In the case of Jallow v Norway (application no. 36516/19), the European Court of Human Rights looked at what is quite a familiar and popular topic at present: the fairness of conducting hearings remotely. In this case, the court found that the remote hearing had not violated the applicant’s Article 6 (right to a fair hearing) or Article 8 (right to family life) ECHR rights. As always, though, it reached this conclusion on the basis of very fact-specific considerations.

Background: no visa granted for family court hearing

The applicant in this case, Mr Jallow, is a Gambian national and lives in Gambia. He is the father of G, a ten-year-old child born and bred in Norway. G always lived with his mother in Norway until she passed away in June 2017. At the time of the hearing, he was in foster care.

G’s only real contact with his father had been during a two-week holiday in Gambia in 2015, when he was four. There was potentially some telephone contact before his mother’s death, although it is unclear how much father and son were able to communicate as they did not have a language in common.

After G’s mother passed away, Mr Jallow applied to the Norwegian courts to have parental responsibility for G. A maternal aunt of G, who lived in England, also applied. Their applications were dismissed by both first and second instance courts in Norway.

Mr Jallow was unable to participate in either hearing in person, because he couldn’t secure a visa to enter Norway. The Norwegian immigration authorities were not satisfied that he would leave the country at the end of his visit. Instead, Mr Jallow heard some of the proceedings via Skype. His lawyer was present at the hearings in person.

When his application to have parental responsibility was dismissed by the Norwegian High Court, Mr Jallow complained to the European Court of Human Rights that his Article 6 and Article 8 rights had been violated because he was unable to attend the proceedings in person.

Findings of the court

Article 6

The court started by highlighting that “fundamental components” of the right to a fairing hearing, such as the adversarial principle and the principle of equality of arms, are not absolute. National interests (in this case, immigration controls) may take precedence.

The judges also recalled that appearing over video link is not necessarily problematic, as long as it serves a “legitimate aim” and the arrangements are “compatible with the requirement for due process”.

They found that Mr Jallow’s hearing had not been unfair because:

• the High Court gave the matter due consideration before deciding that the hearing could take place over Skype. It took into account the fact that Mr Jallow’s lawyer would be physically present; that it was in G’s best interests for the case to be resolved quickly; and that Mr Jallow was not seeking to have daily care of G
• the High Court judgment did not ultimately depend on the judge’s impression of the parties
• Mr Jallow did not complain of specific problems during the hearing, either in understanding the proceedings or in communicating with his lawyer.
• there was nothing to indicate that Mr Jallow was unable to communicate with his lawyer or others during the case-preparation stage

For all these reasons, the Fifth Section concluded unanimously that Mr Jallow had not been at any “substantial disadvantage”, and he did have a reasonable opportunity to present his case.

Article 8

The court dismissed this element of the claim as inadmissible on the basis that there was no family life to protect in this case. Even if there had been, there was no indication that the High Court did not pursue G’s best interests or that there was any violation of Article 8. The complaint was therefore deemed to be manifestly ill-founded.

Facts matter

As with all of the cases related to video-link hearings, it is clear that no court is willing to accept they are bound to be deficient. However, some may very well be unfair depending on the facts.

In Mr Jallow’s case, the conclusion might have been different if, for example, he had a long-term relationship with his son and was seeking to get day-to-day care, in which case his evidence may have been fundamental. Similarly, if Mr Jallow had shown that he had no access to the necessary technology in Gambia to liaise with his lawyer and/or to take part in the proceedings, then the court might have been more inclined to find that he needed to enter Norway prior to the hearing. Ultimately, the question will always be whether, in view of the specific facts of the case, it is necessary for a party to be present for their Article 6 to be protected.