the vast majority of cases is reliant principally upon the evaluation of the content of their evidence rather than the evaluation of their demeanour. That is not to say there may not be rare cases where demeanour may be of some importance, particularly where there is no or little contemporaneous or other evidence which bears upon their account. In the 21^st-century where most individuals leave digital fingerprints in the form of messages, photographs, emails, call records and suchlike it is now a rare case where a judge is left without any contemporaneous evidence from the witness himself. Most witnesses will now have recorded their evidence in written or recorded form on one or more occasions prior to giving it in court. In many cases there will be evidence from other sources whether they be the authorities or individuals who may be able to draw on digital or other records. Thus, the evaluation of the credibility of a witness’ account will usually take place against a backdrop where consistency can be judged against earlier accounts, against contemporaneous evidence and against the evidence of others. It is also now well recognised that memory is a fallible instrument. Thus in judging demeanour how does one distinguish between the confident liar, the confident but genuinely mistaken witness and the confident truth teller or alternatively the hesitant and anxious truth teller, the hesitant and anxious but genuinely mistaken witness and the hesitant and anxious liar?

However, the advantages of in-person attendance before the judge are not limited only to the perceived, but often overrated advantages in terms of assessing credibility. That is largely a judge oriented perspective although a party may in some circumstances feel they are better able to tell their story face-to-face in the formal setting of a court. For many though, including but not limited to vulnerable witnesses whether adults or children, the giving of evidence in a court setting in the presence of a judge and of cross-examining lawyers and perhaps in the presence of other individuals who provoke strong feelings whether of fear or otherwise can undermine their ability to give their best evidence. From a party’s perspective though (as referred to by the President in Re P #28) there may very well be advantages to in-person attendance between a party and his legal team in advance of the hearing in order to ensure that clear instructions have been given and understood on the facts and on the approach. There may well be advantages to a party to in-person attendance in being able to see other witnesses give evidence and to provide immediate instructions to counsel in the middle of cross examination. There may be concomitant advantages to the judge in observing the reaction of parties’ to the evidence of others (as the President identified in FII cases) and to how their legal teams are instructed to respond. The appellate court’s reluctance to interfere in fact-finding decisions is not confined purely to the perceived advantage

Still more recently in Re Q (A Child) [2020] EWHC 1109 (Fam) the President has said,

All of the guidance given in relation to hearing cases at this time is intended to ensure that the parties’ article 6 rights to a fair hearing within a reasonable time by an independent and impartial tribunal are not infringed. The article 6 right is unqualified but what constitutes a fair hearing is not an absolute. There is no absolute rule that provides that a fair hearing can only take place if the party is able to attend court in person to give their evidence and to see and hear and respond to the evidence of other important witnesses. It is a question of fact and degree in any particular case. In addition, in cases such as this the article 6 rights of one party may be in conflict with the article 6 rights of another party. In this case the rights of the children and of the paternal grandmother and the local authority to a determination in the near future may be in competition with the rights of the mother and father to give evidence and to hear evidence in the way they consider best promotes their right to a fair hearing.

I also record that Ms Isaacs observed that the restrictions in place in respect of those with health issues could potentially amount to a disability within section 6 of the Equality Act 2010. A person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. At present it does not seem immediately obvious that a person who is in the category of clinically extremely vulnerable and obliged to shield would come within that definition. However, even if that were so the court might then need to make reasonable adjustments. A reasonable adjustment would include providing an alternative means by which an individual could participate but I do not think it would require the court to adjourn the case completely until full face to face participation could be achieved.

I note that in A Local Authority-v-M & F all parties initially wished to complete the hearing with evidence being given remotely both expert and lay. At the beginning of the second week the father sought an adjournment on the basis that his mental state was such that he did not feel able to continue. A psychiatric report concluded that he had capacity to continue, that he suffered from low mood and anxiety on a relatively low scale which would not impede his ability to concentrate and to give evidence and that it would help him enormously to give evidence by video. Lieven J concluded that she could conduct a fair hearing remotely on those facts, notwithstanding the issues involved were at the top of the scale of seriousness.

Bearing all that in mind I turn to the factors which need to be considered.

