I made an impromptu visit to the family court in Oxford last week, and was able to sit in on most of the hearings in a District Judge’s list. I was permitted to report the details of each of the hearings I attended, subject to preserving the anonymity of the families. As a result, I am able to give a sense of the sort of issues that crop up at District Judge level in what was, based on my professional experience, a pretty typical list. At the end of the post, I will offer some learning points and observations about the practicalities of effective legal blogging.
This post is necessarily long, because I wanted to be able to give some granular detail of the to and fro of the day I observed, and the interactions between people – to give the feel of something not visible or familiar to the public. This ability to write in depth accounts of court hearings is something that is unique to bloggers as print journals and newspapers tend to have very strict word counts.
What did I see?
Over the course of the day, I sat in on two children cases (both Dispute Resolution Hearings), and one financial dispute resolution hearing. Also in the judge’s list were two hearings that came out (presumably agreed), a ‘maintenance pending suit’ application (that I think didn’t happen), an application for a financial consent order that the judge had called in because of some worry about whether or not it should be approved (that was transferred to another judge who became free), and a further children matter where there was an objection to my presence but where I was unable to stay in any event. Several of the cases came in and were sent back out to discuss issues, and returned a bit later on to finish the hearing in a second sitting, so the judge was switching back and forth from one case to another and back again. Although the judge did manage a lunch break, it was an almost non-stop day, during which he had to deal with a wide range of issues and get on top of a number of bundles of documents.
By way of broader context, I was able to establish from chatting to the judge between hearings that Oxford Combined Court is now the last remaining of what were previously 11 courts in the area, and that FHDRA lists are typically run back-to-back between a District Judge and Magistrates (i.e. they have a combined list and work through them between the two courts, depending on which court is free – and presumably with some reference to complexity). Like my own home court area there are delays obtaining information from the police (in one hearing the police were asking for 50 days) and this sometimes held things up.
A striking feature of the hearings I attended was that out of all of them only one party had English as a first language. All of the parties bar this one were foreign nationals or former foreign nationals. Two of the DRA cases involved interpreters, in one case an interpreter for both parties (which created a soporific hum in the small District Judges chambers as they each simultaneously interpreted at low volume what was being said by the judge or the lawyer). The presence of interpreters slowed hearings down, with the judge occasionally correcting himself and apologising when it became clear he was running too fast for the interpreters to keep up, and on a couple of occasions the interpreters interjecting to ask for something to be repeated more slowly. The interpreters seemed to be efficient at their jobs, but all three of them arrived late and this contributed to the two cases in which they were involved being delayed in being ready to come in, which caused a logjam in the list.
The first DRA
The case with one interpreter involved allegations of domestic abuse, and a screen had been erected in the courtroom for the benefit of the mother. Whilst the mother used an interpreter, the father spoke broken english. He was loud and frequently interrupted, talking over his own counsel, who had very recently been instructed. Social services had been involved in the case for some time (and unusually had been facilitating the mother’s contact), and they were worried about the negative messages the children were receiving from their father about their mother, and the father’s behaviour in the courtroom gave some credence to that. His interjections, which his counsel unsuccessfully tried to hush, were generally critical of the mother. He alleged that she had alienated their older child, a daughter who had recently returned to the care of her mother, something which the mother denied.
