That harms report – Part 1

I’ve been chewing this one over for a while before commenting. Because it’s important. And because the report says some very uncomfortable things for family justice professionals, things that deserve and demand proper consideration. And because the report is a whopper, with so much to digest. So here goes. My take on the Spotlight report (Full title : Assessing risk of harm to children and parents in private law children cases).

Two things to say by way of preamble. Firstly, as chair of the Transparency Project I called for a review of the family courts’ handling of domestic abuse before this review was announced. It was necessary and important. Secondly, I raised concern about the set up of this review, wondering if it could ever hope to achieve its objectives through the gathering of unverified anecdotal evidence – large volumes of anecdotal evidence are still anecdotal even where they are gathered in bulk. Whilst we shouldn’t discount the voices of those impacted by the process we are scrutinising, we would be unwise to accept them all at face value without scrutiny.

But anecdotal evidence is not without value. Firstly, because it tells us about the experience of those subjected to a process, and secondly because it may lead us towards patterns that can be subsequently objectively verified through research. This review has not conducted its own research or attempted objective verification (that is not a criticism of the review team, it is just how the review was set up), but they have gathered a significant body of anecdotal evidence which is strongly suggesting some patterns some problems. And those are things all of us need to reflect seriously upon – even where the emergent patterns do not match our own direct experience.

 

It’s unsurprising that some things chime in with my experience, and also that some things really don’t. I expected from the outset that many of the individual accounts that would emerge through the review would be of behaviour and experiences I might struggle to match with what I see in practice (or have seen over my 18 years of work in the field), and that some might present an inadvertently distorted picture of what was really happening. We lawyers are used to advising our clients in very careful terms, only to hear that advice reported back to others in ways that are barely recognisable (my lawyer told me to do [insert improbable advice here]). Lawyers are also used to hearing apparently genuine and persuasive witnesses describe the same events in wholly incompatible terms : people hear and see what they want to, they persuade themselves unknowingly of what happened (in their relationship, in conference, in court), subconsciously adjusting memories as time passes and perspective changes. This is why we must be cautious of anecdotal accounts from one party involved in a multi-party process, especially one where the subject matter is highly emotive and traumatic, and where almost inevitably around half of the participants will come out the other end feeling like the process has reached the wrong answer.

 

And so we lawyers instinctively ask, if the Respondent says X happened : what does the Respondent’s lawyer say happened, what does the Applicant or their lawyer recall, what does the judge say – and what do the lawyer’s notes, the judgment, the court file or the audio recording of the hearing show? We have none of that here, just collections of accounts of negative experiences (because unsurprisingly most respondents to the review were clearly motivated to submit evidence as a result of negative experiences), disassociated from any alternative perspectives or from the contemporaneous records. They are highly consistent, which does add weight – but that consistency might arise from a number of factors, separate or combined.

 

And in broad terms we knew what those responses would say before they were even submitted. We know this because the reason the review was commissioned was that people have been making the same serious complaints for years. And because we could also see campaigning organisations (predominantly womens’ rights and domestic abuse organisations, but also to a lesser extent fathers’ rights organisations) marshalling their forces, encouraging their members to respond, reminding them what sort of evidence to submit, providing templates in order to make their collective point effectively. The submissions do need to be seen against that backdrop of a highly co-ordinated and persistent campaign to make precisely the point that the review has now made : in short, that the family court is pretty poor at dealing with domestic abuse.

 

But whilst this all raises some pretty big forensic questions, it doesn’t necessarily mean that the point is not well made. It seems unlikely that all these accounts are inaccurate, that there is no fire from which this huge smoke cloud is emanating. Even I, the handmaid of the system, am able to see the system is pretty poor at dealing with domestic abuse.

 

It’s worth noting too that the authors of the report themselves do confront and reflect on these limitations and they give, to my mind, a strong account of the high levels of consistency between the accounts received and of their reliance upon them. I don’t think this consistency can all be put down to the farming of accounts by campaigning organisations, particularly since those accounts appear in some aspects to be consistent with the worrying displays of poor appreciation of the complexity and working of domestic abuse apparent from the submissions of some professionals. And whilst I don’t recognise it all, some of what is complained of is far too easy to believe when I compare it to what I do see and hear on occasion. Nor can it be fairly said (as predictably it is) that this line is just coming from bitter mothers whose attempts to use false allegations to thwart contact had been rejected by the court – it is also coming from the mouths of professionals, on some occasions unwittingly exposing their own poor practice.

