A view from the bench – life in court as a children’s law trainee

True to the reality of the thing (routinely not leaving my house for days on end), I wrote about the issue predominantly plaguing my waking mind: the sub-par quality of my desk chair. Fast forward to a year later and my home desk chair is now ergonomic, thank goodness, but I haven’t been using it anywhere near as much. For the most part we’re all getting back to the office, and for the solicitors working in the children’s team we are increasingly being asked back to court in person – particularly for final hearings or fact-finding hearings where the issues at stake are complex and some parties do not have the means to get online.

I wanted to share some insight after a week spent in court, by the side of a mother fighting to have her children returned to her care. And instead of a view from my chair, I have been thinking about the view from the judge’s bench.

Though the court in question is a fit-for-purpose cinder block of a thing, the decisions made within its walls are altogether more delicate. The judge is tasked with trying to answer the following (simplified) concerns: are past actions a decent prognosticator of the future? Can a parent achieve lasting change to prioritise the child? And in some cases, are children simply better off without them? Decisions made when addressing these concerns often stand further trial in the court of public opinion: when responding to public outcry stemming from the death of six year old Arthur Labinjo-Hughes in December 2021, education secretary Nadhim Zahawi stated that children should be removed from their families if there is “any inkling” of harm to them. Social workers are often stuck between the same rock and hard place – criticised for removing children but rebuked where something goes wrong and a child could have been removed sooner.

To set some context, s31 of the Children’s Act sets out the ‘threshold criteria’ for a local authority to succeed in their application to make a care or supervision order for a child. The child concerned must be:

• Suffering, or likely to suffer, significant harm and the harm, or likelihood of harm, is attributable to either:
  • The care given to the child, or likely to be given to him if the order were not made, being of a kind reasonable to expect a parent to give to him.
  • The child being beyond parental control.

The problem facing the judge when determining whether threshold has been met is that no family dynamic exists in a vacuum. Harm and suffering are exacerbated by economic duress and cuts to public services, not to mention the triad of underlying issues that often exist in care proceedings: domestic violence, substance misuse and mental health problems. The judge has to consider the views of the child too, the paramount factor. However, children’s views can often be formed on the basis of parental attachment and many are simply too young to have formed views to begin with. What about children with many siblings? A final decision separating siblings risks years of potential issues surrounding their sense of self-worth and identity in order to achieve stability and permanence. 

The judge presiding over the case I was working on had to deal with a similar raft of issues. Here was a mother who no person doubted was devoted to her children, but the case also featured a lack of properly implemented support, more than a decade of alleged domestic abuse and a sense that she had been isolated from her family and community. This judge had to intervene several times whilst the mother was giving evidence under cross-examination – guiding her, telling her to breathe, asking her to slow down and breaking the questions down into more manageable chunks. These interventions were quite touching, and also reflect the multifaceted role played by social workers, support workers, solicitors and even barristers in care cases – that of guides, counsellors and navigators through the unsteady waters of the proceedings.