Party’s advocate not able (because of covid-19) to complete a part heard case
In Re C (Children: Covid-19: Representation)  EWCA Civ 734 (10 June 2020) the Court of Appeal considered a mother’s application to adjourn a care hearing in a case which Williams J below (A Local Authority v The Mother & ors  EWHC 1233 (Fam) (15 May 2020)) had described as being concerned with K (aged three) and her siblings. Para  of Williams J’s introduction to his judgment continued:
' … A special post-mortem and toxicology tests indicated that K’s 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….'
Williams J had explained that in the judgment which was later under appeal, he was dealing with ‘whether the fact-finding hearing should continue either remotely or semi-remotely or whether the case should now be adjourned until an in-person hearing … can take place. This might not be till September or possibly later…’ Already 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.’
Following Court of Appeal guidance already available to the courts (including Re A (Children) (Remote hearing: Care and placement orders)  EWCA Civ 583 (30 April 2020) and considering Lieven J’s approach in A Local Authority v Mother & ors  EWHC 1086 (Fam) (5 May 2020), Williams J directed that the family members suspected of causing the death should give their evidence in person on dates late in June 2020.
The mother wanted her leading and junior counsel to represent her at the final hearing. They based her appeal to the Court of Appeal on grounds that her European Convention 1950, Art 6.1 right to a fair trial was breached by Williams J. In particular they argued that that the judge did not consider whether a ‘hybrid’ hearing would be fair (especially given what was at stake for the mother) or whether it would be properly adversarial. Did the hearing properly comply with the ‘the principle of the equality of arms and [did a] hybrid hearing respects the “fair balance” that ought to prevail between the parties’. The judge, said the mother, wrongly failed ‘to consider properly or at all whether unfairness in the trial process may involve a violation of the [mother’s] Art 8 rights’ (to respect for her private life).
Mother’s argument for effective participation in the case
Peter Jackson LJ summarised the mother’s appeal on the basis that it was submitted by her counsel:
' … For the court to contemplate resuming the fact-finding hearing at which every person hitherto involved (judge, lay parties, counsel) is in attendance except her own leading counsel is unfair and fails to respect the fair balance that ought to prevail between her and the other respondents.'
For the mother, said her counsel:
' Ms Isaacs [her QC] argued that the judge's decision breaches a very fundamental principle of natural justice and prejudices her client's right to participate effectively in the hearing. The physical absence of leading counsel excludes the opportunity for immediate dynamic interaction with the client in the courtroom. Ms Isaacs suggested a number of practical issues and challenges that her physical absence might entail…'
Further it was said for the mother that Williams J ‘did not deal with the inequality of arms that his decision creates [or for] to take account for the need for the trial to appear fair to the mother’:
' On the other side of the scales, Ms Isaacs says that the judge allowed considerations of delay to dominate his evaluation of welfare and the article 8 rights of the children, when they have a wider welfare interest in the need for a just decision. He did not take account of factors that might support a purposeful 12-week delay. He should, said Ms Isaacs, have given little weight to what she described as speculation about what might happen in the future if the hearing did not continue in June.'
Case management and a fair trial
The father supported the mother’s appeal. The local authority and the children's guardian and the paternal grandmother did not.
The court refused the mother’s appeal. Peter Jackson LJ concluded his judgment by reviewing the position in the light of the interests of the children: the court must provide them with a ‘decision about their futures without further avoidable delay and the court's obligation is to put in place a fair process to achieve this’ (at ). And he then set out factors of fairness which he considered to be relevant (at ) guaranteed, as he said, by common law and European Convention 1950, Art 6. These included:
- The right of access to the court must be effective, so that the individual has the opportunity to address all material that might affect the court's decision and is placed in a position to call evidence and to cross-examine: Mantovanelli v France (1997) 24 EHRR 370 at .
- The importance attached to the welfare of the child must not prevent a parent being able effectively to participate in the decision-making process: L v UK 2 FLR 322 at 332.
- The principle of equality of arms entails a reasonable opportunity to present one's case, including one's evidence, in a way that does not place one at a substantial disadvantage to one's opponent: Dombo Beheer BV v The Netherlands (1994) 18 EHRR 213 at .
- The administration of justice requires not only fairness but the appearance of fairness: R v Leicester City Justices ex p Barrow 2 QB 260; P, C & S v UK  2 FLR 631 at . However, the misgivings of individuals with regard to the fairness of the proceedings must be capable of being objectively justified: Kraska v Switzerland (1994) 18 EHRR 188 at .
- The determination must be made within a reasonable time: Art 6.1 itself.
Peter Jackson LJ derived from this (at ) that this case provided a case management decision, ‘over which the first instance court will have a wide discretion based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children’. Williams J’s decision, he considered, ‘was not only plainly open to him but, I think, correct’ (at ). Asplin and King LJJ agreed.