Attending a case under the Reporting Pilot at Cardiff court recently, two questions arose for me that might be recognised more widely in private law disputes:
- How does a judge manage a fair hearing where one party is represented by a barrister and the other party has no legal advice or representation, nor any support in the courtroom?
- How does a parent who has admitted abusive behaviour toward women in the past prove he has changed sufficiently to now meet and safely spend time with his child?
First, the background to the hearing:
This was an application by a father (F) for a parental responsibility order and a child arrangements order (CAO) that he be allowed to spend time with his three-year-old child (C). The parents (F and M) had a fairly brief relationship that ended during M’s pregnancy. F had met C once as a baby but not since. M did however allow C to have regular contact with F’s mother (PGM). About two years ago, F began a relationship with his current partner; they now live together with their two young children.
F tried to pursue mediation in an effort to be allowed to see C, but M did not respond at all. A worker from Flying Start (the Welsh Government Early Years programme that supports young families) had also unsuccessfully attempted to mediate. F then applied to court in March 2022. Statements were exchanged during 2022 and F made some concessions regarding allegations made by M, so the court decided a fact-finding hearing was unnecessary. He admitted to incidents of verbal abuse against M, PGM, and his sisters, during a period up to about two and a half years ago. There was also a conviction for battery in 2017 in respect of another woman.
Cafcass was asked in March 2023 to provide a section 7 welfare report (a full year on from the application). Most of the delays seem to be about waiting for safeguarding reports. In August 2023, the Cafcass officer filed her report. This contained recommendations for a gradual approach to F having contact with C. For an initial six weeks, PGM would take C a contact centre to meet F for professionally supervised contact; followed by contact building up to three hours per week supervised by PGM and, eventually, if this was successful, unsupervised contact with F at his home. M did not accept these recommendations and opposed all contact between F and C. C didn’t know anything about F.
For a range of reasons, the final hearing in this case was spread part-heard over three separate days, with the judge actually giving up her first day of pre-Christmas leave to ensure it was finally completed in December. The hearing was before Deputy District Judge Edmondson. Most of the time, the only other people in the court room were a clerk, F, M’s barrister, the Cafcass officer, and me. M was in a separate vulnerable victims suite and linked to the court room via video. PGM attended court to give evidence and be cross examined on the first day, F’s partner was present in the court waiting room throughout, although not called to give evidence. The judge explained the Reporting Pilot at the outset and checked whether anyone had objections to my being present and writing about the hearing, subject to a Transparency Order. There were no questions or objections.
Managing a fair hearing where one party is legally represented
As an impartial observer, I was struck by the procedural unfairness of only one party having the benefit of representation by a specialist family law barrister, however polite and professional this particular barrister was. She and the judge obviously gave serious consideration to ensuring F understood everything as the hearing unfolded and the process did seem more inquisitorial than adversarial. Nevertheless, there was no question that the barrister was there for M. Of course, the Cafcass officer was there for the child, and her report had been favourable toward F. He didn’t at any point seem concerned about the way he was treated in the court, but had to undergo lengthy cross examination about his use of ‘vile’ and ‘vicious’ language, as exhibited by M’s lawyers as print-outs of messages he had sent some years ago.
F had filed a number of witness statements, in support of his contention that he was a safe person to have contact with C. Two of these were seen as relevant – from PGM and from his partner. However, he had not realised that PGM would need to be in court to present evidence in person and be cross examined by M’s barrister. This was because PGM was offering to facilitate the initial contact meetings (as outlined above from the Cafcass report) but M had submitted evidence, in the form of printed text messages, that F and PGM had a poor relationship with each other and therefore C would not be safe with them. F was able to contact PGM who came to court later that day, but this was one example of delays and confusion that would have been averted if F had legal advice.
According to evidence given by PGM, and accepted by M, PGM and C had enjoyed a good relationship and regular contact. This had been ongoing for much of the past three years. It seemed agreed by everyone that PGM had consistently honoured M’s wishes to keep C away from F and, therefore, the Cafcass view that she could safely support the new arrangements seemed logical. A lawyer for F would surely have pressed the point that PGM had shown she could be trusted to put C’s interests first, if cross examination of M had been possible. (M wasn’t cross examined, as explained below.)
This takes me to a second observation about the lack of a lawyer for F. Unfortunately, the provisions for a QLR to cross examine parents in this sort of situation took effect after F’s application, and the judge explained she couldn’t ask for a QLR and that she would have to put F’s questions to M herself. She directed F as to how he should submit his questions in writing before the adjourned hearing resumed. We wrote about QLRs here. If there had been a QLR for F, this wouldn’t have solved F’s lack of representation and advice, but having seen how much assistance a QLR can give the court, some time would no doubt have been saved.
My perspective was changed quite significantly on return for the third day of the part-heard hearing because M (again sitting in the separate room) refused to give evidence. Her barrister told the court that M was too distressed to be able to speak to the court. We had already heard from F, in his own brief spoken evidence, and at length in response to cross-examination and we had heard from PGM in his support. The judge had asked the Cafcass officer to remain in court, and F’s partner to be available in the building, to give evidence after M. I was therefore anticipating the barrister to take M through her evidence on her lack of confidence in F and PGM, and then hear the judge put some questions from F to M.
The barrister was periodically taking instructions from M in person, and M could only see her barrister and the judge by video. It was difficult to know what more could have been done by way of special measures to enable M to give full evidence. The judge tried to offer help to make M feel more comfortable and to explain that she really didn’t want to have to proceed to judgment without having heard direct from M and giving her (through her barrister) an opportunity to address the Cafcass report or to raise any questions by cross examination of F’s partner.
