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The Road Ahead: Fairness and the Family Courts in the era of Covid-19

Alex Hodge, barrister at 3PB, considers the fairness of a judicial system in which hearings are conducted remotely, evidence and submissions are limited and cases are managed robustly.

Alex Hodge, barrister, 3PB

In Revolutionary France, the architects of the Great Terror, Citizens Robespierre and Saint Just, came up with an ingenious way of streamlining the judicial process, to ensure that the victims of the Guillotine would continue to rise exponentially. The Law of 22 Prairial (enacted on 10th June 1794 using the traditional calendar), was hastily put in place to deal with a rising prison population, under circumstances where fear and suspicion stalked an increasingly blood-soaked nation.

The effect of the law was to severely limit a defendant's right to a fair trial. Measures included the abolition of the institution of defence counsel, limiting the length of any trial to three days and a significant diluting of the standard of evidence required. Further, a presumption was created whereby oral evidence would only be heard in the absence of 'pre-existing proofs' and any such witnesses could only be called by the prosecution. This effectively left the defendant with no rights. The result would no doubt inspire Dickens as he wrote: "Along the Paris streets, the death-carts rumble, hollow and harsh. Six tumbrils carry the day's wine to La Guillotine… Crush humanity out of shape once more, under similar hammers, and it will twist itself into the same tortured forms."

The above is an extreme example of how changes to practice and procedure within a court system can have a dramatic impact on the application of how justice is dispensed. It is also a warning about how ideology and external pressures, in this case the view that the application of revolutionary terror was virtuous and necessary to purge France of any real or perceived enemies, can drive what is seen to be 'just' in any given context.

It is suggested that these quirks of legal history should not be forgotten when the legal profession considers how it responds to the current Covid-19 crisis. This is particularly true of the family justice system, in which there has been a battle in the past decade to maintain checks and balances against a backdrop of what Sir James Munby described in 2016, as a 'relentless rise' in care and adoption applications, together with a dramatic fall in the time it was taking to deal with matters following the Family Justice Review. In the same article, the then President revisited the fundamental principles at work within the system:

• Care cases, with their potential for life-long separation between children and their parents, are of unique gravity and importance.

• It is for the local authority to establish its case.

• Common law principles of fairness and justice demand, as do Articles 6 and 8 of the Convention, a process in which both the parents and the child can fully participate with the assistance of representation by skilled and experienced lawyers.

• The tandem model is fundamental to a fair and just care system. Only the tandem model can ensure that the child's interests, wishes and feelings are correctly identified and properly represented. Without the tandem model the potential for injustice is much increased.

In the 2016 paper there was also comment on the exponential rise in care applications following the Baby P case in 2009:

There are, in principle, three possible causes for the increase: (1) that the amount of child abuse / neglect is increasing; (2) that local authorities are becoming more adept at identifying child abuse / neglect and taking action to deal with it; (3) that local authorities are setting more demanding standards – in other words, lowering the threshold for intervention. I do not believe that child abuse / neglect is rising by 14% let alone 20% a year. So, this cannot be the sole explanation. It follows that changes in local authority behaviour must be playing a significant role.

This thread was taken up by the current incumbent as President of the Family Division, Sir Andrew McFarlane, when he addressed the profession regarding the challenges faced by the family justice system after he took over in November 2018. He notes that many involved within the system were working well beyond capacity, quoting a Designated Family Judge describing the workload and pressure as 'remorseless and relentless.' He notes too that some had predicted the system would 'crash' or 'fall over', but that in his view 'systems simply grind on… and it is 'people who crash and fall over', adding he could give examples of this happening to people he knew at the time.

He goes on to argue that the rise in cases must be due to the fact that cases where parents would have previously been supported in the community without an order are now coming to court. He suggests there should be a clear differentiation between 'blue flashing light' cases, which should always be brought to court and cases where the concerns can be managed in the community such as those where lower level neglect are the driving factor in local authority intervention. Many practitioners may have encountered the seeming contradiction, where a local authority is arguing there is unacceptable neglect, but reports from various sources describe the children concerned as being happy. When this is taken up with the professionals involved, it is often explained away with reference to the fact the child is 'internalising.'

