Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom

Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom.

Fenners Chambers | 3 Madingley Road | Cambridge | Cambridgeshire CB3 0EE | United Kingdom.

Child Contact and the Coronavirus

Child Contact and the Coronavirus

Child Contact and the Coronavirus

Contact between children and parents can be a contentious issue at the best of times and the current Government lockdown has only sought to confuse the issue. It is hoped that the information below will help to answer the most common questions parents are asking themselves and their legal advisors

Please remember that all situations are unique and not every question has an immediately clear answer. The Family Team at Fenners Chambers are continuing to operate as usual on a remote basis: we are happy to answer any questions and attend conferences; we can represent clients at remote hearings by video conference or telephone; we can offer alternative dispute resolution for swift and effective solutions. All members of the team are happy to work via telephone, Skype for Business, Zoom or Microsoft Teams.

Please contact the clerks at clerks@fennerschambers.com or 01223 368 761 for more information.


 

Frequently Asked Questions

We have an agreement or order in place which involves my child moving between two households to spend time with each of their parents. Will I be in trouble if I take my children to contact?

No: the government guidance on staying at home specifically excludes the movement of children, under the age of 18, between their parents’ homes. This is subject to the usual caveats about individuals and their families needing to self-isolate if they are displaying symptoms associated with Covid-19.

Are there any circumstances when direct contact should not take place?

Yes: The President of the Family Division issued guidance on 24th March 2020 which set out that it is for those with parental responsibility to decide whether a child should be moved after making ‘a sensible assessment of the circumstances, including the child’s present health, the risk of infection and the presence of any recognised vulnerable individuals in one household or the other’.

This means that it will be for those with parental responsibility to agree whether a child should be moved between homes taking into account the circumstances of those homes against the government guidance and whether movement can happen safely.

Those with parental responsibility can agree any vary any existing contact arrangements and it is a good idea to be sure that this agreement is recorded by an email or text message. Any agreed variation should last for the period of the lockdown and reflect the current restrictions on movement.

If it is agreed that moving the child between households is not safe, what contact should take place?

The President of the Family Division has stated that it is expected that if the ‘letter’ of a contact arrangements cannot be followed then the ‘spirit’ of that arrangement should take place in a way which is safe and in the best interests of the child. In a situation where direct contact could not take place, then the parties should look at alternative indirect contact arrangements for example by video (Skype/Facetime/WhatsApp) or by telephone in order to ‘establish and maintain contact between the child and the other parent’.

What if me and the other person(s) with parental responsibility cannot agree whether the child should be moved or not?

If parents cannot agree then one parent (or person with parental responsibility) may unilaterally decide that the child should not go to contact. If this decision is later challenged through an application to enforce the order, the ‘the court is likely to look at whether each parent acted reasonably and sensibly in light of the official advice’. In short, if a parent uses the Covid-19 as an excuse to stop contact without any justification relating to the condition of their own household or the household of the other parent, then this is unlikely to be deemed a ‘reasonable excuse’ in enforcement proceedings.

In these situations, it is expected that alternative contact arrangements (i.e. video call/telephone) will take place.

My child’s contact is supervised/supported by a family member/friend – can this contact still go ahead?

If the family member or friend lives in the same household as the parent having the contact, then there is no reason contact cannot go ahead.

The exception to the government guidance on social distancing does not apply to the movement of contact supervisors therefore if the contact supervisor does not live in the same household as the parent having contact the parents may have to look at an alternative supervisor who lives with that parent or alternative contact arrangements such as video calling or telephone.

My child’s contact normally takes place in a contact centre, can this contact still take place?

The first thing to do is to check whether the contact centre remains open and what arrangements they are putting in place.

If the contact centre is closed, is there another contact centre, reasonably accessible to both parents, which is open?

If the contact centre is closed, and there is no reasonable alternative, the general position will be that contact cannot take place on direct basis as the court has determined that a third party is needed to supervise/support the contact. It will also be necessary to investigate whether video/telephone contact can take place safely for both the child and the parent facilitating this, for example if there is a history of domestic abuse.

There may be some limited circumstances where direct contact could take place when a contact centre is unavailable, however this would depend on the circumstances of the individuals involved and it is always recommended that you take legal advice before taking such steps.

