| Evidence to Nuffield Family Justice Observatory for its Rapid Consultation on Remote hearings in the family court by Legal Action for Women, which co-ordinates SNS |
Background In January 2017 we published our Dossier Suffer the Little Children & their Mothers. Since that time we have been contacted by over 200 mothers (and some families) from across England who are fighting through the family courts against children being taken into care, forced adoptions, and violent fathers being given contact and residence. Not much has changed. The trends shown by current cases and the experiences of separation echo those described in our Dossier three years ago.
LAW co-ordinates the Support not Separation Coalition whose members so far are: Association for Improvements in the Maternity Services; Black Women’s Rape Action Project; Centre for Social Work Practice; Global Women’s Strike; Milk of Human Kindness; Movement for an Adoption Apology; Payday men’s network; Psychotherapy and Counsellors Union; Scottish Kinship Care Alliance; Single Mothers’ Self-Defence; WinVisible (women with visible and invisible disabilities); Women Against Rape; former social workers, teachers and other professionals. See SNS statement of aims here. We run monthly self-help meetings where mothers share their experiences and exchange advice and information with each other. Our evidence to this Consultation reflects the experiences of women we are working with.
Our direct experience of remote hearings: To date, we have direct experience of supporting a mother as a McKenzie friend during two remote hearings. This was a birth mother’s application for post adoption contact and two hearings were conducted by phone. Ms X is a litigant in person who is vulnerable as an immigrant victim of trafficking whose first language is not English. The hearing concerned contact with her two children who have been adopted against her will. This is hugely distressing, in any circumstance. She says: “It was extremely difficult to have a hearing over the phone regarding the fate of my children, and I was refused contact with them. English is not my first language and accents change over the phone which can be confusing to follow. These remote hearings should be stopped – they are not fair.” It was impossible for the McKenzie friend to provide any support to Ms X or be available for consultation during the hearings except during the lunch break, whereas normally they would have been sitting next to each other and could have spoken at any point. Also in person it is obvious when someone becomes upset and we can ask for a break – this is impossible over the phone. It is very hard during a phone hearing to look up paperwork at the same time as listen to the proceedings, and a litigant in person is even more disadvantaged than during normal hearings. The barristers representing other parties clearly have a much greater advantage because this is work they do all the time, they do not have any emotional investment in it, and they are familiar with juggling huge court bundles at the same time as taking part in proceedings. The same applies to the judge. Parents, and especially mothers whose children have been taken or who are trying to protect their children, and are having to represent themselves are in a completely different situation and the whole experience is very difficult and distressing.
At the first hearing, Ms X asked for her application to be adjourned so that it did not have to take place remotely. The judge refused despite the fact that this kind of hearing is NOT listed as a priority under the Guidance issued by the President of the Family Division.
[We gave anonymous details about other cases of mothers in our network, not reproduced here. They include a mum who was not allowed to be in the remote hearing regarding her children who are in care, a mum who was given no information about her hearing listed at Central Family Court so went along and was sent home with no information, and three victims of domestic violence trying to get remote hearings relating to abusive fathers’ contact or residence adjourned (one successful so far).]
1. Only cases which are genuine emergencies should be heard remotely during this period. The Guidance must clearly state what constitutes an emergency, and must advise that all other cases should be adjourned. We expect judges to be bound by the recent judgement of the President of the Family Division who ruled that a planned remote hearing should not go ahead because ‘… a trial of this nature is simply not one that can be contemplated for remote hearing during the present crises.… I would hold that this hearing cannot be properly or fairly be conducted without [the mother’s] physical presence before a judge.’ (Re P (A Child: Remote Hearing)  EWFC 32) This case reiterates the importance of being able to see who is in court and how they give their evidence. We are particularly concerned that abusive and controlling men who are usually very manipulative will take advantage of being able to hide what might be aggressive or intimidating body language and come across as reasonable, whereas the mother is more likely to be distraught and none of this will not be visible to those making the decisions.
If a judge refuses to adjourn these cases there needs to be a swift independent appeal procedure to look at these decisions.
2. Any case where a mother has suffered domestic violence should not go ahead as women face being retraumatised in isolation without any face to face support and unable to instruct their lawyer if they have one. A significant public outcry last year about the handling of domestic violence (including rape) in family courts resulted in a review which has not yet concluded. Over 120 MPs of all parties wrote to the government demanding this matter be urgently addressed. There has long been concern raised by ourselves and others that rape and domestic abuse victims are retraumatised in family courts.
Following a number of shocking rulings, there is also a public call for judges who either don’t know or don’t apply the laws against rape or domestic abuse to be deemed unfit to sit on those cases. Our experience and evidence/research among lawyers further found that court protections (such as Practice Direction 12J) for vulnerable and intimidated witnesses in cases involving rape and domestic violence are being flouted in up to a third of family courts. This enables courtroom intimidation of women by their alleged abuser. It would be a scandal and an outrage if during the lockdown, victims of domestic abuse and rape continue to be put at an even greater disadvantage than when the courts are in normal session.
3. No case should be heard without the mother or other primary carer being present. 4. No case should be heard if there are children present at home during a remote hearing. 5. No self-litigation cases should take place because of the disadvantages that those representing themselves face. 6. Cases where a mother/primary carer does not speak English and/or has little knowledge of or access to technology (such as computers, fast internet) should be adjourned. 7. Any cases that have large bundles should also not go ahead – many mothers do not have the facilities or knowledge to deal with remote hearing bundles. 8. Everyone with a case listed for the next two months must be informed whether the court is sitting and if not, what is proposed in relation to a remote hearing, to which they can object if they want to.
28 April 2020