The nature of the issues now to be determined has developed as a result of firstly the significant change in the way in which the threshold has been pleaded. The removal of the possibility of deliberate and/or repeated administration of cocaine has reduced the seriousness of the allegations the parents and paternal grandmother face. The acceptance of the mother, the father and the paternal grandmother that K’s death was caused by ingestion of cocaine leading to cardiac necrosis and heart failure means that the issue of whether the cause of death could not be determined or arose from cocaine ingestion has been resolved. However, the role that each individual played in how cocaine came to be ingested by K is very much alive and of considerable importance. On the local authority’s case, at the most serious end of the scale is all three individuals being regular cocaine users, its presence in K’s home being frequent and extensive, the parties being reckless as to the children’s exposure, it being knowingly dealt from the mother’s home with her consent or non-objection. On the mother’s case she was an infrequent user herself, told the police that she believed the father used cocaine daily and his bringing the drug occasionally into her home but not exposing the children to it and her being unable to oppose either his dealing or his more frequent use of the drug because of his intimidation and occasional violence. On the father’s case, he was an occasional user, never a dealer, never violent. On the paternal grandmother’s case, she was not a user, was not aware of the scale of the mother and father’s drug usage or of his dealing. The mother is now the only family member seeking to resume the care of the children. If the mother’s evidence established, her case rehabilitation would probably be a real option. On the other hand if the most serious findings against the mother were made, rehabilitation would look a much more uncertain prospect with the possibility of the children facing permanent separation from their family. Whilst the nature of the allegations does not involve complex evidence, they are serious allegations and important in terms of the ultimate welfare outcome. For the mother, the father, paternal grandmother and the children the article 8 rights engaged are potentially at the top end of the spectrum.

The children were removed into foster care nearly a year ago and these proceedings have been underway for nearly twice the 26-week statutory timetable. Determining the facts and obtaining an assessment of the mother and reaching a final decision is thus a matter of some urgency. The Guardian emphasises the extent of the harm she considers the children are suffering by delay. Determining the facts now would enable assessments to be commissioned and a final hearing to take place in September. Regrettably with the summer vacation intervening and another urgent two-week case when vacation ends means I would not be able to timetable a final hearing until late September in any event. An adjournment to late June to determine the facts would lead to a final welfare determination in September in which assessments could be completed. Adjourning the remaining part of the fact-finding until the last week of September and the first week of October would mean that a final welfare hearing would be difficult to timetable before the end of the year and would probably have to be listed in midDecember or January when term resumed. Whilst a delay of a little over 3 ½ months is not huge given the length of time the case has taken to reach this stage, it is a very significant delay for the younger children and, in respect of the youngest, would mean that she had been in foster care for the entirety of the first year of her life. It may be that further delay after already extensive delay in fact magnifies the harm and section 1(2) Children Act 1989 emphasises that delay is prejudicial to children’s welfare.

All of the parties are represented by extremely experienced leading counsel, junior counsel and solicitors. All have been able to make good use of the remote hearing technology. All will continue to be represented by the same teams whichever course I adopt. The most significant issue though is whether Ms Isaacs can be physically present at court together with the mother and the rest of the mother’s legal team. Even were the mother able to attend a hearing in person next week Ms Isaacs would be unable to due to the mandatory shielding that she must follow. She would also be obliged to shield at a hearing in June and thus would only be able to participate remotely. The mother’s junior counsel would be able to attend court with her; her solicitor also has to shield. Assuming the Covid -19 restrictions continue to be relaxed over the summer Ms Isaacs believes there is a realistic possibility of her no longer being subject to the mandatoryshielding and thus being able to attend the hearing in person with the mother. However, there is no guarantee that by September Ms Isaacs will be able to attend in person. If the course of the recovery from Covid 19 is rocky rather than smooth there is a risk that those in the extremely vulnerable group will continue to be obliged to shield themselves and thus Ms Isaacs might not then be available. Whilst September, taking an optimistic view, provides at least a better chance of Ms Isaacs being able to attend with the mother there is inevitably some uncertainty.

All of the lay parties have so far participated remotely in the most complex part of the hearing evidentially. Away from court they have been able to spend some considerable time with their legal teams remotely as a result of the adjournments I have allowed to ensure they were able to engage appropriately with their legal teams to understand the evidence and to take decisions in the light of that evidence. It seems that the mother and the father have both been able to participate effectively by remote means. However, participating by listening to medical expert evidence and participating by giving evidence and by hearing the evidence of the other lay parties and communicating instructions is a different matter. For the paternal grandmother who has hearing difficulties remote participation is more of a challenge even with access to appropriate hardware. She has struggled to operate the remote software and has been heavily reliant on her legal team to keep her engaged within the process by daily summaries. The maternal grandmother, who will continue to play a role as a witness has not so far directly participated in the hearing but rather has relied on summaries from her legal team. She would participate at present only by audio. She currently continues to suffer with ill-health, diagnosed by her GP as Covid 19 albeit not laboratory confirmed. She will continue to have to shield as a result of being within the clinically extremely vulnerable category and so at any future hearing either now or in June would participate remotely by audio. Whether she would be able to attend in person in September remains a matter of speculation.