Abstract
Coronavirus cases
Re P (A Child: Remote hearing)
High Court Family Division McFarlane PA
16 April 2020 [2020] EWFC 32A
A seven-year-old child had been the subject of private law proceedings for some time before the local authority initiated care proceedings. She had been in connected persons foster care for a year and a 15-day hearing on the subject of fabricated or induced illness was listed to start on 20 April. A final pre-trial review took place on 3 April, two weeks after ‘lockdown’. The parties and the judge all accepted that the hearing could not go ahead as planned and that, having seen some advice from MacDonald J describing successful remote hearings, it was agreed that the hearing would be conducted by Skype, the mother joining in by herself from her home. The President, hearing about the proposal, called the case on for further consideration. The local authority and the children’s guardian were both anxious for the case to proceed as the child had experienced one adjournment already and needed a final decision. The mother’s counsel explained that they had agreed to the remote hearing, but having since experienced the difficulties of those hearings and seen further guidance, felt that the case was not one that was appropriate for a remote hearing. In addition the mother had suffered coronavirus symptoms, meaning that she would be unable to have contact with anybody to support her during the hearing.
The President agreed, citing the complexity of the subject matter, the details of the case that meant that the mother would need to have access to her legal team throughout the hearing and the need of the judge to be able to watch the mother’s reaction to the evidence throughout. Taking all matters together, he decided that a trial of this nature could not be fairly conducted without the mother present in the courtroom
Re A (Children) (Remote Hearing: Care and placement orders)
Court of Appeal (Civil Division) McFarlane P, Peter Jackson & Nicola Davies LLJ
30 April 2020 [2020] EWCA Civ 583
This was the first Covid-19 case to be considered by the Court of Appeal. It concerned four children, the younger two of whom had a care plan for adoption. The judge was anxious that the final hearing should go ahead, as he determined that the age of the older child meant that the likelihood of adoption was receding. The father was emotionally fragile and dyslexic, and lacked access to video facilities beyond his wife’s iPad. His counsel was from Liverpool, and would need to travel from there to Carlisle and back every day because of the closure of hotels. The judge fixed a five-day hearing, offering the parents the opportunity to attend court in person, although not requiring them to do so. He left it up to the advocates as to whether they would attend in person or remotely, but said that travel and accommodation difficulties were not a reason to adjourn the hearing. The judge considered the President’s guidance on remote hearings and the Lord Chief Justice’s message. These set out that final contested hearings in public law cases are unlikely to be suitable for remote hearing, and that live attended hearings should only be held in exceptional circumstances. He considered that the need for a prompt decision for the children represented exceptional circumstances, and that as the father was invited to attend court to give evidence this was not a fully remote hearing.
The Court of Appeal found that, looking at the process as a whole, it could not reasonably be held that the process was fair. The father would be unable to communicate as usual with his legal team, he would be joining the hearing from the house where his 15-year-old son was locked down with him, and the plan was that he would be the only witness giving evidence in court to questions asked over video link. Despite appreciating the efforts that the judge had made, the hearing would have to b adjourned for further directions.
Re B (Children) (Remote Hearing: Interim care order)
Court of Appeal (Civil Division) McFarlane P, Peter Jackson & Nicola Davies LLJ
30 April 2020 [2020] EWCA (Civ) 584
Two children, a girl aged 11 and a boy aged 9, were removed from their drug-using parents at a young age and their grandmother had been their primary carer and special guardian for most of their lives. The placement had not been easy and the older child made allegations of physical abuse against her maternal uncle. On 20 March, the police were called and she said that she had been hit by her aunt. The police removed her under police protection and her grandmother signed section 20 consent to accommodation. A week later, the grandmother changed her mind and said she wanted the child returned by 3 April. The local authority issued proceedings, seeking an interim care order for the older child and a supervision order for the younger who had not been involved in the incident. A hearing was listed on the day after issue and the grandmother instructed lawyers. The children’s guardian filed a position statement on the morning of the hearing and recommended both children being removed to foster care, although she had not had the opportunity to speak to the family and was not available to attend the hearing. On receiving this, the local authority changed its position and instructed its lawyer, by email during a meeting, to seek removal of both children. The grandmother was at home with the younger child, had no opportunity to consider the evidence or to give proper instructions to her lawyers, and the judge had been working continuously, mostly on the telephone, for ten-and-a-half hours. The court sets out a detailed timetable of the proceedings and of the judge’s day. It illustrates some of the difficulties that the system was facing at the start of the Covid-19 lockdown period, when the court, legal system and local authorities had suddenly to stop all face-to-face work but continue with child protection in whatever way they could.
