Right, @familoo here, just joining the conjoined appeals hearing, slightly late. 117 participants incl. judges, lawyers & observers. We are told that there are four women bringing these appeals. One involves a judge previously 'excoriated' in a similar case says counsel opening.

There is a preliminary application - something about a notice to admit facts concerning a text message. App by Janet Bazley QC, representing one of the Fathers. And some issues about amending grounds of appeal.

The judges are The President of the Family Division, Lord Justice MacFarlane, Lady Justice King & Lord Justice Holroyde. Media representatives have been sent skeleton arguments in advance, which is v helpful, but quite difficult to follow without the numbered grounds referred to!

MacFarlane says normally we'd huddle on the point under discussion and decide if agree but instead, as they are remote, he is going to give his preliminary view and see if they agree. He would give permission to allow the amended grounds - the other judges signal agreement.

King LJ dropped off the call for 'less than a minute' (happens to the best of us). Some mild amusement as the President teases Counsel Mr Haines that he hadn't said anything important in that minute.

Mr Haines is setting out the facts in the H-N appeal. I'm going to tread carefully there - some potentially identifying info. Annoyingly, I don't think I have a skeleton from Mr Haine, who is representing the mother in that appeal so it's a bit tricky to follow.

@GeorgeJulian is doing a grand job on her thread I see. She is keeping up better than me.

Counsel is running through some factual matters. One issue is the failure to clearly record what admissions had been made by the father. First reference to PD12J. No doubt one of many. Oh, and first feedback issue - 'could anyone is not Mr Haines turn their Mic off' says Pres.

The judge had decided on the papers that this was not a d.a. case and the professionals could focus on the main problem as he saw it : the mother and her 'demons'.

He is moving on to some points about scott schedules - an issue raised in all the skeletons. He rightly notes that there has been a diverse range of opinions on those. Some were expressed in a judgment last week by the way - read about that here : http://www.transparencyproject.org.uk/domestic-abuse-appeals-the-warm-up-act/

Haines says these are not fit for purpose. The court must discern patterns of behaviour not just 'set piece events' or highlights. The court has to analyse a whole series of modes of behaviour or speech which v poss by themselves may be not as significant as

they are when taken cumulatively when as a pattern of CCB. Invites court to give guidance on how schedules shld be prepared- for benefit of respondents (alleged perps) but also for the court so that it can more readily id the real nature of relationship- whether abusive, dynamics

P says understands that d.v. does not only involve physical acts of violence. phrase in Re L was d.v. - court there only occupied with VIOLENCE and court's understanding was in early days. Court would analyse violence and if serious wld be taken so and if seen to be minor eg

it was probably minimised. We've moved on a long way from that & its my u/stding that can live in an abusive rel where is absolutely no violence at all- the abuse comes from living 24/7 in a rel which is harmfully dysfunctional, imbalanced, controlling & coercive & its what said

how made and threats of emotional nature that does harm. if in context of that is an episode once or twice of violence it supports and reinforces - but you say court should look at pattern and whether is abusive.

I understand that submission is that the schedule encourages them to list the particular episode. this happened on tues - the danger is it ignores the overall quality of yhe relationship but also it falls back into the pattern a couple of decades ago when focusing on an act,

& the court may say I want your best x number of allegations. You'd say that is wholly wrong? And it arises from the schedule approach.

The real q is how is the court to approach what it SHOULD be doing - looking for a pattern. how do you establish it w/o pleading / setting out allegs of a whole range of facts? So, the President has got the problem he's asking about the solution. What is a better way effectively?

It's taken me so long to do that I've missed the full answer. Helpful. The gist is that there should be a 'threshold style' pleading instead of a schedule. That is a theme in the skeletons I've seen - some agree and others say not.

The President is saying a typical case is likely to be heard by Magistrates or DJs not CJs (these are all CJ appeals). The president reminds himself about 60% of cases involve d.a. and that its guidance for a v large body of work, mostly being done by Mags / DJs

so it has to be able to be taken up by them. it can't be highly sophisticated but must be a v straightforward message. Haines says there is already clear guidance on threshold drafting in Re A (the 'Darlington case').

