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Court of Appeal finds remote adoption hearing inappropriate

 

Karl Rowley QC and Simon Heaney in the Court of Appeal.

The Court of Appeal has today shared its judgment re A (Children) Case No: B4/2020/0626 concerning an ongoing adoption case. The Court has decided not to uphold the judgment handed down by HHJ Dodd, which stated the final hearing of a year-long adoption case should not take place remotely, as it would not appropriate in this case to have a ‘hybrid’ hearing with the parents attending court alone to give their evidence. Today’s decision will have far-reaching implications for other adoption cases being heard during the current COVID-19 lockdown, with the need to assess what makes a fair trial in ongoing adoption cases clear.

The family case, which involved six children between the ages and three and seventeen, was supposed to establish whether the father, represented by Simon Heaney, family law barrister at St John’s Buildings, would again become the legal guardian of the four youngest children. The final hearing was due to take place in court in late March, a date that was fixed before the UK went into lockdown and family courts began operating virtually.

Following the lockdown, the final hearing had been removed from listings as the judge did not feel it would be possible to be heard as a remote or hybrid case, due to the length of the hearing, set for eight days, and the number of participants and witnesses involved. However, it was reinstated at the request of the children’s guardian on the basis that should the children remain under the care of the state, a delay to proceedings would reduce the likelihood of the youngest two children being adopted.

Following the reinstatement of the final hearing, Simon Heaney requested the judge, who was new to the case, to review and remove the case from listings, as the father was not competent in using technology and did not feel comfortable attending court alone for various reasons. The father also felt that an adoption, generally considered the most serious act a court can decide on, should not be decided virtually from home, but should be heard in court.

After two reviews the judge stated, on the 17th April, that the hearing was fixed for the 27th April.

Following this, Simon Heaney filed an application to the Court of Appeal. The Court of Appeal granted leave to hear the appeal on the 17th, without having seen evidence from any other party and the appeal went ahead on the 22nd April. Simon Heaney was led by Karl Rowley QC at the Appeal.

The judgment, handed down today, states that the hearing must not go ahead remotely on the basis of the father’s inability to engage properly with remote evidence, and him being potentially exposed when giving his evidence in front of the judge alone. The trial process was analysed to determine whether it could be deemed fair, for example, considering whether the father could communicate easily with his advocate.

Simon Heaney, barrister in family law at St John’s Buildings, who represented the father explains: “Although many hearings can still go ahead at the moment – indeed SJB is carrying out around 110 remote hearings a day – it’s also important to acknowledge that hybrid or remote hearings are not suitable for every case.

Read the judgment from the Court of Appeal.