On 8 April, I went to Stoke-on-Trent for the day. Of course, I didn’t physically go there, but I was able to ‘attend’ the Family Court there, by joining a series of five telephone hearings being handled over the course of a day by a District Judge. I attended using Practice Direction 36J (the ‘legal bloggers’ pilot).
The fact that the hearings were running remotely as a result of Covid-19 meant that I was able to ‘reach’ hearings that I would not have been able to observe had they been held in person, due to the distance I’d have had to travel to get there. More importantly, I was able to gain some insight into this new way of working, and how things are at the coalface : the District Bench (so far we have only really seen judgments from the High Court which is a rather different environment).
At present, lists are published on Courtserve in the late afternoons and, although they are now marked with ‘telephone hearing’ or similar, they provide no obvious way for a journalist or legal blogger to alert the court or parties of a wish to ‘attend’, and no means of actually getting connected. So if these courts didn’t deserve the epithet ‘secret’ before, they certainly do now. And when life-changing decisions are being made on a daily basis for children and families, amidst what the Lord Chief Justice describes as ‘the widest pilot project ever conceived, delivered at great speed and under the greatest imaginable pressure’ it is more important than ever that the way we are doing family justice is a little bit visible – some indeed even question if we can do it at all in current circumstances.
So, the first thing to say is that if I didn’t have a network of contacts I’d never have been able to set this up – in order to gather the material to write this blog post I used my contacts by approaching a couple of judges I knew, and asking if they could help. In fact both said they were willing, but only one judge’s list was appropriate.
I am especially grateful to the District Judge who facilitated my participation, by kindly agreeing to pass on a short explanatory email from me to the advocates and parties the day before, via court staff. This was only possible and not too burdensome because the list entirely comprised telephone hearings that the court was setting up, and so the court was contacting the parties in any event to arrange things. I know at least one journalist has been rebuffed when making a similar direct request to a judge because it was all too complicated, a response which on one level I understand (especially if the judge’s list was a mix of hearings being organised on different platforms by different people), but which ultimately really won’t do (This is why The Transparency Project made some recommendations about the practicalities of journalist / blogger access here, which we hope will be taken up).
But of course, I was anxious that my participation might cause difficulties or that there would be technical hitches – and I very much did not want to add to the strains on judges, lawyers or parties, In fact things went pretty well on that front, and I’m confident that my involvement didn’t have much impact on the efficiency of the hearings. For each of the five hearings, Kevin, the cheerful court clerk, dialled me in and introduced me along with everyone else when the judge joined the hearing, the judge explained at the outset who I was and invited me to expand briefly on what I hoped to do and my proposed approach – I would explain that my focus was on the process and how it was working rather than the factual detail of each case, that anything I wrote would be anonymised and that I would clarify at the end what my specific proposals were, so permission could be given. On each occasion the judge asked the parties if they had any objections and there were none. At the end of each hearing, I explained that I would like to report on the to and fro of the hearing, and made suggestions as to the way in which I would describe the bones of the case so as to avoid identification (for example giving an age range rather than a date of birth). Again, the judge checked if there were any objections. There were none. And so, I have been given permission to write anonymously about all five hearings. That means that this post will be long, but nothing like the feat of endurance that the list itself involved.
The judge’s list was all public law children (care) work. I didn’t have access to the papers, but I know from experience that the pre-reading will have been substantial, even if there were reduced bundles – in each case there will have been statements, reports and assessments, a case summary and a draft order to digest. The judge had hearings at 10, 11, 12, 2 and 3. So far, my experience of remote hearings has been as an advocate who carries out one such hearing in a day. I know that the hearing itself is just the tip of the iceberg – there is lots of reading and thinking that goes on before. I and many of my colleagues have found just one short hearing a day to be disproportionately draining when working remotely. This judge had five hearings.
Let me set the scene by telling you that even as a passive listener, the pace and demands of keeping up concentration across five hearings running from 10am-3.30pm (when I had to leave to join in an advocates meeting of my own) was pretty full on. From the start of the list until the lunch break there was no time for a comfort break or to boil the kettle for a sneaky cup of coffee. When lists are run by telephone, hearings have to start – and finish – on time, so the pressure is on for all those involved to be ready, to be succinct and focused and to get through the important stuff before time runs out. I was able to stretch my legs between 1 and 2pm. The judge later told me that, although on some days she was working from the court building (because she was the only judge in her court able to deal with the cases that required physical attendance due to the cases running off physical files), on this day she had been working at home and that the day had :
“…been a long day. Working with only one screen is really challenging! I also had sole care of my son (!), and had to make his lunch ( I didn’t eat) and took calls from a CJ during the lunch break, as between us we are also trying to make listing decisions for the next 2 weeks ahead.”
