There were times during the following months when I questioned the judge’s decision. I was wrong to do so. She knew exactly what she was doing. She gave Jude a voice and, in doing so, gave him power – even if, in court, we doubted whether the words he spoke were actually his own.
It was my solicitor, Ben, who suggested we meet Jude at school. He had already been to see the boy once at his house and said to me afterwards that Nigel had lingered in the background, listening. He had been polite, of course, but Ben believed Jude could not speak freely with the spectre of his father in the room next door. School offered a neutral space, free from eavesdropping ears. And yet, when I left the small room into which we had been shown by the teacher for our conference and went in search of a loo, I saw a man waiting in the entrance hall. He was short and thin, and was pacing back and forth across the lobby. I said hello, and he nodded at me and sat down on a seat. I knew it must be Jude’s father, come early to collect him. Once Nigel knew where we were, he moved to walk up and down the hallway outside our room. His form flashed past the glass aperture in the door and I felt a shift in the atmosphere, like a change in the sea’s current. Afterwards Nigel said he had not known when we would be finished – he needed to come early to make sure Jude was not left alone; and he could not hear anything, nor had he wanted to. As in the dozens of excuses that flowed from him in court, each statement was individually believable, but, when put together, a different picture formed.
Jude sat next to me in our conference room, with Ben on my right quietly taking notes. As I explained my role, the process of evidence, the final hearing coming up the following week, Jude watched me carefully. I told him I was separate from Gaby; I was not a guardian. Her role was to listen to children and explain the court process, but then to give the judge a professional view on what should happen next, even if this were at odds with what the child was telling her. But I was his barrister and I would put forward the case he wanted. I did not say that it was my duty to do this even if I did not believe him, or whether or not I suspected the words he spoke were not his own. I must fight his corner, even if I feared he had been pinned into it.
In front of me lay a file, unopened, and within it a deluge of criticism levelled against the father he said he loved more than anyone else in the world, with descriptions of Nigel as a strange and frightening man. Then there were the statements – dozens upon dozens of them – and reports from the school and guardians and social workers involved in the previous applications. A recent social services investigation had concluded that their threshold had not been crossed for state intervention, but still listed the ways in which they thought Nigel had caused his children harm. The file was united in its censorship of this man with whom Jude shared his DNA, his building blocks, his blood. How could I be responsible for introducing this grave young boy to the complex world of which he had felt only the edges?
And so I didn’t. I told him what the others wanted, what they said Jude had said, and a summary of their worries. Then I let him talk. It seemed he had been waiting for this chance for many years. He had written it all down, he explained, to help him. Some of the words were underlined, some in bold where he had scored over the letters with his pen. Within the note were references to things I had not told him. Details of reports I did not know he had seen. Explanations of incidents he had not witnessed. Afterwards, as I climbed into Ben’s car for a lift back to the station, I asked him whether he had shown Jude those parts of the bundle. Of course not, Ben said, and we both looked back at the road as the rain bashed down on the windscreen.
Bristol Temple Meads railway station rises from its cobbled hill like a temple of locomotive worship. Its clock is set within a Gothic watchtower high above the warm, carved limestone, surrounded by pinnacles. The building looms over the forecourt, while inside a vast glass and cast-iron roof dreams of long-gone steam and protracted farewells. Platforms and tunnels are clad in the livery colours of the Great Western Railway; cream and brown tiles echoing with the steps of war-weary families taking longed-for holidays to the coast. Its romance holds you, as though by stepping on to its platforms you might find yourself wearing a stole and hat, carrying a small leather suitcase, raising a gloved hand to your mouth to protect your lungs from the smog.
The Family Courts, built only a few years ago, are modern. They lie away from the grandeur of Bristol Crown Court and the winding cobbled back roads, just off the business district of Victoria Road. The entrance is within a large atrium, at the end of which a bank of lifts transport you in stainless steel through the layers of justice that rise above them.
Some weeks before, I had stood in the courtroom before Judge Francis as she tried to decide whether or not Jude should come to court to give evidence at the final hearing. We had all agreed, at least, that Jude should not sit through all five days. I should attend, and telephone him after school to go through the relevant parts of the evidence. When I had told him of this decision afterwards he had accepted it in the way a child does, although I suspected that, had I given him the choice, he would willingly have come to court and watched it all. But what is heard cannot be unheard and I was glad he would not be there to hear a procession of witnesses pull his father apart. But the giving of evidence is different. It is true that there are judicial guidelines that encourage judges to meet the children about whom they are making decisions in their chambers.3 They are told to explain their job, what their powers are and, if they feel they can, why they have come to their decision. I have been in cases where a judge has seized this chance, so the child or children go through a secret door behind the judge’s chair and return bolstered, not quite believing it. The judge usually follows them looking relieved, glad perhaps that it is over and no one has cried or hated them. They have, they hope, proved themselves as human beings as well as makers and enforcers of the law.