Haines says they want similar. And these docs should specify the impact of the behaviour on the child. The President notes that the criminal law (s76 SCA 2015) also encompasses impact on victims - the overall impact on the family and child.

The Darlington case Re A referred to above is here by the way : https://www.bailii.org/ew/cases/EWFC/HCJ/2015/11.html

There are now 152 people on the link! Most observers have their cameras off. And the non active lawyers too. And I have been calling Christopher Hames QC Haines all the way through - sorry about that. Captured his name by ear.

Hames is telling the court that the judge below ignored the cumulative effect and the impact on children. He is now making a point about prejudging with reference to a transcript of the hearing appealed from.

There had been apps to amend the schedule to include an allegation of rape. Tolson says 'my view of this LADIES (coussel adding emphasis here and saying make of it what you will) do we need a fact finding investigation?

...he questions it, says its difficult to think a finding ...is going to make much difference ... he goes on to refer to the large measure of agreement on child arrangements?

Holroyde LJ is pulling out a line in the transcript which suggests Tolson said words to the effect we DO need a ff. they are disagreeing over the interpretation of the transcript. Holroyde things he is saying we do need to resolve what happened as the accounts are so different.

Hames say he questioned the whole basis of a ff.
Hames has moved on- he failed to analyse the evidence at all. failed to analyse holistically. he cherry picked to create an 'edifice' for his judgment supporting the conclusion he'd already reached as expressed in the earlier part.

Counsel says immediately after closing submissions finished he announced on the particular issues b4 me I wont be making any finding beyond admissions. The reasons came in a judgment a week later.

Hames says the v swift announcement & remarks about it being 'easy' shows he'd made up his mind on the papers as he says in pa2 of his judgment.
The President is asking if the the J was wrong to say that how they behaved after was relevant?
A: No, but shouldnt have been elevated

he says to dismiss allegation ?of rape? just because she subsequently agreed child arrangements is a wholly inadequate analysis says Hames.

The judge refers to the fact the rape allegation in the case preceded many occasions of consensual sex. Hames says that there is a lot to be said about that : It should not be taken that just because a woman consents in the past she is taken to consent always.

That is a notion that should have been consigned to the judicial dustbin. A glib observation he says. Hames says its very easy from the judgment to see the faulty approach - he says i'm not making a political point BUT...

...Hames invites the court to ignore the first clause and to look at the rest as a political statement no doubt with an eye on Russel J's remarks in the earlier notorious appeal. The judge sets out then the things triggered by an allegation (legal aid special measures etc)

All of it he says shows the judge didn't treat her allegations seriously.

I should have said BTW, that I'm doing my best to be as accurate here as possible but it won't be completely verbatim. For speed I've had to squish some sentences, hopefully maintaining their meaning.

Hames is reminding the court about the concern that women have about raising such allegations in court to contextualise why it had not in this case originally been put in the schedule, even though it was set out clearly in her witness statement.

He is now dealing with how the court should deal w/ rape alleg'ns in family court. He is not inviting the court to introduce a different definition of rape that is dissimilar to the criminal definition. Any definition must bear all the essential components of the criminal offence

He does say the court shouldn't get bogged down with 'mens rea' (latin for the intention part of the offence). Hames has referred to the judgment in Re P where MacFarlane cautioned against importing criminal framework.

The President says his of judgment in Re that the context of it was a concerted attempt by the F's advocate to push for the use of defences of murder, and it was said a finding could only be made if within the criminal context.

I wasnt saying there should be no congruence, trying to avoid it being saddled with having to conduct every significant ff by giving jury directions. So, he says, the use of rape is a word in ordinary parlance and we should use it.

But says MacFarlane something falling short of rape may be highly abusive for the victim of it and I want to avoid is saying it wasnt rape so ignore it. It's the behaviour that is abusive whether possible to compartmentalise it technically within the criminal framework.

Phew hope I've captured that interjection.
Yes says Hames it's the behaviour in the overall context of the dynamics of the relationship - relationship rape. He says there are all sorts of reasons why women don't want to use that term and they should not be required to do so.