If I tell you a little more about the subject matter and nature of the hearings you will get a sense of why this sort of list is so demanding. Before I do though, keep in mind this perceptive question from a barrister responding to my tweet at the end of the day about how frazzled my brain was :
This list didn’t involve many parents directly, but other hearings will, and will involve more far-reaching decisions than these of case management.
The 10 am hearing
The first case involved a baby girl, currently in foster care. The case was scheduled for a final hearing in July and was heading in the direction of an adoption, against the wishes of the parents. However, it had been agreed that further assessment of the father was necessary to see if he and his partner could care for her and avoid an adoption order. The mother’s barrister explained that she accepted that she was unable to care for the baby as a result of her own issues and (in my experience unusually, and poignantly) declined the social worker’s offer of an updating assessment, saying she knew she would struggle to access the support she needed during lockdown and it wasn’t something they needed to do. She did support further assessment of the father. This mother was also caring for her Covid-vulnerable mother and did not join the hearing, but clearly had given full and thought-through instructions to her lawyer in advance. In this case the LA thought they could carry out the further assessment via Facetime. Contact was taking place through that means (although one can imagine that maintaining and developing a relationship with a baby through Facetime is nigh on impossible). The judge wanted the threshold document to be redrafted (for lawyers – it wasn’t Re A compliant), and will bring the case back in June to see if the final hearing can go ahead. There were no lay parties present at this hearing and no highly contentious issues. It concluded at just before 11am. The issues were serious but the case management pretty straightforward. I learnt from this case that in Stoke the court is listing ‘in the week commencing’ rather than giving specific fixtures, which I imagine will play havoc with lawyers’ diaries, and may mean, on top of everything else parents have to deal with, they may have an unfamiliar lawyer at subsequent hearings. I am not sure how many other courts are adopting this approach, which is more typical in civil or criminal listing than in family.
The 11am hearing
Commencing hot on the heels of the end of the 10am hearing, this case involved 10 and 11 year old siblings who were in foster care. The parents each sought their return. The hearing was attended by the social worker and Cafcass guardian, but not the mother; the father attended in person. The judge was particularly careful to make sure he was OK with my attendance and, after reassurance about anonymity, he was.
At the outset of the hearing, the father sounded co-operative. Early on he interjected politely to correct the judge who had been given the wrong date of birth for one of the children, and this reminded the judge that it would be a good idea for her to explain the ‘ground rules’ of a telephone hearing – she ensured he had a piece of paper to write down things he wanted to say, and spelt out that each person would be given a turn to speak. She checked in with him that he understood what she’d said, and asked the lawyers to avoid clunky legal terminology, which in large part they did.
In the course of this hearing the judge spent a considerable amount of time trying to explain to the father why it might be a good idea for him to instruct new solicitors (it appeared he had recently parted company with his former solicitors), but he was insistent that he didn’t need a lawyer and would represent himself – there was clearly a lot he wanted to set straight and he didn’t need a lawyer to tell his truth.
As the hearing progressed, it became increasingly difficult for the judge to focus the hearing on the case management issues because the father was interjecting or responding with his own perspective on the factual background to the case, which involved a lot of criticism of the mother and the ‘lies’ of the lawyers. There was often a mismatch between the question being asked and the father’s replies, meaning the judge had to try again in order to get an answer on the issues she needed to cover. It was apparent that there were disputed allegations of domestic abuse and alcohol use, and the father complained the mother had abandoned the children. He was cross that he had been excluded from the advocates’ meeting (it appears he had not received the email invitation), he disputed the threshold (the details of the events that social services said had led to the court case being brought), and felt the children should never have been removed at all.
The lawyer for the local authority had to explain that she might ask the court to draw an ‘adverse inference’ if the father didn’t agree to a hair strand test. The father did agree to the test, but there were practical difficulties with getting a testing company to take a sample in light of Covid, and with funding it, as the father could not access legal aid without a lawyer. Interestingly, it appears to be usual practice in Stoke for the court to take financial information from a parent in order to conduct a financial assessment (so that they can decide if a parent should pay or if another party should pay on their behalf) privately – by them handing up a piece of paper that other parties do not see. In courts where I practise this is usually done on the spot by the parent just telling the judge the gist of their income and outgoings. The judge in Stoke was at pains to make an arrangement that didn’t involve the father disclosing his private financial information to us all, even though it was clear he was on benefits only, Instead of the usual a piece of paper, arrangements were made for him to email the judge his information after the hearing.
In this case, phone contact was happening but the local authority were looking into video contact, subject to consultation with the foster carers.
