In Your Defence

by Sarah Langford

  I watched Helena wrap herself in self-righteous loathing as she justified the decisions she wanted to make. I found myself in familiar territory – at a loss to know how to convince her that her children were half of their father, just as they were half of their mother. The law did not recognize his right to know them, nor hers, but rather the children’s right to know each parent.5 Their right to know their provenance. To know whether the way their hair curled or their tongue rolled, or their inability to sing in tune or their skill with a tennis ball, or their broad shoulders and long middle toe came from the delicate strands of DNA that each had passed on to them. They needed to be given the chance to see, when they placed their hand next to his or hers, that it was identical in shape and form. To wonder how far back they could trace the ancestry of that hand: had it held a gun, tilled a field, gripped the handle of a brush to scrub a family’s clothes? When they were old enough they would be free to reject a parent for their own reasons and cut them from their lives, but no one had a right to make that decision on their behalf. Unless the judge decided that a parent would harm them – emotionally or physically – then the law would try to protect the children’s ability to have a relationship with both of them. But I could tell from the indignation and fury that simmered off Helena as I spoke that she did not want to hear, or accept, this truth.

  I also suspected that, although Ed’s barrister and I would try that morning to negotiate with one another for as long as the judge let us, neither parent was going to be prepared to agree to anything at all. Too often I had read the papers in a new case and thought, This one must surely settle! Many people get divorced and cry and grieve and curse. They pluck out books from bookcases, divide wedding gifts, work out who will take the car and who the cat. They create a shield of cooperation around their children through tight jaws, all without crossing the threshold of the courtroom. Surely these two could do it too? Later, at court, our pantomime efforts to reach an agreement would begin. My opponent and I would dart back and forth between our clients’ conference rooms and our own, passing on demands, conditions, bottom lines and ultimatums. If, unusually, the court list was light and the judge amenable, they might be persuaded to hear a short argument on a minor urgent conflict. But when their decision was made, it would be final. The matter was then decided with no chance for me or my opponent to ask for further evidence on the point or to request a different compromise. But, mostly, I had to rely on each lawyer’s ability to turn an antagonistic request into something that sounded like an opportunity. I knew that once one party conceded the other would often soften and they would pull one another towards hesitant agreement. Too many times, however, I would scuttle back and forth for nothing. Client, opponent, client, opponent, into court, more time granted, back to my client, opponent, client, opponent. The clauses and exemptions and preambles of our draft order would grow increasingly elaborate. Then, as the ushers began to lock up the courtrooms and the waiting room in court grew quiet at last, the pressure would seem to suffocate us all. One party would refuse to agree a vital concession, or change their mind about a paragraph already agreed. No way! they would cry. This is too much. I’m not doing it. Let’s just let the judge decide. But by then it would be too late. The court day was over. The judge had no time left to hear evidence and arguments in order to make a decision. He had allowed us to negotiate outside court on the condition that, when we next were before him, it would be with a Consent Order that resolved the case. Now we would have to go away and come back another day to go before a judge who would make a decision in lieu of our agreement. In the interim, the parties would be stuck with whatever unsatisfactory arrangement had brought them to court in the first place. And so both parties and lawyers would leave court frustrated and exhausted – the last seven hours of explaining and cajoling and arguing, the lack of lunch, the dehydration and pounding head, all for nothing. I looked again at Helena, feeling the anger pulsing from her, and knew to keep my expectations low.

  ‘Mr Forrest,’ the judge turned to Ed’s barrister, cutting him off, ‘we are only here for the first directions hearing in this matter. No speeches, please. Just tell me exactly what it is that you want me to do.’

  I looked at Simon Forrest and was grateful he was there. Most parties in these kinds of private family disputes are no longer eligible for legal aid and so either have to fund their lawyers from their own pocket, or – as is increasingly the case – represent themselves as litigants in person.6 It is difficult to justify why other people should be taxed to pay for a barrister to put forward, on behalf of grown men and women they have never met, some of the arguments I have made. Whether a child should be picked up at 1 p.m. or 3 p.m.; whether a particular birthday present or the contents of a card are inappropriate; or whether half-term holidays should be alternated or split in half. But any money saved by parties representing themselves is offset by the cost of hearings that take far longer than they should or – had they been given the early advice to which they are no longer entitled – which should never have made it in to a courtroom at all. I have sympathy for those who choose to represent themselves against a barrister. They are outgunned and they soon know it. Fear or suspicion ensures they often refuse to talk to me before we go into court, whether or not I explain that the judge will want us at least to try to agree the issues that divide us. In court, the judge will attempt to convince them that, no, I have not passed anything to him without giving them a copy; yes, they do have to show me any new evidence they want the judge to see. I have waded through applications and statements with annexes and appendices of lengthy internet printouts, covered with highlighted and bolded text. It is exhausting. I can only imagine how much worse it is for the judges now that over a third of cases going into the family court have no lawyer there at all.

