Recent significant public law decisions Practical and ethical considerations on returning to court Allison Munroe QC, Garden Court Chambers (Chair) Rebekah Wilson, Garden Court Chambers Maggie Jones, Garden Court Chambers Ann Osborne, Garden Court Chambers 3 June 2020 @gardencourtlaw
Remote Hearings – Update IT’S A CIRCUS? Rebekah Wilson, Garden Court Chambers 3 June 2020 @gardencourtlaw
Re Q 2020 EWHC1109 • The President of the Family Division set out - again - the approach to considering whether a hearing should be conducted remotely or not. • In Re Q he allowed an appeal from the Judge’s decision not to hold a remote hearing. • It is worth considering his concluding discussion @gardencourtlaw
Discussion 30. Despite the clarity of the deputy district judge's judgments and the obvious care and thought that she brought to bear on these difficult decisions, I have been persuaded that she fell into error with respect to the two matters which are at the centre of this appeal relating to the father's Position Statement and approach to Q's welfare. @gardencourtlaw
Discussion 31. It is common ground that the Position Statement did not contain any new material and that the father's forensic position for the final hearing remained that his counsel would not seek to cross-examine the mother. It is clear both from her judgment and from her subsequent email to HHJ Tolson that the judge considered that the way that the case for the father was now being put would, or at least might, entail hearing 'what the mother has to say about her care of the child' and that, were she 'to agree with the submissions made by Ms Fottrell, the mother is very likely to feel a great sense of injustice and would probably choose to challenge a decision.' This was a factor which was plainly influential in the judge's decision to change her mind. It is relatively clear that the judge's understanding was that these allegations would lead to a need to hear oral evidence about them from the mother, yet she also knew that the father did not anticipate cross-examining her upon them. In the circumstances, the judge's failure to raise the issue that was in her mind and bottom it out through submissions, rather than raising it for the first time in her judgment, was a material error in the fair conduct of the proceedings. The appeal therefore succeeds on that basis. @gardencourtlaw
Discussion 32. I also consider that the criticism of the judge's approach to the issue of Q's welfare on 22 April is well made. It is difficult to reconcile the approach to welfare on 20 April, which, in part, was the justification for proceeding to hold an immediate hearing conducted remotely on the basis that the child needed finality and the potential for emotional harm must come to an end, with the approach taken on 22 April which was that Q's welfare was currently being maintained by the present arrangements. The judge, on 22 April, does not refer to the Guardian's opposition to the adjournment or to her professional judgment that Q had 'undoubtedly suffered significant emotional harm' and needed to move from her mother's primary care. No explanation is given for the apparent judicial change of approach to the issue of welfare. In the circumstances it is apparent that the judge was in error, as submitted by Miss Fottrell and Miss Jenkins, in her approach to welfare on 22 April. The appeal therefore succeeds on that basis also. @gardencourtlaw
Discussion 33. On the issue of remote hearings more generally, and the interpretation of Re P in particular, I propose to say little in this judgment. Ironically, although the case has come before me primarily because it was thought that the judge may have fallen into error in her application of Re P , it is clear that she did not do so. The decision in Re P is expressly tied to the small number of cases in which allegations of Factitious or Induced Illness ['FII'] are made. Paragraph 24 in Re P is of more general, obiter, application and the judge was correct in referring to it. @gardencourtlaw
Discussion 34. At present, in accordance with the Guidance that has been issued and the decisions handed down last week in the Court of Appeal in the cases of Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, each judge or magistrate must consider the individual case before the court and determine whether or not it should proceed remotely in whole or in part. It is to be accepted that a consequence of this approach is that different courts may take a different view on similar cases and that this may inevitably give rise to some inconsistency from court to court, or even from judge to judge. The Family Justice Observatory's speedy research into remote hearings in the Family Court will inform a review of the current situation and indicate whether the present guidance needs to be revised. It is not therefore the place to add to the learning on remote hearings in this judgment. The decision in the present case should be seen as an ordinary appeal, where the issue happens to be a remote hearing, but where the appeal has turned upon a failure of process and an error in approaching the issue of welfare .” https://www.bailii.org/ew/cases/EWHC/Fam/2020/1109.htm @gardencourtlaw
Presidents View from the Chamber May 2020 • “ I have, in a manner that might impress the cast of the Cirque du Soleil, bent over backwards to stress that the decision whether or not to proceed with a remote hearing is a matter for the individual judge concerned, and should not be the subject of blunt ‘do or do not’ national guidance based upon the length of hearing, the issue before the court, whether there is to be oral evidence or some other characteristic. ” • https://www.judiciary.uk/announcements/president-of-the-family-division-welcomes- nuffield-report-into-effectiveness-of-remote-hearings-during-covid-19/ @gardencourtlaw
Quality of evidence and a contrast of two High Court cases: Two recent judgments by Lieven J Maggie Jones, Garden Court Chambers 3 June 2020 @gardencourtlaw
Two decisions of Mrs Justice Lieven • Re L in October 2019 and February 2020. • Re SX in May 2020 • Both involving children who died and it was alleged that the injuries which caused the deaths were inflicted by a family member • One before, one after lockdown and remote hearings • Compare and contrast. @gardencourtlaw
Re L [2020] EWHC 1216 (Fam) • Hearing over 9 days in October 2019 & 5 days in February 2020. Judgment 26 February 2020. • Death of 13 year old, W, either as a result of suicide by hanging or strangulation • W one of 5 siblings. • Troubled family history of aggression and violence. • W had anger issues and had been excluded from school. Possible perpetrators M, F, older brother C. • • Judge set out the law very fully. @gardencourtlaw
Legal principles summarised by Baker J in Re JS [2012]EWHC 1370 • Burden of Proof • Standard of Proof Findings of fact must be based on evidence • • Take into account all the evidence and consider each piece of evidence in the context of all the other evidence • Expert medical evidence to be considered in the context of all the other evidence • Evidence of parents and other carers is of the utmost importance Bear in mind witnesses tell lies for many reasons • • Cause of injury may remain unknown • Test as to whether a person is in the pool of possible perpetrator is whether there is a likelihood or a real possibility that he or she was the perpetrator @gardencourtlaw
Identification of pool of perpetrators • Re S-B [2009] UKSC 17 B (Children) [2019] EWCA Civ 575 - Uncertain Perpetrator • @gardencourtlaw
Memory and unreliable testimony • Gestmin v Credit Suisse UK [2013] EWHC 3560 Lancashire County Council v C, M & F (Children- Fact Finding) [2014] EWFC 3 (Fam) • @gardencourtlaw
Re L [2020] EWHC 1216 (Fam) – Judge’s Comments • The Judge heard evidence from members of staff at W’s school and the pupil referral unit he then attended, M, F, C, T & B (W’s older sisters), members of the ambulance service, 2 pathologists, and an architect with particular expertise in component failure. There was a wealth of other evidence resulting from the investigations of the police, and there was evidence from covert police disclosure – which caused the delay between October and February. The Judge went carefully through the family background, W’s history behavioural issues and • mental state, the factual matrix and timeline, the expert evidence and the law. She considered the evidence of the family as a whole and each family member separately, taking into account the issue of memory as W had died well over 2 years before the final hearing started, the distress and associated with W’s death and the sense of grievance against the local authority and the police. • The Judge was very careful in the way she made her findings, saying that it was a case “where the need to take a broad overview of the evidence” was “particularly important”. She concluded that William was killed rather than that he had hung himself, and that she could not take M or F or C out of the pool of perpetrators. @gardencourtlaw
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