Recent significant public law decisions Practical and ethical - - PowerPoint PPT Presentation

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Recent significant public law decisions Practical and ethical considerations

• n 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

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Remote Hearings – Update IT’S A CIRCUS?

Rebekah Wilson, Garden Court Chambers 3 June 2020

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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

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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.

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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.

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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

• n 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.

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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

• f 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.

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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

• f 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

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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

• ral 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/

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Quality of evidence and a contrast

• f two High Court cases: Two

recent judgments by Lieven J

Maggie Jones, Garden Court Chambers 3 June 2020

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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.

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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.

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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
• ther 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

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Identification of pool of perpetrators

• Re S-B [2009] UKSC 17
• B (Children) [2019] EWCA Civ 575 - Uncertain Perpetrator

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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)

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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

• ut of the pool of perpetrators.

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Re SX [2020] EWHC 1086 (Fam)

• Hearing 15 April – 5 May 2020
• Case concerned a 4 year old child whose 2 year old sister died at home of unknown causes.

She had multiple fractures and head injuries. Only the parents had had care of the child.

• Father was disputing the medical evidence that the injuries were non-accidental. Mother was

not disputing the medical evidence, but was saying she did not inflict the injury so it must be the Father who had done so.

• The Judge heard 5 days of medical evidence remotely via Zoom, then adjourned to hear

submissions as to whether the hearing should continue with evidence from the parents and

• ther lay witnesses via Zoom.
• During that week all parties had urged the Judge to continue with the lay evidence remotely,

but over the weekend the Father had gone to A & E feeling suicidal and since then had felt unable to participate in the hearing.

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The Judge said…

“Two months ago it would have been entirely inconceivable that a hearing such as this would continue entirely remotely. However there would be significant disadvantages to many children if all such cases were simply adjourned.” The Judge then considered the recent case law in respect of the approach to take in deciding whether to proceed with a hearing in a complex family case parties.  Re P (A Child Remote Hearing) [2020] EWFC 32  Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583 (which sets out some of the factors to be taken into account when deciding whether to proceed with a remote hearing)  Re B (Children)(Remote Hearing: Care and Placement Orders) [2020]EWCA Civ 584

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Re SX [2020] EWHC 1086 (Fam) – Further Comments from Judge

• The Judge referred to the issue as to whether the judge is in a less good position to judge

whether or not the witnesses are telling the truth if the case is conducted remotely which was

• f concern to the President in Re P. She was referred by the LA to the case of SS(Sri Lanka) v

Secretary of State for the Home Department [2018] EWCA Civ 139 and the danger of drawing conclusions from a witness’s demeanour. She was referred by the LA & the CG to the fact that it is fairly common for witnesses of fact to give evidence by videolink where they are considered to be vulnerable, but injected a note of caution that such a witness would be likely to have the assistance of an intermediary to assist and support them.

• An application to adjourn was made on behalf of the Father. This was refused. The Judge

said that she had reached the conclusion that it was appropriate to continue the case remotely and not to adjourn because of the remote hearing or the Father’s mental state.

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Re SX [2020] EWHC 1086 (Fam) – Further Comments from Judge

The Judge agreed that demeanour will often not be a good guide to truthfulness. She went through the factors set out in Re A and numbers of other factors:

• the fact that the case was of the utmost gravity does not mean that it cannot be heard remotely.
• it was of the utmost importance for the next steps for this child’s future to be determined as soon

as possible.

• the likely difficulty in getting the case re-listed because there was going to be a backlog of cases.
• the Mother’s health and the fact that she was not prepared to leave home and come to court

whilst the Covid lockdown continued

• all parties were represented by highly experienced and competent QCs and getting the best

possible advice.

• giving evidence about a severe injury to a child followed by his death would be an enormously

upsetting experience for a parent who had limited or no support giving evidence remotely.

• the ability of the parents to engage in the proceedings.
• the fact that the use of Zoom had worked reasonably smoothly for hearing the medical evidence
• the disadvantage of not being able to watch the reactions of other witnesses to the evidence

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Return to Work: Practical and Ethical Considerations

Allison Munroe QC, Garden Court Chambers Ann Osborne, Garden Court Chambers 3 June 2020

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Introduction

In the course of this session we hope to explore the lockdown exit strategy for the Family Courts:

• Is there one?
• Is it effective and transparent?
• What is the management and implementation of risk assessments?
• What is the consultation process with court users?
• The Impact on BAME professionals, lay clients and staff

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What do we presently know about an overall exit strategy?