 

Joshua Walters
Fenners Family Group

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

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

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

The family courts, and professionals who work in them, have adapted swiftly to the ever-changing situation presented by the Covid-19 pandemic with manycases being heard remotely. However, cases often turn on a Judge’s assessment of a witness’ behaviour in court and this level of human connection has proven very difficult to achieve remotely. With the difficulties of remote hearings balanced against the need to avoid delay for the children concerned, the question is posed, should final hearings be conducted remotely?

The President of the Family Division, Sir Andrew McFarlane has set out his stancein Re P (A Child: Remote Hearing) [2020] EWFC 32 handed down in the High Court on 16 April 2020.

The Decision: A Snapshot

Sir Andrew McFarlane stated it was “very clear that this hearing has to be adjourned…it simply seems to me impossible to contemplate a final hearing of this nature, where at issue are a whole series of allegations of factitious illness, being conducted remotely”. The main body of the decision is found at paragraph 26 of the Judgment.

  • “We must not lose sight of our primary purpose as a Family Justice system, which is to enable courts to deal with cases justly, having regard to the welfare issues involved], part of which is to ensure that parties are ‘on an equal footing’ In pushing forward to achieve Remote Hearings, this must not be at the expense of a fair and just process.” [para 23].
  • A judge’s ability to cope with cross examination and assimilation of the detailed evidence from the e-bundle and witnesses appearing over Skype is only one part of the judicial function.
  • The judge needs to see all the parties in the case when they are in the courtroom, to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined in-chief and cross-examined, but equally when they are sitting in the well of the court and reacting.
  • It is possible over Skype to keep the postage stamp image of any particular attendee at the hearing it is a very poor substitute to seeing that person fully present before the court.
  • Remote hearings assume that the person’s link with the court hearing is maintained at all times and that they choose to have their video camera on.
  • To contemplate a remote hearing of issues such as this is wholly out-with any process which gives the judge a proper basis upon which to make a full judgment.
  • A remote hearing for a final hearing of this sort would not allow effective participation for the parent and effective engagement either by the parent with the court or the court with the parent.
  • There is a significant risk that the process as a whole would not be fair.
  • A prerequisite for the mother to take an effective part in a fair process is that the mother needs a real time ability to instruct her legal team throughout the hearing not just by phone call at the end of each piece of evidence.
  • This is irrespective of theparties agreement or opposition to a remote hearing [para 29]

 

Background

As part of ongoing care proceedings relating to a seven-year-old girl, a fifteen-dayfinal hearing had been listed. It came to the President’s attention that the hearing was due to take place remotely and he asked the Judge concerned to adjourn the matter. Parties expressed concern and therefore the matter was listed for a decision on this issue to be made. The Local Authority alleges significant harm caused by “fabricated or induced illness –FII”. There are “sixteen or so” [para 14] witnesses to give evidence including three experts. The issues are fully contested. There had been one previous attempt at a final hearingwhich had to be aborted, but the child was aware that her long-term care arrangements were to be decided imminently. An electric bundle had been compiled and the hearing was set to be conducted over the Skype for Business platform.

Parties’ Positions

The crux of the debate was whether or not the child’s welfare demanded the hearing to be conducted remotely, in order for her to have a decision sooner rather than later. As is so commonly the case, these interests must be balanced with the ability of the parents to have a fair opportunity to present their case. With the introduction of the Covid-19 pandemic and the technological element it brings, this balance has become harder to equate.

The mother was due to take part in the process alone, at home, and was intending to buy a wi-fi dongle to improve internet access. There was discussion of whether the mother could go to a neutral venue and be assisted by an individual from the solicitors’ firm to assist her involvement. However, there was concern that shemay have contracted Covid-19 and Sir Andrew held, “finding a member of the solicitors staffor asking a member of the solicitors staff to sit in a room with someone who thinks that they have had or are getting over Covid-19 is more than can be properly asked of anyone in that position” [para 20].

The Mother had not objected initially to the hearing being held remotely, as in the “early days following the lockdown the profession was “feeling its way” (sic) and there was an understanding that many family hearings would be undertaken remotely”. Upon further thought, it was considered by the Mother’s team that “this is a case that falls outside the category of hearings that could be contemplated as being able to be conducted over a remote platform in a manner that meets the requirements of fairness and justice” [para 19].