In that case the mother had been asked to prepare a schedule of allegations, which she had done. It was apparent that she had been limited to a maximum of 8 allegations, something which is relatively common but not universally accepted as good practice. Unusually in my experience the court had directed that a schedule should be prepared but no witness statement, so the allegations were bare allegations. This may be common practice in Oxford (I don’t know as its not my area of practice) but personally I think that runs the risk of a court not being able to properly assess the significance of an allegation – which may look trivial or irrelevant when compressed into a sentence, but when properly articulated in a statement that explains the links between incidents and the impact of a pattern of behaviour, may be revealed as critical and serious. As it happened though, the judge probably fairly observed that a number of the allegations were not likely to be capable of proof as they were allegations of behaviour by the father against one or other of the two children (e.g. smacking), and were based entirely on reports from one child against a backdrop of high hostility. When the judge raised this her counsel readily conceded that the mother probably wouldn’t be able to prove them, but ultimately the judge left most of the allegations in. One allegation required police disclosure which was not available due to delays – the request was ‘in the pile’. Another allegation was of a threat to kill made in the presence of one of the children – the judge complained that many of the allegations were un-particularised, which felt a bit odd since a party would normally particularise the allegations in a statement, which the parties hadn’t yet been given permission to file. Mother’s counsel observed that for some reason the schedule omitted an important allegation that had been made in the original application or C1A (the nature of that allegation was unclear), so it doesn’t appear as if the schedule itself was as useful as it could have been. Again, perhaps reflecting a different approach in this court area, the judge permitted most of the allegations to remain in, but declined to list a separate fact finding, preferring instead to opt for a ‘rolled up’ final hearing and an ‘either or’ style s7 report to be delivered before the hearing. The context appeared to be that the social worker held concerns about the fathers ongoing behaviour which was more likely to be relevant than the more historic allegations that were in the mother’s schedule. The judge accepted a suggestion from counsel that this approach would mean that the report writer sitting through all the evidence. Personally I’m not sure that is right, as the social worker should be making recommendations based on the judges’ FINDINGS rather than his own impression of the evidence heard, and the nature of the allegations as articulated in the hearing didn’t seem to me to be particularly susceptible to a clear ‘either or’ outcome. There was no real argument on this issue.
The other feature of the hearing was that the father had not complied with a direction to serve his own schedule of allegations, it was said because he had only just been granted legal aid (it wasn’t clear to me what the basis for him being granted legal aid was, but there appeared to have been some historic allegation from the father which had led to the mother being tried and acquitted, and a restraining order being imposed on acquittal, so that may have triggered eligibility). He appeared to have filed a handwritten response to the mother’s allegations prior to getting solicitors on board, which I gather amounted to a denial. The father’s allegations were outlined orally by his barrister, but appeared to be allegations that had potentially been covered in an earlier court case about the children (such as an allegation that the mother had made false allegations he had abused one of the children). His other allegations seemed to be of alienation by the mother, and about things that she had allegedly reported to the children from earlier hearings. The judge said he wasn’t going to deal with this without a transcript of the previous proceedings (so he could see what had already been determined). As far as I could tell the matter was to be listed for final hearing without the father being given an extension of time to file a schedule (the detail was difficult to follow as on return the parties had drafted an order which I did not see).
The previous order in the case had set out an ‘agenda’ for the hearing – one of the agenda items was whether or not a guardian should be appointed for the children. Although the judge identified that the separation of the siblings was something that social services would have to think carefully about when completing their s7 report, he declined an invitation on behalf of the father to specifically direct them to consider whether or not the mother was alienating the children, saying that this too was one of the things that social services would look at as a matter of course and it did not require a direction. The mother said a guardian was not necessary because the children could already speak to the social worker about their wishes and feelings (no view was offered from the father). Ultimately the judge did not think that a guardian was required.
The hearings were conducted in a very small courtroom (the judge’s ‘chambers’), with room for two chairs on either side of the desk with the screen in the middle, and a row of chairs at the back of the room on which I was sitting). So, whilst the use of the screen seemed to work relatively smoothly, it was obvious that the visual shield would have offered no protection for the mother against the verbal missiles being aimed at her over the divide. The judge made a reference to the need for an application to be made for participation directions under Part 3AA and indicated that a ground rules hearing could be held on the morning of the hearing. A ground rules hearing should generally not be held on the morning of the hearing.
The indication was that for a hearing with a time estimate of 2 days, there would be a wait of around four months.
