Court of Appeal ruling highlights limit of virtual hearings in family court during lockdown

Published by Professional Social Work magazine, 5 May 2020

A father who has dyslexia won an appeal against a remote family court hearing being used to decide if four of his children should be taken into care.

The case is the first involving the welfare of children and the use of technology to hold elements of hearings virtually to reach the Court of Appeal during the COVID-19 lockdown.

Lawyers for the father argued he would have had to follow the case from home using his wife’s iPad. They said this infringed article six and eight of the Human Rights Act, enshrining entitlement to a fair trial and respect for private and family life.

Cumbria County Council applied for care orders on the children - currently in foster care - due to safeguarding concerns including neglect, alcohol misuse, domestic violence, coercive control and safeguarding concerns over the honesty of the couple.

Family judge Christopher Dodd gave permission to allow a ‘hybrid’ final hearing to go ahead – a combination of video link and the facility for the couple to attend court in person.

He ruled the case needed to be heard as soon as possible due to a perceived ‘adoption window’ in relation to the age of the second youngest child.

However, the father and his wife - the mother of the two youngest children - were reluctant to leave their home during lockdown.

The urgency of the case was also disputed as it was based on misinformation that the second youngest child would turn five rather than four in June. Notes in the care plan stated “research shows that the chances of an adoption being successful decrease significantly around that age”.

Lead counsel for the father Mr Karl Rowley QC argued the judge’s decision to go ahead with the hearing, which had been scheduled for 27 April, was “outside the margin of reasonable case management decisions”.

He also argued that while provision was made for the father and his wife to attend court, much of the time they would be “sitting at home” trying to follow evidence via video link.

This was inappropriate given a psychological assessment of the father highlighting he “struggles to process language and symbols” and was “easily distracted… gets frustrated easily and quickly becomes exasperated”.

The appeal court ruling noted: “The father is unable to access any video technology in his home and would have to share access to the court process by watching on his wife’s iPad.”

His dyslexia and emotional fragility made it impossible to regard conducting a case with such far-reaching consequences remotely as “a fair process”, it added.

Cumbria County Council also changed its stance during the appeal process based on new guidance on remote hearings during lockdown from the judiciary. In essence, this stated they should only be considered where all witnesses are professionals.

The Court of Appeal listed three main reasons for overturning the decision to allow the hybrid hearing to go ahead:

• The father’s inability to engage with remote evidence
• The imbalance of procedure requiring the parents but no other party to attend court
• The need for urgency was not sufficiently pressing

In its judgement, the Court of Appeal – which referred to the father as Mr A - said: “Taking these technical, emotional, intellectual and environmental factors together, it is not possible to understand how Mr A could engage sufficiently with the professional evidence that is to be given over a video link to his wife’s iPad in his home over the course of a number of days for that process to be regarded as adequate or fair.”

However, it added that the decision “must not be taken as an authority that is generically applicable to one or more categories of children cases. The appropriateness of proceedings with a particular form of hearing must be individually assessed…”

This article is published by Professional Social work magazine which provides a platform for a range of perspectives across the social work sector. It does not necessarily reflect the views of the British Association of Social Workers.