The speech is also important, because it recognises that there are seemingly stark variances between the way different local authorities behave across the jurisdiction as well as differences in the make-up of the final orders for children. Practitioners with a large regional practice may have noticed this themselves and concluded that following the same logic as set out in Sturges v Bridgman [1879] LR 11 Ch D 852, just as 'what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey', what meets threshold in the inner city may not necessarily be the same in a rural backwater.

Two important studies are highlighted in the speech, which underpin the sentiments he expresses. One such study, the 'Care Crisis Review' conducted by the Family Rights Group, in cooperation with the Nuffield Foundation, looked specifically at the factors that were leading to an increase in care applications. It is fair to say that a perfect storm would not be an inaccurate characterisation their diagnosis, for example on one end of the scale, large societal problems are cited as being a cause, such as austerity measures affecting funding of Children's Services and community resources such as sure start centres. On the other end of the scale, interviews with the individual families and social workers on the front line are summarised as follows:

Children, young people and families in some local authorities say they:

• Are not getting the early offers of help they want to stop problems escalating.

• Have different perspectives from the professionals about what the concerns are and what needs to change in their family.

• Value partnership working but feel 'done to' rather than 'worked with'.

• Have wider families that remain an 'untapped resource'.

• Are seen as 'difficult' and 'hard to help', particularly if they express frustration, resentment and anger that their voices are unheard and strengths overlooked.

• At times, experience social work interventions as unpleasant and unhelpful.

Practitioners in some local authorities say they are:

• Not supported to apply the principles, rights and duties underpinning the Children Act 1989 – working in partnership with families.

• Frustrated they have little time to establish relationships with children, young people and families because of high caseloads.

• Overwhelmed by the wider issues facing families. (Researchers have observed that they focus on individual harms detached from their wider socio-economic causes.)
• Working in a system that is focused on risk and are 'risk averse', partly in response to media coverage into tragic child deaths.

• Concerned that a negative Ofsted judgement can have the effect of destabilising some authorities, resulting in a high turnover of staff at every level of the organisation.

From analysis of national statistics:

• Child welfare services are increasingly geared towards protective interventions (such as section 47 inquiries, case conferences and child protection plans) and services. Work to support families to overcome social, emotional, economic and physical adversity is being marginalised by risk assessment and monitoring.

It is self-evident that these pressures, on the courts, the judiciary, the legal profession, social workers and families caught up in proceedings pose a great threat in of themselves to cases being conducted fairly and justly. Given the well-known fact that the challenges the children face in the care system, often lead to poor outcomes in terms of their long term mental, emotional and financial health, it is suggested that the authors of the report were justified in defining the situation as a 'crisis'.

This maelstrom provides the backdrop to the current challenges presented by Covid-19 pandemic and the context in which 'The Road Ahead' was published last week by the President. A summary of some of the points made is as follows:

• Whereas at the beginning of the crisis many contested hearings were adjourned because of 'apparent potential unfairness', now that it is clear social distancing measures will be with us for the long term, it is necessary to re-evaluate the situation in the light of the delays caused to children and the increasing backlog of cases.

• He posits that a normal working environment may not be achieved until Spring 2021.

• Applications to the family court have continued at pre-Covid rates.

• At paragraph 9, he states as follows: "The reality to be faced is that the Family Court must now, for a sustained period, seek to achieve the fair, just and timely determination of a high volume of cases with radically reduced resources in sub-optimal court settings."

• The aim will be to move from the current situation where all cases are conducted remotely, to a mixed system of hearings where all parties attend, hybrid hearings where some parties attend and the continuation of remote hearings for a large portion of cases. It is noted that 'Covid safe' resources will be in short supply and shared with criminal and civil listings.

