Family Division President rules out remote hearing in complex family case

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The case against a mother suspected of abusing her child must be held in person, the President of the Family Division has declared.

Re P (A Child: Remote Hearing) [2020] EWFC 32 concerned a mother suspected by her local authority of fabricating or inducing illness in the child, a practice known as ‘Munchhausen Syndrome by Proxy’ or more formally, ‘Factitious Disorder Imposed on Another’. She disputes the allegations.

The local authority launched proceedings against the mother in April last year, following lengthy previous disputes with other members of the child’s family. The seven year-old was sent to live with a friend under a temporary care order. A final hearing concerning the child’s future was planned for the autumn but fell through, eventually being scheduled for April. By the beginning of that month the current lockdown had begun, and both parties, along with the judge, concluded that it should proceed remotely via video and audio, in line with most other family cases while the current restrictions are in place.

But then Sir Andrew McFarlane, President of the Family Court, reconsidered the issue at a High Court hearing. The various parties were invited to submit their views on whether or not the hearing should proceed remotely given its complexity.

The local authority, supported by the child’s father, argued that the case could proceed remotely while remaining fair because, apart from the parents, all the scheduled witnesses were professionals. They also stressed the urgency of the case, saying the child was in a state of limbo and insisting that further delay would cause her emotional harm. Her welfare required a decision to be made they claimed.

Counsel for the local authority and the girl’s legal guardian argued that at least the professional witnesses could provide their testimony remotely, even if concerns remained about the ability of the mother to participate.

But the mother’s legal team were opposed, saying she had an unstable internet connection, and a remote hearing would prevent her from receiving ongoing legal advice as the case progressed. They insisted that:

“…this is a case that falls outside the category of hearing that could be contemplated as being able to be concluded over a remote platform in a manner that meets the requirements of fairness and justice.”

The President accepted this argument, declaring:

“Establishing that a hearing can be conducted remotely, does not in any way mean that the hearing must be conducted in that way.”

Sir Andrew explained that:

“[Accusations of fabricating or inducing illness in a child] are particularly unusual cases and, from a judge’s perspective and, from experience of having undertaken a number of these cases over a number of years, it is a crucial element in the judge’s analysis for the judge to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; 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 during the course of the hearing.”

He added:

“…a trial of this nature is simply not one that can be contemplated for remote hearing during the present crises. … I would hold that this hearing cannot be properly or fairly be conducted without her physical presence before a judge in a courtroom.”

However, due to suspicions that the mother had contracted Covid-19, a courtroom hearing could not happen for the foreseeable future. Therefore the case should be indefinitely adjourned until the current virus restrictions are lifted.

Read the full judgement here.

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