A Litigant in Person returns to the virtual court – Navigating Approaches to Care when Family and Local Authority Disagree – Part 2, One Week On

By Hilary Paxton and Aalia Omar – 29th September 2020

Back in July, the two of us attended a hearing before DJ John Beckley sitting at Central Family Court: Thurrock Council vs JS (Case no. 11895778).  We wrote about our experience of this hearing as a blog post (by Hilary Paxton, here) and a reply to it (by Aalia Omar – scroll down to the bottom of the post) which reflects specifically on litigants in person.

At the July hearing the council was seeking an injunction from the judge to ensure that the father of a young autistic man (JS) who was living at home would not refuse entry to the carers or speak aggressively to them.  The council believed that JS’s father (who was a litigant in person) had been preventing the carers from the autism specialist agency from entering the house and caring for JS – which meant he was in breach of an order previously made by the court. At the July hearing, DJ Beckley arranged for a one-week trial to see if JS’s father would comply with the order.  If he did not, then a penal notice could be attached to the order – and DJ Beckley explained that this meant that JS’s father could go to prison if at that point he did not comply with the injunctions.

We were left on the edge of our seat wondering whether JS’s father would comply with the requirements.  We both decided to try and observe the follow-up hearing to understand whether the proposed approach had worked in practice and agreed that we would do a joint follow-up blog.

There was a frustrating start to the subsequent hearing on Friday 31 July 2020 – also before DJ John Beckley sitting at Central Family Court.  We had received an email four hours before the hearing, confirming that we could join the hearing by MS Teams, but we were both left waiting for a link to be provided until after the start of the hearing.  It was an administrative hitch, but beyond our control as observers, and when we finally got the link we both joined as quickly as possible and hoped we did not disrupt the hearing.  Judge Beckley was, however, courteous and paused proceedings to introduce us as observers, and referred to the blog that had been published that morning about the previous hearing.  JS’s father was again in court as a litigant in person, and although the hearing was via MS Teams and other participants could see each other, JS’s father once again joined the hearing by phone, so could not see others or be seen.

We heard that broadly JS’s father had indeed complied with the requirements in the intervening week.  The Judge sought the views of those present to inform his decision on making the injunctive orders requested by the council and whether to attach a penal notice to the orders.  There was much discussion about an incident that had taken place between JS and one of his carers and whether JS’s father should be advising new carers on what responses work well when JS is agitated. The Council seemed keen to suggest that this could amount to obstruction, especially if the carer wants to take a different approach.  They suggested that JS’s father had in effect been telling the carers what to do.  This angered JS’s father, who felt the council was misrepresenting the facts and trying to make him look bad.  

There was also a debate about situations where there was one female and one male carer, and how the male carer could provide support, whilst not providing personal care, especially if JS became agitated and presented any risk to the female carer.  In the end the Judge decided that if a female carer gets hurt and is unable to provide care, the male carer could come to her aid, and should be on hand in case of this, but that it should be in the least restrictive way, and that the male carer could remain just outside of the room, or observing from a distance.

The council lobbied for the addition of a penal notice to the orders, believing this would increase the likelihood of compliance, and reduce the likelihood of having to come back to court. 

In the end the Judge decided on balance not to add a penal notice, deciding it was neither necessary nor expedient to do so. He did make it clear that if JS’s father does breach the orders, the council will be able to come back to court swiftly. The request can be sent through to the Judge directly, and he will ensure that if a hearing is necessary it is held as quickly as possible.  If this happens, there is still the option to attach a penal notice to the orders at that time.  The Judge reminded those present that the hearing in September must focus on JS, and on what is in his best interests, rather than on the behaviour of JS’s father.  It was therefore very important that the arrangements proceed as required, to enable this to happen.  This was accepted by all, and JS’s father assured the Judge he understood this.

Hilary

Whilst my learning about the content of the case and the approach of the Judge was largely the same as with the previous hearing in this case, there were a couple of points that were of note that are worth mentioning.  I have found the option of observing remotely a really helpful option.  It saves on travel expense and time.  This is particularly relevant when hearings are cancelled on the day, when costs of travel may have already been expended.

What I experienced in this particular remote hearing, however, made me realise that it is possible for people to be in court, but not “in court”.  That is, they may be on the call or the video conference, but not give it their full attention.  This is not really as likely when everybody is gathered in the same court room.  It became apparent at one point in this hearing that JS’s father was calling out to someone.  I thought he was shouting at the person who was speaking at the time.  In fact, when the Judge asked him to please not interrupt and to let the person continue speaking, JS’s father explained that he was just calling out to a friend who was “driving away”.  The Judge asked him to mute his telephone if he was speaking to someone else, but also suggested, ever so gently, that it was probably in his interests to listen to what other people in the hearing were saying.  I found it quite shocking that for something as important as a court case, JS’s father had been unable to find a quiet place where he could concentrate on what was being said. 

I realised that it is all too easy to start making judgements about a person for not behaving in the way that you think is the correct way to behave.  I also thought that when somebody is represented by a member of the legal profession, it means that they can advise on the usual way of conducting oneself in a court hearing. Being a litigant in person means that you are “on your own”, and no matter how many times you have been in court, a remote hearing is a different experience.  I think it may be helpful for the court or the Judge to be explicit about some ground rules so that individuals are supported in such situations.

I also recognise that I may hear things that I disagree with in the course of a hearing.  When something unexpected is said, I noted that the Judge needs to quickly form a view on whether it is relevant to the hearing or not, and if not, let it go.   This level of focus is important as it enables the Judge to ensure he or she is not distracted from the key matters on which they have to form a judgement, and the information they need to do so.

Aalia

 Remote hearings do not seem as official as they would in a physical courtroom. As Hilary has described, JS’s father explained that whilst he was ‘in court’ he was also in his car at Gatwick Airport. This could have in turn meant he was distracted and therefore taken away from any argument made in court. In a physical court room, one hundred percent of his attention would be on the matter at hand instead of being distracted by the surrounding environment. 

Problems are also caused when lay participants, like this litigant in person, do not have access to the same technology as everyone else.  As JS’s father was unable to join by video call and only by telephone, he could not see people’s faces, or monitor their facial expressions or body language.  This can be quite informative.  There were some moments where I thought I caught an eyeroll or judgmental expression from the representative for Thurrock Council when JS’s father was speaking. I found this quite insensitive and uncalled-for. It is difficult to know if she would have behaved in this way had JS’s father been able to join by video.  Perhaps she would, in which case it could have in turn provoked him or caused an issue – but it may have been that she was simply exploiting the inequality created by her access to the video-platform which was not available to JS’s father. 

Even though Thurrock Council made a very compelling argument for the judge to attach a penal notice, the judge ruled in favour of JS’s father by not ordering a penal notice at this point. It’s important to note even though JS’s father sometimes got a little emotional, spoke over people and sometimes struggled to explain his point of view, the judge was very understanding. This was a big takeaway for me as it displayed that it’s not always about who presents the stronger argument. DJ Beckley listened and understood what lay behind certain behaviour by JS’s father and rather focused the decision of the hearing on what was in the best interest of JS as the person at the centre of the case.

Hilary Paxton works for the Association of Directors of Adult Social Services in England. She also works part-time as an RPR and is training to be an IMCA. She tweets as @hilpax

Aalia Omar is a law student at the University of Essex.  She tweets as @_AALIAOMAR

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