On Friday I took the opportunity to try my hand at a spot more legal blogging. It was the last ‘working’ day before the end of my staycation, and I was somewhat ambivalent about using it up on this busman’s holiday – but in the end decided I was getting rusty, and I’d better have a bash while I had time, as it might be a while before I have the clear space to be able to do so again.
Court lists usually go up after lunch the day before the hearing. I checked them out just after 4pm, wondering if the lists would look any different to how they did the last time I scanned them earlier on in lockdown. They weren’t very different – most but not all indicated whether a hearing was remote, some indicated the platform – almost none had any contact details on them. Impressively, I noticed that Crewe are publishing lists for a couple of weeks in advance, but the utility of this was reduced because they didn’t have any contact details, and there was no list for Friday (and the other forthcoming dates are days when I’m booked to be conducting my own hearings as a barrister).
In the end, mindful of the lateness of the hour, I settled on Exeter – they had a list that was being heard at Lay Justice tier (i.e. the magistrates, a tier of judiciary I’ve not managed to observe so far), and their lists contained the transparency ‘rubric’ that Alice Twaite has spotted in some other lists when legal blogging – giving an email address and making a commitment to make arrangements for the attendance of both legal bloggers and journalists. It wasn’t clear from the wording of the list whether the hearing was legal adviser only or also involved Magistrates (it just said ‘legal adviser working remotely’). Legal advisers can deal with hearings in the absence of magistrates, but there are some restrictions on the sorts of things they can deal with (although they are relaxed at the moment as a result of lockdown).
I sent an explanatory email and documents confirming my eligibility at 5pm. I attached the TP information leaflet and suggested the court might forward my email to the parties to alert and reassure them. In the end it took until mid morning the following day to get any acknowledgment of my emails, and until lunchtime to get joining details, meaning that I missed out on observing two of the four cases in the list, and sat largely twiddling my thumbs in my office for the morning of my last day of holiday. You can follow the rather mundane ins and outs of that here :
I should say that the legal adviser made a point of giving a fulsome apology at the first available opportunity for the failure to sort out attendance earlier in the day, explaining that she had been so busy she’d not been checking her emails. Having observed half of the list she was managing I can quite understand why. She had a lot on her plate – not only coordinating and hosting the hearing, but also co-ordinating and advising the magistrates, and liaising with the lawyers to ensuring that the papers and orders were all sorted before and after each hearing (as well as probably other administrative tasks she was expected to magically do at the same time).
The afternoon list that I was able to observe comprised of a video hearing on the court’s own CVP platform at 2pm and a telephone hearing at 3pm. Both were interim hearings in private law children cases.
The first hearing
This was my first experience of a CVP hearing as it’s not used in courts in my locality yet. I was surprised that the link I’d been given by the court had no password. I had no trouble logging on and when the hearing room opened I could see the legal adviser and two magistrates, both of the parents and their respective lawyers, and a Cafcass Officer (it took me a minute or two to work out who was who). It’s usual for magistrates to sit in groups of three so one has a casting vote, but they can also sit in pairs.
The CVP set up showed two large windows (speaker and immediate previous speaker) and several smaller windows at the bottom for other participants. For much of the hearing, because they weren’t speaking much, the parents weren’t really visible, but I got a good clear view of the legal adviser (sitting in court with a crest behind her head), of the magistrates Chair (a middle aged woman with turned up collar on her casual shirt, and pearl earrings, in a low ceilinged oak beamed cottage with a large sofa and armchair in the background), and the Cafcass Officer (a grey haired woman sitting in a high back armchair with a cross stitched covering). The father’s lawyer was bearded man in a bright room full of books, with a large tall vase of flowers behind him and a large barometer on the wall. The mother’s lawyer appeared bare armed in an office, with coats hanging on the back of the door as her backdrop. The second magistrate didn’t say much and so I didn’t get to see much of him. I have conducted a number of hearings where judges have apparently attending from home, but this is the first time I’ve seen the judiciary in casual clothes and in their living room, and it was quite striking, particularly since the tableau presenting itself in the Chair’s square was giving off rural chocolate box vibes. This is not necessarily a criticism – these magistrates were giving up their day without payment, and may not have been choosing to display so much of their private life – who knows what the wifi is like in a thick walled cottage in rural Devon. Perhaps the only place the wifi is good enough is in the front room. I’m not sure how visible I was – I had my camera on, but as I was on mute I expect I wasn’t one of the squares visible to the parties during the hearing, apart from when I briefly spoke at the start and end.
