This week three judges in the Court of Appeal held a 3 day long appeal hearing all about domestic abuse cases. This series of posts provide a summary of what the hearing was about and how it went. The decision is expected in a few weeks time.

The appeal was in fact four separate appeals, brought together by the Court of Appeal judges because of the similar issues that they raised. All four cases were appeals brought by women who had raised allegations of rape and domestic abuse. All four of them complained that the Circuit Judge who had dealt with their case had gone about things wrong, and had made wrong decisions. Each appellant was represented by Queens Counsel and a junior barrister and solicitor (funded through legal aid). All four fathers were also represented by Queens Counsel and a junior barrister and solicitors, but those lawyers were working for free, because legal aid was not available to them (legal aid is not available to those accused of domestic abuse, only to those alleging abuse and subject to their financial means).

All four appeals raised wider issues about how a judge should deal with allegations of this sort, and the bigger question of whether the problems complained of in these specific cases are symptomatic of wider, systemic problems. It was because of these potential wider issues that the Court of Appeal listed the cases to be heard together, and invited a range of organisations to intervene in the case to offer their views on the wider issues of principle and the guidance the Court of Appeal might decide to give at the end of the case. So, in addition to the main parties, the court also heard from Cafcass, the Association of Lawyers for Children, Families Need Fathers and a group of womens’ organisations (Rights of Women, Women’s Aid, Rape Crisis and Welsh Women’s Aid).

Although there has been detailed consideration of how family courts deal with disputes between parents and how they handle domestic abuse by various panels and committees in the last couple of years – with the consistent theme being that things need radical and urgent improvement on a number of fronts – this was a rare opportunity for the appeal court to consider the issues as they arose in actual cases. There are various plans for systemic reform both recommended and expected, but the appeal courts are able only to give guidance on how to operate within the constraints of the existing system and resources.

The Court of Appeal hasn’t heard a conjoined appeal on this topic for over 20 years. The last case, Re L (L & Ors (children), Re [2000] EWCA Civ 194), is still important – but it was heard at a time when our understanding of domestic abuse was very different, albeit it was even then known to be serious and harmful (as the judgment in Re L emphasises). The use of the now outmoded phrase ‘domestic violence’ throughout Re L is an indicator of the fact that back then, the focus was upon incidents of physical violence not upon the broader range of types and patterns of abusive behaviour that are now understood to be so pernicious in their effects on victims and children.

This blog post is the first in a series of posts about this appeal, in which we are going to deal with the following :

  • The format of the hearing
  • Transparency
  • The issues in the individual appeals
  • The wider issues of principle
    • What they were
    • What can the Court of Appeal do about it?
  • Further reading and resources

This post deals with the first two bullet points.

Part two deals with the third bullet point. Part 2 can now be found here.

Part 3 deals with the last two bullet points and can now be found here.

The format and operation of the hearing

The appeal was heard by three judges : Lord Justice MacFarlane (President of the Family Division), Lady Justice King (a judge with a family law background), and Lord Justice Holroyde (a judge with a criminal law background).

Before the renewed lockdown had been announced the plan had been for this hearing to be live streamed under the Court of Appeal scheme. However ultimately a decision was taken that this would not happen. This might have been perhaps because someone in the case was shielding or possibly because there were not enough capacity to live stream multiple hearings (we can see on the site that at least one other appeal was being run entirely on teams but was also live-streamed whilst this hearing was also ongoing even though the Daily Cause list curiously says that livestreaming has been suspended due to covid).

Instead, the hearing was held ‘in public’ via Microsoft Teams, and links were provided in advance to journalists, legal bloggers and members of the public on request. There were around 150 people present throughout the hearing. By our count the case involved about 34 barristers and probably over a dozen solicitors (not necessarily all on separate links), plus eight parents. In addition, we were able to identify the names of a number of journalists, domestic abuse survivors, campaigners and researchers, retired judges, and lawyers not involved in the case.

Lucy Reed attended throughout and live tweeted on the @seethrujustice account, and George Julian, veteran live tweeter of inquests, did likewise at @georgejulian (links below).

The remote format worked reasonably well. Where occasionally somebody froze or lost connection it was quickly spotted and sorted, and most of the active participants seemed familiar with the process of working this way.

The court clerk read out the ‘usual’ warnings at the start of each day of the hearing, prohibiting identification of the parties or children, explaining it was a criminal offence to make a recording of the hearing, and asking those not actively speaking to remain camera off and on mute.

On the first day one of the judges asked a barrister what a particular acronym meant, and several helpful members of the public provided the answer in the chat function, which Lady Justice King noted and thanked them for. However, after that inadvertently prompted more general chat on the chat function the warnings at the start of the next day included that the chat function should not be used.

There were pretty regular interruptions when somebody, usually a member of the public, had joined but had not pressed their mute button. Generally this was met with good humour by the judges and was quickly remedied. The President of the Family Division seemed to be regularly going down the list of participants on his computer screen and clicking them on mute as a pragmatic way of avoiding allowing this to become too much of a problem.

The judges all appeared with a cream white virtual background with a large crest. They, and the lawyers appeared unrobed (normally in the Court of Appeal everyone would be in wig and gown, with the judges wearing their gowns with purple and red detailing, but here they just wore suits or dark clothing as is more typical in the Family Court). Judging from their backgrounds, some of the the lawyers appeared from their chambers, whilst others appeared from home.

The hearing was structured sequentially allowing half a day for each of the four appeals, and a half day for the intervenors. On each appeal the court heard from the Appellant’s lawyer, then the Respondent’s and then from the Appellant briefly in reply. Each lawyer was able to address the specific points that they said meant the appeal should be allowed or rejected, and the wider points the court is considering giving guidance on. Everyone ran to time give or take ten minutes, and the case was concluded in 2 ½ days (the court didn’t sit on the morning of day 3).