FWIW btw I've had clients who are reluctant to name their experience as rape, just as he describes.
Hames is saying non consensual sex can be highly indicative of a controlling relationship.

He is saying the court should give itself self-directions like a crown court judge. This will help protect against adopting rape myths about relationship rape, consent or other things.

McFarlane is reminding Hames that he has run out of time, but apologising for rabbiting on himself! McFarlane is suggesting a break. And he's nudging Hames to take a further 5 mins to focus on his own specific case as others will also cover the broader issues. Breaking for a few.

right we're back. I've got a cuppa and an apple. Someone was silently slurping their breakfast with a spoon when I first joined (camera on) but now we've all got cameras off. Hames is going back to the specifics of his appeal.

The father had admitted two incidents of violence and that he'd opened her mail (controlling). Ooh - we've paused because someone is nattering without realising they are not on mute. easy to do.

the judge relies on the fact the mother had not mentioned the earliest incident of violence and uses it against her, ignoring that there had been an admission about it.

me : there are lots of reasons why victims of d.a. don't mention (early) incidents of violence.

There is a background of abduction in this case, and counsel is noting that such acts are often illustrative of highly controlling behaviour. He is querying how the judge can have drawn a different conclusion. The judge's approach is said to have been 'incredible'.

This is difficult without the judgment he is talking about. I think the media have got it but I haven't. I hope the original judgment is published in due course for context.

By way of visuals by the way : nobody is robed. Mr Hames seems to be standing up, and Janet Bazley is sat at a desk. Her lips are moving quite a lot so she is evidently talking to her junior or client perhaps. The judges have a rather lovely cream virtual crest behind them.

P is asking about the argument the J artificially creating a binary choice- a deeply troubled M or deeply troubled F, confirming those are pursued? Yes he says, I've not had time to develop all the arguments in the skeleton today. The skeletons are mostly at the max of 25 pages.

Janet Bazley up now. Explaining late application - Father has found a text recently. They wanted the M to accept or not that the text did come from her phone. In the absence of a reply they issued a notice to admit facts about it.

This is a procedure which flushes out someone's position. It's not used that often IME. They want to be allowed to admit that late evidence on the appeal. The test for that is set out in Ladd v Marshall. The P says to save time make submissions as if its in & we'll decide later.

JB is starting with a classic reminder about the need for an appeal court to take care and to take a judgment as a whole and not focus too much on individual paragraphs. JB says that there has been a holistic analysis.

Have missed a bit dealing with *cough* domestic interruptions... JB is talking about some of the detail of the facts. The records show says JB that the child was sent at age 2 to live w/ F for 6 mths abroad in the context of the mother's serious allegations having predated that.

She also makes extravagant claims about his MH and children. She says all this is highly relevant. It's impossible to reconcile that with her allegations about his behaviour, violence, his MH problems (as asserted by her) and the judge was entitled to reach that conclusion.

JB says if she'd been concerned about his care, she wouldn't have then allowed both her kids to go at a later date. JB says there was no pressing need for her to go- the J was entitled to take this into account when assessing her credibility.

The M was saying he shouldnt even be allowed to see the child. The J was entitled to put it all together & to consider the inconsistencies in her accounts. Now detailing the context in which the F accepted a caution for what (from JB's description) is a relatively minor assault.

This is all about credibility and showing that the judge was entitled to reach the conclusions he did about her allegations. She is going through refs to the M telling profs he is a good man and not abusive.

The P is confirming that these things show the impact (or lack of it on her or the kids) (liberally paraphrased)? JB confirms yes. It shows the impact on her was not as claimed. They were living in different countries & so the suggestion he made her travel abroad wasn't credible.

JB accepts the prompt that these things don't mean that she wasn't raped (she agrees) but that her point is that the j is entitled to take these things into account (yes).
I think essentially its being said that the need to consider patterns of behaviour cuts both ways.

I can see a BBC journalist, a legal reporter, a couple of prominent d.a. campaigners, a retired judge & various other familiar names on the link. Someone else has joined by phone and started chatting without being on mute again. The judges are taking this in good humour so far.