As well as case managing to final hearing the judge had to make some decisions about interim contact. As I’ve noted before, one child was living with the father – and had been for some time, apparently because after the restraining order had been imposed on the mother she had been rendered effectively homeless and had gone abroad briefly to stay with family, in the course of which she missed the final hearing in previous case about the children where it appears the court ordered them to live with the father. The court seemed to have very limited information about this background, but the upshot had been the children remaining with their father until the recent move of the girl to the mother, supported by social services. Whilst the girl was now refusing contact to her father (and her father said he didn’t want any contact anyway as she was disrespectful) contact between the younger boy and his mother was ongoing but problematic. The father wanted to change the arrangements and wanted to change handover from a police station to the mother’s home (I don’t know how this latter point was resolved as the judge didn’t rule on it and the parties drafted an order I didn’t see). The judge talked through the practical issues that were being raised (the father was saying the current contact clashed with an activity he had signed the boy up for) and whilst the father’s counsel said he objected to overnight contact on the basis of inadequate accommodation (the mother had a room in a multiple occupancy property with one bed and a put up bed), once the judge had suggested an alternative time slot that didn’t interfere with the activity he immediately volunteered directly to the judge that he would agree overnight across that revised time slot, which appeared to resolve the issue. The hearing had to pause whilst mother’s counsel took instructions on the suitability of her accommodation when it was raised, which to an observer was surprising since she was seeking an order for overnight contact with one child and a live with order for the girl – but it may well be that the advocate did not have this information in her written instructions and that the late arrival of the interpreter prevented her from covering all points before the hearing began. The father’s counsel was also unclear of her position on various points as the hearing proceeded, again possibly due to the fact her solicitors had only come on board the day before and her instructions were probably limited. This placed her at something of a disadvantage as her client tended to jump in and offer his unfiltered instructions straight to the judge (for better or for worse) whenever there was a gap!
This behaviour occurred most notably in the course of what seemed to be a pretty routine ‘pep talk’ the judge was giving the parties towards the end of the hearing, all about the impact of conflict on the children and how everyone’s objective was to try and sort out the best arrangements for the children – the father interrupted this soliloquy to criticise the mother for not prioritising the children learning their mother tongue, saying ‘she doesn’t care’. ‘You aren’t listening to what I’m saying’ said the judge, ‘Conflict is catastrophic for them. The last thing child wants to hear is criticism of one parent by the other’. ‘It’s a fact’, said the father. ‘She doesn’t care’.
In the course of the hearing I was interested to note that the advocates were both working paperlessly, but that counsel for the father appeared to be operating from a single file pdf with no index, meaning she struggled successfully to navigate and find documents, which she could only do by scrolling through page after page. That might have been a function of being briefed late, or limited IT skills, but it was somewhat alarming to see how much it compromised her ability to respond to an enquiry from the judge about a particular letter – a few minutes spent doing the electronic equivalent of tabbing up the bundle would have alleviated this difficulty. The judge himself was struggling with the mismatch between his own (court produced?) electronic bundle and the one the advocates were working from – and because everyone was working paperlessly the advocates were unable to hand up the missing letter to him (eventually counsel for the mother handed over her entire laptop so he could read the file, just as counsel for the father had a ‘voila’ moment as her scrolling reached the correct page!). In fact, it is the work of moments when using decent pdf software to extract a particular document and email it to the judge.
At the end of the hearing I sought permission to report the hearing, on the basis that I wouldn’t identify the family, and there were several specific features of the family that I suggested should be excluded from any report (obviously I won’t repeat those here). On that basis everyone agreed I should be able to report. It was really unfortunate that having been at pains to ensure that everyone had been notified by the usher of my attendance, a voice came over the screen when I spoke at the end of the hearing to raise this issue to say that the mother’s team had not been aware of my attendance. On further exploration it appeared that counsel had the leaflet but hadn’t read it – it’s not clear what the usher in fact told her about my presence. The parties were going out anyway to discuss matters around interim contact, and the judge suggested that they take time to take instructions on my reporting whilst out, and when they returned there was no objection. So ultimately it wasn’t a problem but it is not how things should work (see below for discussion).
The second DRA
Here both parties were from the same European country and both used an interpreter. The mother was in person and I had spoken to her before the hearing through the interpreter to explain my presence (see discussion below). The father’s interpreter drew a chair from the side of the room so he could sit beside the father, revealing the words “I was here” scrawled upside down on the wall in pencil where the chair had been. Audacious graffiti for such a small room!