Although the lawyers initially suggested a 3 day final hearing the judge was clear this was nowhere near enough given the father was appearing in person and the issues were apparently hotly contested – and she took the view that the hearing had to be an attended one (face-to-face in a courtroom), and agreed that special measures would need to be considered for any cross examination / hearing. She listed the matter for a further case management hearing to review matters, and fixed the first available final hearing slot – which wasn’t until October. She sympathised with the father when he expressed his dismay at the delay. He told the judge the children had been asking to come home only last night.
The only issue raised in this case about my reporting was whether or not I could name the local authority. The barrister for the local authority didn’t have instructions on the point so felt she needed to check. To avoid holding things up, I suggested she took instructions and let me know by email – I would prefer to identify the LA and could see no reason why I should not, but did not want to hold things up. In the event, I haven’t heard so I am not naming them. This was an issue we probably could have resolved on the spot in a face to face hearing as the lawyer could have easily checked instructions and given any necessary advice.
This hearing concluded late at almost twenty past the hour. It was significantly slowed down by the need to explain and refocus the father to get through the issues.
Although parents are usually represented in care proceedings (they are all automatically entitled to legal aid), litigants in person of one sort or another are still not uncommon in these cases (such as interveners accused of harming a child, or relatives who wish to care for the children), and in private law cases they are a feature of most cases. The sort of difficulties that cropped up in this hearing will be commonplace where a litigant in person is involved, and where a represented parent feels strongly enough to interrupt (in a face to face hearing a parent’s lawyer can shush, calm or reassure them or can respond in the moment to their obvious distress or agitation – that won’t be possible in a remote hearing, and may cause difficulties for the smooth running of the hearing AND may lead to parents ‘putting their foot in it’ where they might otherwise have been skilfully diverted by their lawyer).
The 12 o’clock hearing
This hearing started late because of the previous overrun. It involved an adopted teenage boy with additional needs who was living in a residential unit, having reached a stage where he was beyond parental control (though it was clear that his parents had worked very hard over the years to support him). Before Covid-19 he had just re-established face to face contact with his adoptive father after some sort of breakdown in their relationship, and was now having phone and video contact with both his parents and another adopted sibling. Everyone agreed that the boy was well placed where he was and that a final care order should be made. The judge agreed to the order, recording how important it was for funding to be made available for the continuing involvement of a therapist who had been working with him, whose support the boy clearly valued. ‘It might not make a difference but it can’t hurt’ said the judge. She gave a very short judgment.
A noteworthy feature of this hearing was that this was the first case I have ever attended as a legal blogger where the representatives of the child sought his views about my attendance – they had spoken to him prior to the hearing, explained my role and he had agreed. So a big well done to that legal team.
Again, no lay parties were present at this hearing, which was advocates only (and the guardian).
The 2pm hearing
This was a sad case concerning a baby whose mother had been involved in multiple previous proceedings, and it appeared that she had probably had several children removed before (although this was not spelt out in terms during the hearing). She had disengaged from these proceedings, having started off quite well, and the father could not be found. The father was thought to be homeless and had cognitive limitations. The judge wanted further efforts to be made to locate him and was concerned that he might be illiterate and might not understand a letter if it was sent to him. Although the mother had indicated that the reason she was uncontactable was due to self-isolation (she had underlying health conditions), the local authority pointed out her disengagement had started much earlier than the Covid-19 issues. They said that her engagement dropping off after a positive start had been a pattern in earlier proceedings. There had been an application for a psychological assessment of the mother, but it could not be pursued in light of her lack of current involvement.
Here the judge listed an Issues Resolution Hearing in June (an Issues Resolution Hearing is listed once all the evidence is complete to assess whether a case can be resolved by agreement and if not to make arrangements for a trial), hoping that by then it could run as an attended hearing, which she said would be preferable given the limitations of the parents. Only lawyers and the social worker were at this hearing. I was left wondering how things would have worked if either parent had wanted to attend, something that was very much on the judge’s mind in respect of the planning for any final hearing.
The 3pm hearing
This hearing involved a mother with learning difficulties who was placed with her baby in a residential assessment unit, and who was reported to be doing well. There had been an assessment by Communicourt (an organization who assess and provide intermediary services at court for vulnerable witnesses or parties usually due to age, learning or communication difficulties). The barrister for the local authority started by updating their case summary in light of further developments on the Communicourt / guidance front. This is a hallmark of the times because guidance is coming so thick and fast that everyone is always one set of guidance behind. In updated guidance it was made clear that Communicourt are now not taking part in any hearings due to Covid-19, which presents some significant practical difficulties if no intermediaries are available to support learning disabled parents to understand and take part in hearings or to give evidence.