This was quite a paradox for me because I’d previously been hearing M’s case put more effectively through her barrister than I’d heard F put his own. With no disrespect intended to F, he did not find it easy to articulate his position, and referred to having communication difficulties which had affected his education and not understanding ‘big words’. (At one point in the waiting room, he asked what ‘straight to submissions’ meant). F also gave evidence that one cause of resentment toward his mother in the past was a belief that she’d been responsible for his missing out on a relationship with his father during childhood. (I inferred from this that F didn’t want C growing up in similar circumstances, although F didn’t himself say that.) M’s case had however been primarily based on the sort of language F had used toward women more than two years ago.
The domestic abuse issues
In response to cross examination based on the printed messages, F described himself as ‘a completely different person now’. He listed the courses he had been on, the support he’s had from Flying Start and how he had learnt anger management strategies. He was still working on the changes he accepted he needed to make. His mother, PGM, was also asked about these messages and didn’t specifically remember them when shown, although did not question their validity. There had been a period when F would ‘lash out with his tongue’.
I wanted to understand why M still believed F was a threat and why she disagreed with the Cafcass view that it’s in C’s welfare to spend time with F. M was apparently fearful about F’s future behaviour toward C – if they met – but I wondered if M might give evidence that she was herself still traumatised by her experience of F’s behaviour during their relationship.
The judge had given me copies of the chronology and the case summary. I hadn’t asked for copies of the witness statements as I’d assumed I’d hear oral evidence on the main issues but neither the judge nor M’s barrister made any reference to more recent allegations. Chronologically, it seemed to me that F had embarked on his attempts at improvement alongside his relationship with his current partner, and had put in the court application when they were expecting their own first child, although this timeline wasn’t alluded to during the hearing.
I was able to pick up from the judgment that F had made a number of admissions early in the case: using vile language toward M when she was 8 weeks pregnant; that his behaviour had been unacceptable; that he had said cruel things to his mother; that he and M had several arguments that involved an exchange of abusive language. F also admitted to a conviction for battery seven years ago, leading to a restraining order in respect of a former partner.
Having requested an addendum report from Cafcass after Day 1 to confirm that PGM and one of F’s sisters were still willing to assist with contact, the judge made a detailed order much on the basis of the Cafcass recommendations, with a view to contact in the longer term being agreed between M and F. She also made the parental responsibility order, on the basis of the evidence of F’s commitment toward C.
During the break on the third day, the judge typed up a full judgment that she read out on our return to court. This included a summary of history of proceedings, explanation of the legal framework, and her findings based on the written and oral evidence. FPR Practice Direction 12J was followed, with the judge concluding that contact with F did not pose a risk of harm to C but would need to be carefully managed, given that C did not know F. Such a full judgment could effectively be anonymised and sent to TNA, if only the dream of an anonymisation unit for district judges came true. (See this update on the President’s Transparency Review where we discuss the lack of progress on enabling district judges to publish.) However, I could see that a clear, detailed judgment was important for these parties,
The judge found F to be an impressive witness who had been polite and open about his own difficulties and relationship with his mother, while under pressure to answer questions that were deeply personal and clearly upsetting. There had been a lot of acrimony and abusive and vile language toward his mother and sisters and he had not minimised this or tried to put himself in a better light. He did not try to backtrack or downplay those admissions. He was loving and protective toward his two younger children. PGM had been a sensible and child focused witness who agreed F could have a vicious tongue, but that was years ago and she had never felt their relationship was irreparable. The judge concluded that C would not be exposed to harmful behaviour by F with PGM there, as she would not allow that.
The judge explained that she could not attach as much weight to M’s evidence as she had to F’s and PGM’s because M’s witness statements had been brief and the court had been deprived of hearing her evidence, especially in response to F’s questions (which would have been put to her by the judge). It was noted that F had been subject to rigorous cross examination by M’s barrister but there had been no challenge by M’s barrister to the Cafcass officer. However, the judge acknowledged that the Cafcass officer was aware of M’s anxieties and had attempted to reassure M that there had been no recurrence of abuse. C is likely to pick up on M’s anxiety at first but the judge hoped that the gradual approach would lead to the parents being able to agree arrangements in the future.
I learned that Cafcass Cymru will pay for six supervised contact sessions, which is a very positive policy. The judge also asked the Cafcass officer to consider a Family Assistance Order in her addendum report, but that report concluded that there was nothing further Cafcass could do with these family dynamics.
Judge’s warning on Facebook post
During the first day of the hearing, a member of M’s family had posted a comment on Facebook accusing F and PGM of lying in court. When the hearing resumed for a second day, the judge issued a firm warning about the requirement to keep information about the proceedings confidential. She also referred to this breach in her judgment – that if there was any recurrence of publication of information relating to the proceedings, there would be serious consequences. I don’t know if there had been some sort of misunderstanding about Facebook being a private chat rather than a publication.
What was originally listed as a six-hour final hearing ended up taking three days of my time, although I was fortunate to be able to fit them in, because I had hoped to fully report on a private law dispute over contact at district judge level. It wasn’t until the beginning of the third day that M’s barrister discovered her client would not be giving evidence. The judge had seen F’s questions and described them as ‘perfectly decent’, by which I assume there were no personal attacks in them. The judgment stated that all options had been considered before deciding that the case would have to conclude by omitting evidence from M, Cafcass, or F’s partner, and any information that might have come to light from this being challenged.
This did mean however that my capacity to report on both perspectives was restricted.