I spent Monday in ridiculous lacy frills and an itchy wig watching judges process through Westminster Abbey to mark the start of the Legal Year – and the swearing in of the first Lady Chief Justice. This was an exhilarating day to be sure, and filled me full of renewed enthusiasm for all things justice.
But grand surroundings and rosy faced judges dressed in gold, purple and ermine isn’t the justice system that most punters see. And it isn’t the coal face that most of those judges work at when they put their fancy robes back in the cupboard and go back to their leaky-roofed court building in an ordinary drab, dark suit.
Here then, as a counterpoint to that, is a small snapshot into what goes on in the Family Court. Or at least what went on in one ordinary courtroom in central London on an ordinary afternoon in September 2023. This is justice writ small….
The ancient stained carpet tiles speak silently of years of spilt coffee if not milk. Everything is a bit grubby, and I’m pretty sure it hasn’t been redecorated since I was first here as a fresh faced pupil barrister 22 years ago this month. The courtrooms look exactly the same too, apart from the awkwardly stowed screens that are now used to give comfort to vulnerable parties, and which make half of the courtroom a trip hazard.
District Judge Cassidy* is quietly spoken, with a soft Scouse accent. He guides the advocates and calms the parties with skill, and without them even noticing. There is no drama at all. If I were a journalist I’d probably be disappointed. The judge has already dealt with a busy morning list which has overrun and made the two o’clock hearings late, but he is surprisingly on top of both cases I observe (noting what he has read, pausing respectfully to read documents that advocates have sent him but which the online court document ‘portal’ has gobbled up, and reassuring apologetic advocates who have been unable to prepare a document due to shortness of time).
In the first case I observe, a young mother is sat near the back of court, just in front of me. She is tiny, almost childlike, and is separated from her lawyer in the front row by a large expanse of empty desk. The only person facing the mother is the judge, but she is curled in on herself looking down. All others are backs turned to her and to me, and except when the judge speaks directly to her to reassure and thank her, I wonder if she may feel as if she isn’t a part of what is going on. I know from experience that clients can’t reach you on the front row in those courts, so are forced into doing a stage whisper, a dash and a shoulder poke or throwing a piece of paper to get your attention, none of which an anxious client would ever dream of doing.
The child’s social worker is to her left, separated by a gangway down the middle of the courtroom. She can be seen regularly leaning across and quietly explaining what is going on to the mother, in hushed whispers. I am watching these interactions and thinking to myself that I’m glad the social worker is there and offering support, because the layout of the court doesn’t really allow her lawyer to check in with her without stopping what she is doing and craning her whole body around. Not all social workers would make that effort, and not all mothers would accept it. These two seem to have a trust, a rapport – albeit probably a fragile trust, as they always are when a social worker is tasked with deciding whether to ask the court to take away your baby forever.
At the start, the judge introduces me, seeking confirmation of whether there is any objection to my observing. The advocate for the mother explains she has not spoken to her client about my attendance ‘due to her vulnerability’. At this stage I don’t know what these vulnerabilities are, but she looks small, folded in on herself and alone. I feel a pang of sympathy for her, who is now hearing for the first time in court that a reporter is here, sitting right behind her. The judge does a grand job of a simple summary of the rules that allow legal bloggers to attend, and gives me an opportunity to say that I may ask for permission to report at the end and will not identify anyone, and the hearing moves on. I always prefer to be able to say this out loud at the start of a hearing, because it seems to be the thing that most often makes people anxious – the idea that their name or face might be in the paper. I’m glad to have had the chance to give explicit reassurance, but it would have been better if the mother’s own lawyer had done it by explaining to her before the hearing.
My guess is that this mother is probably in her late teens, maybe early twenties. I hear that she is pregnant (not visible to me from where I am sat at the back of court) and she doesn’t have long to go until she delivers. The case isn’t about her unborn baby though, it’s about another child, Sam**. Sam is around a year or so old, and living in foster care.
Today’s hearing is to ensure that everything is ready for the final hearing, which is coming up in a few weeks time. That will decide whether Sam is returned to his mum or adopted. Although it’s not discussed at this hearing, it appears that there are no other options on the table for Sam, so the choice is stark for them both.
I glean that Sam’s dad has not been confirmed. The man whose details the mother has provided has been avoiding doing a DNA test and ignoring messages. Perhaps he too is a young parent, and not in a place to deal with such responsibilities. Perhaps there is another explanation. Either way, Sam’s mum is on her own. The judge makes directions for him to be told about the date of the final hearing and the fact that the baby may be adopted permanently, so there can be no later suggestion he hasn’t had a chance to step up, but if he doesn’t the case will move on without him.
The lawyer for the local authority explains that the mother has reconsidered her response to the threshold (the facts that justify social services bringing the case to court) and that part of the case is agreed. The lawyers haven’t had time to get their agreement down on paper yet, and the judge wants to see this in writing before approving it. It is through this discussion that I come to understand that the main reason for the local authority bringing the case was a mental health episode that made his mother acutely unwell and put Sam at risk of harm.
The mother’s lawyer explains that she is in a new relationship with a supportive partner. Another London local authority are carrying out a pre-birth assessment and everyone is agreed that they will need to see the papers in Sam’s case to do that properly. The plan is for mum and baby to go into a residential assessment unit when the baby arrives, which is hopefully an indicator that there is some prospect of her being supported to care for this baby. Judge Cassidy is told that the mother has taken a ‘realistic’ position about Sam’s case, reflecting that the social worker is supporting twice annual contact with him and it would be difficult for her to pursue a residential unit and manage with the new baby with Sam in her care too. I think to myself, ‘she’s probably been told she has to make a choice between her children’. I hate those conversations.
