Bloomsbury Family Law Briefing: May Teaser

Of these seven cases noted here, the last two raise issues which arise directly from Covid-19 remote hearings. The article deals more fully with fairness and cases effect by the consequences of Covid-19.

Case Summaries

Re S (Parental Alienation: Cult) [2020] EWCA Civ 568 (29 April 2020) – Father’s application for variation of child arrangements order to give him predominant care of a nine-year-old child: review of law on parental alienation and the malign influences of the mother’s cult. Appeal allowed; remitted to Sir Andrew McFarlane P for final decision with facts as found by circuit judge and Court of Appeal not open to challenge by the mother.

Padero-Mernagh v Mernagh (Divorce: Nullity: Remote Hearing) [2020] EWFC 27 (3 April 2020), Williams J – Remote hearing of PM’s petition she was fond to be a bigamist. Marriage annulled.

Re AV (A Child) (Expert Report) [2020] EWCA Civ 346 (5 March 2020) – Case management judge should have allowed the calling of a child psychiatrist for a three year old child who had lost three siblings in a fire and was subject to care proceedings. High threshold for successful appeal against a case management decision crossed.

FRB v DCA [2020] EWHC 754 (Fam) (30 March 2020), Cohen J – W’s conception of a child by another man, and leading H to believe till the child was eight that the child was his was ‘conduct so egregious that it would be inequitable [for the court] to disregard’ (at [193]); but off-set by H’s litigation conduct.

AW v AH & ors [2020] EWFC 22 (21 April 2020), Roberts J – Couple with previous expansive life-style, but H (63) now with substantially reduced means. Capital claims of W (55) adjourned for seven years.

Re P (A Child: Remote Hearing) [2020] EWFC 32 (16 April 2020), Sir Andrew McFarlane P – Mother of seven-year-old child said to be responsible for factitious illness. Fifteen day care hearing fixed. Mother said a remote hearing would not give her a fair trial. Appeal allowed.

Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 (30 April 2020) – Appeal allowed and case management decision of circuit judge retuned to him for review where a dyslexic father (A) complained that the judge’s decision that he could attend court in person or remotely on his wife’s iPad.

Remote hearings in a time of Covid-19: how far remote, how fair?

One of the earliest family (in the broadest sense of the term) cases reported since the pandemic closed in was A Clinical Commissioning Group v AF & Ors [2020] EWCOP 16 (27 March 2020), Mostyn J. The case was regarded by most lawyers as a success; but commented on – with real reservations expressed for the daughter (‘Sarah’/SJ) of AF, the patient – in Remote justice: a family perspective by Celia Kitzinger, co-director of the Coma and Disorders of Consciousness Research Centre and Honorary Professor, Cardiff University School of Law and Politics (Transparency Project,  29 March 2020). Any proponent of remote justice must take account of what Celia Kitzinger has said for Sarah of her father’s case.

The case had been preceded by the guidance of Sir Andrew McFarlane President of the Family Division COVID 19: National Guidance for the Family Court 19th March 2020, which was designed to keep the courts going and dealing with appropriate and urgent cases. That in its turn was followed by a Message for Circuit and District Judges sitting in Civil and Family from the Lord Chief Justice, Master of the Rolls and President of the Family Division dated 9 April (‘LCJ’s message’) the top three civil law judges which proposes ways in which justice may be delivered in a lockdown; and asking for views from judges.

The Court of Appeal since has stressed the fair trial emphasis alongside the LCJ’s message on remote hearings:

The overarching criterion is that whatever mechanism is used to conduct a hearing must be in the interests of justice, that issue being assessed by reference to the unusual circumstances that prevail and the unhappy alternative if a hearing is adjourned. Every hearing we conduct in whatever form must provide a fair hearing.

This article reviews the role and importance of fairness in dealing with remote hearings and shows the President of the Family Division and Court of Appeal dealing with a number of the issues which arise.

The Family Law Briefing is part of the Bloomsbury Law Online Service. The full briefing is available here.

David Burrows

Written by David Burrows

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