Introduction – the context

Since last November it has been possible, in a small number of family courts, for reporters to attend hearings before magistrates in the knowledge that it will most likely be possible to write about what has taken place after the hearing concludes.

This is because of a ‘Reporting Pilot’ which is being gradually rolled out in stages across the country. Whilst the pilot now applies to quite a large number of hearings before full and part time legally qualified judges, the magistrates courts which deal with a wide range and large number of family court matters, are largely invisible. They don’t produce judgments, and although they are required to produce written ‘facts and reasons’ these are never published. And at present, the pilot has only rolled out to Magistrates level work in the three courts who were first to join the pilot. Courts joining up in 2024 will only apply the pilot to their Magistrates hearings later this year.

Any reporter who wishes to cover the work of the family court has to make difficult decisions about which cases to observe and how much time to invest in listening and attempting to obtain information about the case in order to produce at the end of the day a report which is of interest to that reporter’s particular audience.

The work that magistrates deal with varies from area to area, but they can and do deal with both disputes between parents about children following separation, and with child protection cases, where they may be asked to approve a plan for a child to be adopted against their parents’ wishes. More complex cases will usually be allocated to legally qualified judges, but the decisions that these volunteer members of the community will make (with the assistance of a qualified legal advisor to guide them) can be of huge significance to the families concerned. How do the Magistrates deliver justice?

As a legal blogger (that is, a lawyer with an interest in observing and reporting the work of the family courts) I have wanted for a while to be able to observe some magistrates hearings, in an attempt to get at least a snapshot or two that might help to spark discussion around this question, even if it cannot fully answer it. However, just like the magistrates, I do my legal blogging work unpaid and I have to fit it around other commitments. Consequently, it was only in April 2024 then I was first able to make use of this element of the reporting pilot when I visited Cardiff, my nearest pilot court. This is my report of the day.

My day trip to Cardiff to observe the Magistrates

On arrival – after some difficulty locating someone willing to sign me in, and being directed to a waiting area with no chairs and which was right outside the conference rooms being used by the parties to the case I was hoping to observe – I was able to identify myself to two barristers and the legal advisor who was running the court that day. Helpfully, and unusually in my experience, my e-mail had been received by the legal advisor although it had not been passed on to the parties or their lawyers, who were not expecting me when I introduced myself.

It became apparent that the two case numbers on the list were connected applications in respect of the same family and there was only one live hearing scheduled for that day. The first was a dispute over living arrangements and contact, and the second was an application for enforcement of a temporary order, which was no longer pursued. The hearing was to be a final hearing.

I was pleasantly surprised by the effort that the legal adviser made to be welcoming and accommodating, and it soon became apparent that she was highly skilled at managing a courtroom and the anxieties of the parties, and in this instance – as a result of my presence – the anxiety of at least one of the advocates, who confided that she was rather nervous at the idea that her advocacy would be under scrutiny.

Arrangements were made for me to have access to the case summaries and position statements prepared by the advocates, although (quite properly) the legal advisor was anxious about doing this before a Transparency Order had formally been made by the magistrates, but she assured me that I would have time to read the documents before the hearing started properly. (A Transparency Order is an order made in pilot cases when a Reporter shows up. It gives them permission to see documents and report the case, and also sets out clearly what they mustn’t report – usually anything that would identify the family).

One of the parties had requested screens, and I was invited into the courtroom in order to participate in the making of arrangements for who would sit where. The legal adviser wished to ensure that a suitable location could be found for me to sit so that I could observe the hearing fully without it being obscured. In fact, I found myself in the corner beneath the magistrates bench and on the end of the legal adviser’s long desk in front of them, because the legal adviser insisted that I should have something to rest my laptop on. In this position I felt rather more like a part of the court staff or a judicial observer than a reporter – reporters are typically placed at the back or off to the side of the courtroom so they are both out of sight and out of mind. But nobody else seemed to be bothered and I did not want to make a fuss.

There were no objections to my attendance and so the legal adviser moved on to the terms of reporting, spending considerable time going through the transparency order line by line. I think this level of rigour was probably because this was the first she had been required to deal with a Transparency Order, so she was super cautious. The transparency order was duly made in reasonably standard terms, and I was invited to confirm that I understood and was happy with the order. By this point I had brief sight of the parties position statements and had gleaned a little bit more about what the case was about: One of the witnesses was going to be the Cafcass officer who had written a report, and one of the parents’ case depended upon challenging that report. I indicated that it might be helpful to have sight of the welfare report that had been prepared by Cafcass, so that I could better follow the evidence. This was not one of the documents that the standard order gives me permission to see, but my request was agreed by the parties and the magistrates without difficulty.

The hearing – not quite as planned

Only then, as the hearing started properly, did it become apparent that there was a problem. The Cafcass officer was not at court – and she was not coming. It appears the legal adviser had received an e-mail from a manager at Cafcass passing on the bare message that the Cafcass officer was unable to attend. No explanation or apology accompanied the message. The advocates were clearly surprised and dismayed at this development, knowing instantly that this would mean their hearing – that they had no doubt spent many hours preparing for and that their clients had been depending on – could not go ahead.

Most of the rest of the morning was spent with the legal advisor attempting to make contact with Cafcass in order to obtain some clarification as to why she was not present, primarily in order to try and work out whether she was likely to be available for a future date if the case was re listed, or whether a manager would have to step in speak to her report. This is far from ideal, but it does sometimes happen where a Cafcass officer is on long term sick leave or has left the service and is unable to come and give evidence.

