Last month I observed a hearing in the Family Division of the High Court under the Legal Blogging pilot. In some respects it was unusual – but it also featured some elements that were very familiar to me as a family barrister. This is my report of what I saw.
It’s a necessarily long post I’m afraid but, to summarise, it concerns a novel set of applications made by a father, acting in person, in a case where the mother too was acting in person. The case concerned the parties daughter. This case took up the best part of a day’s time for a High Court Judge (and several staff members assisting with the link), and for a lawyer from Cafcass Legal. The post explores the logistics of my gaining access and permission to report, as well as attempting to summarise the various points the father wanted to make, and how the judge dealt with them.
Before the hearing
On this occasion I knew a little about the case before the hearing, having been sent basic details by the father of the child, along with a brief summary of the issues. This is the first time anyone at The Transparency Project has attended a hearing following an invitation to do so – it is tricky to know how best to deal with invitations from a party as they often feel as if there may be an expectation that we will report the case from a particular angle, or at any rate a sort of confidence that we will inevitably see and expose the brewing injustice that they perceive. Invitees also frequently send us unsolicited documents and details of their case, putting us in a difficult situation. Here, our correspondence followed the requests on our website about what to send – and what not to send – to the letter, and neither attempted to recruit us nor sent us more information than permitted. On the face of it the issues looked potentially interesting :
The matter was in the High Court. The three issues I was told would be a feature of the hearing were :
- Brussels II Article 15 (this is about when the court should transfer a case to another EU country with which the child has a substantial connection),
- A human rights claim
- covert recording (this was said to be an breach of the child’s Article 8 ECHR rights to respect for private and family life)
Gaining access to the hearing was straightforward. I emailed the addresses provided, including the judge’s clerk, attached my ID, form FP301 and an information leaflet: and in due course was sent a link. There were no objections to my attendance. Because it was obvious there was going to be some law involved, in my initial email to the court and parties I had asked for permission to see any case outlines, position statements or skeleton arguments in advance of the hearing so I could make sense of it. Having received a response from the judge saying I should liaise directly with the parties I did so, and was sent skeleton argument, position statement and case outline from the father and a skeleton argument from Cafcass (the mother was in person and I don’t think she had produced anything in writing). By the time I attended the hearing I therefore had a pretty good idea of the shape of the case. Given the presenting legal issues I would almost certainly not have been able to make much sense of the arguments without it. I did not have the full bundle, but for my purposes this would probably have been more than was required or justified to enable me to follow the flow of the hearing and to understand what was being discussed.
The hearing and my participation
As is apparent from the fact I have published this blog post, I sought and was granted permission to write about this case with some very minor restrictions around identifying detail – in particular that I would not reveal the European Country from where the paternal family originated (these were suggested by me and agreed by the court and parties). I am going to call that country Country X. Whilst the judge (Mrs Justice Lieven) candidly admitted at the start of the hearing that the attendance of legal bloggers was unfamiliar to her and asked for my assistance in clarifying the extent of automatic reporting restrictions before we started, she also made a point of thanking me for attending, and stated that it was important that more observers should see the justice system at work. Once I had introduced myself and dealt with the judges’ initial camera I participated with camera off so as to avoid distracting anyone, turning it on again at the end only to ask for permission to report.
The case itself
So, what of the substance of the case?
The case concerned an 8 year old girl, whose parents had separated, and who were in dispute about arrangements for her care and upbringing. The child was living with her mother, and her father was concerned about her alienation from him. He was from Country X and feared that the child was being isolated from this side of her family and culture. Both parents acted in person, the mother alone, the father supported by a McKenzie friend. Cafcass Legal were represented by their in house lawyer.
I realised once I had seen the skeleton arguments that the application the judge was dealing with was not the main Children Act matter about child arrangements, but a sort of satellite application (or suite of applications) brought by the father in the High Court (meanwhile the main proceedings continued in the Family Court in Stoke on Trent). Although I did not have the full bundle it was apparent from various references to multiple C100 and C79 forms that the parents had been litigating for some time about their daughter.
The father’s applications summarised
The father’s applications were difficult to get to grips with, even with his skeleton argument and other materials. As best I could tell they were made up of :
- A freestanding human rights claim for declarations and damages – a claim brought against Cafcass as a public authority and the Guardian individually – alleged covert recording of contact between the child and father was said to be one of many breaches of the child’s Article 8 rights to privacy, and it was said that the Guardian had encouraged or directed this. Unusually this had been issued in the Family Division, rather than the within the family proceedings or as a freestanding civil claim in the County Court.