 

If the family justice system were the respondent to allegations at a fact finding hearing, it would have the benefit of the doubt (the burden of proof would be on those who accuse it of abusive behaviour towards victims). But there are good reasons why the Family Court adopts a flexible approach to evidence in ways that other courts do no – it does admit hearsay evidence, and, as we have recently been reminded by the case of R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088, propensity / similar fact evidence can be relevant and admissible. Just as it is in the way of domestic abuse that there is rarely contemporaneous, independent evidence, making it quite tricky to prove abuse that takes place in private and leaves no visible bruises – so it is for victims of a poorly functioning justice system, where interactions also take place in private and where complaints may be assumed to be the result of sour grapes or discounted when made against a respectable, well-meaning institution.

 

Except of course, whilst it is very difficult for the victims of any system failure to produce direct contemporaneous evidence, in fact that evidence does exist – in the form of bundles, lawyers notes, court files, and court recordings. The system holds the answers to all this – though it holds them under lock and key because participants may not speak publicly of what took place nor access the records with ease. If we were running this trial of trials to the gold standard forensically, we’d track down these primary materials and test the testimony of those bringing allegations to see if it comes up to proof. When a litigant says the judge shouted, dismissed their allegations, failed to follow procedure – there is a way to check accuracy, to get to the bottom of whether experience narrated from memory matches with objective contemporaneous record.

 

But as is now becoming wearily familiar with everything in this justice system, we must make do with what we’ve got. Fairness and forensic rigour are all relative, moveable concepts (viz the shift from a firm view that a remote hearing could not be fair to the insistence only a few months later that it can – nothing has changed except what is possible).

 

And so, as with the advocate briefed just before at a fact finding hearing, who discovers that none of the potential primary material has been disclosed or placed in the bundle, we must just do the best we can with what we’ve got. Nobody is going to entertain an adjournment so we’d better crack on.

 

That’s part 1. In Part 2 I set out some specific observations I made as I read through the report, and thought about them in the context of my own direct experience. In due course in Part 3 I will round up with my conclusions.

 

Over sharing

I don’t know what made me do it, but the other night I decided to check out the wayback machine to see if there was any trace of my first website, that I coded by hand almost 20 years ago, in another life (well almost in another life, I was studying for the bar at the time). The wayback machine is an internet archive.

Actually, I do know what made me do it – I wanted to find the Bob Dylan lyric generator I’d once built, something I thought was extremely funny at the time, but in truth, was probably no more than mildly amusing even if you like that sort of thing. I didn’t find that, but I did find my old website. I really wish I hadn’t.

Have you ever read your teenaged diaries – and then immediately destroyed them in fire or by ripping them into tiny squares, face burning with humiliation at how awful they were? Few of my teenaged diaries survive (they were mostly about actual or aspirational snogging), though I have the pretty excruciating diaries from two particular extended trips I took as a student, though I can’t look at them more than once a decade because they make me wince and remind me what an unremarkable idiot I was, and thus of what an unremarkable idiot I probably still am.

Back then, I didn’t know the wayback machine even existed. I thought that when you took your site down that was it. It had never occurred to me since then that the wayback machine would have worked its spider-fingered wonders on my ridiculous nonsense of a blog.

I built the site because I could. I’d had to learn the basics of html coding when I was President of the SU and had to build my own website – and I wanted to put it to use. I didn’t really have much to say, so I was filling space. My rose tinted recollection of the site was that in spite of its lack of substantive purpose it was witty and irreverant, and there was nothing in it that future me should be worried about. To be fair though, the me that thought this was the me who told my mother that it didn’t matter what my tattoos would look like when I was an old woman, because I’d be an old wrinkly woman and it would be a bit pointless worrying about my looks by that point. As it happens, I was right about the tattoos, but for all the wrong reasons. I did display a striking lack of foresight in the information I chose to upload to my website, however.

Firstly, it wasn’t in fact funny at all (save perhaps the Bob Dylan lyric generator which I maintain was a genius idea). Secondly, it was a frank design disaster, notwithstanding the hours of labour I lavished on it. Thirdly, it probably wouldn’t have given an entirely fantastic impression to my chambers, if they had been able to find it. Not because I said anything overtly inappropriate in it, but because it was just so…frivolous, juvenile and unimaginative. The versions that are captured were created whilst I was doing my CPE conversion course. There are some blog entries that suggest I was pretty stressed out with life at the time. There is a CV and a section of entirely uninteresting facts about the me that then existed. I was a proud vegetarian (oh how things change).

If I’d known then what I now know about the indelible marks we leave on the internet even when just goofing about to blow off steam… and how what 20 something year old me was willing to share with the world then might feel different to an older, wiser me – I might have made different decisions. Although if I’m honest, I suspect that even if I had known about the wayback machine I’d have done it anyway – I certainly made a risk assessment in terms of chambers and correctly worked out that since most of the members didn’t even have a computer the chances of them knowing what a ‘weblog’ (as they were then known) was, and of finding mine was vanishingly small.

