A barrister from Trinity’s Child Care and Court of Protection teams gives his account of his working week during the Coronavirus crisis, the impact this is having on families and how lawyers and the Courts are managing to deal with the evolving situation:
Friday 20 March - A morning of telephone hearings, one a children case management hearing, the other a Court of Protection interim best interests declarations application. No restrictions are in place yet, but the judge is keen to press on using remote hearings. None of the litigants attend the family case, to the consternation of the judge although the Court of Protection case has a litigant-in-person on the phone from her house with the first respondent listening in at her side.
There is devastating news in the Court of Protection case: having separated a teenager and placed her, out of the area, nearly 200 miles away, the family can no longer travel from the North East to see her because of the national health crisis. There's no way round this logic. Is that going to have to apply to every looked after child in the country, already separated from his or her family, and now denied the one consolation while they wait for the cases to be decided, and even then in so many cases this will now be adjourned? Again, the logical consequences seem horrific but inescapable.
Despite this development, both hearings proceed smoothly, taking 45 minutes and 30 minutes respectively. Both cases have full case summaries from the applicants setting out the issues and matters agreed. The litigant-in-person copes well with the hearing; yet must have been in turmoil at hearing the news that there would no longer be any direct contact, and the family would only have contact by Facetime and telephone, for an unknown length of time in the future.
Monday 23 March - after a weekend of reading a raft of guidance from a number of levels and sources regarding remote hearings, and having received papers, final preparation for the Skype for Business hearing before the DFJ; a complex family and a need for an inherent jurisdiction declaration as to lawfulness of the deprivation of liberty of a teenage girl with severe anorexia and the need for 24-hour supervision and controlled internet access because of self-harming. I have a conference by telephone at 9am, and a telephone meeting with the other advocates at 9.30am.
Counsel all have Skype for Business, but the two solicitor advocates don't, so we have to resort to the two barristers telephoning the two solicitors and putting them on speakerphone over the Skype calls. The judge e-mails me a number to call the father's solicitor; the call connects and everything seems to proceed smoothly .
I join an advocates meeting at 3pm in relation to the baby to be returned to my learned disabled client. My fears of the consequence of the government guidance are realised - the whole plan to reunite them has to be put off, after over a year of fighting. And as a double whammy she's no longer able to have contact with him for who knows how long, to be in the same building as him, to hold him, after months of seeing him every day. How to explain this to the client, more so after all that work? We can do no more than adjourn the case, as though the family is suspended in time and unable to properly communicate: there's not much value in Facetime and telephone calls between my client and her 13-month old son.
Tuesday 24 March - The day starts with a desperate e-mail seeking urgent advice regarding a mother as to whether she must allow the planned 48 hours of contact between her young and asthmatic children and their father, in the face of his intention to continue to work at his local hospital during this crisis.
I then deal with an advocates meeting by telephone in relation to the 1-year who can no longer be reunified with his parents. The Local Authority's position in relation to the indefinite postponement of everything is confirmed. The foster carer is now self-isolating. Direct contact has been suspended. The plans for the return of this very young child are shelved. And the opportunities for the parents to continue to develop their skills and relationship with him lost.
The hearing in the matter later in the morning is short. There is so little to say given the brutality of the implications of the health crisis. The judge has no alternative but to list the matter for an earlier review than planned, at the end of April.
Wednesday 25 March - But while spending a moment in the glorious weather, my phone pings with a request to advise a Local Authority seeking an interim care order removal and recovery order in respect of a child currently living in Scotland. The advantages and opportunities of remote working and using the latest software are becoming increasingly apparent, I then deal with two advocates meetings in the late afternoon.
Thursday 26 March - I read all the documents for the FLBA e-working seminar at the end of the day.
I then prepare a position statement on behalf of my client for the 10am IRH. It's becoming obvious that these remote hearings are going to be much more difficult unless everyone abides by PD27A and really identifies the relevant issues and information in advance of the hearings, particularly where the case is complex.
The emergency interim care order hearing in relation to the child in Scotland that afternoon was another telephone hearing, a full two hours of submissions, partly to establish the court's decision that it did not need to hear oral evidence. The parents both joined the hearing, making it feel that you are standing shoulder to shoulder with them in court.
From there to a two and a half hour Zoom presentation of e-working by the FLBA, involving at one point 530 family barristers from around the jurisdiction. There was inevitably a sense of solidarity in the entire webinar. It's also plain that the range of e-working and paperless working skills across the family bar is extremely broad at the moment.
Friday 27 March - another interim care order application with a plan to remove a child. This time the trigger for the application is entirely Covid-19 related. One child has already been removed for some months, and now the other remaining sibling is in a pressure cooker environment with a number of experts concluding that the emotional dysregulation within the family is already harmful. Children's Services cannot countenance the child being left to her own devices in the family home with no professional support, no school, and no respite foster carer any more, and with a step-father who is highly vulnerable to the coronavirus.
The advocates in this case approach the matter soberly and with measured submissions, and the judge permits time out for further instructions to be taken given the short notice. The parents are admirable in their respect for the system and confidence in their own lawyers. They are only five weeks away from a final hearing, and their ability to remain calm and silent during this two-hour telephone hearing is astonishing, while they listen to voices around them of people they've never met discuss their functioning, their vulnerabilities and their perceived faults, while facing the immediate prospect of their child being instantly removed to foster care with no prospect of direct contact for an unknown period of time. It is a complex case, with some high drama and powerful arguments both ways. The judge makes the interim care order on balance. The judge directs further discussions post-hearing in relation to the plan for removal and the indirect contact.
The most common theme amongst family lawyers is that it seems to have been the longest week in the careers of each and every practitioner.
In response to the escalating Coronavirus crisis, the Family and Court of Protection barristers in Chambers and supporting staff are committed to providing as much assistance as possible, including urgent advice, online resources and other support, during these challenging and unprecedented times, as such Trinity have a dedicated section of the website focused on COVID-19.