As a result of this ‘realistic’ position, the mother’s lawyer suggests to the judge that the time estimate for the final hearing can be reduced from four to two days. To the lawyers in the room this signals that the mother will not be running an active case against the likely plan for adoption, but the lawyer explains that the two days is likely to be needed to iron out issues about contact. Mention is made of section 26. This is the section of the Adoption and Children Act that gives the judge power to order contact between the making of final orders and the adoption. It doesn’t deal with contact after adoption, and I’m not sure whether this will form part of the longer term plan. Was the mother considering not pursuing return of Sam as long as she could be sure she would still see him from time to time? Was everyone on the same page about how long this contact would continue, and how certain it would be? (orders after adoption are really unusual, and although increasingly adopters are encouraged to agree – and do agree – some direct contact, this is still relatively rare).
I breathe a sigh of relief when the judge gently probes for clarification on the mother’s position. From what has been said it’s apparent that this was a position reached at court on the morning of the hearing, and the mother had only met her barrister today. And so the judge asked, ‘Based on your instructions today have you arrived at a point where the mother’s position can be formally recorded in an order or a recital or are you giving an indication?’
The mothers lawyer responded to clarify that she thought she was just giving an indication (just as well he checked) and that ‘realistically her case will be to try and persuade the court to allow direct contact with other people caring rather than her, as she will be focusing on her newborn’.
District Judge Cassidy probed a little further – did she realise the outcome might be stranger adoption? The barrister’s response was notably non-committal: ‘I have said those words’.
When asked whether, in fact, the mother perhaps needed more time to consider her position, the barrister conceded that was the case. I am not sure all judges would teased out that this was really not a certain position at all, given the way that it was initially presented. Based on my experience, many judges would have taken the mother’s stated position at face value and reduced the time estimate – in essence that the mother had realised she had to choose between her children and she had chosen the prioritise the child she had a better chance of keeping. Family Courts depend on advocates giving realistic time estimates based on their instructions, and the position of a barrister instructed for a hearing of this sort, when they are expected to meet and advise a client all in the pressured hour before a hearing is not easy. I think some advocates would have allowed the client breathing space and ensured they had clear settled instructions before inviting the judge to reduce the time estimate on the strength of instructions received at the door of court from a vulnerable client facing such an impossible choice between her two children, but there is a lot that goes on behind the closed doors of the conference room and things are not always as clear cut as they seem to an observer who wasn’t in the room. From what I had heard it sounded like a sensible position, but a very painful one to reach nonetheless. The other parties agreed with the judge that the time estimate should be maintained for now so that the court had time to deal with the case properly if the mother’s position shifted. I think the judge was right to give this mother more time to think about her position and, if it is ultimately the choice that she makes, at least she will hopefully be able to feel that it was her decision, rather than being swept along with it. From another perspective, if she does change her position and seeks to challenge the local authority case and to have Sam returned to her care, this approach ensures that it can be done fairly without the delay that would be caused by having a time slot that wasn’t long enough to complete the case in.
As I was pondering all this, a potential problem arose with the planned final hearing – it couldn’t be found in the court diary. This is sadly not an uncommon issue. There is a brief discussion about whether the matter is booked but simply missing from the new fool-proof ‘List Assist’ system. Whilst the problem is being looked into by the court clerk, the lawyer for the local authority efficiently runs through some logistics around ensuring the hearing is ready for a decision – there is an internal process that has to be followed if a local authority wishes to seek authority to place a baby for adoption, and it has to be dovetailed in with the court process. It is always jarring to hear that process being described as if it is an inevitability – a sequence of decisions that will be made and documents that will be produced. Lawyers know that the ultimate decision is made by the judge, but the parents often hear the message that it’s a done deal.
The judge proposes modest time estimates for the questioning of witnesses, receiving nods from each advocate to acknowledge he has made a fair suggestion. He tots it up and agrees that the case can be dealt with in 3 days rather than 4 even if there is a full contest. And by the time that is sorted out the clerk has returned from the office with the news that ‘it’s not been listed!’. Ultimately however, the listing is found and all is well. The case can proceed and another judge will decide in early October what should happen to Sam. Other families travelling through these courts are not so lucky – cases being pulled due to lack of judges or listing mix ups happen more often than they should.
Before concluding, District Judge Cassidy thanks the social worker for explaining things to the mother as the hearing has gone along, and says he is sorry if some of what has been said might have been hard to follow. He suggests she has a chat with her lawyer outside court, and wishes her the best with her pregnancy. The mother remains silent, as she has been throughout.
Before we leave, I briefly outline that I’d like to report on what I’ve heard without identifying the family. I describe how I’d like to do that. No objections are made and I am given permission. Everyone files out of court, and shortly after, the other 2pm case in the list is called on, ready for District Judge Cassidy to . You can read about that in part 2.
* Full disclosure: I hadn’t really registered when I selected which cases to attend on this date, that the judge was District Judge Cassidy, who I do know as we are co-authoring a textbook together. We occasionally exchange emails and participate in group teams meetings about the book with other authors.
** The child’s name has been changed.