But Jude was a party to the case. He had every right to give evidence if he wished. When I had explained the possibility of it he had looked up at me with shining eyes – I would love that – and my heart had dropped. Judge Francis had listened carefully as I explained this to her, then nodded. In that case, he must. He could do so by video link, then afterwards come into court, should he so wish, to hear what his future might be.
The evidence began with Monica. I realized, as she climbed into the witness box and took the oath, that it was the first time I had really heard her speak. Her hair was tawny red and piled on top of her head, frizzy wisps of it escaping in a crown around her hairline. She wore a long green skirt and a Chinese-collared jacket, black and woven with coloured birds. Her voice was high and soft. As Nigel took violent notes throughout her evidence, I could not help but wonder how the two had ever been matched.
While Nigel was giving his evidence, I found it difficult to look at him. He was not like witnesses I had seen before, who stumbled on the details of their explanation or said they could not remember, or who slithered and slipped away from questions. He was precise, detailed, confident and, most of all, angry. He spoke frequently of his right – his legal entitlements – to make the choices he had made. They were, he said, after all his children. He scowled and shook his head in rage when Monica’s barrister asked him questions, and his eyes flicked, time and time again, to his ex-wife, sitting quietly on her bench, as if he were filled with disbelief that anyone could think her a better parent than him.
He had been meticulous in his preparation: brought with him folders of his own, charts, records, print-outs highlighted with Post-it notes. I glanced across at his barrister, sympathizing with him, as he flicked through the lists of questions Nigel had printed out for him to ask. Nigel believed he had done everything he thought would help him win. He had kept a record as the websites advised; meticulously collected evidence to support what he suspected; written it down, carefully timed and dated, all ready for his big day in court. Another big day in court.
Maybe his previous experiences in court had taught him to behave like this? I was experienced en
ough to know that there were professionals who glossed over their mistakes. That they could maintain they had called when they hadn’t, could interpret distress as aggression, could fail to send a necessary letter or complete a vital task, safe in the knowledge that their version was more likely to be believed than that of an irate parent. I understood his desire, in the face of this system, to record everything. To trust no one. I could also see why Nigel would feel confused that, instead of being rewarded for such precision, he was now accused of psychopathy, of bullying, of controlling behaviour. He believed that the professionals, whom he thought should support him, had instead spent their time and energy trying to discredit him and none at all investigating the chaotic flimsiness of his ex-partner. As I watched him grip the edge of the witness box, I wondered how I might feel, standing there, my children in the balance, thinking that these people could never take it seriously enough. But through his fixation on being proved right, Nigel had lost any ability to ask what it was all for; to stand back and see the damage that his battles had caused the two people he claimed to love the most.
When he stepped down from the witness box after nearly two days of evidence, the very fabric of the courtroom felt worn out. Gaby gave her evidence next, and Nigel made no effort to subdue his reaction to it. The psychologist who came after her caused him so much consternation that the judge had to warn him to be quiet or leave the courtroom.
And now, at last, it was Jude’s turn. He and I sat opposite one another in a conference room, away from our court. He was due to give evidence after lunch. He was wearing his school uniform, for that was where he had been all morning. In the context of the court environment it looked entirely out of place, almost shocking, but Jude remained completely composed. I watched him, trying to decide if I had a sense of whether this statue-like calmness was his natural state, or whether, as others had concluded, it was a practised stillness, a watchfulness grown out of years of learning that he must be careful of everything he said. I knew a lot about him, but unlike other children I had spoken to in court proceedings, I knew none of the colour. I did not know what his favourite subject was at school, what book he was reading, the kind of music he liked, what he would spend his pocket money on. I wished I had had the time, when meeting him, to talk about subjects unrelated to his case. Maybe then I could have persuaded him that he need not be so careful – that he must not feel he had to write down every question I asked so that he had a record.
After we had gone through his statement again, I walked with Jude to the small room where the video link would take place. He would be beamed into court, protected from looking at the expressions of anyone other than the person asking him questions. As I made sure his face was in the right place for the camera, that we could hear the court clerk and that she could hear us, I realized he was not nervous but excited. It occurred to me suddenly that, maybe, this was because he was going to get to prove his love to his father. He was going to be able to show him how good a son he could be. Never, I reminded myself as I walked back to court, composing myself, underestimate the desire of a child to please a parent.
Judge Francis strode into court and everyone rose in greeting. Although we had been before her all week, her presence still struck me. Her short, swept-up hair was thick with silver streaks and she wore earrings made from two discs of battered gold. She had, I noticed, put on lipstick after lunch. It was carmine red, and a phrase came into my mind. War paint. She knew that, this afternoon, a child was about to look her in the face and ask her to do something that almost everyone in the courtroom said would hurt him beyond repair. She also knew that this child would later sit before her, alongside both his parents, and listen to her decision on which one could take him home.
