In Your Defence

by Sarah Langford

  Shortly after 11 a.m., the hearing began. Our judge was experienced and patient, and dealt with those who appeared before him with dignity and care, but even he appeared worn down by both parties’ inability to give evidence without taking every opportunity to cast a slur at the other. Faced with their intransigence, he took the least contentious route. With a little over a month left before the children began their summer holidays, he simply split their time in two. This, he concluded, was equality, which should not give either parent cause to gripe while they waited for the final hearing and a more permanent solution. The twins, now used to regular sleepovers away from their mother, would spend Sunday to Wednesday with Ed and Wednesday to Sunday with Helena. There were no grounds, now undertakings had been given, for the children to have to see their father with their grandmother present, although she would still have to collect and care for them when he was at work. Until the issue could be decided at a final hearing, they would stay at their current nursery and Helena would collect them from there on a Wednesday. The summer holidays were to be split in half: one week with her, one with him, and so on. The order was meant as a clear message that neither parent was less or more important. They were equally responsible and equally powerful. I explained to Helena afterwards, as she stood before me, unsteady with anxiety, that I suspected it was also a test. If Ed truly expected to care for the children by himself at the same time as holding down a full-time job, then this was a taste of how hard it would be. In the same way, Helena had unilaterally decided to move miles away and this was the court’s way of reasserting the cost of that decision. As the parties would not compromise, everything, the judge had said, was to be split – time, cost, journeys to and from both homes. Was it just, this Solomonic ruling? I did not know, but it was at least a resolution, something these two parents – and their children – needed even more. And it was up to them to make it work.

  They didn’t, of course. Helena feared Ed’s ability to prove himself as the primary parent and went out of her way to claw back time whenever she could. Ed, furious that the judge had granted Helena every weekend when he was the one who worked, spat out tired arguments about judicial bias towards mothers. No grievance was left unaired. One or the other was always late; the twins were sent back in dirty clothes, or without their bags for nursery or the soft toy rabbits that soothed them to sleep. Money to refund travel costs was not paid; telephone calls from the children were made on loudspeaker and monitored by the other parent. On it went, in letters, back and forth, listing the slights in solicitors’ prose.

  When faced with the catalogue of new grievances at the next directions hearing, the judge, exasperated, said he considered the issues significant enough for a full CAFCASS report in time for the final hearing. I can only imagine how the social worker assigned to the case, paid for by the public purse, must have frowned as she read through both parents’ evidence.

  It wasn’t snowing, but it smelled like it. I had watched the day grow dark out of the window of the courtroom and, as I walked back to the station, the sudden drop from the artificial heat in the building to the chill outside made the cold seem to penetrate even more deeply. It was the last Friday before Christmas. All those in court, from security guard to usher to judge, had been full of seasonal farewells. But rather than join the throngs packing up and heading home, I spent the weekend weeding all Helena’s grievances from her statements, in preparation for the final hearing which would start on Monday. On Christmas Eve.

  The CAFCASS report had arrived that morning, a week late. I noticed the author’s name with relief. Samantha Jones was a social worker I had come across before and would, I knew, have written a fair and reasonable report: sensible and balanced and firm. Both parents’ views had been carefully recorded, but the truth of their allegations left to the court to decide.

  The twins had turned four that September and, although they were considered too young for their views to be given great weight, the judge had still asked Samantha Jones to speak to them. I ran a pen under the words. Felix and Laura, she said, were – all things considered – happy and balanced children, in spite of their parents’ conflict. Credit should go to both grandmothers for doing their best to protect the children from it. However, the children had been emotionally harmed by their parents’ acrimony. They remembered when Mummy and Daddy shouted at each other – when Daddy got angry, they said, his face was scary, and Mummy cried, which frightened them. The summer had been fun. They liked going on holiday with Mummy and then with Daddy. They liked their nursery, but they wished they could go to one in the village where their new neighbours went. The cottage with Mummy was much smaller than their old house, but they liked sharing a room. They really liked seeing Granny and Grandpa all the time. They also liked seeing Grandma and staying with Daddy, although their old house looked different now because Daddy had thrown lots of things away. They were very excited about Christmas. Mummy had let them decorate their tree themselves and their friends in the village were having a party. They wanted to see both Mummy and Daddy at Christmas. They wanted to stay in their new cottage, because they wanted to go to the party. They wanted Daddy to go to the party too, but they were a bit worried if he did in case he and Mummy shouted at each other, which scared them.