Transparency

As is typical in the Court of Appeal, the hearing was a public hearing. However, because it was held remotely rather than being live streamed it was not accessible to those who did not know the arrangements for obtaining a link (and those of us who had a link were told firmly that we must not pass it on). That said, there were still a pretty large number of observers, possibly more than there might have been if the hearing had been held in public in a real courtroom in non-covid times. For example, although I was able to attend the hearing from home in order to live tweet, if it had been an ‘in person’ hearing I would probably not have managed it, because of the extra time and cost of travelling to London and staying overnight.

It would have been really helpful to be able to look back at the livestreamed footage of the appeal, as one can with the other appeal being run concurrently with this one (see YouTube here). It would be interesting to know how the decisions about live-streaming were made and if one was prioritised over the other, or if the decision was reviewed for other reasons.

Having made a decision not to live stream, it is notable that the court itself did not publicise details of how the public could gain access to the appeals directly by teams (apart from possibly a generic message on the Daily Cause List, which most people won’t know about and which doesn’t get published until the day before the hearing anyway). Some of those who had we had obtained the details in the course of expressing interest in observing and reporting did circulate them on social media (we did, as did Louise Tickle). It would have been great if the @Judicialoffice twitter account had indicated how to gain access to the hearing.

We were assisted in understanding what was happening, by having the skeleton arguments that each legal team had prepared (almost all of them, at any rate). However, obtaining these was not straightforward – initially we were told that only those with press cards could have them, but later we were sent them by the Press Office. Some of them arrived half way through the hearing (I think this is because a number of the legal teams had come on board late due to the funding issues their skeletons had also been late).

A number of people following our tweets (and those of George Julian) commented that it was quite hard to follow what was being said because the lawyers kept referring to sections of their skeleton arguments without reading them out. This was necessary because there was a significant amount of time pressure – the detail of the arguments was in written form, and the oral submissions were primarily used for emphasis and to answer queries that the judges wanted to raise. Even for those of us with skeletons it was pretty difficult to follow – partly due to the sheer pace, partly due to the fact that the barrister would often refer to a page number in a bundle which we didn’t have or to a document we didn’t have, and partly due to the fact that we were not sure (for the first day at any rate) what order the court was going to take the appeals in (they didn’t follow the order in the list). It would have really helped to have had access in advance to the timetable the court was working to. Of course, for those of us live tweeting there was an additional challenge – trying to focus on translating what is being said into a series of reasonably accurate tweets can mean that you struggle to get an overview of what is being said because you are focusing on capturing a particular sentence, and you certainly don’t have time to flick between skeletons and scroll to the paragraph being referred to.

We noticed that not all the lawyers had their full name showing on their Teams screen – often they were showing as Mark J or M Jarman (say). It would have been helpful if their names and role had been shown for orientation, e.g. M Jarman (Cafcass) or J Delahunty (Appellant in T), as most observers didn’t even have the skeletons to cross check against.

Had we had the skeletons sooner we would probably have been able to digest them more fully, prepare better, and post some sort of summary of the issues in the case before the hearing began. We were able to live tweet throughout the hearing, and hopefully between our threads and those of George Julian we’ve captured most things, from two different perspectives.

We did notice that there were some efforts made in the latter stage of the hearing, by the President in particular, to explain or prompt an explanation of something ‘for the benefit of those listening’. Some of the later barristers picked up on that modelling (to use a social work phrase) and did likewise – but it could not really remedy the difficulties with not knowing what was in the bit of the document being referred to and which the lawyer did not have time to set out. For observers hearing a lawyer make an emphasis or modification to a theme or point in a written document when they had not seen the original argument must have been quite challenging.

Overall we think that there was a reasonable degree of transparency, but that the potential for justice to be seen and understood was not really maximised. We hope that when the Court of Appeal issues its judgment it will consider publishing an accessible introduction or press summary.

We have asked for clarification as to whether we may publish the skeleton arguments which deal with the issues of principle, because these contain no identifying detail. At the time of writing we await a response. It’s a shame that these weren’t able to be published before the hearing so observers could have had them to hand as they were watching. [UPDATE : The Court of Appeal responded to our request, saying that we could not publish the skeleton arguments].

As we’ve set out above there were some interesting opportunities for interaction / participation created by the use of teams links to join members of the public (chat function), but inevitably these then required some management in order to maintain the sorts of boundaries to enable the smooth running of a hearing. Had the public been participating by live link they would not have been able to inadvertently disrupt the flow of the hearing by accidentally unmuting, and could have observed at their leisure at a time convenient to them.

It’s easy to be critical after the event. We acknowledge that the Court of Appeal judges and staff – and the lawyers – will have had many other priorities, particularly since this appeal was readied for trial comparatively quickly in view of its importance. But equally, this was an opportunity for transparency and trust building not entirely grasped, and it would be remiss of us not to flag up how it might be enhanced the next time a similar appeal comes before the court (or in any future family appeal). The privacy of Family Court proceedings means it is very rare to get a window in, so when appeals are heard in public there is a particularly good reason to set up such hearings so that they are as accessible as possible, both for journalists, reporters and the public at large.

Many will have wanted to get to grips with the detail of the arguments made in this hearing, which a news report from a journalist after the even can never hope to do.

It would be interesting to hear from non-lawyers who attended to see how they found the experience of watching.

You can read the live tweet threads here :

Transparency Project

Day 1 (first two appeals)

Day 2 (second two appeals)

Day 3 (Intervenors)

George Julian

You can read our recent post about a connected case here.

Part 2 can now be found here.

Feature picture of Royal Courts of Justice, image by piqsels

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