It was eventually established that the hearing had been fixed on a date specifically requested by the Cafcass officer to fit with her diary, and that she had been sent notification of that date. The partis were told that the Cafcass officer was dealing with another hearing, but whilst clearly she could not be in two places at once, there was no information about why that hearing had taken priority, or when it had first been known that there was a clash.

The reason this mattered was not only to help the court in making appropriate directions for a second attempt at a final hearing, but also because the father in the case had to fund his own legal representation, and there was some doubt as to whether he could afford to pay twice. Had the parties been told sooner that the Cafcass Officer wasn’t available it’s possible the case would have been adjourned earlier, and he could have saved himself the cost of his barrister’s fee for the day. The father’s barrister was therefore seeking more information so that the father could decide whether he should pursue the costs that had been thrown away as a result of the non-attendance of a key witness – and any failure to give advance warning.

As a lawyer familiar with this sort of court case, there wasn’t anything very remarkable about what I observed, in fact it was depressingly familiar. Sadly, a scenario where some unforeseen problem results in significant unplanned expense and delay for families who have already been waiting a long time is pretty commonplace.

The legal adviser calmly and diplomatically worked through the issues, acknowledging the need to find out more about what had gone wrong in order to ensure any consequential issues could be dealt with next time. The overall tone of the hearing was relaxed and non-confrontational, which I think will have put the parents at ease, notwithstanding the unexpected difficulties.

From the Cafcass report it seems that the child at the centre of the dispute, who I will call John, has been living with his dad for some time, at least since an earlier family court case about him. Under that order he was to spend substantial amounts of time with his mum, but his mother complained that the father messes with her contact, changing it around and insisting on being present, something that the father denied. As a result the mother was seeking to persuade the court to switch the child’s home base so that he lives with her. The child appears to have reported that whilst he would like to spend a bit more time with his mum, he is happy to remain living with his dad. Cafcass had recommended some adjustments to arrangements, but proposed that John’s main base remains with his dad. Although John and his parents will have to wait a bit longer for a decision, fortunately it doesn’t appear as if there was an urgent issue that desperately needed to be dealt with at the aborted hearing. John is still spending time with both parents in accordance with his wishes.

It may well turn out that the father in this case will not be able to recover his costs from Cafcass – although it is possible for the court to make an order for costs it would be pretty unusual. From his perspective that will be money down the drain, because very little was achieved at the hearing I observed. He will have to make his decision about paying again for a lawyer to represent him at the adjourned hearing without any guarantee that he will get any of his money back through a costs order. He may end up representing himself. This will inevitably make it harder nor only for him, but also for his ex and for the court to manage, particularly given that (as denoted by the presence of screens) the court is treating the mother as a vulnerable party and a prohibition on direct questioning between the parents is likely to apply).

Anticipating these issues, the court put in place a contingency plan, for the father to send the court his questions for the mother in writing if he doesn’t have a lawyer, so that the legal adviser can ask those questions on his behalf as he will not be allowed to question her directly.

The next hearing will take place in early July, meaning a decision for John and his parents will have been delayed by approximately 2 ½ months.

My legal blogging experience

I had been anxious about attending a hearing before the Magistrates, knowing that they were even more unlikely than most judges to have experience of a reporter in their court, and that this lack of familiarity does not always translate into a warm welcome. Indeed, my legal blogging colleague was surprised recently to find himself excluded from a hearing he had been hoping to attend by the Magistrates – something we are hoping to be able to write about soon.

However, on this occasion I’m pleased to report that I was warmly welcomed, treated courteously, and I would even go so far as to say the legal adviser probably went too far in bending over backwards to ensure I had what I needed (for example repeatedly pausing to explain the context to something I had missed when I had had to step out of court briefly, which I had not asked for and did not think need to have interrupted the flow of the hearing). I hope that my attendance will reassure those present that the attendance of a reporter need not be threatening or disruptive, and that next time around the work of resolving the transparency order at the start of the hearing can be dealt with more speedily than the first time caution of the legal adviser made possible on this occasion.

As a result of the in and out nature of the morning’s hearing, I found myself unexpectedly able to take part in a BBC podcast about a proposed law reform that has arisen precisely because of reporters being able to attend family court, setting myself up in a conference room to join a discussion with Sanchia Berg and Harriet Harman. You can read about that here [https://www.pinktape.co.uk/public-funding/paedophiles-to-lose-parental-rights-but-what-does-that-actually-mean/]. This was total serendipity: the request came at very short notice and just as the hearing had adjourned for more enquiries to be made of Cafcass.

At the end of the morning, finding myself in Cardiff with no hearing to observe, I took myself off to seek out another hearing before a judge, and found one starting at 2pm. As I sat in the waiting area hoping to be admitted to that hearing I found myself being interviewed on my career history by an enthusiastic law student who was shadowing the judge. I hope I didn’t put him off.

Sadly, it turned out that the 2 o’clock matter I had identified had itself been dealt with by consent at the last minute and approved without a hearing. So, my day of legal blogging did not quite go to plan, but I think I nonetheless made good use of my day in one way or another. The reality of court reporting is that it is very unpredictable work. Not every hearing happens, and not every observation will involve fireworks or drama. But if nothing else I have been able to gain a little snapshot of that same unpredictability that litigants, lawyers and judges / magistrates are routinely expected to deal with.

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Feature pic by Tim Mossholder on Unsplash – thank you