Idiot. If I could time travel back there I’d give myself a big dummy slap. Some would say what I share now is still more than I ought, but these days I share in the knowledge that once it’s out there it is probably there forever, that there are some things it would be a bit pointless to try and keep secret, and there are some things that I definitely don’t share. In particular, I am very conscious about the privacy of others. I don’t name my children on twitter, I don’t share their faces. My facebook is locked down.

I would be pretty mortified at the thought of anyone seeing my pathetic turn of the century website, so I’m not going to tell you what the domain name was (and I’ve hopefully removed all breadcrumbs and tightened up my privacy on some other old platforms in the course of writing this post). But the reality is it’s still there, and perhaps one day someone will find it and tease me relentlessly until I cry big, hot tears of mortification. I suppose this blog post might prompt some very bored, sad person to seek it out, but even if they did there is a good chance they will be more disappointed when they find it than will I. Fortunately there are no skeletons, merely me being a bit of a twenty something twonk.

But my point is this : I thought I was old enough, wise enough, mature enough, to make sound judgments about my privacy and the privacy of others. I was comparatively savvy for the time about the internet, adopting blogging early on. I made bad decisions that I now squirm at, in part because I was not fully informed when I did so and in part because its hard to think ahead to how the future you will feel about things that seem insignificant now – the young are fearless and egocentric.

I have some experience of having things removed from the wayback machine on behalf of someone else (to comply with a reporting restriction order), there is nothing on my old website that would remotely justify a request for removal. My squirming at the idiocy of past me is not enough.

And so the discovery of how it feels to realise there is something about you online that you can’t get rid of is perhaps a reminder of how careful we need to be when seeking the informed consent of children and young adults to the sharing of their private information.

 

Sharing documents, images and video footage at remote hearings

So this is not a comprehensive technical guide, I do not hold myself out as an expert and please don’t blame me if it doesn’t work etc etc etc disclaimer disclaimer… BUT I’ve been designated document and video sharing bunny at several of my recent trials and I thought I might share the basic know how I have gleaned. I know from experience that most of you are operating on the probably wise basis that if you truthfully say you don’t have a scooby how to screen share someone else will have to be sharing prefect.

Well, now you have no excuse and Your Honour I refer to my blog post dated 19 September, which I know my learned friend has read because I attached it to my case outline. Tag! You’re it!

Actually, in all seriousness, I think we’ve reached the point now where it’s good manners for everyone to have a stab at this instead of falling back on the ‘oh I can’t do screen sharing’. Guys, it’s been six months.

General

  • The screensharing functionality you will get with any given video platform is different depending on whether you are on an ipad, a pc/pc tablet or a mac. It is best to test it out on the specific device you plan to connect through, before you actually need to share. I don’t use a PC but generally there is more functionality on my mac than my ipad.
  • Don’t forget you need a CLEAN copy of whatever you want to share. Don’t share the page you’ve marked up with a red scrawl of “b****cks!!” or “lies!” in the margin, or **best xx point!!* beside it. If you use dropbox or equivalent you may have a separate folder where you clerks deposit the clean original bundle which you then copy before marking it up and messing with it.
  • Sounds obvious, but make sure your CLEAN copy is open / accessible on the SAME device that you are joining the hearing on.
  • Take care not to screenshare your entire desktop / screen unless you are confident that there is no other confidential information visible. In particular, your notes of xx, email inbox or info about other cases etc – or your own private information such as a desktop background showing your children looking cute in their school uniform. Make sure the documents you are going to need are already open OR you have a finder window open where you’ve already navigated to the folder specific to your case. DON’T share your whole screen and then scroll through all the folders with the names of the parties in your other cases on them (eek!) to get to the folder relating to this case. V bad.
  • Also make sure the files you want to share are DOWNLOADED onto your device rather than trying to play them from the cloud or via a browser window – otherwise you will click on a video and it will whirr and whirr pathetically and not play.
  • Don’t forget that whilst you are sharing people can’t see other people’s faces, so you don’t want to be sharing for any longer than is necessary as you then can’t see reactions.
  • If you are joining the link and sharing on the same device you are typing a note on you WON’T BE ABLE TO CONTINUE TAKING A NOTE WHILST SHARING because clicking on any other app/ window than the one you are sharing will pause or stop the sharing function. you will either need to scribble a note on paper or type your note into another device (you could keep a blank word doc open on your ipad to use whilst sharing on your laptop if you are organised, and then consolidate later, but if your ipad keyboard is as loud as mine that will interfere with what people can hear of a video). Or you could just wait till you’ve stopped sharing / rely on someone else’s note. In care cases I think it is fair to ask an advocate who has little to do to be responsible for sharing, and to take it in turns, depending on who is busiest and needing to focus. Often that means the guardian’s counsel, but sometimes it just means the advocate who doesn’t really have any questions for this particular witness. And the quid pro quo is that someone else is taking a note and will share it after.
  • Whichever platform you are using you need to make sure the host has turned on the sharing functions before the meeting starts.

