Hello and welcome everybody. We're pleased to welcome you once again to today's session. Destiny's session two of four where I'm taking you through carrying out effective family law advocacy and an essential guide. My name's Safta Mahmoud. So as you know with this coast and I'm going to various elements of principally injunction and also Children or advocacy to give you some tips and hopefully boost that confidence uh, for when you're then doing these types of hearings. So today then I'm going to be developing uh, the discussions from what we looked at last time. And you remember that last time I spent some time going through with you some of the essentials in preparing for advocacy. So I talked about the necessity of ensuring that there is good drafting so diplomacy documents and then using law effectively when you're doing hearings. And also when you're actually doing a hearing in terms of being able to use eye contact. Well being able to ensure that you introduce the party is making sure that you normally are submitting on behalf of your client. But there will be situations where you will be given your personal view. So let me develop this further then by looking at what you would do then when you do appear before the courts, as I mentioned in the last session, very important then to introduce yourself and the other parties like say, and sometimes what you find is if the matter is listed at say 10:30 a.m. Then in a typical case at the court order will have provided for parties to being caught, say an hour before. So typically care cases and particularly I find that if the matter is listed, that's A 1/10 and all parties, their direction will provide for our to being caught or to have pre hearing discussions. Uh certainly half nine at the latest, let's say, And let's say we've had that we've had pre hearing discussions and we don't always necessarily getting that half 10. We may need more time, which is understandable. And that's where it's very, very important therefore, to thank the court for additional time to discuss matters if this was allowed. And I'm I'm often for the applicants so I really do make a point about doing that. So let's say, you know, we're getting that's a half 11, 7 hours after the matter was listed and the judge through the usher was patient enough to wait and give us that additional time. First thing I should do is go in introduce myself and the other parties and then I would say to the judge, thank you. Can I thank the court on behalf of all parties for the additional time that was provided to us this morning to discuss matters. I can say that we have used that card time constructively and we've managed to narrow down some of the issues so that the substantive issue of so and so is no longer in dispute. However, they are remaining matters which we haven't been able to resolve and therefore it is those matters that you wanna be invited in court to make a determination. Okay, so that kind of helps the judge, the thing, right? This is where they are, this is where they've got to where they are, then it's very important to open your case. Alright, so again, this is where remember the bundle would have been large, the judge will have had sight of that. What you don't want to do is to ask a judge whether they've had an opportunity to read in the papers, because some judges understandably can get very annoyed and upset with that because it's almost suggesting to judge that they're not ready. You know, why why are you asking them whether they read the papers? Because of course they they hopefully, you know, we'll have done so, but if they haven't, I'll tell you so, it's better. Sometimes I would suggest two really ask other questions which is uh your honor, There is the updated case somewhere, There are the most recent position statements. Your honor. Is there anything on those documents that your honor you would wish uh for me to expand on at this stage by or something like your honor? There is the case, somebody that's been farmed which sets out the current position your honor? Is there anything in that case somewhere that you would wish me to expand on at this stage by way of background? So something like that just kind of helps to know where you are with the judges. Some judges will take over. You know, they go in and I'll take over, they'll say, right Mr Mahmoud have read this, I've looked at that, I've looked at this, Can you tell me where are we with this? And then that's where you got to be ready to be able to answer those questions. So, even though you may have prepared your opening speech, you may have prepared submissions that goes out the window in terms of an opening. But it's a judge who is really directing questions that you in terms of what they want, the answers to. So that's what I meant earlier in the first session, when you have to be fluid, there's no point you're writing out a speech because you may not necessarily be able to do that. So, key submissions. Key bullet points, key, cross referencing to the bundle is what's required. Mhm. Now let's say, you go into court and the judge would need to know as early as possible as to whether the matters contest or not. So let's say I'm for the respondent on uh say an application that father has made for child arrangement, spending time with otherwise having contact with, say I'm for the mother and we are opposing his application on the basis that we are saying that he's been violent, he's he's been violent to my client in the presence of the Children and we don't feel it's safe for the Children to have any form of contact with him name and all will advise my client about that and well advised her