The Local Authority, Fatherand Guardian sought for the hearing to go ahead remotely. They argued that :

  • the allegations against the Mother had been “well-rehearsed in the documents…and [were] well known to the mother” [para 14].
  • the child was “already suffering, on their view, significant emotional harm by being held in limbo…
  • “technical matters” should not be a “reason of itself for the hearing to be adjourned” [para 18].

In the alternative the Local Authority and Guardian urged the court to hear the professional witnesses now with the mother’s evidence being adjourned until later.

The role of FII in this case

The President formed a view at “first blush” [para 11] that this case was not suitable for a remote hearing, and it was a “surprise” [para 13] that it had been listed assuch. This was due to the main issue of the case being FII. He held that FII is “a particular form of child abuse which requires exquisite sensitivity and skill on thepart of the court”[para 11]. He later refers to the paediatric expert witness’ description of the case as “an extremely complicated case” and the task of investigating FII as being “incredibly challenging” [para 12]. As referred to in the introduction ofthis article, Sir Andrew McFarlane held that the judge’s assessment of the human character is a “crucial element in the judge’s analysis”. This includes “for the judge to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined in-chief and cross-examined, but equally when they are sitting in the well of the court and reacting” [para 12].

Factors to consider in future cases

The Presidentstresses that “the decision on remote hearings has been left to the individual judge in each case, rather than making it the subject of binding national guidance”. At paragraph 24, he identifies a range of important factors that parties and judges should consider:

  • avoiding delay;
  • resolving issues for the child;
  • ensuring proceedings are forensically sound, fair, just and proportionate;
  • the seriousness of the decision;
  • nature of local facilities;
  • availability of technology;
  • personalities and expectations of the key family members, and
  • the experience of the judge/magistrates in remote working.

 

Impact

This decision acts as a precedent forthose involved in similar cases, those with FII and a significant number of witnesses. It also assists Judges and practitioners with the key factors to be considered when decidingwhether or not toconduct a hearing remotely. This decision is a strong indication that cases of this level of complexity should not be being heard remotely, and that doing so would be risking the fairness of the whole process. How many, and what other formsof harmwill be included in this category, is yet to be seen.

Ellena Forman
Fenners Chambers
21 April 2020
Pupil v Pandemic [2020]

Pupil v Pandemic [2020]

Pupil v Pandemic [2020]

“The start to my second six was a little different…”

Fenners’ pupil, Anne Hogarth, provides a light-hearted account of her first day in court prosecuting a CPS Magistrates List at the start of her second-six on the 16th March 2020, one week before the Covid-19 lockdown.

Any barrister will tell you about their first day in court as counsel—their first day on their feet at the start of their second six. Normally this will be a story of how they were a bundle of nerves and overly prepared, wanting to do something spectacular, or just desperately trying to get through it with some of their dignity intact.

There are hundreds and thousands of stories out there from barristers about their first days on their feet. Some involved successes—such as having your client found not guilty to walking around with a knife at 3 am, which we all know was definitely being used for cooking—and some rather less so.

The start to my second-six was a little different…

I started on my feet on 16 March 2020, one week before the lockdown started. We were being told that people with sick family members should self-isolate, and if you had been exposed you should stay away from people; don’t even think about leaving the house if you live with someone vulnerable.

All of this is would be seen as a good reason not to turn up to court.

On that fateful day I had been instructed to prosecute a CPS list. For those unaware, this involves a list of trials which you are normally sent the night before. You have to juggle witnesses, defendants and court staff. Luckily, I had the weekend to prepare, meaning that like most pupils on their first day, I could firmly fit into the overly prepared but slightly terrified category.

Having prepared my five trials over the weekend, I turned up to court carrying my slightly out of date copy of Blackstones and huge bundle of papers. I spent that first morning running around trying to deal with negotiating a guilty plea, talking to my room (and I mean quite literally an entire room) of police officers who were to appear as witnesses in my many trials, talking to a defence advocate who had not seen the 45 minutes of body-cam footage, and trying to deal with a self-represented defendant. By 9.45 only one defendant had not arrived. I also noted that I had another defendant sitting calmly in the waiting area with their advocate who was cross courted—but we’ll get to him later.