  I stopped reading the report and let the words sink in. I was reminded how easy it was to represent a client and unintentionally push their faceless children to the back of my mind. By the end of a case I knew the minutiae of these little people’s lives – who had to sleep with a nightlight on, who wanted to wear a princess outfit every day, who was getting into trouble at school, who got car sick, who loved trains, who had started to wet the bed – but throughout they remained in abstract. I would read a CAFCASS report with a critical eye for how it could help or hinder my client’s case, but then I would come to the part where the child’s voice rang out, and I would feel a shock of guilty sadness as I realized that it was the first time I had heard them.

  I turned back to the report and read the final pages. As was so often the case, Samantha Jones had referred to Helena and Ed as ‘the mother’ and ‘the father’ throughout, as though this depersonalization helped her write in the unemotional language of the professional. The twins needed security and stability, said her report. The constant weekly journeys to and from both parents’ homes were taking their toll. Geographical distance meant that shared care was not a realistic option. They were of an age when preparations had to be made for school, and the court had to come to a decision about which parent the children would be with during the week. The father had worked full time since the children were born and continued to do so. His mother had made herself available for some of the week, but the court could not – and should not – ask her to give up her job to look after the children full time. They were now four, very active, and although the parents and court should be exceptionally grateful for her help, full-time care of them was not in the paternal grandmother’s best interests, nor, more importantly, the children’s. The mother intended to get some part-time work to fit around the children’s education, but was available to care for the twins with the support of both her parents. She was in stable accommodation with no rent arrears and, although small, the cottage was more than adequate for the children’s needs. She had researched local schools and had established a supportive network of friends for the children who attended the nursery to which she wished to send the twins.

  An inaudible inhalation lay in the space before Samantha Jones’s final conclusion. She recommended that the court make an order that the children live with their mother during the week and go to stay with their father from Friday to Sunday every other weekend, every half-term and half of all holidays. The twins were now at nursery every day – it was not fair that they should spend none of their weekends with their mother, nor was it fair that she should bear the brunt of the daily grind but fail to enjoy any leisure time with them. In due course, the parents must work together to agree which school the twins would atte
nd, local to the mother.

  I closed the report, placed my hand on top, and imagined both Helena’s elated relief and Ed’s fury when they read it. I thought of the conference Simon Forrest would have to have. I knew what it took to field a client’s anger – rage confused with fear and loss. I also knew that, although Simon was likely to advise Ed that the judge would probably follow the report’s recommendation, Ed would undoubtedly refuse to accept this. If the judge was going to make that order, then so be it, but Ed was never going to agree to let the children go.

  The final hearing was supposed to have been listed before the same judge who had made the order for shared care. But when I got to court after the cold walk down from the station, I found that – for reasons no one could explain – we were before the circuit judge who had imposed the penal notice on Helena in fury at her unilateral move. When we went into court, Simon – as I would have done, had I been in his position – reminded the judge of the last time he had dealt with the case. I watched him as he looked at Helena, sitting beside me, and my confidence in our case began to leak away. Shit, I silently cursed, as Ed walked up to the witness box and took the oath. Shit, shit, shit.

  When we broke for lunch, Samantha Jones had yet to speak. This was unusual. Often a judge would be at pains to ensure a CAFCASS officer was never at court longer than they needed to be, and would take their evidence first so that they could be released. This time, the judge asked her to sit in court and listen to both parties give evidence. I watched him for some clue, but he remained expressionless. What was he doing, I wondered? It was rare that a judge disagreed with the recommendation in a report, but I had seen it happen. Did he hope that the CAFCASS officer would hear something she could use to justify a change of heart? All the judge needed was an admission from her that she had not considered a particular scenario, or had heard some new evidence which now altered her view. With some gentle leaning by him, she might buckle and change her mind.