about the fact that only exceptionally will the court order that there be no contact at all between the child and the parent and as many of you are not, there's a lot of case law on that. Um, if my client is adamant that she does wish those allegations to be determined, particularly given that the father disputes those allegations, then this is where as I'm as I'm making my submissions, I need to make clear right from the outset really as to whether fathers applications contest and that. So I should start on that basis. Okay. Now, if the matter is contested, we then need to ask ourselves, has the court got time to deal with it that day? And if the court does, how are we going to deal with that? Is it by were submissions, for example, or are we going to be hearing live evidence? And that's where sometimes when you go in, I think it's very important to be able to have that conversation with the judge. So something along the lines of to suggest to judge that given the matter is contested having had discussed and considered a position, the parties would would be able to view that the parties that the clients do wish to give evidence and therefore would the court wish to hear from the mother and the father for example, or it may be the case that given the matter is contested more on the legal implications of whether The test for a direction of the 38 6 is made out not. We would suggest that that is dealt with by way of submissions. So you need to help the judge with where you are and how you propose to deal with that. Okay. So very, very important to to set that out. Now when you are drafting direction for the court, let's say you've had your pre hearing discussions, you've had your preliminary meetings, you've been typing up the order, you've emailed it into the court and then you have gone in. It's very important, I would suggest to be able to inform the court as to what direction is the parties have agreed to and make sure these are clear. So have you put recitals in there? We put the thinking behind the directions is their consistency in terms of dates for compliance. That's one of the things that we do get wrong when we're typing up and doing directions. So for example, if, say, the local authority needs to be filing their placement application for adoption and there's no point putting that as one of the first few directions because that may be one of the later documents that comes in and then you need to put the earlier directions in first in terms of time and then the later directions. In terms of when evidence has been filed, put that in at the end, putting at the end of the day to the final hearing, issues, resolution hearing and so forth. So if you have that consistency in terms of what's to be happening first and follow that through, it just makes it easier. And also there's a consistency when you're typing up in terms of what happens. So if you want direction, you're saying the local authorities shall File and served by two PM on which is fine. But if in another direction you're putting by two PM under whatever data the local authority will file, and that's where the inconsistency is because on the one you have started with the local authority, but in another direction you put the data all the time. So that's where the inconsistency comes into play. And that just doesn't sound as well and doesn't read as well. So make sure there's some consistency there. Having recitals when you're doing the order are absolutely fantastic, I would suggest. And as you know, over the last several years, we've been using more extended forms of recitals. And there's a lot of standard orders as out there as you know, you can use recitals, a very good way of being able to set out. Uh the type of thing is that the court is not invited to order because the court may not have the jurisdiction towards those things. But recital set out the basis upon which the parties have come to the agreement to have. So setting out what's agreed between the parties, what's disagreed wider mother wider father, why the family member has come to this view, which then helped to know why they are agreeing or otherwise to those orders. Okay. So when you are setting out your submissions, making your submissions set out a reason behind the directions that agreed so often, what I do is I will say to the judge uh that we have got a tentative order that's been put together uh and then I would ask the judge whether it would assist the court as to whether I went through the order and explained the thinking behind the directions and I would go through them and try and explain why why we've agreed and suggested as we have. And that often does help the judge. Okay. So when you're doing your opening speech is just very, very important. And to make sure that it's factual, it's concise. It's got to be helpful. So, there's no point doing it unless it's helpful for the judge and be directed be as concise and as clear as you can. And one of the things that the President of Family Division has made clear, of course, because of the increased use of remote hearings, largely because of covid is because there's of course less court time. There's less hearings and these hearings are remote. We have to be more focused when we are making our submissions to not necessarily elongate the issues in dispute. So, very important when you're doing an opening speech to therefore give the judge that background information leading up to where you are. So, for example, in the private Children, no matter, you need to be able to set out certain key facts, such as the nature of the applications of what it is that's been lodged. What was the application details