• The picture is somewhat unclear. Timetables and consistency are lacking.
• In terms of consultation it would have been instructive to canvass the views of lawyers across

the board. Questionnaires or some form of survey on any specific concerns are about returning to work, how they believe the pandemic has impacted on their practice.

• Senior Judiciary and reps visits to each and every family court. This has to be done to

scrutinise the risk assessments and no courts signed off as safe until such assessment compliance visits are made.

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Risk Assessments

• There is a model from HMCTS
• https://www.gov.uk/guidance/coronavirus-covid-19-courts-and-tribunals-planning-and-

preparation#assessing-and-managing-coronavirus-risk

• One size will not fit all, we are dealing with courts of varying ages, facilities and locations etc.
• Who is making the risk assessments and are they properly trained?
• HMCTS organisational risk assessment was last updated on 15th May and is a fairly generic

document, so presumably each court has to adapt it for their specific circumstances, building and usage. Court users should know and see how each family court is doing this.

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Risk Assessments

• Inspection of court facilities and procedures and endorsement by Public Health England to

ensure compliance;

• Familiarisation by Counsel/ Judge in advance of trial;
• One way system in corridors;
• Socially distanced seating in lobby areas;
• Separate court rooms for solicitors, members of the public with social distancing enforced
• Court rooms measured and 2m zones established for all participants with specific seats for all

participants clearly identified;

• Court questionnaires to identify potential party with concerns re: health, family members any
• ther concerns;
• Lengthy judicial homily to identify party concerns in advance and invite disclosure of

concerns should they arise;

• Witnesses brought in and out whilst ensuring social distancing via Judge’s entrance;
• All bundles or documents to be put to witnesses, sanitised and placed in witness box in

advance or click share;

• Sanitary gels and wipes available;
• Participants to bring their own water and vessels.

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BAME professionals, lay clients and staff

• Yesterday’s report from PH England: Disparities in the risk and outcomes of COVID-19
• https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_da

ta/file/889195/disparities_review.pdf

• It shows age remains the biggest risk factor, while being male is another.
• The impact of Covid-19 is also "disproportionate" for other Asian, Caribbean and black
• ethnicities. But it remains unclear why.
• The statistical analysis is there, we are the most vulnerable and this cuts across several areas.

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BAME professionals, lay clients and staff

Who will this impact:

• The parents- many of the lay clients will be from BAME backgrounds
• SW and Guardians.
• Lawyers
• Staff.
• In all groups there are high proportions of BAME individuals. As those most at risk, what part if

any has that played in the risk assessments. What consultations have been had. The answer is sadly not very much at all.

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Staff and Unions

• Again this is a group with high proportion of black and minority members.
• What the TUC say:
• “The TUC believes that trade unions and employers, working together, can make a significant

difference to ensure that the effects of the outbreak are minimised, that the workforce is educated and informed on how to limit transmission, protected and equipped appropriately, and to ultimately limit further loss of life. Trade unions are challenging employers every day and the government over inadequate sick pay

• ffers, failure to provide personal protective equipment (PPE) and testing, and the urgent need to

safeguard jobs in disrupted industries.”

• What Legal Sector Workers United (LSWU), said in March:
• https://www.lawgazette.co.uk/news/coronavirus-legal-trade-union-threatens-action/5103512.article
• There must be proper consultation with the relevant unions before buildings are signed off as being safe.

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Comparisons

• The CBA has been part of the EDIS committee, a committee led by Mr Justice Edis, designed

to look at the process of returning the court estate to trials. There are over many members of this, from CPS, PECS, Probation, HMCTS, PHE and PHW etc. It is a complicated jigsaw, with many constituent parts, that we take for granted, but when one is putting the whole thing back together and in very different circumstances, it does take some time.

• https://www.youtube.com/watch?v=02KvzMjMc2I&feature=youtu.be
• https://www.hse.gov.uk/index.htm

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Return to Work: Practical and Ethical Considerations

Ann Osborne, Garden Court Chambers 3 June 2020

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Social Distancing in the Court Rooms - Is Our Safety Real or Illusory?

• The World Health Organization and other experts have said SARS-CoV-2, the virus that

causes COVID-19, is spread mainly by large droplets sprayed when people cough or sneeze, contaminating surfaces.