• Crucially, the guidance has changed so that in a case where evidence is to be heard, it was unlikely to be suitable for a remote hearing, now the guidance states such cases may not be suitable for fully remote hearings.

• He continues: Consideration should be given to conducting a hybrid hearing (with one or more of the lay parties attending court to give their evidence) or a fully attended hearing. Where it is not possible to conduct a hybrid or fully attended hearing, the court may proceed to hold a remote hearing where, having regard to the child's welfare, it is necessary to do so; in such a case the court should make arrangements to maximise the support available to lay parties.

• It is noted that the situation is changing, but currently the judiciary could not support Zoom as an appropriate platform. Skype for Business and Microsoft Teams are preferred.

• Telephone hearings are the most remote and as such are unlikely to be suitable for hearings 'of substance' where evidence is required.

• Thought should actively be given to providing lay parties with a room where they can be supported by at least one member of their legal team, solicitors' offices, barristers' chambers and local authority offices are suggested.

• Clearly, there are some members of the court staff, judiciary and legal profession who are in a more vulnerable category and will not be able to return to the court building.

• Because of the pressures outlined, the President concludes that there will need to be a very radical reduction in the amount of time that the court affords to each hearing.

• Parties will not be allowed to litigate every issue and present extensive oral evidence or oral submissions; an oral hearing will encompass only that which is necessary to determine the application before the court.

• Finally, he notes that the case management judge will have the difficult role of balancing the welfare of the child, the need for a fair and just process and the limited resources of space, time and format with the need to conclude the proceedings.

It is acknowledged that the above is a sensitive and well-balanced attempt to reconcile the need to avoid delay in decision making for vulnerable children taking into account the unique challenges posed by Covid-19 on already stretched resources. However, it is suggested that whilst there is an imperative to keep the 'system grinding on', this cannot be at the expense of justice being and seeming to be done. This is particularly true in circumstances where there have been long standing criticisms of the changing practice of local authorities and other professionals dating all the way back to the time of the Baby P case.

A justice system cannot operate if people lose faith in that system. What is clear from the Care Crisis Review, is that there is a sharp divergence between the experiences of the families caught up in local authority intervention and the pressures facing social workers which, it is suggested, can lead to outcomes where their interests clash. This inevitably filters through to the family courts where the local authority and the children's guardian's views often sharply diverge from a parent. Despite the fact that the people working the system are by and large very humane, external pressures have the ability to affect the way in which such cases are resolved in the courtroom as well as in the decision making of the any given local authority.

It can only be assumed that the disconnect between the parents caught up in care proceedings and the professionals that they are required to deal with, have been exacerbated by Covid-19, where social work and children's guardian visits have been conducted by video call, where they are unable to meet their solicitor or advocate and where they are unable to see a judge making decisions about their children at court hearings. It is suggested that the biggest tragedy and most urgent problem at present, is the closure of contact centres, meaning parents have been separated from their children for months, which would have been unthinkable before the pandemic.

The question arising from this is: how far are we willing to go when it is suggested that hearings should continue to be conducted remotely and evidence and submissions are to be limited and robustly case managed? Most advocates, and surely the majority of judges, would recognise that removing or adopting children remotely should not be part of any 'long road ahead', therefore the answer must be that as many hearings as possibly should be conducted in front of a judge in a courtroom. It is suggested that, where possible, legal professionals should be willing to take on some risk, to ensure the system functions as far as possible in a way which best serves the families that are caught up in the process. It is suggested further that too severe a curtailing of an advocate's ability to cross-examine and make the submissions they deem fit, risks leading to very real unfairness.

How did it end for the architects of the Law of 22nd Prairial? Within two months Citizens Robespierre and Saint Just took their own ride in a tumbril, followed by the Chief Prosecutor Fouquier-Tinville. The law was repealed on 1st August 1794.