of the Children? So, names for names, dates of birth, how all they are to the nearest month to month, details of the parents are the significant party. So who is involved? When did the problems arose? Which then led to what and how to try to resolve that, whether through non court dispute resolution, whether that's the mediation, arbitration negotiation or other forms and set out details of previous hearings. So, what hearing, what the key hearings that have taken place, what were the key directions that were made? Lost? The charge timetable. So, those are some of the things you to emphasize when you're given providing that opening and it's vital to then set out those matters which are agreed between the parties and those which are not agreed between the parties and therefore which you're seeking the court to make a determination. So it may be that there is a dispute over the level frequency, duration of contact, there may be uh had a dispute as to whether there should be a Section seven or section 7 37 reports. So you may have to make submissions on that. There may be a dispute or they may have to be submissions on whether the matter should be listed for finding a fact hearing. So therefore, are you familiar? Therefore Practice direction 12 Jane's as far as that's concerned. So, those are some of the things you got to think about when you're doing your submissions. Okay. And as I mentioned in the first session, it's very, very important. It goes without saying that you are keeping up to date. Therefore with legal developments. So like many other aspects of our life a little but often helps with keeping up to date with the law. So one of the things I often would advise people is it's hard to just pick up a law book and kind of absorb it that way. You need to read a little bit regularly. So a little bit every week to keep yourself updated helps massively. It puts in a much better, stronger position that gives you that confidence. Okay, So therefore there's lots of legal resources out there that you can access a lot of, a lot of resources online. And by doing that by keeping up to date, it does make you a lot more confident as an advocate. And also what it will do is make put in a much, much better position when it comes to than addressing questions that are put to you by both the opponents and also the judiciary when you appear before them. So it goes without saying that using law in family advocacy is absolutely vital and therefore keeping up with the case law with the legislation is absolutely crucial. So annoying about what's changed what the latest cases are. Uh the legislative changes, changes to statutory instruments, the family procedurals, amendments, and also funding regulations. I think sometimes lawyers forget that actually it's not just the uh the primary and secondary and a subordinate legislation you need to know. But what about the other elements related to remove innovation, for example, will the legal identity be able to fund this are in a position to do so? And what about the statutory guidance, for example, which goes with that as well as being familiar with your professional conduct duties. Also. Now, as you imagine sometimes when you're doing hearings, people will get nervous. It's understandable and you'll get nervous not only when you appear before the judge, but also when you're before. And in what cases with certain other opponents, Some of you who may be quite new to advocacy, who who may be starting out or who may not have been doing advocacy for very long. You may feel feel nervous when you're appearing at court and you've got an opponent on the other side. He's been doing this job for many years. You may feel that you're not his experiences them. And that's understandable and that's obviously legitimate uh element of anxiety. But what I would say to you is this that you need to have confidence on your vulnerability. I know when I first started, I used to think to myself, well, yes, you know, I've got so and so on the other side, who's a lot more experience to me, But I'm reading the law and reading the same laws. Them. The law applies to all of us. I'm keeping up with that. I've read my file of the bundle of taking instructions. So as long as I can put those things across the court, I mean, strong position and that's how I used to deal with it. And that really just gave into confidence to keep going. So that's how you got to. You got to try and deal with this. Have confidence in in your own ability, basically. Yeah. Okay, so just because you may be less experienced than your opponent, it doesn't mean that they right and you're wrong. Remember, you know, each of us is entitled to our own opinion and people will have doing interpretation of the law. So, if you and I had a look at a particular legal principle, you may put one interpretation on it. I may put another. It doesn't mean that you're right and I'm wrong and vice versa, we all will have a view and then that's the whole purpose of then litigating before the judge, so that he or she will then decide which what weight they attached to our legal interpretation. So that's the that's the thinking behind it. When you are dealing with other lawyers either in court or doing pre hearing discussions and general communication, it's absolutely crucial. I would suggest that you are polite, you are professional and you're considerate. Okay, treat others as you would wish to be treated sadly, I've had cases and I'm sure yourselves can relate to cases where some lawyers have not been polite, have not been professional. In fact, some sadly can be uh, quite aggressive at times and that's uncalled voice unnecessary. And