PART 3 : HOW DID YOU DO IT?
This is the third part of a four part blog series. Part 1 is here, and links to parts 2 and 4.
Reminder : To ensure that the child and family are not identified I am not allowed to reveal whether the child is a boy or a girl, but to make the posts easier to write and read I am referring to the child using female pronouns (she /her, daughter etc).
It has been some months since I’ve had the time and the energy to attend a hearing as a legal blogger. When I do attend, it is usually on a day when the case that was in my diary has collapsed and I have some free time I wasn’t expecting, or – as in this case – during my annual leave. It can be hard to feel motivated when it’s a little bit too much like the day job (but without the pay!) and there is often a sense that everyone else would rather you weren’t there. The fact that legal blogging is a like a box of chocolates (“you never know what you’re gonna git”, Forrest Gump’s momma) isn’t an incentive. Court lists tend to be published at some time after 2pm the day before a hearing, which can make it difficult to get access to a hearing in time.
On this occasion, a case had come out of my diary, and I was able to start my period of leave a bit earlier than planned, so I thought I’d try to find a court which had published lists a couple of days ahead. That court was Hull. The list told me HHJ Whybrow (who I now know is the Designated Family Judge i.e. the senior family court judge in that area), was dealing with a mixed list of care and private law children matters (I could tell this much from the case numbers), so I thought I had a reasonable chance of getting in to one of those, as I could give the court a couple of days’ notice.
I sent an email to the court using the email address provided (most lists do now provide a point of contact for legal bloggers and journalists), and soon received a response from the judge himself. He asked me why I’d picked this particular list, which in principle I think judges should avoid asking because it puts a reporter in a tricky situation if they have attended at the invitation of one particular party, but on this occasion I took a pragmatic rather than principled approach and simply explained that I had picked the cases on the basis that the list was published early. Having now sat in on one of those hearings, I can see why the judge might have been interested in whether a party had ‘tipped me off’, but in fact they hadn’t. I was fortunate to have landed quite by chance on a case that was of particular topical interest (transfer of residence to a father following parental alienation concerns), but I hadn’t engineered it that way.
The judge was very accommodating, and initially indicated he would see if he could send me case summaries for the various cases in his list, but in the end thought better of it until he had checked the views of the parties (rightly, I think). Instead, the judge sent me a couple of sentences setting out the bare bones of what the hearing was about. So, although I went in with very little information, the judge’s sympathetic approach gave me some confidence to ask for a case outline or position statement at the start of the hearing to help orient myself.
I was provided with a CVP (video) link by efficient court staff, but realised that the link was for the Thursday rather than the Friday I’d requested to attend – it turned out the hearing was a 2 day hearing, and the day I’d picked was day 2. Fortunately, I was able to attend a day earlier than planned, and in fact the hearing only ran for a day before the judge adjourned to the following week. Again, fortunately because I was by then on leave, I was able to come back the following week to hear the conclusion. Otherwise I’d have wasted a day and would have found it hard to write about a part of a hearing or even make a convincing application for permission to report. In the end I didn’t attend the other two cases in the judges’ Friday list for various reasons.
The participants in the hearing were the father, represented by direct access counsel, the child (not present), represented through her Guardian and solicitor, and the judge. The mother did not attend the hearing, having disengaged from the court process entirely.
The judge asked the lawyers at the outset whether or not they had already made contact with me (they hadn’t), so it was clear that they had been notified of my attendance in advance, although I don’t know how much notice they had. Had the hearing been in a court building I’d probably have identified myself to them so that they could raise any queries with me before the hearing, but here I was unable to take this proactive step, and the lawyers hadn’t contacted me either.
When I had sent my original email I had attached a copy of the legal bloggers leaflet, which explained the pilot scheme, requesting that it should be provided to the parties. I had also sent a completed form FP301, which includes a series of undertakings confirming that the blogger is aware of the applicable default reporting restrictions and will stick to them. I had hoped that my early approach and provision of information would enable lawyers to take instructions, to check the rules and to contact me if there were any issues. I’m not sure if that leaflet ever reached the parties or their lawyers, but it soon became clear that the professionals were not all overly familiar with the scheme or the rules which pertain to the exclusion of reporters. The father did not object to my attendance, and agreed to the provision of his position statement, but the Guardian did object.
The court was told that the Guardian had spoken to Cafcass management who had advised him they needed to seek confirmation from Cafcass Legal as to ‘whether they feel able to agree’ to my attendance and publishing (I hadn’t made any application to publish anything at this stage) and that advice had not yet been received. Without that legal advice, the Guardian did not agree to me observing or to me being provided with documents because ‘even the anonymised facts are unusual’ and there was said to be a risk of identification. The solicitor for the child also said that there might be ‘repercussions’ and that ‘Cafcass would be mentioned’.