The case was about contact to a toddler. The father had difficulties with alcohol. He had recently produced a hair strand test result showing non-excessive use of alcohol, but it was suggested that in view of his addiction he needed to achieve abstinence rather than reduced drinking. He wanted his contact to progress from supervised contact (his mother was supervising) to unsupervised contact and to include overnight. His counsel seemed to appreciate that this was probably unrealistic, and had already taken his instructions on the position if this was not approved or agreed (it wasn’t). By talking directly to the mother, through the interpreter the judge was able to establish the basis of the mother’s objection to his proposals, and that if in due course he was able to demonstrate abstinence contact could, she said, move on. She agreed some extension in the duration of contact, to be supervised by the grandmother, which seemed entirely sensible on the information I heard. The judge said the father would need to engage with a local drug and alcohol agency to help him not just reduce his alcohol intake but to understand why he drank and the impact it could have on his child, and adjourned to enable counsel to make contact with the agency to see when they could write a report. In due course it was established they would need four months to work with him and write a report and the matter would be called back at that point.
Other issues emerged during the hearing – could the child be christened? Mother was not keen. Could the child’s name be changed to include the father’s? Could the father have parental responsibility? Mother said not yet. The judge explored the position with the mother, talking to her about the importance of identity (conflating birth certificates and PR a little I thought), and she explained her position clearly and calmly. All these issues were listed to be dealt with at the next hearing, which would be a final hearing – with the judge hoping that some of them could be resolved by agreement.
As the judge was delivering his ‘patter’ to the parties towards the end of the hearing the mother mentioned almost in passing that she wanted the father ‘not to make problems with flights to her home country. It had happened before, she said. It transpired that in fact there was a prohibited steps order in place, but apart from some objection to the mother staying in a property said to house drug users and alcoholics, the father ultimately didn’t object to the trip.
The judge encouraged the mother to see if she could get legal aid – she said she had not known it was possible. Counsel for the father interrupted to state that this was not correct as she had discussed it with the mother at the last hearing.
This judge’s practice seemed to be to request counsel to draw up the order and go through it in court before the parties leave, avoiding the difficult situation after a hearing where an advocate is left trying to sort out an order with a litigant in person who often struggles to understand the limits on that process.
At the end of the hearing I asked if I could report, again on a no names basis. Nobody objected.
The third DRA
This is the case where objection was raised. It involved two professional parents, both in person, and a guardian who was representing a teenaged girl. Ultimately I couldn’t stay long enough to observe this hearing but the parties were in court briefly to ask for more time, and I noted that the guardian was emphatically shaking her head the minute my presence was mentioned (without hearing why I was present or what I wanted to do). The judge kindly printed them a copy of my leaflet as the usher had in fact not provided them with one. They went back out to continue their discussions. It came as no surprise to hear that there was an objection to my attending/ reporting. If I had had an opportunity to speak to the parties outside court it is possible that this objection would not have been maintained or that I would have agreed not to press the issue.
The Financial Remedy Case
I hadn’t really intended to sit in on a money case, but this matter was called on whilst the judge was waiting for other cases to become ready, so I sat through it (although the matter was adjourned after the judge’s indication and I couldn’t stay to see if it settled). What was striking was the different tone of advocacy as compared to the children matters I’d seen. To an extent obviously this will be down to the particular style of individual advocates, but it did remind me of a difference in tone from when I practiced in both areas. The hearing was much more structured, the advocacy much more methodical, robust and voluble, and the papers were organised in well prepared bundles (paper ones) with advocates directing the judge repeatedly to specific page references to make particular points as the hearing proceeded.