  I was just as grateful that Simon was not a ‘McKenzie Friend’ – someone brought by a litigant in person into the courtroom to offer them moral and practical support. I can understand why a party would ask the judge for permission to have a McKenzie Friend present.7 But as the number of people representing themselves has soared, so has the ability of pressure groups – with tales of courtroom conspiracies and secrecy – to exploit the situation to advance their own agenda, and to charge the party they are helping for their time and expenses, despite no legal qualifications or regulations that might hold them to account. I have spoken to litigants in person who have realized too late that the principal interest of their professional McKenzie Friend was to put his own literature and arguments before the judge, rather than providing support or assistance to the individual. In one case, both the judge and I were caught out when a McKenzie Friend presented himself as the party. I had already spoken briefly with him outside court – believing him, based on what he said, to be my opponent. Once in the courtroom, he rose to speak. It was my client, tugging at me from behind, who confirmed that my real opponent, her ex-husband, was the man sitting down – not the one with the beard addressing the judge. Justice had been hijacked, but maybe, in the eyes of this McKenzie Friend, that was exactly the point.

  Helena had been able to rely on one of the caveats to the legal aid restriction, which grants funding to those who could show that they, or their children, have been victims of domestic abuse. Ed’s police caution on Christmas Day had been enough for that. Ed, however, had to pay for his own barrister. He had instructed Simon through a direct access scheme, which enables clients to escape the ticking clock of a solicitor and agree an overall fee directly with a barrister.8 I could see by the number of files that Simon had brought to court – in comparison to the slim bundle Emily had sent me – that Ed was determined to get his money’s worth.

  Simon spoke at length of Ed’s despair that he had not yet been able to see the children and his fear that Helena intended to flee with them. Her clear intention, he said, was to frustrate contact between the twins and their father, no matter what order the court imposed upon her. The current situation was untenable and needed the most urge
nt resolution. I felt Helena bristle next to me. She longed for me to interject, to defend her, outraged, and spray my own accusations around in return. There was little merit in doing so. The judge, as Simon knew well, was not going to make a decision about the case today. Simon was posturing – transferring, no doubt at his client’s request – a little of the rage and vitriol to which Ed had subjected him while we waited for our hearing.

  ‘I have read your client’s application,’ the judge continued, ‘and the Schedule Two letter from CAFCASS. I know what the issues between these two parents are. I assume, from what you have said, that you have not managed to resolve any of them in the time available this morning – which is, I might add, a great shame. So how, Mr Forrest, do you suggest that we move forward?’

  ‘An interim contested hearing please, Madam.’9 Simon glanced briefly towards me. ‘The mother has refused the father all contact with the children …’ I opened my mouth to object and Simon, seeing me, corrected himself. ‘The mother, only this morning I should add, has offered some contact on the basis that the paternal grandmother is present when it takes place. But we say supervised contact is completely unnecessary and the father does not see why he should agree to it on these terms. Therefore this matter must, I’m afraid, go to a contested hearing sooner rather than later so that the father has at least some contact with the children in the interim while we await a final hearing.’

  I looked at the judge. ‘I do not intend to be drawn today,’ she said, ‘into the merits of the mother’s contact offer, save to say I am surprised your client would choose not to see his children at all over seeing them on his terms.’ Simon drew breath to interrupt her, but the judge held up her hand to silence him once more. She carried on. ‘As for the allegation that the mother intends to move, I trust, Mr Forrest, that you have advised your client that the mother is free by law to move wherever she wishes. Only an order from the court can prevent her from doing so, and I cannot see that your client has applied for such an order, nor that his current application raises the issue in any way.’

  Without waiting for a reply, the judge turned to me. ‘And, Miss Langford, although I do not intend to go into the validity of the father’s suspicion that your client intends to upend the children at this turbulent time, I will say that, were she to do so, this court would take a very dim view of it indeed. She has a responsibility to ensure that the children maintain a relationship with their father and their extended family. Any move by her which threatens this is unlikely to be seen, by any future court, to be in the children’s best interests. I hope you have explained this to her?’

  I could have told the judge of Ed’s refusal to pay the rent, of the eviction letters, but there was little point. I had raised it all with Simon already and the judge had made it clear she would not be drawn into arguments today. I nodded.

  ‘Well then, it is with great regret that I shall list this for a half-day contested interim hearing. The court lists are, as ever, over full. Having just listed a final hearing in another case, the earliest slot to allow for evidence and judgment that I would be able to offer you is in twelve weeks’ time. It is, I’m afraid, unlikely to be back before me again. I can give you no more than three hours, so please bear this in mind when drafting statements, which must be filed by both parties in four weeks.’

  She didn’t add, Now get out of my court, but she may as well have.