At the outset, the legal adviser explained to the parties that I was observing, saying something like ‘as you know the rules permit legal bloggers to attend with strict restrictions’ (I was fumbling with a technical issue at the time – I’d stupidly hooked up a new monitor just before the hearing began and had ‘lost’ my cursor!). I chuckled internally at hearing the words ‘as you know’ because in reality the judge or lawyers, let alone the parties, are sometimes unfamiliar with the law in this area and are quite often unaware that the legal blogging pilot scheme even exists. If the legal adviser had been taken unawares by my attendance she styled it out.
In spite of my suggestion that the parties should be notified in advance this was obviously the first time the parties had been alerted to my attendance, so the lawyers had no instructions on it. However, everybody took it in their stride and this didn’t present any difficulty – the mother’s lawyer invited her client to say directly whether she had any objection if she felt comfortable – and she immediately confirmed she had no problem with it, and the father immediately confirmed the same. The legal adviser moved on to deal with other preliminary matters, such as confirming that the parents were in private and could not be overheard, explaining that this was not aimed at them in particular but was a warning that had to be given in each case.
The technology worked pretty well until the magistrates retired to consider their decision – in practice this meant that the rest of us were sent to a lobby whilst the magistrates continued discussing matters in the virtual hearing room alone with the legal adviser. When we were brought back into the hearing my screen was ghostly white with faded echoes of the parties faces and the control buttons just barely visible on my screen – which made it very difficult to see what was happening or to see to press the mute and unmute buttons.
The hearing had been urgently convened to deal with some safeguarding issues that had arisen in the case, that had led to the father retaining the children after contact and the matter being returned to court. It appeared that a s16A risk assessment had been prepared, based on information received about the mother’s partner and his history. Under s16A Children Act 1989 Cafcass are required to send a risk assessment to the court in any case where they consider the child is at risk of harm, but in this case the assessment had accidentally been sent to both parents, leading to the father deciding he needed to keep the children until the matter could come back to court to be looked at.
The court heard briefly from each lawyer as to their position and what they said should happen, and then briefly from the Cafcass officer who had written the risk assessment. The mother was offering an undertaking that the partner would leave the home until further enquiries could be carried out, and in view of this Cafcass took the view that this was sufficient – in fact the Cafcass officer was satisfied with the mother’s earlier promise she would ensure the children weren’t left unattended with the boyfriend and that he would not be permitted to discipline them. She had also been reassured by conversations with a local authority that worked with the boyfriend on the issues that were causing concern, so the risk seemed to be somewhat lower than it had appeared when the s16A report was written, particularly given that the children would be seen at contact and by teachers when they return to school shortly. The father was worried about accepting the mother’s promise, but after retiring to consider their decision the Magistrates decided the children should return on the strength of the mother’s undertaking. Everything was conducted calmly and efficiently, and a further hearing was fixed in a few weeks time. The legal adviser arranged for the mother’s undertaking to be signed and sent in electronically, and although she was asked to confirm on the record that she would sign it, surprisingly she was not taken through the consequences of breaching an undertaking as I would usually expect.