Zoom is pretty intuitive. It will screenshare directly to PDF expert if you are using that so you can show a witness the relevant page in the bundle, highlight the word or phrase you want to ask them about etc. I don’t think it is being used all that often for hearings now, but I have found it straightforward enough.

On an ipad click ‘share content’ top right. The options aren’t very helpful – if you click dropbox you’ll have to navigate through all your confidential folders which is a pain and a data breach in the making. You will probably need to select ‘screen’. When the screen recording box pops up select ‘start broadcast’ and then navigate to whatever it is you want to share. You need to ensure the microphone is switched on before clicking on start broadcast. Personally, I think it’s better to do it on a laptop because its otherwise difficult to get where you want to get to. Also if you are sharing videos with odd formats which need VLC software you’ll need to be on a laptop anyway.

On a mac laptop your share button will be in the bottom middle of your screen. It is possible either to share your whole screen or a specific application. I think that you need to have the application or window you want to share open before you click the sharing button, so it will show as an option when you do. You will see a range of options pop up when you click on the share button – don’t select ‘desktop’ or ‘desktop 1’ unless you want to share your entire screen including whatever is open on it. Instead, navigate to the application or window you want people to see – whether its pdf expert, a finder window or the VLC video window in which you’ve already loaded your video.

Sharing needs to be turned on before the hearing starts. If the host doesn’t want to give EVERYONE in the hearing the ability to randomly screenshare willy pictures or cat gifs then they need to ensure that before the meeting they set their setting to allow a co-host, and that when you want to share they make you a co-host, which will give you sharing privileges.

SfB

Haven’t shared myself on SfB so I can say little more than that it can be done. Have seen others do it successfully, after asking the court to change the permission settings to enable sharing.

Teams

I think teams has been improved so that the sharing options are now closer to those you get in Zoom.

Whenever I’ve joined a Teams hearing set up by the court it does seem to be possible to share, which is fortunate because I’m not confident all the court clerks would know how to change the setting if it wasn’t, or that they would know how to share the file themselves, if they even have it on the machine they are hosting from.

The set up for sharing on an ipad is very similar to zoom. It has similar limitations.

The set up for sharing on a mac is also very similar to zoom now too. In both cases the share option can be found on the tool bar that is in the middle bottom of your screen (if you can’t see it tap or click on the screen until the bar comes up that shows the mic mute / camera and end call buttons. Share will either show when you click on the 3 dots on that bar or will show as ‘share tray’ or similar. As with zoom, you have to have the app or window open before clicking on share options. I find that you sometimes need to click on that window immediately before going back to the teams app and clicking share in order to get that window to appear as one of the available share options. You can see what you are sharing because it will show with a red line around it. Everything in that red line is what the rest of the meeting can see.

I have found it really useful when displaying videos or photos to have a finder window open with all the relevant images or videos in it, and to set my finder window onto gallery view (select the option on the top left of the finder window that shows a large rectangle with 5 smaller dots beneath it) to show a preview of an image, the filename to the right (and date of creation which is sometimes useful if it hasn’t been messed up by over-saving along the line), and all the other images in the sequence below it that you can scroll through. This is an easy way of showing a sequence of photographs so that everyone can cross match the file names. You can also play some types of videos directly from this window rather than faffing about with quicktime, but other types you will need to right click on them and select ‘open with’ and ‘VLC’ (VLC is a piece of free software used to play odd file types that video material, particularly police footage sometimes is stored in). Instead of selecting the finder window to share these through, you will need to open with VLC and click on the VLC app before then going to the share option in teams / zoom and selecting the VLC window as the one you want to share.

Finder window showing images in gallery view.

 

My final pearl of wisdom is that everyone needs to know that whilst you are sharing a video it’s quite hard for you to hear when someone at the other end is shouting ‘PAUSE’. AND that if you cough, fart, snigger or loudly type whilst the video is playing that audio will also be heard and sent to the other participants – the audio is not purely that from the video it is played audibly in the room you are sat in and is picked up by your microphone and sent to the other participants along with any other background noise in the room with you. Whilst you can use the time when a video is being played to pick your nose without being seen if you wish, do not use that time to yell ‘Put the kettle on love this bloody hearing is taking forever! I’m playing another boring video!’ to your nearest and dearest in the next room…

That’s it. All I know about sharing docs, pics and vids during remote hearings.

Now, it’s Saturday, go off and pour yourself a large gin!