  We shortened our lunch break to thirty minutes. Helena wanted to sit and pick apart the morning’s evidence, but I rebuffed her and sat alone in the advocates’ room, scanning my notes. I started to think more carefully about what Ed offered – about the benefits of the children staying in their old home and nursery, with a father who could financially provide for them and a grandmother who had more than demonstrated her support. The judge had already decided that Helena had little respect for Ed or for the court – that much was clear from the last time he had dealt with the case. Simon might be able to convince him that Helena was determined to erase Ed from the children’s lives; that she would never comply with any orders that the court made. I winced as I scanned through my notes of the evidence she had given that morning, reading again her long list of complaints against Ed. I closed my book. I should go and find her, remind her that the CAFCASS report was a recommendation, not an order. Warn her that the judge did not have to follow it if he could justify a decision not to do so. Urge her not to be complacent; that this judge could, and would, take the children from her and give them to Ed if that’s what he felt was in their best interests. But, as I stood to go and find her, Simon appeared. There was no time; the judge wanted us all back in court.

  In evidence, Samantha Jones maintained her recommendation, but was balanced when she did so. She conceded that Helena did not support the children’s relationship with Ed; admitted she had concerns that Helena might refuse to obey court orders compelling contact with the children’s father. But, she said, she hoped that if the court gave Helena the reassurance of an order in her favour, this might provide her with the confidence to support their relationship with him once things had settled down. I looked at the judge, watching him as he wrote a note and slowly underlined it.

  After Simon and I had given our closing speeches, the judge said he would like a break to consider, before he gave his judgment. Outside court, Helena called her mother, who was looking after the twins, to tell her that she was going to be late; that they still did not have a decision. She finished the call and turned to me. I feared she had been able to tell by my tone during my closing speech that the hearing had not gone well. Was the fact that the judge needed more time to decide a good sign, she asked, or a bad one? I drew a breath. ‘Either,’ I said. ‘The judge might want to ensure he gives a judgment so detailed that there can be no criticism by either party that he has failed to consider anything.’ I paused. ‘Or he is preparing his explanation as to why he is not following the CAFCASS recommendation.’ Helena stared at me, blankly. Softly, I said she had to ready herself in case the judgment went against her. Expect the worst, hope for the best. If the ruling went against her we could try to appeal, but this experienced judge would make sure his judgment was watertight. I could not guarantee that we would be successful.

  I watched Helena as panic swallowed her, and thought of all the times I had seen a parent realize that he or she had lost. If the result was not expected, then their animal howls would echo in my head long after we had all left court. I excused myself, unable to look at her any longer, and went to wash my hands. I looked at myself in the mirror as I did so and ran through the day. Had I missed something out, thinking it unimportant? Had I been too soft on Ed when cross-examining him? How would the judge do it? Surely he would not order her to pack a bag and hand the twins straight over to Ed tonight, on Christmas Eve? Unless, of course, he was worried that she might, once again, take them away, but this time somewhere they could not be found? There was a knock on the bathroom door. It was the usher. We were to go back into court. The judge was ready.

  The courtroom seemed cold, as though someone had turned on the air conditioning to rid the room of the stifling smell of hours of evidence. We all stood as the judge came back in. He did so, as always, in a distinctive style. Slowly, deliberately, his hunched walk making him look older than I expect he was. He would nod at those standing before him without looking up, then sit, open his notebook, take out his pen, remove the lid and, glancing at the clock on the courtroom wall, write down the time. Only then, when he looked up and towards us, would we know that the hearing had begun and we could speak.

  This time the judge did not look up, but instead began reading his judgment from his notes, setting out the facts of the case, the history of the hearings. I scribbled a note of his words to distract myself from the clenching tension I felt. When, at last, he reached his conclusion and said that the twins should live with Helena, I felt her start to shake next to me with the effort of controlling silent tears.

