Today’s blog is an interview with a Family Court Magistrate in England and Wales, exploring: a typical day, how magistrates seek to promote the best interests of the child, and the early impact of the COVID-lockdown. My sincere thanks to the contributor for their time in preparing this.
What does a typical day look like for you?
A typical day in Family Court actually begins 2 – 3 days earlier when I receive an email (via the Court’s secure server) giving me the List of cases I am due to hear and briefing papers to read before I go to Court.
I normally arrive about 30 – 45 minutes before the first hearing is due to start to discuss the day’s cases with the other 2 magistrates who are sitting that day and our Legal Advisor. This takes place in a retiring room outside the Court. Depending on the type of cases, we may also go into Court to have a brief discussion with the CAFCASS Officer.
Often, the start of a day is very quiet for magistrates. Participants in cases may want to discuss with each other, supported by the CAFCASS Officer, to see whether an agreement can be reached on some, or all, of the matters in dispute. Magistrates are always happy to allow time for this as an agreement between the parties is likely to work better than having an Order imposed on them. We take no part in these discussions and our Legal Advisor will check periodically with the parties and update us on any progress.
At some point, our Legal Advisor will tell us that one of our cases needs our attention and we will enter Court. What happens then will depend on the type of case but, more importantly, whether one or both parties is represented by a solicitor/barrister or whether they are appearing as Litigants in Person.
If the former, we will ask the representatives to brief us on the latest position and ascertain what Directions or Orders they are proposing for us. If all parties are agreed, and we are happy with the way forward proposed, we will make the Order or Directions and leave the Court ready for the next case. If there is only partial – or no – agreement, we will hear from all parties and, depending on the stage the case has reached, either make an Interim Order or set the case down for a Final Hearing at a later date when both parties will give evidence and we will decide the outcome.
If, as sadly is the position more frequently following the Government restrictions on Legal Aid, neither party is represented, magistrates usually take a more interventionist stance. If I am chairing the Court, I often begin by explaining, in simple terms, the whole Court process and what parties should do and what they should expect. I would then talk to each party in turn, informed by my pre-Court reading, to see whether agreement was likely on any aspect. Depending on the stage of the process, the CAFCASS Officer may also be in Court to offer advice and guidance to both the parties and the magistrates. As a result, Orders or Interim Orders may be made but, failing any measure of agreement, the case will, again, be listed for a Final Hearing.
Every day is different. Sometimes we will deal with Private Law cases – for example, disputes between 2 parents over residence or contact with a child, or grandparents wanting to see their grandchildren. Other days involve Public Law cases where a Local Authority is concerned about the safety and welfare of a child. But days are rarely boring and we always remember that our duty is, according to the first paragraph of the Children Act, the health, welfare and safety of the child or children in the case.
What was your route into this role and is the job what you expected?
I had to make a long journey by car and, as I was alone, I put the radio on and heard someone talking about the magistracy. It sounded interesting so I went and sat at the back of my local Court to see what happened. There was a District Judge presiding, rather than magistrates, who was someone that happened to live quite close to me, although I didn’t know him particularly well. However, that evening, he came and knocked on my door and asked what I was doing in Court. When I said that I was wondering whether I might enjoy being a magistrate, he was very supportive and helpful and convinced me to go ahead.
I was appointed in 2002 and, like all magistrates at the time, I began in the Adult Criminal Court. Very early in my career, I was sitting on a trial in which a man who was charged with domestic violence pleaded not guilty. Having heard the evidence, we retired to consider our verdict. I had just finished proof-reading my wife’s book on the subject so I had fairly strong views and expressed them! One of my magistrate colleagues that day was Chair of the Family Court and, listening to my comments, immediately invited me to become a Family magistrate. I have sat in both Adult Criminal and Family Courts ever since.
I’m not sure what I expected from either role, but I have learnt so much that I am certainly pleased I applied.
How well do you think the family court system in England and Wales operates, including in terms of (a) promoting the best interests of the child (b) supporting parents and (c) protecting individuals from abuse?
I’m not sure that, as a magistrate, I’m the best person to answer that. And the 3 parts of the question are inter-linked so, for example, in fulfilling our legal responsibility to protect the welfare and well-being of the child, there are times when we cause parents considerable distress.
But, taking each part in turn: we certainly try and promote the best interests of the child. However, we almost never meet the child and so, can only make judgements based on the information that is presented to us. In addition, some children are so damaged by the time their cases come to Court, that there are no good outcomes – we are forced to decide which is least damaging. For example, if a child can’t safely remain with his/her birth parents, is it better to place them with a family relation, who may also have problems, or go for an adoption with all the trauma that brings for all, particularly knowing that the child may never again see the birth parents? Or, in a Private Law case, is it better for a child to see a father who has clear problems, ensuring, of course, a safe place for meeting, or to deny that child any contact with the father? Sometimes the child is old enough to express an opinion, which we will take into account, while making it clear that it is our responsibility for the decision, not the child’s. But there are no right or wrong answers, we simply need to use our best judgement.
Regarding support for parents, Court cases are emotional situations and never easy. Magistrates are trained to deal with parents sympathetically but we must legally prioritise the best interests of the child so, in some cases, have to say ‘no’ to parents. And when that happens, once parents leave Court, I’m not sure how much support is available – certainly none from the Court itself.
Finally, on the question of protection from abuse, we try, if we decide that contact between a child and, say, a father who has been abusive to the mother, is appropriate, to put in place a contact structure that will protect the mother, for example, using a Contact Centre. But, we can – and I’m sure, do – make mistakes as we are dependent on the information provided to us and some abusers are very convincing witnesses.
What challenges has the family court system in England and Wales faced since the COVID-19 lockdown?
The challenges can’t be overstated. The Family Court system, in common with the Criminal Courts, has always worked on a face-to-face basis, so the COVID-19 lockdown changed everything, almost overnight. Most Family cases were adjourned; where this wasn’t possible, they have been dealt with, either by Judges or by Legal Advisors in line with their delegated powers. As a result, few magistrates have attended Family Court since mid-March, although I (and several of my colleagues) have had phone calls from Legal Advisors seeking confirmation of proposed Orders that are beyond their powers.
A small number of relatively straightforward cases have been dealt with by magistrates via telephone and the general view has been that the hearings went well. As in a normal Court day, a pre-court brief was held at the start of the day to discuss roles and how the bench would agree and prepare their reasons.
It is likely that any return to pre-COVID-19 practices may be very slow, even once lockdown begins to be lifted; many Family magistrates are getting towards the ‘vulnerable’ age or have underlying health conditions which means that they may be reluctant to make an early return to Court.
One alternative that is being actively considered is the use of video hearings. Questions of security, reliability of Broadband – some magistrates live in remote areas where this is a problem – and training in the effective use of the technology are all issues that need to be addressed before this can be considered a viable solution. In particular, many of those bringing cases to our Courts are Litigants in Person and their ability to access secure sites may prove the most difficult challenge.
How far do you think the lockdown experience will have longer-term implications for how family justice is delivered going forward?
I think it is too soon to tell. As stated above, some use of technology is being considered and, if trials prove successful, this may become part of the Family justice experience in the future.
For now, it is clear that the main long-term implication of the lockdown is thata major backlog is building up. This will mean that children may remain in unsafe conditions for longer than they should, possibly experiencing the trauma of the increased levels of domestic abuse that are being reported.
How and when will this be addressed is a question that will need to be dealt with as a priority once some form of normality returns.
© Natasha Mulvihill and Criminology Tales, 2020.