• New evidence suggests six feet of distance may not be enough. If SARS-CoV-2 is airborne, as

scientists think it may be, people could be infected simply by inhaling the virus in tiny aerosol droplets exhaled by someone talking or breathing.

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New England Journal of Medicine

• “Aerosols and droplets generated during speech have been implicated in the person-to-

person transmission of viruses,1,2 and there is current interest in understanding the mechanisms responsible for the spread of Covid-19 by these means. The act of speaking generates oral fluid droplets that vary widely in size,1 and these droplets can harbor infectious virus particles. Whereas large droplets fall quickly to the ground, small droplets can dehydrate and linger as “droplet nuclei” in the air, where they behave like an aerosol and thereby expand the spatial extent of emitted infectious particles”.

• “Some studies have shown that the number of droplets produced by speaking is similar to

the number produced by coughing.”

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On 5.5.2020 the Centre for Evidence Based Medicine reported:

• “The UK has a large and diverse Black, Asian and Minority Ethnic community (BAME),

which account for around 14% of the population in England and Wales. Worryingly there is early evidence of an association between ethnicity and COVID-19 incidence and adverse health outcomes. For example, observational data from the Intensive Care National Audit and Research Centre, show a third of COVID-19 patients admitted to critical care units are from BAME groups. There are also concerns that healthcare and other key workers who belong to BAME groups are particularly at risk.”

• “Using NHS England and ONS data, Statista compared the number of COVID-19 deaths in

BAME groups compared to their proportion of the country’s total population. This brief analysis shows there have been 801 deaths in the Black ethnic group as of April 17, accounting for 5.8% of COVID-19 deaths. Given this ethnic group accounts for 3.5% of the total population in England, the share of deaths in Black individuals is 66% higher than this groups proportion of the total population. The number of Asian deaths is similar to their share of the total population.”

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People at high risk (clinically extremely vulnerable)

People at high risk from coronavirus include people who:

• have had an organ transplant
• are having chemotherapy or antibody treatment for cancer, including immunotherapy
• are having an intense course of radiotherapy (radical radiotherapy) for lung cancer
• are having targeted cancer treatments that can affect the immune system (such as protein

kinase inhibitors or PARP inhibitors)

• have blood or bone marrow cancer (such as leukaemia, lymphoma or myeloma)
• have had a bone marrow or stem cell transplant in the past 6 months, or are still taking

immunosuppressant medicine

• have been told by a doctor they have a severe lung condition (such as cystic fibrosis, severe

asthma or severe COPD)

• have a condition that means they have a very high risk of getting infections (such as SCID or

sickle cell)

• are taking medicine that makes them much more likely to get infections (such as high doses of

steroids or immunosuppressant medicine)

• have a serious heart condition and are pregnant

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People at moderate risk (clinically vulnerable)

People at moderate risk from coronavirus include people who:

• are 70 or older
• are pregnant
• have a lung condition that's not severe (such as asthma, COPD, emphysema or bronchitis)
• have heart disease (such as heart failure)
• have diabetes
• have chronic kidney disease
• have liver disease (such as hepatitis)
• have a condition affecting the brain or nerves (such as Parkinson's disease, motor neurone

disease, multiple sclerosis or cerebral palsy)

• have a condition that means they have a high risk of getting infections
• are taking medicine that can affect the immune system (such as low doses of steroids)
• are very obese (a BMI of 40 or above)

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Re P (A Child: Remote Hearings) [2020] EWFC 32

At para 26 the President states:

• “ the more important part, as I have indicated, is for the judge to see all the parties in the

case when they are in the courtroom”

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Re A (Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583

At para 11:

• “It also follows that the decision on this appeal must not be taken as an authority that is

generically applicable to one or more category of children cases. We wish to state with total clarity that our decision does not mean that there can be no remote final hearings on an application for a care order or a placement for adoption order. Neither is our decision to be taken as holding that there should be no ‘hybrid’ hearings, where one or more party physically attends at a courtroom in front of a judge. The appropriateness of proceeding with a particular form of hearing must be individually assessed, applying the principles and guidance indicated above to the unique circumstances of the case”.

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QUESTIONS WE SHOULD ASK:

• Urgency?
• Who needs to attend and why?
• Do any of the parties fall into medically vulnerable categories?
• Are the any of the parties in a different type of vulnerable category?
• Procedures in place at the relevant Court?
• Practicalities travelling to and from Court?

Thank you

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