actually, I would say that damage their damages, their reputation and it's not necessary. Yes, one has to be robust and yes, one has to be able to act in their client's best interest. But there's a way and a means of doing that of course is very, very important. Okay, so the other point that is, uh like I say, a lot of the advocacy is about effective preparation. So I spoke about the need for the preliminary documents to be as helpful and as up to date as they possibly can be. But in addition to that, it does help immensely to be able to prepare standard orders in advance and then to get these before the usher either emailed into the judge or otherwise. So this is where make sure you're familiar with the family procedures, For example, 2010 Have put the link there for you and for 40 parts there which relate to all areas. There's also of course the accompanying practice directions. And I put a link there for you. So as I mentioned earlier, if you're looking to uh invite the judge to make a direction to instruct an expert and so that's contested. So you've lost your c. two applications saying the Children case, you've lost your draft order, uh your Proposed letter of instruction and and questions that you've done that then that's in accordance with the practice directions projection 25 c. And also in accordance with part 25 of the found procedurals. So that's where the FpR helps you to know what they are to do leading up to that in terms of the prep the paperwork so that when I go and do my advocacy at least that it's been dealt with. But any other elements you need to be familiar with is not only have you filed those documents and so forth. But what are these standard orders going to look like? So if I do get my order that I'm asking what what would it look like, how to a draft it, How does it read? And that's where the practice guidance comes in sort of practice guidance, Standard Children and other orders there are standard finance holders as well. And these were issued by the President family division and the Minister of Justice some years ago I put the link there for you. These are updated as and when necessary. And these are absolutely excellent. These are incredible because these give you very useful, very detailed draft orders that you can use. And the whole plethora of both private and public law cases and need other areas involving Children as well, injunctions, normal station orders, warship adoption custody. So all the different areas and what this does. It gives you draft orders that you can use and then you can adapt as you do in hearings and it saves a lot of time. It provides consistency and of course what it does, it enables you to use orders which have been tried and tested. It's a very, very important to make make use of those. Now, when you're dealing with advocacy, when you're dealing with uh dealing with advocacy, of course, it's very important to ensure that you are managing your client's expectations. So how realistic is it as to whether what they are asking for will be granted. So, for example, if you're for a local authority and your social record team manager is asking you to uh make representations that an interim care order should be granted. And how realistic is that? Or the threshold met? Will you be satisfied? The court of the child safety demands? A separation. Was the interim care plan? Like What's the contact proposals like? So be prepared to manage expectations. And even though this list of code of conduct does not compel a lawyer to run a hopeless case, you may well have a case where you don't feel that it's one that should run of course advise your client on that. You cannot be uh insisted upon to on a case you are entitled in those circumstances to as long as you give reasonable notice to be deconstructing and therefore to enable a client to find alternative lawyers. But sometimes you may find that the case it's not hopeless, but it's a weak case. And as long as you find out you make declined to wear such and managing expectations and it doesn't prevent you from of course running that place. If a client is seeking safe, for example, an increase in contact, let's say you're for mother and she seeks an increase in contact. Let's say it's one way We are now in August 2021 and of course in England in particular and of course in Wales although uh more limited nature, there are now lifting of a lot of the restrictions in terms of the restrictions that we had as a result of covid. But does that mean that mother will be able to have unsupervised contact five days a week at the contact center And not necessarily. So you need to be realistic with her and tell her not just about the law but also the practical aspects. Uh and of course resources is still a factor that can protect your account and when you're looking at the impact of covid. So cases like three DS, that was the big case of August 2020 for example, which puts this together so you need to know about the law so that he can of course advise your client accordingly going forward in relation to that. Now when you are going and doing a hearing which is going to be potentially contested, that it's very important to be able to check the time as much for the hearing. So is there going to be time? So if your client doesn't instruct you to contest, is there going to be enough time to contest it? So you need to bear this in mind as to how best than uh to proceed uh going forward. So we checked with the court so they got time to hear. It cannot be dealt with by with submissions or is it going to be live evidence are going to have time to be able to do live evidence. And that's where having clear