The parties wanted to list a hearing at the end of the assessment period just in case the outcome was negative (i.e. the unit concluded that the mother couldn’t safely care for the baby), because at that point there might need to be a contested hearing to decide if the baby should be separated from the mother, or if they could move into the community together. The mother’s lawyer was anxious that Covid-19 would make it even harder for the mother to resolve her housing difficulties (her current property was unsuitable for the baby and she was trying to arrange a move), and that she would get a positive assessment outcome only to find herself unable to house the baby. It did not appear that the housing department were being very cooperative. The judge wanted the local authority to give some thought to whether or not the placement in the unit could be kept open to hold the family until all this was sorted out. These sorts of chicken and egg issues are not atypical where parents are in a residential assessment, but everything was so much more complicated due to Covid-19.
The judge was kind enough to remind me at 3.30pm that I needed to leave, and permitted me to summarise what I wanted to report before I left. That was uncontroversial. In this case, as it was clear that the advocates were discussing some detailed proposed ground rules drawn from the Communicourt assessment of the mother, I asked for sight of the draft ground rules document so I could understand how it was proposed the difficulties should be resolved at a remote contested hearing with a learning disabled mother – and without the intermediary that the report had obviously anticipated would be necessary. To avoid causing delay mid-hearing, I proposed that my request was left to be resolved as the court thought fit. After the hearing I did receive a copy of the ground rules and an explanation from the judge as to what had happened after I left. She had not been happy to endorse the ground rules without input from Communicourt and had declined to list a video hearing for a possible contested removal hearing as had been proposed, on fairness grounds.
Instead, the judge had directed social services to make further enquiries of the residential unit to see if they could offer accommodation to the mother whilst the present restrictions remain in place; and for instructions to be taken from social services management about the funding issues that would arise if they did. Mother and baby units are VERY expensive. In parallel, the judge had directed some further enquiries of housing.
There will now be a further hearing in a couple of weeks time to see if any progress can be made in planning a contested hearing, if this is needed.
This list proceeded relatively smoothly, all things considered. What was notable was that none of the hearings started until about a quarter past the hour, due to the time it took to dial everybody in. The judge in this court was assisted by a clerk, who was present throughout the day, presumably in the court building, and who managed the dial-up process (this isn’t normal for a District Judge, although a Circuit Judge will usually be attended by a clerk all day). There weren’t any major technical hitches. Everybody who wanted to join was able to do so, and nobody dropped off the call – there was occasional loud typing and some notification pings during some hearings, and the cry of a child at one point (nobody owned up to that one).
Although I know that some judges have been given, or are using, a ‘script’ at the start of hearings, this judge did not use one, although this may have been because it was felt unnecessary as all hearings involved advocates and few lay parties, and largely agreed case management orders (except for the one involving a litigant in person).
What the judge did religiously was to make a point of thanking everyone for their efforts at a difficult time – rightly so, because there is no way that the judge could have dealt with all matters if the advocates had not largely sorted things out in advance. That said, the judge had to be, and was, on top of the facts of each case and did make interventions and exercise her own independent view to make case management directions that the advocates had not dealt with (particularly in relation to threshold, and in the cases involving obviously vulnerable parents where she was particularly proactive).
Whilst the judge was able to deal with hearings in some complex and serious cases, it really has to be remembered that she was dealing with straightforward, short hearings in those cases – in several of them the big question left unanswered was how on earth a contested hearing or trial could work fairly without a face-to-face hearing. I was left with the distinct impression that if this judge had more litigants in person or more contentious issues to deal with in her list it would – through no fault of hers – have been a disaster zone. Quite how one would manage a rigid timed list of private law cases (where most cases involve one if not two litigants in person) by telephone is anybody’s guess.
For judges dealing with this work, day in and day out, it must be exhausting. And I dare say that not all lists run as smoothly as the one I observed.
From a legal blogging point of view, although I do usually attend a hearing ‘cold’ and without any prior knowledge or sight of the papers, these cases were even harder to follow than normal because the submissions were so pithy and so much more had been agreed in advance – the real story was in the bundle, position statements and draft orders to which I didn’t have access.
However, I did gain some valuable insights, and it was positive to be able to demonstrate that legal blogging is possible even during a crisis, that it can be done without undue disruption, providing the goodwill is there. I wonder if the universally relaxed approach to my attendance that I encountered was a function of the remoteness of the hearing, a result of the parties having had prior sight of my email introduction courtesy of the judge, or was it because the lawyers involved appreciated at some level the critical importance of visibility of this giant, unfamiliar pilot to their clients and to themselves? Perhaps a mix of all three factors.
P.S. The Transparency Project is conducting a survey to gather the views of parents and family members about their experience of taking part in a remote hearing. Please complete the survey or let others know if you think it may be relevant to them.
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