Re C and the dangers of remote hearings

Re C [2020] EWCA Civ 987 is a warning to practitioners and Judges alike. A hybrid hearing took place, where medical evidence was conducted by Zoom. The Appellant however gave evidence in the court building. During her second day of evidence, the Appellant stated she was unwell with back pain and blurred vision. On the third day, the Appellant complained of a cough. The Judge, with agreement of counsel sent the Appellant home, to continue her evidence remotely. The Judge rose for arrangements to be made. However, unbeknownst to the Judge, the remote link of the court room remained open. The Judge was overheard having a private conversation with her clerk, detailing her frustration and that the Appellant was trying 'every trick in the book' in order to avoid answering difficult questions.

An application was made by the Appellant for the Judge to recuse herself the following day. The Local Authority, father and Children's Guardian were each neutral. The Intervenor opposed the application. The Judge refused the application resulting in the appeal.

In the lead Judgment Lady Justice King commented “there is no suggestion that at any time prior to these comments the judge had demonstrated any bias or that she had conducted this difficult hearing with less than scrupulous fairness” (paragraph 25). 

The court recognised the significant pressure caused by Covid19 commenting that “what happened is undoubtedly a consequence of the tremendous pressure under which family judges at all levels find themselves at present. All over the country judges are trying, against powerful odds, to 'keep the show on the road' during the pandemic for the sake of the children involved. They are faced daily, as are the court staff and practitioners, with all the difficulties, technological and otherwise, presented by remote hearings generally and hybrid hearings in particular” (paragraph 27).

However, the appeal was allowed. Lady Justice King stated “We have considerable sympathy with the judge. We have, however, no hesitation in concluding that her comments did indeed fall on the wrong side of the line. The fact that the comments were intended to be private does not salvage the situation in circumstances where those comments were, unhappily, broadcast across the remote system and were made during the course of the Appellant's evidence” (paragraph 30).

Read more about Family: Care & ChildrenFamily: Care & Children