- A request for transfer of the Children Act proceedings to the country of the father’s origin under Article 15 (again, unusually, this was not made in the proceedings that the father actually wanted to transfer, which was confusing). This was apparently pursued largely on human rights grounds : essentially it was suggested the English court was failing to recognise the child’s cultural and religious connections to her paternal country of original and the X courts should be permitted to deal with all matters, basically because it would do a better job than the English court (I’m not quite sure this is exactly how it was put, but this is basically what it seemed to me boil down to).
- Confusingly, there also seemed to be an application for transfer of the Children Act proceedings to the Family Division of the High Court or for the court to seize itself of the case under the inherent jurisdiction (partly based on the suggestion that covert recording issues could only be dealt with in the High Court) which was rather at odds with the request to transfer the case to an entirely different jurisdiction, i.e. Country X.
It never really became clear to me whether these cases were being run in the alternative (i.e. do this, but if not this then please do that).
One peculiarity of the case was that, as it ran separately from the main proceedings, the guardian (although present) was not in fact representing the child. Instead she was attending as a named Respondent / Defendant, and Cafcass legal were acting on both their own account and hers as Respondents rather than on behalf of the child. It wasn’t entirely clear what the Guardian was named as a Defendant for, since the father expressly said in the hearing she was not a Defendant to the HRA claim, and so the judge excused her attendance in order to allow her to get on with other work.
The HRA claim had been issued by the father on behalf of the child and he proposed to act as her litigation friend. Particularly since Cafcass made a point of saying they couldn’t comment on welfare issues because they weren’t a party to the main proceedings, and given the potential conflict of interest between the child and her proposed litigation friend, I was a little bit surprised that this unconventional state of affairs was not dealt with at the outset. I suspect the judge took a pragmatic approach to that, and wanted to avoid getting bogged down, preferring instead to try and get an early handle on the substance of the applications.
The judge’s task
It was obvious from what I’d read that this was unlikely to be a simple task for the judge to deal with – there was a lot of background that the judge had not been involved in, the applications were unusual, and the applicant was attempting to make some technical and novel legal arguments without assistance from a lawyer (although I did wonder if he or his mckenzie friend might have a smattering of legal training as the documents deployed a lot of legal terminology, albeit not in ways that I would expect to see from a practising lawyer in the field). His documentation was dense and laden with legal references. The three preliminary documents ‘summarising’ his case ran to some 62 pages, including a number of detailed tabulated annexes setting out human rights breaches filled with numerous green ticks.
The father was polite, prepared and articulate. He was ready with page references when asked (occasionally being assisted by his McKenzie to find a reference to something he hadn’t expected to be asked about). He gave the impression of having a high degree of confidence in his arguments and his ability to persuade the judge of their merits.
The mother said very little throughout the hearing, other than to make a small but important practical suggestion about getting contact between her daughter and the paternal grandparents back on track.
The judge began the hearing by efficiently dealing with ground rules and my attendance before asking the lawyer for Cafcass to explain a particular legal point in his skeleton argument that she had not understood. He was asking for the HRA claim to be struck out on a technicality – a pretty big technicality in fact, about the fact that it had been issued neither in the main Children Act proceedings, nor as a standard civil claim in the County Court, but in a third court altogether – the Family Division of the High Court. Cafcass, not unreasonably, made the point that this was a claim that in reality arose from the actions of Stoke Family Court or at any rate from actions that took place within those proceedings and that either the arguments should be run through those proceedings OR a completely freestanding civil claim should have been commenced. Certainly the father repeatedly complained that the Family Court had permitted assorted human rights violations to be committed and had failed to promote the child’s welfare, and his Article 15 application was apparently based on the proposition that the English Family Court had proved themselves incapable of meeting the welfare needs of the case, and had demonstrated persistent discrimination against the child and her father as individuals with X heritage. At the same time though, Cafcass also seemed to be saying that the HRA claims against Cafcass could not have been run within the family proceedings since Cafcass were not a party. The lawyer representing Cafcass seemed to be somewhat hamstrung by his lack of knowledge of the detail of the family proceedings in Stoke (he kept saying he wasn’t instructed in those proceedings so he couldn’t assist with this or that point).
