I came across an article in the Gazette this week with the headline:

Judge issues pre-trial legal aid plea after mother left alone

The article refers to this judgment of DJ Keating: London Borough of Sutton v A mother & Anor [2025] EWFC 147 (B) (bonus points to the Gazette for linking to it).

The judgment is a final decision in care proceedings, and the first 97 paragraphs are the main decision and conclusion (the child was to remain living with extended family due to deficiencies in the mother’s parenting). The article isn’t about those, but is about the last 3 paragraphs, appearing under the heading ‘other matters’. They are so short I’ll repeat them in full:

Other matters

98. I was told that M did not have the benefit of a conference with counsel to help prepare for what was a 4 day long contested final hearing.  I am told that was because her lawyers had asked the legal aid agency to pay for 3 conferences, two of which took place at Court at an early stage of the proceedings, and a third when the local authority changed its care plan, a further conference could not be arranged without prior authority from the legal aid agency.  I do not know why that authority was not sought.  Having that proper ability to discuss the case would have made the process easier for M, who is a vulnerable person.  M told me that she had not seen the letters sent by GM and by G & H in August 2024, which were in my bundle, and so she had to be given time when in the witness box to read them.  That must have been hard for her.  She did not ask for a break at those times, and nor did her barrister or intermediary, and I was watching carefully for a clue that she might need one.  I am worried that the absence of a conference with her advocate, has not helped M prepare for the trial as well as she might have done.

99. To the extent that it assists lawyers, I believe that a parent who is contesting a care order application and seeking the return of a child to their care at a multi-day hearing normally should be afforded the opportunity to meet in conference with their trial advocate after the evidence is complete and before the trial begins.  I hope that the legal aid agency would be willing to consider applications for authority for such a conference.  Where a parent is a vulnerable witness, that has all the more force, in my view.

100. I propose to publish an anonymised version of this judgment.  Before doing so I will invite counsel to comment on a draft version to ensure that there is no risk that Rosie or her family can be identified.

I’m really confused by this. By what it’s trying to do and by what it is trying to describe.

Two conferences with counsel is the standard allowance per case and it is difficult and usually futile in my experience to try and get the LAA to pay for more. But conferences at court don’t count as conferences at all, and can’t be claimed as such. They are just part of the court day, which may or may not be captured in the fee paid by virtue of the parties being ordered to attend early for such a discussion. So having two conferences at court shouldn’t exhaust the 2 conference allowance. [Important correction, this rule only applies to final hearings – thank you to Jacob Gifford-Head for correcting me – see 7.140-7.141 here].

The mother had an intermediary. Maybe the problem was getting funding for a meeting with the intermediary outside court – but if so I’m not sure why the 2 conference rule would apply. And there is nothing in the judge’s wording that suggests the problem is with payment for an intermediary.  Nor is there any reference to the recent case of Re M (Intermediaries) in which the Court of Appeal made clear that conferences away from the court might legitimately be supported by an intermediary, but on a case by case basis, and upon application to the court (rather than simply the LAA as appears to have happened here).

“… the experience of a vulnerable person in a solicitor’s office, where matters can proceed at their own pace, is likely to be different from their experience of a more formal courtroom setting, and what is necessary in one setting may be unnecessary in the other”

Next, let’s suppose that for good or bad reasons no conference with counsel could be arranged [update – as per correction above this seems more likely to be applicable due to exhaustion of the 2 conferences] – isn’t it still the solicitor’s job to make sure that the client has been taken through or told about relevant materials, in a manner consistent with their ability and vulnerability? (that’s rhetorical, it is absolutely their job). That task doesn’t actually require counsel at all, though it is sometimes desirable to involve trial counsel for the purposes of clarifying instructions and agreeing an appropriate approach to the trial.

In any event, the brutal reality is that counsel are often instructed too late to allow for a conference because there is no available slot in the diary to accommodate it, or because the papers come too late for it to be meaningful – or are told all the conferences have been claimed by earlier counsel and even if there is time for a conference we are often expected to do another for free (which we often do in order to ensure we are able to give our best at court). One of the reasons we often do them for free, incidentally, is because the fee is so insultingly low (this is about £125 gross for many hours of work, in real terms that probably nets down to about £50-60 – I’m not talking about KCs like me, but junior rates) that conferences are as good as unpaid anyway, and because most of us are conscientious enough to want to do a good job at trial and will do what we need to do to make that happen.

Of course, it is also possible that these documents were gone through with the mother but she didn’t remember.

But the point is, whatever the judge is describing and trying (it seems) to flag as a problem may not actually be a problem at all. Or may not be the problem s/he thinks and suggests it is. Which rather begs the question why anything was said at all. Either it is relevant to the fairness of the process (in which case one might have expected to see it in the main judgment with some reassurance that in-trial adjustments ensured fairness – or it serves some other purpose. What that purpose was and whether it is achieved or not is somewhat unclear. The Gazette call it a ‘legal aid plea’ but a judgment from a DJ with such limited explanation of the perceived issue is not going to influence the legal aid agency, who I’m not sure even have any discretion to authorise extra conferences save in events or VHCC cases. I don’t disagree that counsel should if possible have a conference with their client before a contested final hearing, and they should be paid to do so, but this plea is extremely unlikely to advance that cause.

The case itself is a sad one, and neatly summed up by the summary provided at the start of the judgment, something that is becoming more common, as is the use of a pseudonym:

Summary

Rosie, who is 9, is a lucky girl, because her mother, M and M’s family all love her very much indeed. 

I have carefully read and listened to all of the evidence before me.  I agree with Social Services that Rosie has suffered significant emotional harm and impaired social and intellectual development which is due to the care that she received from M before the Court case began.  I do not believe that M intended to cause any harm to Rosie.

I have also decided that it is in Rosie’s best interests that she should continue to live with her aunt, G, and G’s husband, H.  Everyone agrees that they have done a good job caring for Rosie since last July, and that if Rosie wasn’t going to live with M, that is the best outcome.

I have decided that Rosie should be made the subject of a care order.

I agree with Social Services’ care plan, which includes regular and important contact arrangements so that M will be involved in Rosie’s life.

I do not see that any form of contact order is needed.

It’s a shame really that the coverage of the case focused on the Judge’s ‘legal aid plea’ without more than a passing mention of the child at the heart of the case, or the facts and evidence discussed in the judgment, and without flagging that this is a welcome published judgment from district judge level, which is written in an accessible style. This type of reporting is typical of the sort of journalism we used to see before the transparency reforms, much of which was based upon the extraction of a single line of a judgment which was then inflated into a standalone story, which often bore little resemblance to the judgment as a whole. There is nothing wrong or inaccurate in this report, which is written by a well respected journalist, but other than adding a short quote from the MOJ the article doesn’t attempt to interrogate what was going on here or whether the ‘plea’ paragraphs actually make any sense. Now that we are used to more detailed and penetrating reporting about the family courts, something that has been made possible through changes that have facilitated reporters to attend hearings and scrutinise both the process and the facts, this sort of reporting stands out even more. That said, if the report hadn’t been written I might not have spotted the judgment at all.