Final Hearings during Coronavirus? How?

In these times of social distancing & restrictions on movement, when jury trials have come to a halt, and court hearings of all kinds are being adjourned due to the need to maintain social distance. Almost everyone is waiting to see what will happen when the lockdown ends. A backlog of cases is building up, but some judges are forging ahead despite the lockdown, trying out new ways of conducting court business online. One such judge is Mr Justice Mostyn QC, who conducted a contested five-day final hearing of a public law care & adoption case by video the day after the lockdown was announced.

EK (A Child) [2020] EWFC 25: This was the final hearing of an application by a local authority for a care order for a young child. It came before Mr Justice Mostyn QC on 23rd March 2020. That first day was set aside for the judge to read the case papers, which came in the form of an electronic bundle (an e-bundle) of all the relevant documents. However, that evening the Prime Minister made the national lockdown announcement imposing social distancing and restrictions on travel. Anticipating the announcement somehow, Mr Justice Mostyn QC had already directed that the case would be heard by Skype for Business.

The online system was set up and tested, and, once it had been established that the video & audio worked, the case proceeded as a remote final hearing. It is reported that there were “a few hitches,” as one of the locations had a poor Internet signal, but the problems were all eventually overcome. In total, five witnesses gave evidence by video, one of whom was in Scotland.

The co-operation of the lawyers for parties to the proceedings was essential. They had to be able to see and hear the witnesses in order to be able to cross-examine them effectively, and to be seen & heard by the judge when make their closing submissions. By all accounts the remote hearing worked well. Apparently, it was Mr Justice Mostyn’s second case to be heard in this way. In the end he agreed with the professional view of the Social Worker, the Independent Social Worker and the Children’s Guardian and approved made final care and a placement orders.

In the words of Mr Justice Mostyn, “Plainly, for as long as this emergency continues this will be the only way in which the majority of cases can be heard. It is reassuring that notwithstanding the national shutdown the wheels of justice have been enabled to turn.”

One wonders how many other judges will be willing or able to take up this novel way of trying cases while the lockdown persists.
The judgment on this case has been reported at (https://www.bailii.org/ew/cases/EWFC/HCJ/2020/25.html)