There have been other occasions where I have been observing a hearing where it has been quite tempting to pipe up with an answer or suggestion nobody else has thought of. That of course would be quite inappropriate, however well intended – but during this hearing in particular I felt some significant frustration that nobody was making the arguments that I thought were jumping out from the skeleton arguments – I spent much of the hearing mentally saying to myself ‘well I wouldn’t have answered the judge’s query in that way – the answer is obviously x’. Easy for me to say of course, with knowledge of only the tip of the contextual iceberg and no particular case to run or outcome to achieve. It would be unwise to give my opinion on the case as a lawyer, it is fair I think to record the sense from an observer’s point of view that the judge was having to find her way through a bit of a legal minefield without a great deal of assistance from anyone present.
Although she is now an experienced and well regarded Family Division judge, this judge does not have a background of working as a lawyer in the field of family law and at moments there were small reminders of this when she asked for a help with which form numbers related to which types of applications (C79 for enforcement, C100 for substantive private law applications).
Notwithstanding all of this, and the overall ambitiousness of the father’s novel applications, the judge deal with matters calmly, methodically and respectfully – at the outset asking Cafcass for assistance on a particular legal point that had been troubling her, then inviting the father to set out his case, allowing him time to develop his points (within reason), and moving him on to the next point when she had fully grasped the previous one. She then heard from Cafcass and the mother.
It is fair to say that at times it was difficult (for me at least) to make any legal sense of the father’s arguments, even on their own terms. It was clear what he was aggrieved about, but the legal arguments and where they might take him were really hard to follow, both on paper and when explained orally. What the father seemed to be telling the court was that the English court had let down his daughter, through Cafcass’ actions and more generally, and that the handling of the case had involved breaches of several of her human rights. He thought that the only court that could properly understand the welfare issues was the Court in Country X, or at any rate the High Court.
At one stage the judge tried to encourage the father to explain the substantive issues he was worried about. When had he last seen the child, what contact was he seeking? This prompted the father to confirm he hadn’t seen her since the start of lockdown and then to go on to reel off a long list of criticisms of the mother before the judge interrupted to say ‘stop a minute’. She took him back to how this connected to his allegations of breaches of human rights. She asked him “Is the breach an interference with her Article 8 rights and yours and the grandparents because contact ceased in March? is that the fundamental issue?
The father’s response then diverted to discussion of other topics such as covert recording.
I wrote a note to myself at this stage of the hearing that “J is trying to get beneath the legal jargon to the factual underpinnings he is complaining about.”
Ultimately the judge didn’t far with this approach, and nobody in the hearing could even give clarity about what the current order was in the main children proceedings, or if there even was one.
The judge tried to understand the covert recording point. I was left quite unclear about this by the end of the hearing, but it seemed that there may have been some crossed wires or a factual dispute about whether covert recording took place or whether, following the mother having overheard a concerning conversation during indirect contact, the Guardian might have suggested an overt (not covert) recording should be made. At any rate the judge suggested this was really a matter for the Family Court to deal with, but the father insisted that covert recording was a matter that was ‘ultra vires’ of the family court’s powers (this is not correct as far as I understand it) and therefore he could invoke the inherent jurisdiction.
In the course of his submissions the father talked about collusion and the ‘abominable prejudice’ of the court system and officials. He argued that the 3 issues (in fact he identified four : human rights, family ties, privacy – and discrimination) – he said they were triangulated, interconnected and indistinguishable issues, and after referring the judge to a diagram he had prepared of what he meant, he requested a 5-7 day trial in order to deal firstly with the HRA issue, then Brussels and finally welfare. He requested that a High Court Judge should write a letter to the child ‘Like Jackson J did’ to tell her why her human rights had been violated (he is probably referring to this case Re A (Letter to a Young Person)  EWFC 48).
I have written at this point in my notes that “judge looking pretty naffed off”.
It was only at this point, on the judge’s direct question, that it became clear a 3 day final hearing was already fixed in Stoke albeit with no judge or date allocated. Again with the caveat of ‘as far as I understood it’, this was to resolve contact issues.
The judge turned to Cafcass for some assistance on what had been happening in Stoke – as mentioned there were limits on what the solicitor for Cafcass could tell her, but it did appear as if there were a number of unresolved issues and applications – including an application to vary from the mother, made in late 2019, and the father’s subsequent application to enforce from 2020. It also became clear that there had been an expert report.
It was quickly conceded by Cafcass at the judge’s suggestion that the proper focus should be on substantive arguments rather than procedural technicality.
There was a brief discussion about horizontality and whether a judicial review should have been brought against Cafcass’ decision making instead of this claim.