Notable too was the difference in economics. Most of the previous advocates had been instructed through legal aid. Here the parties were privately paying and were arguing about school fees for the secondary school aged children at an International School in Europe (the mother and children lived abroad whilst the father lived here). It appeared the parties had divorced and resolved their finances some years before and this school fees issue was a recent one. The dispute revolved around a decision to change the childrens’ school, the mother said at their request, the father said done unilaterally by the mother when he had said he could not afford the fees. Contributions from the paternal grandparents and a family trust that had previously been directed towards school fees had been suspended and the wife was essentially saying the court should make an order against the husband for the full amount that he and his family had historically paid towards fees. The father’s counsel set out clearly how his income was in fact less than half of that of the mother, who had been on recent holidays to various exotic locations (including one that cost a similar amount to Boris Johnson’s recent controversial freebie holiday in the caribbean). The contrast with the earlier cases could not have been more stark.
At the outset of the hearing I was told that the parties didn’t object to my presence on condition that I did not report any details of their employment. I was happy to offer that agreement so no objection was made, but I have to say that this sort of conditional agreement to my attendance would not have been very persuasive if I had taken the point. It might have been legitimate to seek a prohibition on its reporting, but it was never any real basis for objecting to my attendance in the first place. A moot point however, since I wasn’t the slightest bit interested in their careers – and amusingly nothing was said in the course of the hearing about their specific employment so there would have been nothing for me to report in any event even if I had wanted to! At the end of the hearing I explained I’d like to write the hearing up but couldn’t stay until the very end and asked if that could be dealt with before I left. I indicated I would not specify the country in which the children were living and being schooled and on that basis no objection was taken.
Legal blogging learning points
On arrival it was clear that the usher hadn’t heard of the legal blogging pilot, but he took everything in his stride and was very polite and agreed to take my leaflets.
The judge was very welcoming (no doubt it helped that he knew who I was) and at his suggestion I sat in his chambers for the duration of the list rather than coming in and out, much as an appraisal judge or academic visitor or marshall would do. As we have been testing out the legal blogging pilot and trying not to make waves the tendency is to take the line of least resistance, but I think on reflection that when attending to observe a whole list it is better to wait outside and come in with the parties, for a number of reasons :
- Firstly, there is a greater opportunity to speak to the parties / lawyers (if they wish) in order to reassure them or explain the pilot and my objectives for the day. In one case early in the list counsel for one party explained to me that whilst her client didn’t object to my attendance her opponent was in person and using an interpreter, and she thought that she might not understand the leaflet. At counsel’s suggestion, I went and spoke to the litigant in person with the help of the interpreter, and explained who I was, and what I wanted to do. I explained her right to object and that I might ask if I could report on a no names basis. She visibly relaxed when I explained I had not targeted her particular case, but had come to see the whole list to be able to give an overview of a judge’s day. She did not object to my presence or to reporting. Because I was then in court for the remainder of my time at court these opportunities were not available in respect of the other cases.
- Secondly, although the usher had agreed to hand out my explanatory leaflets to all parties, there were a couple of occasions where in fact the parties appeared not to be aware when they came into court that I would be present. In fact, on at least two occasions lawyers initially told the judge they had not known about my attendance – but in fact they either then confirmed they had received the leaflet or the leaflet was visible within their papers (in each case apparently they not read it or shared it with their client). So, whilst I have previously tried to pass the leaflets through the usher and avoided disrupting the pre-hearing discussions by approaching the parties or their lawyers, leaving them to find me if they wished to, this experience has taught me that it may in fact be better to just briefly check in and identify myself and prompt them to read the leaflet and discuss it with their client, and to let me know if there is anything I can explain. Of course, I can only do that if I am in the waiting area between hearings.
- Thirdly, I think that maintaining a boundary between the judge and the reporter is probably wise. It is tempting to have informal discussions whilst in the judges chambers between hearings and this I think could create an impression of unfairness and put both judge and observer in a compromising position. Although it is clear that this judge welcomed being observed, and to an extent that probably built confidence in the parties accepting my presence, what if I had felt that he had handled something very badly or had said something between hearings that I wanted to report?