The magistrates gave their decision, but not their reasons (magistrates are allowed to send their reasons on within 72 hours of a decision), but their decision was consistent with the advice from Cafcass, and it did appear that the level of concern had reduced since the report was lodged, albeit that one could understand why the father may have felt compelled to act as he did because the information in the report (which was summarised during the hearing) was pretty alarming at first blush. It was also clear there was a wider history of non-return of the children, and some concern about the potential impact of a sudden change in arrangements, and it also seemed that the father would struggle to get them to school from his home if they remained in his full time care. On one level it was uncomfortable to see an order for immediate return made without any reasons given, but on the other hand this was plainly a busy list and it would have been very difficult indeed for the magistrates to find time to prepare reasons without running the risk they would not have time to deal with the 3pm hearing. A judge would probably have given brief extempore reasons (this means reasons spoken during the hearing) without causing too much delay, but this is more time consuming for Magistrates as their reasons need to be produced in writing, to be agreed by both magistrates and checked by the legal adviser – this is even more challenging when the magistrates and legal adviser are all in different locations.
The way in which submissions had been made on behalf of the father gave the impression that he had probably been prepared for the likelihood that the magistrates might decide the children should be returned, with appropriate safeguards, and to ensure that he was not criticized for his actions. Criticism of his by the mother’s team was very minimal in fact, and she seemed to have taken on board the obvious reality that the information in the wrongly disclosed report was legitimately of concern.
I was able before the close of the hearing to request permission to anonymously report the gist of the hearing – both parents readily gave their agreement directly and having sought clarification about identification by geography (I said I would not give any details of the local authorities involved, and also said I would not give the ages of the children) the hearing moved on to other matters – the magistrates appeared to assume that that was the matter dealt with. I had to prompt them to specifically confirm that I was being given permission by the court, provided my report was anonymised.
By the time this first hearing concluded it was almost 3pm – and after I left the hearing the legal adviser still had to sort out the undertaking and support the magistrates in finalising their written reasons.
The second hearing
Unsurprisingly the 3pm hearing started late. The legal adviser joined me first specifically so she could give me a private apology (as mentioned above). She then joined the other participants one by one, a process which takes some minutes. I was acutely conscious that as each person was joined they were unaware that I was present and listening. Fortunately, nobody said anything until the point when the Legal Adviser was back and introduced me or I’d have had to interrupt to let them know they were being overheard.
The legal adviser summarized the basis of my observation, reminding the parties there would need to be some exceptional reason for objection (not in fact a completely accurate summary of the rules but probably good enough). Once again there was no objection at all to my attendance. Here though, both advocates confirmed that they personally had no objection, before inviting their clients to confirm their own view directly – both parents readily agreed. Again, the legal adviser ran through the obligatory warnings, taking care to ensure the parents didn’t feel this was directed at them personally.
The legal adviser explained the hearing had been listed to decide whether or not there should be a fact finding hearing pursuant to PD12J, which told me immediately that there were allegations of domestic abuse. Conduct of the hearing was passed to the chair, with a nudge to her to remember to hear from both parties in sequence (I’m not sure she needed this the chair seemed to know her stuff and handled both hearings calmly and with minimal, but focused interventions where appropriate).
The mother’s lawyer made well prepared, clear and structured submissions – dealing with each aspect of the case that needed to be dealt with today. By the time she had finished what she had to say I had a good handle on the issues in the case, even without seeing any of the documents. In this case both parties were making allegations of domestic abuse, whilst the father admitted an ‘assault’ that he said was carried out in self defence. The mother said there must be a fact finding hearing to decide the ‘factual matrix’ of the case before making a risk assessment and any welfare decisions. She referenced PD12J which supported her position
The mother’s counsel’s submissions raised some very familiar issues : the police disclosure had been received but it wasn’t complete. The police hadn’t sent the photos and video material referred to in the disclosure they had provided and were refusing to provide it unless the order was reworded to specifically direct them to produce these documents. This was causing delay. As in many cases, the mother was legally aided and the father was privately paying. He had previously been ordered to pay a small proportion of the costs of disclosure, after the magistrates had conducted a means assessment, and a similar order was made about this further disclosure. These issues about who should pay where one party is legally aided or where one party has very limited means can be a real headache. The father it appeared was at risk of being in person at the fact finding hearing, because a direction was sought that if he was without a lawyer by that time he should send his proposed questions to the mother to the court in advance (So that they could be asked for him rather than directly). Oddly it appeared to be suggested, and accepted, that the father should provide advance questions for ALL witnesses not just the mother.
