Pregnancy and the Equal Treatment Handbook

Recently, two of our solicitors within the Family Team have been involved in a matter that has significantly changed the law surrounding pregnant women and the attendance of Court.

Our Mr Philip Goodall and Miss Lauren Snowden represented the Mother in care proceedings and sought to argue in the Court of Appeal that an adjournment of her final hearing was necessary, given that the date proposed for the hearing was during the period of the latter stages of her pregnancy, close to her estimated due date.

This is argument relied on the new edition of the Equal Treatment Bench Book, chapter 6, particularly paragraphs 29 and 30 as set out below:-

29. Consideration should always be given to accommodating pregnant women and new and breastfeeding mothers in any proceedings, whether they are parties, witnesses or representatives. This may require sensitive listings, start and finish times, and breaks during the proceedings, sometimes resulting in a case going part heard.

30. A woman who is heavily pregnant or has just given birth should not be expected to attend a court or tribunal unless she feels able to do so. Although every woman is different, this is likely to apply at least to the month before the birth and at least two months after the birth. This period would be longer if there were complications at birth. Even a telephone hearing may be too difficult if the woman is looking after the baby on her own. This may mean that a hearing has to be adjourned.

The Local Authority argued that these paragraphs did not create a bar to heavily pregnant women being able to participate in proceedings in that some women are content to take part in proceedings whilst heavily pregnant, as allowances can be made by the Court for example, allowing regular breaks to be taken. They also sought to rely on the fact that, due to COVID-19, the majority of hearings were taking place remotely by way of video platform, thus lessening the burden on the Mother and also the lack of medical evidence provided by the Mother to evidence that she was deemed unable to attend.

The Court of Appeal acknowledged that the Equal Treatment Bench Book was not law in its own right, however it was a document written by Judges for Judges and that it needed to be considered very carefully.

The Court also made reference to the decision in Re A (Children) (Remote Hearing Care and Placement Orders) [2020] EWCA Civ 583 :-

“The decision whether to conduct a remote hearing, and the means by which each individual case may be heard, are a matter for the judge or magistrate who is to conduct the hearing. It is a case management decision over which the first instance court will have a wide discretion, based on the ordinary principles of fairness, justice and the need to promote the welfare of the subject child or children. An appeal is only likely to succeed where a particular decision falls outside the range of reasonable ways of proceeding that were open to the court and is, therefore, held to be wrong.”

The Court determined that there should not be a complete bar to progressing proceedings when a mother is heavily pregnant or within the period immediately following the birth of the child. However, it did acknowledge the need for there to be a fair and just process for all the parties.

This is a crucial Court of Appeal Judgment that will now be considered in future proceedings before the Court, when assessing whether it is appropriate for pregnant women to attend Court in person or whether provisions can be made for proceedings to take place by way of some other means such as remote video platform.

The Mother’s appeal was allowed in this specific matter and the final hearing was put back.