Bang on 10am, while I’m looking somewhere else and trying to learn to juggle in high heels (which incidentally I have learnt is a must have as a woman at the bar—as a six foot tall woman I have now developed the ability to tower over most people, which is a highly effective way not to feel intimidated), the legal adviser calls in the magistrates. I think thoughts that are inappropriate to put on paper, mainly along the lines that I would have appreciated some warning.

Luckily, I have managed to arrange a guilty plea, having taken instructions from the CPS, and I quickly get a sentence done. Result! It may have just been for speeding, but I can officially say I have successfully done my duty to the Crown by giving some guy a relatively significant fine for going 80 miles per hour on the motorway.

After this I open the prosecution case against the litigant in person and start to examine my witnesses. Meanwhile, I find out later, our missing Defendant has arrived at court. He’s been charged with a few different things, so he’s brought a friend to court as a surprise witness. Said surprise witness has brought a weapon with him and is arrested by the same officers who arrested the Defendant a few months previously. Note to Defendants and witnesses—do not bring weapons to court; they have metal detectors and will probably find them.

I successfully manage to close the Prosecution case with only a few strange looks from the bench. Another result! At this point it’s nearing 12 and I am 1.5 cases through my 5-case list. However, a rather worried looking court usher comes into the court and is urgently whispering at the back.
Coronavirus has arrived.

My defendant who has been quietly sitting there all morning has a mum who may have coronavirus, and a friend with a confirmed case he saw a week ago. The court erupts into panic—the magistrates flee, we all desperately start sanitising our hands, my litigant in person gets up and leaves. At this point I am sitting there (not standing, because of the new heels) confused with no idea what to do. The potential coronavirus spreader is swiftly sent home. His advocate goes and starts a trial next door. After about ten minutes the defence advocate with the surprise witness and I shrug ‘well, he’s not been in the court room, so we should be fine?’ and I start to show her the CCTV footage. Ten minutes later one of the magistrates comes back; they are not going to sit any more and they swiftly retreat to the safety of their retirement rooms.

Very quickly all my cases are adjourned by the understandably stressed but amazingly composed legal adviser.

Being a good pupil, I call Cathy, our deputy head clerk, to tell her what has happened. Shortly afterwards I am banned from chambers and am told to go home and await further information from the court.

On returning home I collapse on the sofa. Things may have turned into chaos but I did it. I survived my first day on my feet.

While most of my experiences are fairly standard, learning how to be a barrister in these conditions is, for obvious reasons, a new challenge both for me and for my supervisors. However, what Coronavirus has taught me (apart from how to use Zoom) is how to remain calm under pressure and adapt to changing circumstances.

At this point I would also like to thank Charles Snelling, who was in the Magistrates earlier that morning and left me an excellent sandwich for lunch with the usher. I was also allowed to return to Chambers the next day although then promptly told I could work remotely a few days later. I have not worn heels since.

 

Anne Hogarth
Second-Six Pupil
Public  Law  Working  Group  publishes  report  on  special guardianship orders

Public Law Working Group publishes report on special guardianship orders

Public Law Working Group publishes report on special guardianship orders

The Public Law Working Group recently published a report on special guardianship orders (SGOs), namely “Recommendations to achieve best practice in the child protection and family justice systems: Special guardianship orders June 2020”. The report is valuable reading for all care practitioners and proposed special guardians (SGs) alike.

Annexe E contains the “Best practice guidance for special guardianship.” Sir Andrew McFarlane, President of the Family Division, has endorsed the guidance, calling it “comprehensive and authoritative” and further that “…the practice guidance should now be applied and used in every case where an SGO is an option in the hope that, as the authors say, it will improve the outcome for children and special guardians.”

The best practice guidance

The best practice guidance highlights several challenges that have hitherto been faced when a potential SGis identified in care proceedings. Of particular concern is the drive to complete cases within the statutory time limit of 26 weeks;although interim guidance has reinforced the judge’s power to approve an extension beyond 26 weeks so as to allow issues to be fully addressed. As the new guidance says at paragraph 24: “The focus will always be on welfare and the fundamental requirement for a robust, evidence-based assessment. This will be the guiding factor as opposed to the statutory timescale of 26 weeks”.