There were some advantages to sitting in throughout however, such as being able to gather more ‘soft’ information about how things were at the local court, how lists were organised etc. And being able to see the judge dealing with enquiries from the ushers, and juggling his cases and reading throughout the day – these gave me additional insights into the pressures on a judge running this sort of list. Additionally, the judge was able to reflect back to me that the issue with the late realisation that not everyone had appreciated I was in court could have been avoided if he had introduced me at the beginning, and explained that I might ask to report on a no-names basis but we’d deal with that at the end (I had suggested at the outset of the day but the judge did not always remember). I too reflected back to him that perhaps it would have been wiser to spend more time outside and double check that the message about my attendance was getting through. I was also able to direct the judge the October 2019 reporting restrictions guidance, which not all judges and lawyers seem yet to be aware of, let alone familiar with.
Ultimately though, my conclusion is that in future I think I will insist on waiting outside. A sensible third way for the future might be to ask for a debrief at the end of the day – to see if judge and blogger can share learning about how best to deal with these such important practicalities.
My emerging impression over a number of recent legal blogging expeditions is that the dual designation lawyer and reporter is as difficult for the parties and judge to navigate as it is for the legal blogger. I have begun to appreciate that there are assumptions made about how I will behave that are based upon my status as a lawyer – that if a judge or lawyer tells me something informally about the case I will keep it under my hat and not report it. I think those are assumptions that would not be made if I were a ‘real’ journalist, and are in fact not assumptions that should be made about me when attending as a reporter – not only is there no ‘counsel to counsel’ rule, on a day when I am wearing my legal blogger hat I am not ‘counsel’ at all. It is one thing for me to ask for and be given permission to see a case summary if all agree in advance or the judge has ruled on it, but another for information to be shared without that structure in place. For me that occasional well motivated oversharing has been ethically difficult to navigate, although in practice I have been able to clearly compartmentalise what I can fairly and legitimately report and what I can’t but that might not always be the case. I think that it would be useful in due course for some sort of code or guidance to be drawn up about it. Alternatively it may be that greater familiarity with the presence of legal bloggers will promote more reflection on my function before information is shared.
I took the view on this occasion that I would not include the nationality or ethnicity of any of the parties or children or anything that might give a pointer towards those characteristics. In each case I volunteered to leave those details out. There was no public interest in reporting those details, but I did think that the fact that so many litigants were speaking English as a foreign language and were requiring the use of interpreters was important. I was interested that in none of the cases was there any suggestion that the limits of what I could report should be reduced to writing, and the advocates and judge were evidently happy to rely on my good judgment. On other occasions where my attendance or reporting has involved contention (in fact all of the relaxation cases have ultimately been agreed after initial opposition) or where I wanted particular clarity I have requested that the order should include some specific permissive provision (which has invariably caused delay and has not been very tightly drafted). In these cases however I was happy that what I wanted to report would not be identifying and that my doing so was not contentious. I think it would be good practice however if orders did include a recital at least that a legal blogger was present and that with the agreement of the parties permission to report on an anonymised basis was granted. In cases where another blogger had attended a hearing and asked the Transparency Project to publish their resulting blog post I would be cautious about doing so without sight of some written confirmation of what was permitted. Again, this is something I may have to be more assertive about – it probably just requires me to say at the point where permission is given : “Please can I request that the order recites that permission has been given and that a copy of the relevant section is sent to me?”
One final point – having found myself unexpectedly in a financial remedy case, I realised that I had not given much thought to the different restrictions that apply in a money case. s12 probably didn’t apply, instead this would have been a case where the implied undertaking (complete with all its ambiguity as to what it comprises, and the unresolved issues as to whether it binds third parties) – I am glad I didn’t have to argue those points, as probably was the judge and advocates (for those interested in the implied undertaking you can find a summary of it in the 2011 Guidance here, but in short it is said to be the main basis of confidentiality of financial remedy hearings – and derives from the compulsory nature of the disclosure that the parties must give one another in those cases: it is said to be implicit that disclosure is on the basis that the material must not be used for purposes other than the proceedings. Whether or not this ties the hands of journalists or not is the source of unresolved controversy).
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