The solicitor referred to the line of case law emphasising a guardian’s independence from Cafcass, and that the proper forum for a challenge to a guardian’s recommendations was via cross examination in the substantive proceedings – here the judge candidly admitted she wasn’t familiar with this, but she was not taken to any authorities to help her (he could for example have referred to Re K (A County Council v K & Ors (By the Child’s Guardian HT)  EWHC 1672 (Fam), which most family judges would be familiar with, but perhaps this particular judge had not encountered). In essence Cafcass were drawing a distinction between the actions of the guardian and Cafcass as a public body.
The mother’s involvement
The mother sat patiently through the entire hearing. Her submissions were very brief but told me a number of important things. She said (not verbatim, but based on my notes):
“It remains the position that I am only concerned with the welfare of our daughter. I still have faith in and am led by the family court and guardian about contact. I’ve not seen any appeal from [the last] order. I thought that was the process.”
The mother confirmed she had recorded some contact, but not she said at Cafcass’ request, but rather because she had ‘overheard some worrying content I heard him call her a liar’, she later added that he had sworn and made derogatory comments about her to the child.
Here the judge said ‘It’s probably best not to get into the facts, I have a strong sense why you probably did it’.
The mother said that the child wanted to see her father and for him to have the work done recommended by the psychiatric expert. She said that the daughter wanted this so she can travel to Country X with him. She said the paternal grandparents were ‘lovely. But unfortunately we are alienated’. She was happy for them to call her to arrange contact.
This brief, low key intervention by the mother was in sharp contrast to the picture painted by the father, and I wondered whether the psychiatric report that had been referred to might shed some light on the way in which he perceived events and was presenting his case. The mother had it seemed to me, rather hit the nail on the head in querying why these issues weren’t being raised by way of appeal or within the Family Court case.
When offered the opportunity to reply, and an explanation that this did not mean he could repeat everything already said the father referred the judge to some case law that I could not follow as I did not have the bundle, and confirmed that the order he was seeking under the inherent jurisdiction was a declaration and damages (the latter is not available under the inherent jurisdiction).
The judge adjourned for a slightly extended lunch hour and returned ready to deliver her judgment.
The judge delivered and oral judgment in which she rejected the father’s applications. In summary, she concluded that :
- There was no merit in the proposed claim against Cafcass or the Guardian and therefore it was not right to transfer it to a different court to cure the procedural / technical deficiencies to allow a damages claim to be pursued.
- Many of the issues of alleged ongoing breach of Article 8 rights were matters being dealt with by the Family Court and for them to resolve.
- Since the father was aware of the recording it wasn’t covert. The guardian hadn’t ordered it. It was unfortunate that the Stoke Family Court had not yet dealt with this issue leaving the expectations unclear – but it certainly wasn’t the basis of any claim against the Guardian or Cafcass.
- There was no basis for a discrimination claim at all.
- There was no basis for a complaint based on the grandparents inability to have contact – it was plainly being offered.
- There was no basis for transfer to the high court on grounds of procedural complexity. It should be heard in the family court by a judge at the proper level, being reallocated within the family court if necessary.
- Any human rights issues should be dealt with within the main family proceedings by the Family Court.
The judge said (as accurately as possible based on my note) :
“There is nothing exceptional about this case that could possibly justify transfer to the high court or a judge of high court sitting in the Family Court. It concerns a dispute about who lives with and in what circumstances she has contact and the terms of indirect contact. Absolutely day to day stuff of the Family Court private law jurisdiction. There have undoubtedly been delays but caused in part doubtless by endemic delays in the system and also very largely by problems by reason of Covid 19. At its lowest that is hardly exceptional.”
She also concluded that covert recording as an issue was not so exceptional as to require transfer, and noted that she herself had directed the recording of contact on occasion. There was no basis to exercise the wardship jurisdiction or the inherent jurisdiction.
As to transfer to Country X – Whilst the child had a connection to Country X, there was a strong presumption in favour of the court where the child was habitually resident dealing with welfare matters. The only real point the father had raised as against the English court dealing with the matter was the systemic delay, and that was simply an insufficient basis upon which to say the X court was better placed to deal with the case than the English one.
Permission to appeal was sought and refused. The judge declined to reallocate the case to CJ level, leaving it to the DJ who had been handling the case to sort out.
The father has subsequently emailed me to say that he intends to appeal with “The aim […] to explore all remedies prior to applying to European Courts of Justice.”
For my part, although I accept I had only a narrow window into the litigation around this family, I was left with an overwhelming sense of sadness that the father did not seem to be able to register the mother’s apparent lack of hostility and the court’s attempts to steer him towards trying to identify and think about the practical barriers to contact, and instead he seemed set upon seeing the case through the prism of rights and their breaches.
Feature pic : by Sasha Freemind on Unsplash
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