uh time estimates are very important to having a witness schedule prepared in that regard. Now when you are preparing for a possible contested hearings, having done a fault copy of key documents for example, so that you can then annotate those. So now when I'm doing a contested here and I do still try and work off the electronic bundle but I sometimes still print off some of the key documents so I'll print dollars off, I will annotate a highlight or mark them and I'll put yellow stickies on there and make notes and stuff. And that's really helpful to then help me when I'm preparing the in the examination chief and cross examination. So therefore doing that uh in advance obviously helps and it gives you that confidence going forward as well. And so far as that's concerned. So very very important to make sure that you do take a clean copy of complete papers for any person who is joined at the first hearing. So say your for the local authority you're going to court. Is the case manager hearing the first hearing. Ah The father was given notice he didn't have parental responsibility but let's say at the first hearing he does turn up he's joined as a party in which case he's now entitled the papers. So have you got a complete set of papers to then hand to him or his lawyer in those circumstances? So again, those are some of the things you got to think about in advance. Get to court early as I said. So at least now before the hearing in most cases and the order will often provide for that. And if not then you need to make sure that that's in the directions. And is there such a direction for that for future hearings as well when you are going to court try and get a conference room if possible book yourself in with the usher. And at least you then got that private room that you can then discuss with your client and also have discussions with the other lawyers as well. So very, very important. And as I mentioned earlier, try and draft as much as you can before going to court. Okay, so in a private Children or case for example, fearfully applicant, have you prepared the draft order in based on those practice guidance stand daughters that I mentioned earlier? Have you prepared the draft directions in terms of the cap boarded a child arrangements program? So this helps you massively. So this helps you tremendously at court and that you'll be spending a lot less time than amending rather than spending a lot of time putting together one from scratch. So if you use those standard orders and mentioned or certainly your own version of documents and you've drafted as much as you can and you can concentrate more in court in liaising with the other parties, looking at what needs amending rather than having to start from scratch and getting ready to and worked up about that because often you find when you are in court, the other parties will have their own matters. They want to raise with. You could be issues of contact and it could be lengthy discussions on that and you don't want to be missing out on that. You don't want to be in a situation where you're not spending enough time on that because you're spending more time drafting the order from scratch which you could have been doing and have done before the hearing for example. Okay, so very important draft as much as you can. I know what I'm doing a hearing. I make sure that I can draft as much as I possibly can before the hearing so therefore can spend less time having to worry about that in the court room itself, in the in the court at the court hearing. So in a public case for example, Public Children Law case you need to ensure, not only are those preliminary documents prepared and that I spoke about earlier but also which includes amongst others a case somewhere but also there should be the case management order prepared by the local authority advocate and the peer lord of public law outlined in practice Direction 12 a still requires the parties to have an advocates meeting nor later in two days before the case manager hearing. And it's not that hearing that all parties should then be looking at what the position of each each of us is and then we need to be pulling that together the party's positions in the case manager order which should then be far knowledge and 11 am the day before the hearing. So that is still of course the expectation and therefore as I mentioned earlier use the practice guidance standard Children and other orders very very useful because then that helps you going forward. Now there has been recent changes in so far as the expectations and care cases following on from the public law working group recommendations. So, these were the recommendations to achieve best practice and Child protection Family justice Systems. The final report was issued earlier this year in March. I'll put the link there for you and the President Family divisions. Sir. Andrew Macfarlane has approved these and therefore these expectations are are such that they should be implemented across all areas across England and Wales. And therefore one of the things for example, that the guidance provides is that when one is represented, charging to ensure that of course the Guardian is appropriately appointed and of course to make sure that the Guardian does have opportunity then to make inquiries and independent inquiries. And that kind of ties in very much with this case. Last year of re b. This was a court of pure decision leading judgment handed down by the President of the Family division, sir Andrew McFarlane. And it was a case where by the local authority made an application for an interim care order. They saw removal of the child film family. The