McFarlane adjourns family proceedings as unsuitable to be heard remotely

Certain family proceedings should not be conducted remotely, the president of the family division has said after intervening in a case involving a young girl living in ‘limbo’.

Just because a hearing can be conducted remotely does not mean it should, Sir Andrew McFarlane said in Re P (A Child: Remote Hearing), published this week.

Proceedings began a year ago. The local authority said the girl suffered significant harm as a result of induced or fabricated illness. The mother contests the issues. A 15-day hearing was scheduled for this week to fix a final care plan for the child, who has been living with the mother’s friend under an interim care order.

When McFarlane became aware of the hearing, he said he was surprised it was being conducted remotely and invited the judge to adjourn.

The local authority argued that the hearing could be conducted remotely because the case was ready, the mother was aware of all the issues and the girl was suffering significant emotional harm being held in limbo. Lawyers for the mother, who had contracted Covid-19, said a remote hearing would not be fair or just.

McFarlane said it was impossible to contemplate conducting a final hearing remotely where, at issue, were allegations of fictitious illness.

He said: ‘The judge who undertakes such a hearing may well be able to cope with the cross-examination and the assimilation of the detailed evidence from the e-bundle and from the process of witnesses appearing over Skype, but that is only part of the judicial function. The more important part, as I have indicated, is for the judge to see all the parties in the case when they are in the courtroom, in particular the mother, and although it is possible over Skype to keep the postage stamp image of any particular attendee at the hearing, up to five in all, live on the judge's screen at any one time, it is a very poor substitute to seeing that person fully present before the court.’

McFarlane said the judge must be able to experience the behaviour of the parent who is the focus of the allegations ‘not only when they are in the witness box being examined in-chief and cross-examined, but equally when they are sitting in the well of the court and reacting, as they may or may not do, to the factual and expert evidence as it unfolds’.

Covid-19 guidance issued by Mr Justice MacDonald shortly after lockdown began had been misunderstood, McFarlane said. ‘MacDonald J's document is firmly aimed at the mechanics of the process; it does not offer guidance, let alone give direction, on the wholly different issue of whether any particular hearing should, or should not, be conducted remotely. Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.’

The hearing was vacated to be relisted for a date after lockdown ends.

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