There were schedules of allegations and responses – 3 from the father, 6 from the mother (I wondered if she’d been limited to six). Without seeing the schedules it was difficult to get a sense of the nature or gravity of the allegations but they certainly included allegations of physical assault leaving visible injuries of some sort, although the parties disagreed about how they were caused. The mother’s lawyer described the allegations as serious. The father’s schedule of allegations and response had been filed late, and this meant that the mother had not yet been able to respond to his allegations, though it was made clear she denied them.
An odd feature to my mind (though one I have seen from time to time) was that the parties had filed schedules of allegations and responses BEFORE anyone had produced a witness statement. This to me is an unhelpful way of doing things – I am not sure that anyone should have to respond to a schedule of allegations without seeing exactly how the allegation is put and the evidence in support of it. Additionally, trying to draft a schedule of allegations before those allegations are set down in full in a narrative statement is a really tricky task, particularly if the context is a background of coercive control where it is important to identify categories of behaviour in a schedule rather than simple ‘incidents’.
There was an odd ancillary issue around a birth certificate which I was desperate to intervene and resolve, because I knew the answer! The mother needed the birth certificate to secure her free childcare funding, and she needed it by next week. She needed the original document or a certified copy. What nobody seemed to realise was that a solicitor can certify copy of a document by copying the document produced to them and signing and dating it as a certified copy. Much of the discussion around this was confused and I think the parties were at cross purposes, but hopefully they sorted it out eventually.
There was a minor issue about the parents allegedly posting on facebook about one another. The Chair gave them the usual sternly disapproving pep talk.
The father’s lawyer tried valiantly to persuade the court that in spite of PD12J (Practice Direction 12J, which gives guidance to courts dealing with allegations of domestic abuse)it was not necessary to hold a fact finding hearing. It was said that his admissions were sufficient and there could be a statement of agreed facts that Cafcass could work from and the court was asked to direct to file a s7 report (a section 7 report is a welfare report ordered under section 7 of the Children Act 1989). Submissions were made that the allegations were historic, that contact had taken place since the incidents complained of and that any issues could be dealt with by managed handovers, or by the continuation of the existing non-molestation order. Pretty predictable stuff – but those are the only submissions one can realistically make in such a situation. In fact though, the lawyer went further, and effectively was trying to submit that the fact finding would be pointless anyway as the court would never be able to distinguish between whether the injuries apparently shown in the missing photographs were cause by an assault by the father or by self defence (I think if this was a hearing conducted by a judge the lawyer would likely have been told these were really points for submissions at the end of any fact finding hearing, and did not really go to the question of whether a fact finding hearing was necessary). It was even suggested that the absence of a s16A risk assessment was an indicator that the issues weren’t serious enough to justify a fact finding hearing (I’ve not heard this argument made before and in fact it’s rare to hear s16A referenced at all, let alone in two consecutive hearings). The father had already been many months without any contact and was desperate for it to resume – a fact finding hearing would delay that further for no good reason, he said. He sought interim contact, indirect if not direct.
Again the magistrates retired (They’d kept their CVP link open and muted themselves on the phone link whilst communicating behind the scenes by CVP), returning at just after 4pm to confirm that they would hold a fact finding hearing to consider all 3 of the father’s allegations and 5 of the 6 allegations made by the mother (taking one of the mother’s allegations off the list because it was ‘historic’ having taken place before the child was born – not necessarily a correct application of PD12J, but difficult to tell without any sense of the timeline or the nature of the individual allegation or the overarching pattern).
I was surprised to hear that both advocates requested a day long hearing for a fact finding hearing that was likely to involve four witnesses. I would have thought even a judge would be hard pushed to complete this in a day, but allowing for the need for magistrates to retire and consider and formulate their reasons I’d have thought this time estimate was at risk of being inadequate.