These objections were in some respects the same sort of muddled objection I have met before – confusing the potential ramifications of publication (if anonymisation is not properly provided for) with attendance – and mistakenly making submissions on the basis that a party needs to ‘agree’ to my attendance, when the rules provide for me to attend as of right unless there is good reason to exclude me (the bases for objection are set out in the rules). I’ve never before been met with a suggestion that a Guardian had to seek specific advice from Cafcass Legal rather than their own advocate before adopting a position on a simple matter of observation. In most cases the parties have no meaningful notice of the attendance of a journalist or blogger (notice is not required), so if any case involving a Guardian had to be delayed so Cafcass Legal (whose services are usually reserved for complex High Court matters and quite strictly rationed) could advise, the whole scheme would be derailed. Advocates for guardians can advise and if appropriate, make representations on these issues at the outset of a hearing, with reference to the relevant rules. The rules (for journalists) have been in place since 2009.
As to the remark about ‘repercussions’ and Cafcass being mentioned – I don’t really know quite what to make of that. The subject matter of the case was one of particular topical interest following the recent Channel 4 Dispatches programme, and the Guardian was inexperienced in dealing with transfer of residence cases, so I can see that it may well have been a case that was giving him conniptions, even without my attendance. Cafcass Guardians / Cafcass should certainly not be objecting to the attendance of responsible reporters on the basis they are generally uncomfortable with observation or on the basis that a case raises some tricky issues – but in truth, I don’t know whether this half-formed submission came from the Guardian, his manager or whether it was the lawyer mis-speaking / hypothesising about potential ramifications without instruction. If it was a reference to personal professional anxiety that my attendance would be reputationally risky for Cafcass, then it was a bad point to take, but in the event it wasn’t pursued, although I did think it was important to respond to it insofar as I could understand it, and to include reference to it in this post.
In response, I issued the now familiar refrain about how I was entitled to attend unless a reasoned objection referenced to the rules was made, that I hadn’t heard one, and that I was not permitted to report anything of substance unless and until the court said otherwise, and that this would apply to both what I heard and what I read in the position statement. I explained that I would most likely make a reasoned application to report at the end of the hearing, and that by that stage I would be able to make informed suggestions about appropriate anonymisation and any particular facts I should not report, and that this was the time for issues about identification to be dealt with.
The judge observed that I was a practising member of the Bar and had confirmed that I understood the reporting restrictions, and permitted me to stay, saying he would deal with any reporting issues later.
It became quickly apparent that I would most likely want to report on this case, and that there was potential public interest in me doing so but that I would need to take some care to think about how I should do so. Throughout the hearing I kept a running note of particular facts and information I wanted to be able to report, and of things I thought I would need to leave out or work around. Because of the absence of the mother the hearing proceeded at a fair clip, which meant I anticipated making an application at the close of the hearing that day, and I wanted to be ready to do so when the time came – although in the event that didn’t happen because the case was adjourned.
When the judge decided to adjourn the whole case, I made clear that I would be seeking permission to report, and gave a rough outline of my thinking, so that the Guardian and father could reflect over the break, and give instructions to their lawyers when we resumed.
After the hearing, I took time to tidy up my working note of reporting proposals and to convert them into a set of specific proposals which I emailed to the lawyers (once I knew their names I was able to locate an email address), giving brief explanations of my rationale (e.g. I’ll leave this out because it might be identifying, but instead I can say such and such – or I don’t need to state x but I would like to say y because…). I signposted the lawyers to various resources and guidance, and indicated that I thought this was a case where the judge ought to consider publication of his judgment. I also indicated that I was likely to ask to see an earlier judgment from February 2021 that had been referred to, to ensure that any report I wrote was accurate. That was primarily for two reasons: firstly, there had been oblique reference to the evidence of the expert in the case, and it appeared that he had given evidence at the earlier hearing. He was not giving evidence at this hearing because nobody challenged his report, and I did not have a copy of the report, and it seemed to me the judgment would be a good way of understanding the expert advice that the Guardian and now the father were relying on. Secondly, there was also oblique reference to allegations of domestic abuse made by the mother against the father, which I wanted to understand and write accurately about – but again, there was no evidence or submissions on these matters as the mother was not there to raise them (and as I later found out the court had dealt with them previously anyway). The judgment from February 2021 seemed likely to be a way of contextualising and understanding the relevance (or not) of that issue to the decision now at hand.
My sense was that the Guardian in this case was in somewhat unfamiliar territory, and I noted that he preferred to defer to management on a number of issues during the hearing (not just those involving me). I hoped that my email would provide some reassurance to the Guardian’s team in particular, by demonstrating that I had thought about potential identification, that I wanted to report accurately and that my proposals didn’t in fact represent the sort of risk he may have when responding in the abstract. I wanted to make it easy for them to fall in with my proposals. Incidentally, the scenario where a parent is reasonably relaxed about my attendance and the idea of anonymised publication, but where professionals appear to be having the heebee-geebees is increasingly familiar. In my consistent experience the usual source of resistance to more transparency is professionals, not those whose families are being discussed, and who hold parental responsibility for the children concerned. So, this case was not an outlier.