In this case, the Court of Appeal identified that there was a chain reaction, set off by the highly pressured circumstances, in which legal and procedural principles were compromised. The grandmother’s appeal against the interim care order was allowed, and the details of the case set out to help others learn from the experience.
Re C (Children: Covid-19: Representation)
Court of Appeal (Civil Division), King, Peter Jackson & Asplin LLJ
10 June 2020 [2020] EWCA Civ 734
This case concerned four children whose three-year-old sister had died after ingesting cocaine. The local authority sought findings that either the mother, father or grandmother were responsible through their actions or neglect, that they had failed to protect the child and that all of the children suffered emotional abuse through being exposed to domestic violence by the father. A significant amount of expert evidence was heard remotely and the plan was for the lay witnesses to attend and to give their evidence in person. This was not possible because the mother was exposed to a person showing Covid-19 symptoms and the judge decided that it would be unfair for her to give evidence remotely while the other witnesses were in person. The hearing was listed for June, but the mother sought to have it further adjourned because leading counsel representing her was vulnerable and subject to shielding requirements. The judge decided that the delay for the children (already in foster care for a year) would be detrimental and that the mother would not be unfairly prejudiced by having junior counsel only present in court while leading counsel attended by video link. The Court of Appeal upheld the judge’s decision, noting his careful and detailed reasoning which reflects the novelty of the situation. The court emphasised that these sort of decisions will become commonplace and the length of this judgment (27 pages) is not expected in future similar case management decisions.
Comment
These four cases are included here for what is hoped will soon be of historical interest only. They describe the efforts of the family justice system to keep operating in a situation where none of the normal facilities were available, court rooms were closed and hearings were conducted on the telephone from judges’ homes. Careful future plans for the introduction of electronic bundles and a video hearing system were accelerated dramatically and courts and lawyers learned new ways of working overnight. These appeals were brought to challenge some of the compromises made and to ensure that fairness was not lost in the new processes. Despite the difficulties, the system is learning from the crisis and there will be positives that can be taken forward whenever normal service is resumed.
Permission for routine vaccinations
Re H (A Child: Parental responsibility: vaccination)
Court of Appeal (Civil Division) McCombe, King & Peter Jackson LLJ
22 May 2020 [2020] EWCA Civ 664
T was a baby made the subject of care and placement orders at the age of nine months. His parents refused to consent to T being vaccinated and did not accept that the local authority, or indeed the court, had any authority to make decisions in respect of their children. The judge gave a specific judgment on the issue of vaccination. He found firstly that the local authority had the power to decide on vaccinations, using the parental responsibility granted under the care order. He described vaccinations not as medical treatment, but as ‘public preventative healthcare’. He also, for the avoidance of doubt, made a declaration under the inherent jurisdiction of the High Court permitting the local authority to vaccinate the child. His reasoning was in conflict with MacDonald J in Re SL (Permission to vaccinate) [2017] EWHC 125, where the court described the question of vaccinations as one of gravity that should be referred to the court in the event of dispute. The Court of Appeal needed to resolve this conflict. They were taken through research showing the efficacy of immunisations and a raft of cases, both public and private, in which the issue of immunisation had been contested (the court invariably deciding that a child should be vaccinated).
Held
The Court of Appeal held that the use of the inherent jurisdiction was not appropriate in the case of routine vaccinations; under section 100 of the Children Act 1989 a local authority requires the court’s leave to make an application for the exercise of the inherent jurisdiction. That leave can only be granted if there is reasonable cause to believe that the child is likely to suffer significant harm. Refusal to vaccinate a child is a permissible exercise of parental responsibility and a parent who refused all vaccinations would not be crossing the threshold of likely significant harm to their child. The local authority could not claim that the vaccinations had to be ordered under the inherent jurisdiction to prevent significant harm.
The Court of Appeal did find that a local authority with a care order can give consent for a child to be vaccinated despite the objections of the parents, but pointed out that the parents would still need to be consulted and to have the opportunity to challenge the decision to vaccinate if they chose.
Comment
This case helpfully clarifies that a local authority with parental responsibility for a child does not have to make an application to the court before arranging for routine vaccinations for the child. It states that this will also be the case where an interim care order gives the local authority parental responsibility. The use of the inherent jurisdiction is only possible for local authorities seeking to prevent likely significant harm.
Note that it was not mentioned that in this case a placement order had been granted, so that under section 29(1) of the Adoption and Children Act 2002 the care order had no effect, and the local authority’s parental responsibility derived from the placement order and section 25 of the Adoption and Children Act 2002 and not section 33(3) of the Children Act 1989 referred to in the judgment.