Conversations in Family Law- Part 1

In conversation…… Louisa Adamson and Mel Andrews, Family Law barristers

Part 1: Court Hearings “Covid-Style”, supporting our clients and “wellness”

Louisa: Hi Mel – when we met last week for an al fresco lunch it was the first time I had seen you other than on Zoom for over a year. It was lovely to catch up but of course we didn’t really get on to speaking about work so how have things been for you work-wise?

Mel: So lovely to see you too. As you know my family have been shielding until the end of April this year and so for me one of the main difficulties with the pandemic has been the lack of person-to-person contact. I’ve really missed everyone at chambers and seeing everyone at court.

Mel: What about you?

Louisa: The last year has certainly presented a number of challenges in both my personal and professional life… I can still recall spending an entire day learning how to operate “Zoom” and enlisting various nephews and nieces so I could practise putting them in different virtual rooms! My Court work pretty much stopped for a few weeks but mediation clients were keen to move to remote working as swiftly as possible. Thankfully the Court work picked up again although I think most of my cases were dealt with by telephone until June when the CVP (Cloud Video Platform) hearings really kicked in. Our boys came home and our eldest sat his finals online from the dining room. The worst time for me was when a family member was taken very ill and was in hospital and I couldn’t visit. I have been back in Court now though.

Louisa: If you haven’t been to court at all how are you managing the new telephone or video formats for hearings?

Mel: Remote working was a bit of a shock to the whole of the Family Court initially wasn’t it?! No one had ever really considered family hearings happening remotely and it took quite a while for all the systems to be set up. Initially the area I found the hardest was working out how to establish a relationship with my client without that face-to-face contact and reassurance. Also how to continue to get instructions from the client remotely whilst the hearing was in progress. I found that I had to take extra time in my pre hearing conferences and explore what technology they had and could use during the hearing.

Overall CVP hearings are better for the client than the telephone hearings. I cannot see that when we come out of the pandemic there is any place for telephone hearings in private law or public law Children work. I think with vulnerable clients particularly telephone hearings are a real barrier to justice. They are so hard to follow and often when I speak to my client afterwards they have not understood what has happened at all.

One of the biggest downsides for me in working remotely (in private law hearings) is the ability to negotiate beforehand, particularly in FHDRAs. Often you have no idea who you are against and no ability to speak prior to being dialled into court. I would normally settle about ¼ of my cases at the first hearing but since we have been remote I have not settled a single case at that stage. That is causing the Client unnecessary expense and stress and also must mean an increased workload for the courts. It is not in anyone’s interests.

Louisa: I don’t particularly enjoy telephone hearings and everyone I have spoken to agrees that is very difficult to know when to speak when you can’t see anyone else!

I also agree with you that it is more difficult to get hold of your opponent for pre-hearing discussions before telephone hearings. It’s really helpful when your instructing solicitor lets you know who is acting for the other side and sends their contact details. It seems though that even if the information is supplied by the solicitors to the Court office it does not always get through to the Judges – I’ve had a number of emails or calls from magistrates’ clerks or Judges asking me for contact details.

I have found the most effective way to deal with telephone or video hearings is to ensure that the client and I have spoken in conference prior to the hearing date. This allows us to agree the way they will find it easiest to keep a channel of communication open between us during the court hearing – everyone is working with different devices and constraints and so it really needs to be a case-by-case decision.

In extremis I now always tell my clients to just say “excuse me, this is …….. I would like to be able to speak to Louisa please”. At least in that way I know they are struggling and can make arrangements to talk to them privately.

I much prefer the CVP [Cloud Video Platform] hearings – I am using an old TV as a monitor so I can view the court room, Judge, lawyers and witnesses on that leaving my laptop free for me to easily access the court bundle and my notes.

Mel : How about legal news generally – what have you been reading about ?

Louisa: My eye has been caught by a number of different things recently – I laughed out loud when reading Lucy Reed’s pink tape blog about “wellbeing fatigue!” She (correctly I felt) identified that for all the talk there has not been much real change to working practices. I was also interested to read that she has decided to see a counsellor “for ‘supervision’ as a sort of well-being insurance policy”. I have long believed that supervision similar to that undertaken by those in therapeutic professions should be made mandatory for family lawyers who deal on a daily basis with clients who are very distressed and who are often caught up in high conflict situations.
For my own part I have a Business and Life Coach who I work with and who I feel makes an invaluable contribution to ensuring that I maintain a healthy work/life balance – in fact I am taking 3 weeks off soon to complete the Coast to Coast walk with my best friend of 37 years (Obviously we met when we were toddlers !)

Mel: Yes I think its really important for us to do what we can to prioritise and support our own ‘wellness’. It has always been the same and I agree with Lucy Reed that for all the talk not much real progress has been made. We’re stuck in an underfunded, over stretched system that relies on lawyers, social workers and Judges to fill the gap by prioritising our clients over our own work/life balance. I have found in my own practice that I had to learn to say no and put clear boundaries in place which I uphold, however tempted I may be to break them sometimes! Having a supportive clerking team and some good mentoring within chambers from more senior members has also been crucial to me.

Our Top Tips for this month

Mel: In telephone hearings make sure your client knows that if they are asked a direct question and want your advice before they answer it they are entitled to it. They need to let the court know that they want to speak to you though. As the clients are nervous and often intimidated by the whole process I would often run through the words they could use beforehand e.g. “I need to speak to my barrister privately please” and find a phrase they were happy with. I got them to repeat it and asked them to write it down somewhere so they could read it out. I did explain it was no good in a cross-examination situation though!!

Louisa: I am leaving my mobile phone downstairs overnight (life coach’s suggestion) and I find that when I wake up in the middle of the night I go back to sleep far more quickly if I am not able to “just quickly check” my work emails!

But here’s a legal top tip – Keehan J set out a very helpful summary of the law for fact-finding hearings in a relatively recent case ABC (Children: Overlaying Child) [2020] EWFC 57 paragraphs 7 – 37.

Part 2 link here