The following matters are of particular note in the guidance:

  1. It is important that realistic options for the child are fairly evaluated and that a cap is not placed on the number of potential carers by way of case management directions.
  2. Where there is a positive initial assessment then there will be a detailed plan that sets out the next steps (see paragraph 15 of the guidance).
  3. There ought to be thorough preparation, training and assessment of a person identified as a prospective SG.
  4. All parties should set out details of proposed carers in advance of the first case management hearing.
  5. If a family member is being considered a prospective SG after aninitial assessment, then this should raise issues as to the interim placement/plan for the child. Consideration will need to be given to the fact that if an interim placement does not develop into a long-term placement, then this can have serious consequences for the child.
  6. Where the interim plan for placement with the prospective SGisendorsed by the court,a timetable will need to be prepared to enable the proceedings to be completed. The timetable will take into account: i) the legal framework authorising the interim placement with the prospective SG, and ii) the period of time required for a robust evidence base to be established aboutthe quality of care of the child by the prospective SG, including for example the amount of parenting experience the prospective SG has, the identified needs of the child and the relationship the prospective SG has with the parents of the child and other family members.
  7. An agreed plan must be completed on a case-by-case basis that enables each of the issues fully and realistically to be addressed.
  8. The court timetable to resolve outstanding issues before a final order can be made should be dictated by the facts of the particularcase. The guidance says “It is anticipated that this will be no more than 12 months from the interim placement of the child with the prospective SG.
  9. Where the local authority considers, on evidence, that the prospective SG is unsuitable then it must inform the court with a view to reviewing the court timetable. The local authority’s reasoning must be set out in a report and be made available to the prospective SG. The local authority must notify the prospective SG of the procedure to be followed in challenging the assessment, including the procedure for any application to the court seeking leave for ongoing assessment pursuant to s. 10 (9) CA 1989 or to be joined as a party to the proceedings. Any challenge should be pursued promptly within a reasonable timescale.

In addition to the best practice guidance the Public Law Working Group made four immediate and four longer term recommendations as regards SGOs.

Immediate recommendations

  1. Special guardianship assessments and special guardianship support plans (SGSPs) should be robust, comprehensive and compliant with regulations. The court timetable needs to be realistic to enable this.
  2. There needs to be better preparation and training for SGs.
  3. Save for cogent reasons, a supervision order should not be made alongside an SGO. Where there are such reasons they ought to be set out in the recital to the order. All support and services to be provided to the special guardianand child should be set out in the SGSP, which should be attached as an appendix to the order making the SGO.
  4. Parental contact needs to be given careful consideration before making an SGO. This includes considering: i) the purpose of the contact, ii) the factors relevant in determining the form and frequency of contact, iii) the professional help required to support SGs in facilitating such contact over time, and iv) the planning and support required to ensure the stability of the placement in the context of the ongoing contact.

Longer term recommendations

  1. An ongoing review of the statutory framework, including in particular a review of primary and secondary statutory provisions relating to SGSPs.This is particularly so given there are regular reviews of guidance and regulations in relation to adoption and fostering. Placement regulations ought to be reviewed to consider whether an option for local authorities to place with prospective special guardians under a care order might be an appropriate development.
  2. Further detailed analysis and enquiry should be undertaken in relation to the placement of children with prospective SGs, including: i)whether the Children Act 1989 should be amended to provide a power to make interim SGOs, ii) a review of fostering regulations in relation to family and friend carers, iii) whether to impose a further duty on a local authority to explore whether there are potential carers who could be appointed a SG for the child with accompanying statutory provisions to support local authorities in gatheringthis information, and iv) improved national support provisions for SGs and the children they are raising.
  3. A review of public funding for proposed SGs.
  4. Effective pre-proceedings work, including Family Group Conferences (FGCs) being a matter of routine and the use of the Family Rights Group’s “Initial Family and Friends Care Assessment: A good practice guide.”

The report can be accessed here: https://www.judiciary.uk/wp-content/uploads/2020/06/PLWG-SGO-Final-Report-1.pdf