Having dealt with those issues and apparently readying themselves to wrap up, the magistrates were reminded that they had not dealt with the request for interim contact. Here the Legal Adviser stepped in and after each advocate had briefly addressed the court, effectively brokered discussions directly between the parents to see if there would be any agreement on indirect contact, whilst also reminding the bench and parties of the limitations on what they could properly order at this stage under PD12J.It appeared that this was the first time the father or his team had raised the question of indirect contact and the mother’s counsel had no ‘back channel’ means of taking instructions, so this seemed to be a pragmatic way of dealing with the issue late on a Friday afternoon, and nobody objected. The mother agreed to send photos as long as the father didn’t put them on social media (he agreed to this), and she agreed he could send receive letters and cards. The father briefly complained that he thought they’d go straight in the bin, but the legal adviser was clear that the expectation would be that they would be seen. The bench confirmed they supported these plans and it was agreed they should be recited in the order. The question of direct contact was not pressed.
Again, at the end of the hearing I sought permission to report on an anonymous basis. Both lawyers said in terms they had no objection, and counsel or the mother said ‘I know Ms Reed will comply with what is required’. The parents weren’t asked directly, but I had been asked at the outset of the hearing by mother’s counsel to offer some verbal reassurance to her client that anything I reported would be anonymous, which I had already given and so I think that there was a general assumption from the outset that I would be attending with a view to anonymous reporting.
Some reflections on my day
So, what are my thoughts of this first expedition into the territory of the Lay Magistrates?
Well, firstly, I can’t really complain about the delay in getting connected, knowing what I do about the pressure court staff are under, and seeing for myself how much the Legal Adviser was having to juggle to keep her list on track. I could have probably got my request in a bit earlier, although I suspect that it would still have been unlikely that an email to a generic family section inbox would be processed in time for a 10am hearing the next day even if it was sent shortly after lists were published at 2.30pm. If I was attending a hearing in the usual way I’d just stand at the ushers desk until I was sorted, with no chance of anyone not appreciating I was wanting access. Whilst remote access means I can theoretically attend hearings up and down the country without travelling, it also means that court staff, the judge or legal advisor and I are not readily able to communicate so effectively.
Secondly, I was impressed at the way in which both the legal adviser and the magistrates ensured that they moved through their list, hearing efficiently from all advocates and parties, and making decisions without too much fuss or confusion, albeit that they were not challenged unduly by factors such as litigants in person, technological difficulties, or parties in distress or acting up. As far as I was able to tell PD12J was properly applied where relevant. I’d like to see more hearings conducted by Magistrates and will try and make time to do so when I am next able.
Thirdly, I noticed that the term ‘Your Worships’ was used throughout both hearings by all advocates. Personally, I never address magistrates as ‘Your Worships’ and always prefer ‘Sir or Ma’am’, and in my experience this is nowadays more typical, at any rate in the Family Court. I’ve not noticed this being any different in the Magistrates in Exeter, but then it is a while since I appeared before a bench in that city. I think, but am not sure, that it tends more to be used by solicitors than by counsel, though I’ve no idea why. Particularly given the attendance of the magistrates from home, this seemed even more incongruous than usual.
Fourthly, although I try to do the courtesy of letting people know I’m observing before a hearing starts where possible (and I had requested that my original email was passed to the parties on this occasion), it’s interesting that in both cases I observed here, where that had not happened, the parents natural reaction was entirely relaxed about the attendance of an observer. I’m noticing over time that the more anxious responses tend to come where the parties have discussed the issues with their lawyers before giving their view. My sense is that sometimes the lawyers may inadvertently inject some degree of anxiety into the situation, and where I have spoken to a litigant in person before hearing who has held some initial anxiety, a brief explanation of my purpose has been enough to allay concern. I don’t have a sufficient volume of experience to say for sure that there is a link between the way my attendance can sometimes make the lawyers feel and the level of objection I receive from parents – what I can say is that in almost every case its an obstacle that can be overcome with sensible dialogue. In both of the cases I observed on this occasion, the ‘issues’ of attendance and anonymised reporting were essentially non-issues as far as the parents, the lawyers, the legal adviser and bench were concerned. I wonder whether the fact that we were remote, rather than the parties seeing me skulking in the waiting area before the hearing begins is also relevant?
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