  So, as I feared, Helena left her first hearing frustrated and dissatisfied. Now she had a new date to circle in the diary – a contested hearing, where both she and Ed would give evidence and a judge she had never met would decide whether she got to tell the children that they were allowed to live with her, or whether she must go home and begin to pack their bags.

  Less than a week after the first hearing, Helena received an eviction notice from her landlord. Ed still had not paid the rent. Maintaining to herself that she had little choice, she moved immediately with the children to the cottage near her parents and used the money they had offered her to pay the rent on that rather than pay off the arrears on her house. She enrolled the twins in a new nursery, only telling Ed afterwards. When Emily sent an email updating me, I read it with my head in my hands, knowing it only compounded Ed’s argument that she was trying to exclude him from the children’s lives. I thought of Ed – furious that his children were now living in a place of which he knew nothing – and waited for him to make his move.

  Ed’s application came only days afterwards. He demanded that the children be immediately returned to their old home and nursery. He paid off the rent arrears and moved back into their house. Then he changed the locks and refused to let Helena in to collect the rest of her and the children’s belongings. The children could return to live there, he declared, but she couldn’t. Now it was Helena’s turn to be outraged. She made her own application to occupy their former home and remove Ed from it, as far as I could tell for no other reason than because she could.10

  Each party’s emergency injunction had been made without the other knowing and was granted in the other’s absence.11 An urgent hearing was listed in court a week after the orders were made, so that the other party could put forward their objections and the court could see whether the orders should continue or be dismissed. The two matters were joined together and so we all, once more, made our way to court. To our joint surprise, Simon and I teased out some progress. Ed agreed that he would allow Helena unfettered access to the house to collect her and the children’s things, if she, in turn, withdrew her application and agreed to sign over the lease to him. She willingly agreed. She had no interest in it, she declared. Her focus now was on creating a new home for herself and the children. As we were inching our way towards an agreement about the twins’ nursery, the usher appeared in our conference room, black gown flapping about him as he pressed us into court and before the waiting judge.

  The circuit judge, senior and experienced, was unimpressed to find this new hearing in his overburdened court list and could not be placated by the agreements we had reached that morning.12 I bore the brunt of his wrath. Given that proceedings had begun and a contested interim hearing was listed, Helena’s actions were divisive and underhand, he raged, and she should not be allowed to get away with such behaviour. He made an order compelling her to return the children to their old nursery, many miles away from her new home. With a flourish of rage, he attached a penal notice to it and an order that she must pay Ed’s costs.13 After the hearing had finished and the judge had thundered off, we retreated from court. Helena, astonished, nodded mutely as I explained what, and how serious, a penal notice was. If she failed to comply with the order, I warned, she could be arrested, held in the police station overnight and produced in court the next morning to be punished. Although my appeal against the penal notice was successful, Helena, admonished, began to make the long drive every day from her new home to the children’s old nursery.

  Eventually, in spite of themselves, a routine of sorts established itself as both parents eased themselves into their new lives. The credit for this lay almost entirely with the two grandmothers. Ed’s mother – terrified at the prospect of no longer being able to see her only grandchildren – managed to do what I, Emily, Simon and even the judge had all failed to do. She persuaded Helena – through her own mother – to agree that the children could stay with her and Ed at her house for one, then two, of the days that they were at nursery. Ed was irritated that Helena would still not allow the children to be alone with him, and cynically credited the extended nights to Helena’s new long journey, but his agreement to this new arrangement broke the deadlock.

  As the cogs of the court machine slowly began to push their case towards the next hearing, Helena and Ed’s tentative agreement was marred by new arguments. An allegation that he had knocked her phone from her hand and smashed it as she tried to record him shouting at her; an assertion she had been rough with the children, dragging them by their hands to her car without allowing them to say a proper goodbye to th
eir father. Abuse here, threats there, in texts, in emails; all recorded, all reported. Over the next two months, Emily and I would meet in the advocates’ room on the top floor of the courthouse and try to keep up. Once again, resolution appeared in the form of the two grandmothers. They decided that they, rather than the parents, would stand on the doorstep and hand over the children with smiles and bags and instructions. I once thought I saw them sitting together in the window of the café opposite court. Two women, once connected only by their children’s vows, now united by their failure to keep them.

  The contested interim hearing was listed on a Friday in June. Faced with the prospect of many more months leading up to a further contested hearing to decide the truth of their new allegations, Helena and Ed finally agreed, moments before we went into court, to deal with the allegations by giving undertakings – solemn promises that they would not harm the other, in word or deed, or otherwise be held in contempt of court.14 The wording was so familiar to both barristers that we did not even need to discuss it before we each wrote it down on the undertaking forms: ‘neither party shall denigrate the other in front of the children, nor allow anyone else to do so’. So normal; so terrible.