  I arrived at my parents’ house later that same evening, long after the hearing had finished. I sat at the kitchen table, forking through warmed-up shepherd’s pie, and forced myself to type the attendance note before Christmas took hold. I emailed it to Emily, then closed my laptop. Involuntarily, I thought of the twins. I wondered whether they were in their night clothes, pink-cheeked from a bath. Or maybe, by now, they would be asleep, their mouths softly open in the way sleeping children have, as though they had tumbled from a painting. I wondered if Helena had hidden her tears of relief from them or whether she had allowed herself to use them for her comfort and held them, their small hands inching around the back of her neck. Then, for a moment, I thought of Ed, alone in the house where his home had once been. I got up, zipped the papers and my laptop back into my bag, and went into the sitting room where my family was waiting for me.

  The final hearing was not the end, but it was the beginning of the end. In the months afterwards, I found myself back at court arguing about schools, holiday destinations, vaccinations and even, one depressing afternoon, circumcision. But, eventually, the gaps between hearings became longer. About a year after the final hearing I heard from Emily that Helena had begun a new relationship. Expecting this to be the start of more applications from Ed, I braced myself. I waited for demands of a criminal records check, a ban on staying over when the children were there, an agreement that they must never be alone in this new partner’s care. I waited for Emily’s email, but none
came.

  Over a year passed before I saw Emily in the waiting room of Brighton County Court. She was talking to another barrister and I wondered if I had been replaced. No, she said: there were no more applications. Ed was engaged. His girlfriend was pregnant and the baby was due in the new year. The twins were ecstatic, according to Helena. It was over, finally.

  Six months or so after that, I got married. In the month beforehand, a new protocol was introduced into the family courts which changed the name of the orders handed down by judges. Custody Orders had already been replaced with Residence Orders and Contact Orders and these were now to be called something new: Child Arrangements Orders. They would spell out how the children’s time was to be divided between each party, and remove the ability of a parent to wave an order and say They belong to me! I wondered whether it would really make a difference? We could pretend – the lawyers, the judges – that we had neutralized the battle, but I doubted that the parties would be fooled. They would still interpret an order in terms of time divided and importance accordingly bestowed. It would not matter if the order said the children were to ‘live with’ their father every other weekend – he would still feel robbed of them. Someone felt they’d won, and someone felt they’d lost, and I was unsure whether justice had anything to do with it.

  I thought about all those times I had told someone I practised family law and watched them draw a breath before describing their own battle with the person they once loved. I knew the account I was being told was selective, designed to win me over so I had to agree how disgracefully the other party had behaved. Eventually I would find a way to extricate myself and wonder at how quickly this stranger had transformed before me and how repelled I was by it. I used to wonder how it was that I had ended up here, an agent and instrument not of the law but of revenge and spite. I had begun to fear that I did not believe in this system. Not, at least, in the way I believed it when I defended someone I suspected was guilty, or excluded evidence that would secure a conviction because it was illegally obtained, or watched the prison van with my client in it pull away knowing that his incarceration would be longer than his life. I accepted this because these moments were part of something bigger: a system of justice that I respected. I had often been asked, ‘Does it put you off getting married, dealing with cases like that?’ I knew I was supposed to brush it away and announce my objectivity. Except the truth was – yes, it had. Representing parents at war had fundamentally affected my life choices. I had imagined boyfriends’ faces on the other side of a courtroom. I had wondered whether I would fight in the breathless wounded way my clients did. I had seen how easy it was for love to slip into hate, and feared that – despite my judgement of the parents I represented – in reality maybe they and I were not as unalike as I might hope. Luck threw me someone I loved, who trusted in the power and strength of marriage in a way that overcame my insecurity. I began to understand how a preoccupation with how my marriage might end had almost prevented it from ever beginning, and that this, in truth, made my clients’ choices no less tragic than mine had been.