Guardian who had been instructed just a day before, hadn't understandably had the opportunity to make her own inquiries, nor had the child's lister. Uh And the Guardian spoke to the social worker at nine a.m. On the morning of the hearing and used based really their decision and supporting the plan for removal, largely based on that conversation. Now, what the President said at paragraph 22 of the judgment is that the court uh takes the view that once the Guardian has been appointed, then the court must be satisfied that the Guardian needs to ensure that they exercise professional judgment, whatever the circumstance of the appointment and the court relies upon the Guardian to be independent in promoting and protecting the interests of the Children. And sometimes they may all be not infrequently take a different position to that of the local authorities on the facts of this case. The Guardian had not had the time to make her own inquiries beyond reading the papers and having a conversation with the social worker and in a case like this, which is unavoidable. The judge did say that it was surprising that both the garden and the solicitor felt it appropriate to make a recommendation for removal based on a low knowledge base. Really, there should have been making more inquiries. Neither of them had met or spoken to a child or the grandmother, the grandmother solicitor in order to have any information coming from those quarters. So you can see it's very important to make sure that you have time to be able to make those in independent queries. And if you're not able to do so, it's important to ask for time to be able to do just that. Okay, so you can see the thinking behind that timing and with that very important to make sure that you take full instructions from your client ideally. Therefore before the hearing on the specifics of the case. So therefore have you got full instructions on contact on siblings? Whether the contact should be between siblings and what level venue duration frequency can it be increased? Should it be increased? Should it be varied? Have you got instructions on the position with family members being put forward? Uh In terms of who has already been identified whether initial assessments have been undertaken of them or should be those of the acting for parents. You need to ensure that you address This as early as possible. So has your client put forward on 20 friends and family carers. Do they intend to do? So those who for local authorities you need to be clear about paolo planning. Have you made a refer to fostering penalties? Each recommendation adoption panel to approve a match as the ADM had the papers or will they be having the papers? The agency decision maker. And what about the medical, has your social recording booked in a purpose in medical? For examples of some of those aspects we're going to need to be of course looked at as well And therefore in a typical care case for example the court would therefore need to know about various aspects in readiness for that case. Such as the nature of the applications for what kind of application is it is it just a care application or is there a link to placement application to place a child for adoption, for example, what's the position with the Children? Parents. Carers, who's who's involved, who had a significant parties? What was the first involvement with the local authority for example? So you're looking at that matters related to referrals? What referrals had been made? Was their child take a conference? What was the actual that what recommendations were made? What happened pre proceedings? Was their letter before proceedings? Was there be a long meeting? Did that take place? What was the outcome? What's the position with previous hearings and key directions that have been made? The Charles timetable. Okay. And again, it's very important to highlight those areas which are agreed and disagreed between the parties. Okay. And one of the things I wanted to emphasis was when you are going forward hearings particularly, I would suggest with some of the care cases that we deal with. So if it's the first hearing, you always need to, I would suggest prepared the first hearing on the basis. It may be contested. You never know you go to court, you may think we're agreed, but actually it may not be okay. So you need to think about what are the areas that I need to think about. So if it's contested first and foremost, threshold or the threshold met before we go into anything else before we even look at whether the child safety does demand or continue demands, continued separation, for example, make sure the care plan is clear what kind of support is being provided. Can care plan B progressed as it is. What's the contingency of the placement breaks down? For example, what's the position would contact? Can it be increased? Should it be increased in the circumstances? So, you're looking at that also? All right. So those are similar things you need to think about. Brilliant. So that brings us to the end of the second session. So, well done for getting to this. And you can see I'm not developing really the area of making some of these submissions into more detail. What I'm going to be doing in the third session is I'll be talking to you more about live hearings and particularly calling evidence. So, we'll be looking at examination in chief cross examination and re examination in particular. Can I thank you very much indeed for listening up. That's been useful and I'll let you take a break and then I'll speak to you on the next session. Thank you very much indeed. Bye for now.
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