Stop Press :CAFCASS policy position for stage 1 recovery from lockdown - 1 June - 1 September 2020 - "The Hybrid Hearing"
On 1st June 2020 CAFCASS issued its policy position on CAFCASS Officers attendance at court. This policy document outlines the steps to keep CAFCASS FCAs safe during the pandemic.
Lee Young – barrister at No. 18 Chambers asks the rhetorical question: Could this policy or some of it assist all family advocates contemplating the live attendance at court during this next phase of lockdown easing measures, in order to ensure that we are all kept safe and away from the risk of catching the Coronavirus?
FPR requires CG’s to attend final hearings and authors of section 7 reports to attend if directed to. CAFCASS starting point is that “we attend hearings remotely unless there is a compelling reason to attend in person, even where others are attending in person.”
The court can direct that attendance may be remote and the decision whether to hold a remote hearing is one for the judge. This means that judges have a wide discretion about how to manage hearings. There are of course a number of recent authorities setting out guidance to the to assist the judge with the decision about whether it is appropriate to hold a hearing remotely:
See - Re P (A Child Remote Hearing)  EWFC – a decision of the President of the Family Division; Guidance issued by the President on 27 March 2020
- The primary purpose of the family justice system is to enable the courts to deal with cases justly
- The overriding objective – part of which is to ensure parties are on an equal footing
- Pushing forward to achieve remote hearings must not be at the expense of a fair and just process
- A range of factors are likely to be in play – each potentially compelling but also potentially at odds with each other
- The decision to proceed of not may turn on the category of case or seriousness of the decision but also upon other factors that are idiosyncratic of the particular case itself, such as local facilities, the available technology, the personalities and expectations of the key family members
- No two cases may be the same – the decision has to be left to the judge in each case rather than making the subject of binding national guidance
Cases that have had to be adjourned to an unspecified future date include cases of factitious illness which the require the court to observe the reaction of the witnesses very carefully to the allegations being put – see  EWCA 1086 (Fam) 5 May 2020 – a decision of the High Court Mrs Justice Lievan.
In this regard, the CAFCASS Policy document – states:
“The Court of Appeal has emphasised the need in some cases to have parties in court to assess their demeanour when giving evidence. The same does not apply to professional witnesses and there would need to be a compelling reason during the pandemic and this consequential recovery phase for the FCA to attend. There is the potential for a hearing to take place with the parties in person together with their advocates while other professionals attend remotely. This type hybrid hearing is likely to be in operation for the foreseeable future.
The Children’s Guardian would in most cases expect to be present throughout a final hearing but if circumstances do not allow this to be feasible, the court will be informed, and agreement reached as to which parts of the hearing the guardian can attend in addition to the giving of evidence.
There will, however, be times where it is necessary for FCAs to be present in court and these will be discussed between the FCA and the line manager. In these cases we must ensure that the arrangements are as safe as possible and that any vulnerabilities of the staff member have been considered.
Before agreeing attendance, we expect HMCTS to provide confirmation that appropriate measures identified in the protocols are in place, that it is possible to maintain a safe distance between parties, their advocates and professional witnesses, and that there is sufficient space within communal areas. HMCTS should be asked to provide confirmation of these specific arrangements before the court convenes any live hearings so that there is an assurance that safety has been addressed and the court has followed government guidance on safe working environments.
Where an FCA is asked to attend court in person to give evidence, the following aspects must be considered:
- Travelling to court should be by car, walking or cycling as a first option. If the FCA must travel on public transport and they are not prohibited by recorded health vulnerabilities, they must abide by the government guidelines of wearing a face covering.
- If the FCA has family commitments as a result of the restrictions or phased recovery from COVID-19 that means they are unable to work outside the home, such as school-age children who cannot attend school or younger children whose child care arrangements have been suspended, they will not be expected to attend in person and this needs to be discussed with the court.
- Any FCA in a vulnerable category as defined by the Department of Health or any member of their family in that category which places them at additional risk will not be able to attend court in person until the government guidelines change in respect of shielding.
The manager should discuss the above with the FCA and the court, being careful not to disclose personal information about the FCA to the court without their consent. The court will need to be told if the FCA is unable to attend, with remote attendance offered is this is an appropriate alternative.
If the court directs the attendance in the form of a court order, and in circumstances where the direction would put the FCA or others at risk, then Cafcass will challenge the order with the assistance of Cafcass Legal if necessary.
Cafcass will make every effort to avoid adjournments when the only reason is the pandemic and will, together with the court, attempt to ensure that decisions for children can be reached taking account of the need for fairness in the process.
Our tools for working with children have been received positively and support detailed and thorough remote assessments. FCAs need to be confident that the work they have undertaken allows them to provide enough evidence to the court to support their recommendations, and it is for the court to decide if any further, or alternative direct work, is required. This is a case-specific issue determined by the characteristics of the child and family as well as the physical circumstances. The court must balance the need to avoid delay with consideration of the adequacy of the evidence and it will be a matter of professional judgment for the FCA to assess whether they have enough information to justify their conclusion.
Click on the link below for access to the full CAFCASS policy document.