I’m taking up this report from Lucy’s of 5 May. This is our first successful legal blogging from a hearing before magistrates in the family court – which the mainstream media appear to be ignoring. Magistrates hear the less complicated cases which are unlikely to attract headlines – but we think it’s important they are covered, as they make important decisions, just as judges do.
Everyone at Cardiff Family Court have been helpful in facilitating this, in contrast to a different experience we had at a magistrates hearing elsewhere, that we will be writing about soon.
As Lucy explained in the earlier post, the hearing she attended in April had to be adjourned because of the non-attendance of the Cafcass Cymru family court adviser (FCA), whose recommendations were being challenged by one party.
The problem seems to be that the FCA was ill and although she had contacted her office at 7 a.m. on the day of the April hearing, the court only received a message that she wasn’t coming. They were then told (mistakenly) by Cafcass Cymru that the FCA was in another hearing. In this case, the mother had legal aid to pay for her barrister, but the father was paying for his own legal representation. The father had been advised that he could apply to claim costs back from Cafcass Cymru because he was out of pocket for his barrister’s wasted day – but he hadn’t done so.
Issues for the court
Most of the morning was taken up with the barristers representing the mother and father negotiating and consulting about the specific weekly arrangements for ten-year-old John (not his real name). Occasionally they reverted to the FCA and back again. Eventually matters were narrowed down to two issues: 1. How often John would stay overnight on a school day with his mother and 2. Whether the existing child arrangements order (CAO) should remain as a ‘live with father and spend time with mother’ or be varied to a ‘live with both parents’ order. The mother’s barrister argued that the amount of time John would spend with his mother should be seen as shared care, rather than what we used to describe as ‘contact’ (now described in the Children Act as ‘child arrangements – spend time with’).
The context here was that John’s father had been his primary carer for most of his life and that when John had previously stayed with his mother, she had not ensured he got school on time or properly fed and clothed. John is now coming up to secondary school transfer, so the FCA and the magistrates were very conscious of the changes he was facing, when considering a variation of the CAO.
The FCA gave evidence and was questioned by the lawyers, but the parents didn’t. Each barrister put forward submissions on their client’s behalf.
Decision
When delivering the judgment and reasons, the chair of the magistrates went through the legal principles including each part of the section 1(3) welfare checklist. The magistrates decided to keep the ‘live with’ order for the father only, but they did allow the overnight contact with the mother to begin a little earlier than the father and the FCA has suggested. They also included a recital that the parents should ensure they did not speak negatively about the other in front of John.
Were there any legal issues in this case?
This situation involved what was constantly described by the lawyers as an acrimonious relationship between John’s parents. John’s mother had been granted legal aid and special measures (being screened in the court room) on the basis of allegations she had made about the father, although she did not claim that this behaviour had any impact on John. There was no reference to any domestic abuse issues in the FCA’s report, and the case summary just recorded that some allegations had been made but the mother ‘does not rely on them’. The standard safeguarding enquiries revealed no involvement by the police or local authority with the family members. In her work with John, the FCA found that he had positive relationships with his mother, father and grandmother but was understandably a little inconsistent about his wishes and feelings, at different points saying he wanted to live with his mother or his father but sadly, his greatest wish was that they all lived together (which seems impossible).
At first, I couldn’t see any real legal points to be made in this case. Everything was about conciliation and negotiation on scheduling John’s routine. However the mother’s barrister did mention a few case citations in support of her argument that this should be a ‘live with both’ order. She argued that this sort of shared care order would encourage the parents to co-parent more effectively, which was difficult for me to envisage in a situation where one party had to be screened from the other in court. It should be mentioned that John was getting a good deal of emotional support from his paternal grandmother and had engaged with some local support services with his father.
As noted in this post, recent cases do suggest that shared ‘live with’ orders seem to be becoming more common and are appropriate where this reflects the ‘lived experience’ of the child. What troubled me was that the mother’s barrister described this as ‘just a label’ when she spoke to the FCA (who had not agreed to shared residence) but as John is ten years old, surely he would be only too aware of such a change of status. If it was ‘just a label’ it seemed to be a label for the mother’s benefit, not the child’s. Also, the argument was based on a future scenario which John has yet to adapt to. The magistrates agreed with the FCA that at this time of transition, a change of ‘label’ was not in John’s best interests.
My legal blogging experience
I notified the court and the parties’ solicitors that Iwould be attending as Lucy had other courtcommitments that day. Lucy had been provided with a case summary, the FCA report, the April order and of course the Transparency Order, so I had an understanding of the background. A solicitor in error then sent me a copy of the whole bundle – which I didn’t read – which was technically a potential contempt of court. One of the barristers drew the magistrates’ attention to this but they didn’t comment. I sat at the back of the court, as usual, where the position of the screens meant I couldn’t actually see the FCA while she was giving her evidence. However, she spoke clearly so I wasn’t at any disadvantage. As Lucy had laid the ground for our attendance, everyone accepted my being there, although the FCA and the barristers were quite intrigued by their first encounter with the Reporting Pilot and asked me a few questions in the breaks.
We hope that through our attendance and engagement we have done a little more toward assuaging the fears that can still crop up for parents and professionals about legal blogging and media attendance.
We have a small favour to ask!
The Transparency Project is a registered charity in England & Wales run largely by volunteers who also have full-time jobs. We’re working hard to secure extra funding so that we can keep making family justice clearer for all who use the court and work within it.
Our legal bloggers take time out at their own expense to attend courts and to write up hearings.
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Thanks for reading!