A fact-finding hearing in care proceedings can continue even with the mother’s QC not being physically present, the Court of Appeal has ruled.
In C(Children: Covid-19: Representation) Lord Justice Peter Jackson said that the ‘hybrid’ hearing proposed did not threaten any breach of the mother’s right to a fair hearing. He stressed that ‘perfection’ in how complex trials were handled was not always possible, and a difference in the way parties were represented did not amount to an inequality of arms.
The decision followed an appeal by the mother because her QC, Elizabeth Isaacs, was required to shield until 30 June, following government advice. The mother said she could not contemplate attending court without Isaacs but High Court judge Mr Justice Williams ruled the personal attendance of leading counsel was desirable but not essential to the provision of a fair hearing.
On appeal, the mother argued the judge had failed to carry out any proper assessment of whether the hybrid hearing breached her right to a fair trial. It was submitted he did not account for the seriousness of what was at stake, failed to satisfy the mother’s right to an adversarial trial and failed to account for the importance of the principle of equality of arms.
Isaacs also suggested a number of practical issues and challenges that her physical absence might entail.
Jackson LJ said it was in the public interest and the interests of children and their families that the work of the court should continue, in a safe and fair manner. The absence of leading counsel was ‘unfortunate’ but did not prevent the mother from participating effectively in the hearing.
‘Perfection in the arrangements for a complex trial of this kind is not always achievable and the contemplated arrangements comfortably satisfy the requirements for a fair hearing,’ he added.
The judge said the mother’s case will have been prepared to a high standard, she would give her evidence in person in the presence of experienced junior counsel, and her leading counsel would be engaged before, during and after each stage of the hearing. The judge would keep the fairness of the proceedings under review and any valid complaint about the conclusions of the fact-finding hearing could be made to the court.