As it turned out, the adjournment was helpful, because it did give time for consideration and my email produced a response from both lawyers in the course of the week confirming that there was no objection to my proposals. In addition, counsel for the father had taken the trouble to take his specific instructions on publication of judgment and actively sought that on his behalf, something which I think was prompted by my involvement. At the resumed hearing, there were some brief submissions about the extent of geographical anonymisation because, having heard the submissions made on the morning of the resumed hearing, it was clear I would really struggle to properly explain some of the difficulties around enforcement without identifying the mother and child’s home base as Scotland – but ultimately those objections were not pressed when I explained both the rationale and that there would be no homing in to the particular area of Scotland in question. I also asked to see the Guardian’s recent position statements because I was struggling to make sense of what had happened in the adjournment without them – that was agreed. Finally, there was some discussion around when I should be permitted to report, and it was agreed that I should not report anything for at least 48 hours after the handing down of judgment, to enable the mother to be served with it if she did not attend the hearing.
I found myself in the slightly surprising position of drafting a reporting relaxation order as it didn’t seem as if this was going to happen without me being proactive, and I was concerned we might leave with a different understanding of what was and was not permitted if the permission was not reduced to writing. The judge, having given a decision, adjourned for the preparation of a full reasoned judgment the following week. As I was away and unable to attend hand-down, the judge kindly arranged for me to be sent the judgment and the Guardian’s position statements which I had requested, and he confirmed after the hearing that he had approved my draft relaxation order and that he had decided to publish both judgments, and would arrange for me to be sent the first once it was ready.
Now I have permission to write about this case, the lawyer in me keeps wishing I had sight of the Guardian’s and experts report – and maybe even the parents’ evidence – but the judgments I have read give a fair amount of detail, and ultimately I am writing a report for publication not a legal treatise or set of submissions. It is perhaps more difficult to write about a case in a fully rounded way when one party has absented themselves, and where to an observer they are effectively silent. The mother’s position may be set out in the pages of the bundle, but it wasn’t directly articulated in the hearing, either through her own evidence, questions or submissions. Having received and digested two detailed judgments after the hearing, I can see clearly what a disadvantage I was at in trying to really get beneath the surface of this particular case through observation of one hearing. A number of aspects of the hearing which left me confused or alarmed make much more sense in light of a better understanding of the background, and I think any attempt to have written about the hearing as observed without that additional information would have run a significant risk of being an unfair representation, in spite of my best efforts. Perhaps I will still get things wrong as a result of not having more documentation, but I think I am in a far better position to report well as a result of access to those core documents.
I repeat my thanks to the lawyers in this case – once we had dealt with the initial skirmishes about my attendance, they were very helpful and responsive. Although I was not able to head off the initial objections to my attendance by a chat before the hearing as I might have done in a hearing held at court, it’s really important to acknowledge that my explanations and suggestions made thereafter were obviously attended to and were responded to with courtesy and promptness. This meant that very little time needed to be spent (wasted) during the hearing on arguing about issues to do with reporting. I think in future where I attend remote hearings I will specifically ask the court to pass on my details and my email to advocates, and include an invitation to contact me pre-hearing if that is likely to help resolve any worries about my attendance or subsequent reporting. In that way, I can replicate attempts at face to face hearings to ‘head off’ mistaken objections to attendance which are really about reporting, and which would be better left to the end of the hearing. I hope that would minimise the amount of time spent sorting out my attendance, which can disrupt the start of a hearing in ways which are unhelpful to the court and parties, and frankly stressful and irritating for the blogger!
Since the hearing I have spent a considerable amount of time thinking about what and how I will tackle the write-up of this case, and a good chunk of time writing and rewriting. I realised that I had quite a lot I wanted to say about the process I adopted in this case as well as about what I actually observed, so I decided upon a series of three posts, as trying to capture everything in one post would be far too long.
Some of what I have written may be uncomfortable for the professional participants in the hearing to read – and it has been uncomfortable for me, as a fellow professional to write. However, there is little point in observing a hearing if the account I give is inauthentic and if I am only prepared to say things that are palatable. The fact that I have a foot in both camps (independent observer and seasoned insider) means that I have an insight into what is going on in the hearings I observe – and how it compares to other similar cases I have worked on myself – insights that a journalist or non-legal observer would not have. That means I have a responsibility to scrutinise with fairness and to say candidly what I see. That therefore is what I have done in the next section.
You can find the other posts in this series here.
Feature pic : Courtesy of Lucy Reed
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