Jude’s face shone out from a screen, wheeled into court for the purpose. The camera swivelled from the court clerk to the judge and then to me. Jude was leaning forward slightly, his eyes staring fiercely down the lens at us. He looked so young. I felt my throat tighten and glanced quickly down at my notes, pushing the emotion away. The next ten minutes were both terrible and wonderful. In one sense, what Jude said was unremarkable – he had already filed a witness statement and the specifics of his evidence were all in there. No one really wanted to cross-examine or challenge him on it, save to question whether what he said he wanted was for him or to please his father. The floor, therefore, was his. He spoke of his loyalty to his father, how everyone had got it wrong, how his dad was a good dad and he loved him. When he had finished, I was just getting to my feet when I heard a noise to my left and, instinctively, looked over. Monica was sitting completely still, staring at the screen. Her hands were resting on the desk before her. They were, I noticed, shaking.
‘Does Your Honour have any questions for Jude?’ I asked, quickly turning back.
Judge Francis leaned forward and the camera switched to frame her face. Her voice was calming. ‘No, I don’t, Jude. But I just wanted to know if there was anything else you wanted to tell me before I make my decision?’
Jude looked to one side, thinking, and then looked back. ‘I think, just to say thank you for letting me speak. I have wanted to speak for a very long time. I am really glad I did.’
Dusk was falling outside the courthouse. The security guards who hovered at the desk behind the entrance had locked the doors. Usually, if there was any sign that anyone might delay the shutting of the court they would swagger over – Court’s closing now, Miss – and linger nearby, jangling keys, hurrying us along. They wanted to be away, out of here, back to their lives. Tonight was different. They stood in a huddle by the security arch, keeping their distance. Although I had not told them, someone may have whispered that, upstairs, there was a twelve-year-old boy in a room who might refuse to leave. That elsewhere there was a father who had left court in fury as soon as the judge had begun her judgment, but that he might come back and, if he did, no one knew what he would do.
I was not with Jude but in a room nearby, surrounded by the other barristers in the case, my mobile phone in the middle of a table. We were all talking into it. On the other end, on loudspeaker, his deep voice bouncing off the breeze-block ceiling, was Lord Justice Kolbe. He was a judge of the Court of Appeal and the only possible person who could grant a suspension of the order that Judge Francis had just made returning Jude to his mother’s care that evening.
Lord Justice Kolbe was, apparently, the duty judge. It had fallen to him tonight to hear emergency applications for an order to be stayed after the court had closed. As we went around the table in turn, trying not to interrupt one another, I could not help but wonder where he was when we had burst into his Friday night. Had he been in the bath, or eating supper, or fallen into a doze in front of the TV? The thought seemed both undignified and entertaining. I forced it away as I set out a summary of the case as concisely and quickly as I could. Judge Francis had granted a Residence Order to the applicant mother, I said, to take effect immediately. The child was to be returned to her care today against his will. I therefore asked him to suspend the order by granting a stay, so that we might make a swift application to the Court of Appeal to overturn the ruling.
Oh, what a position to be in. In the silence down the phone the judge balanced what he knew. There was a competent child who had just been told to leave court with a parent whom he declared he hated. But if the experts were right, to grant a stay and send him home with his father now could be worse than dangerous. But the judge did not need to make a fresh decision – he just needed to apply the law. The bar for a stay was high and we had not crossed it. He would not suspend the order. We could file a paper application to appeal instead. After his ruling was over he said goodbye and I did too, which felt odd, the informality of it grating against our subject.
Jude remained expressionless as I told him the result of the telephone call. He did not cry or protest or refuse to go. Instead, when Monica came down the steps to meet us by the front door of the courthouse, he looked straight down at the floor, blocking h
er out. She said his name softly, but he did not look up. Maybe it was best if she went ahead, we said, and Jude could follow in the social worker’s car.
We waited outside as, behind us, the security guards gratefully locked the courthouse doors. Ben and I watched the second car pull away and I looked at the figure of Jude in the passenger seat. He seemed suddenly tiny, and I willed him not to look at us, for I was not sure I could bear it if he did. But he did not. As the car pulled away his eyes stayed fixed ahead.
Jude was transformed. I could not place it in specifics – his hair was the same chestnut brown but longer, messier; his eyes still a ferocious blue. I noticed for the first time, now he was standing next to her, that they were exactly the same colour as Monica’s. It was more complex than his looking relaxed, subtler than the fact that he kept smiling. It was as if he had been plugged in.
I stood there, looking at him, in the corridor of the Royal Courts of Justice. Behind us was a door, and behind that sat three lord justices waiting to hear my application to appeal Judge Francis’s decision. In my hand I held my application, my carefully drafted skeleton argument and the case law that I claimed supported my position. My stomach felt tight with nerves. Nigel’s solicitor had arrived alone and had already told me that she did not think Nigel would come today. He had been very upset at the end of the final hearing, she said, and had hinted at doing something. Something which I knew neither of us would articulate out loud. He had not turned up for their appointment to discuss the possibility of an appeal. His telephone was off; she could not reach him. She was going to have to come off record after today and he would then be on his own.
In Your Defence Page 24