The advocates all seem v rushed - and are trying to be economical with submisisons. JB has been reminded she needs to give page refs. There is clearly a very tight timetable, no doubt for good reason. There are 4 appeals, and several intervenors - we've got a lot to get through!

Did I mention that @FNF_Media, @mycafcass and womens groups are intervening? (haven't seen a skeleton from the latter but no doubt much of what they would say is captured in the appellant's skeletons).

JB is talking about the M's mental health and going through the evidence supporting concerns about that, and supporting the judges conclusions.

The President says but isnt the issue that it was set up as a ff, he hadn't made allegations against her. She'd be entitled to attend understanding her mental health, behaviour and ability to care was not on the agenda but the judge drew them in and established the binary choice?

Asked as a question, but my feeling is its a point of view the court has some sympathy for. We will see. JB is responding that the way in which M functioned and her changeability, tendency to allege untrue things because it suits her in the moment

She says- those are all relevant issues & that is how the case was put. Again, references to these issues in the bundle and her dysregulated behaviour will be sent to the court by email. MacFarlane is now keen to see what the parameters for the ff were, so see how its described.

The order shows that the mother had made allegations, she'd been directed to file a statement, the father was to file a statement. What, asks P, would have put her on notice that J was being asked to make adverse findings about her MH and ability to care?

A: He'd applied for a psych ass and referenced in his statement. She'd agreed to the assessment.
P: she might have therefor thought it would be dealt iwth him the assessment?
JB is saying it would have been surprising if not asked about it in xx. It would have been obvious.

He (F) was saying she was not always in touch w/ reality. Plus she'd made similar allegations re the F of another child & was not new to the process.
We're now being told she changed her position in evidence.
The J found F's evidence consistent: it hadn't changed over time.

So taking all the evidence together he was entitled and right to find her allegations not proved says JB. The evidence rightly gave real cause for concern about her functioning and veracity. The J rightly said she trimmed her evidence to fit- reasonable conclusion on the evidence

In summary JB seems to be really taking issue with the grounds of appeal and saying it's really not a fair representation of the evidence and what the J did with it.
JB is now moving on from the specific case and moving on to the broader issues of principle.

King LJ says pls deal w/ the abduction before moving on- better described as a wrongful retention. The F had kept the child abroad I think. Can't quite work out the sequence of events I'm afraid. But it appears maybe HHJ Tolson was critical of the foreign court? Will check later.

JB says the F genuinely raised an article 13 defence (to try to stop the child being sent back to the UK/M) even though it was rejected. The J accepted that he was unwise to pursue this defence but his concerns were genuine.

There is reference to concerning messages sent by M that gave cause for genuine concern or alarm about M's mental state and its wrong to characterise it as control.

Delay & interim contact - this is raised in the skeleton at some length- she's going to leave this to C Hale QC. This F has not seen the child since Sep 19, & almost no indirect contact. Hoping for supervised video contact soon for 15 mins, sup'd by an ISW (wonder who's paying?)

Issues of principle- scott schedules. All in the case have acknowledged difficulties. Alternative suggested- the pattern of behaviour & harm alleged to have been caused by it should be set out. doesn't think the public law model is ideal. there are issues in public law too- Re A.

She suggests a particulars of claim type document setting out what happened and then harm or damage from what alleged.
She doesn't support the idea of mandatory self direction.
President says there are pros & cons. If prescriptive & says every allegation should have direction x

the magistrates would cut and paste to make it appeal proof without the words cutting through to the neuro-channels as it were! He is wondering if a checklist to go through would be better. For judge to say I have reminded myself of x, y, z.

Would that be more adaptable and ensuring the analysis has been within proper parameters?
JB says yes that would be a good idea.
President says then you could adapt a menu to what is relevant.

This is a sort of dialogue really. And it depends really on the wisdom of the experienced lawyers not their clients instructions or the facts of the case.

JB says some of the other parties' submissions are impractical (not sure which). There is still a need to evaluate the need for a fact finding hearing, what elements and how it should go forward. She says the first hearing should be tailored to cases involving allegations.

She says it would be helpful to have particulars of claim type document before the first hearing. There might be admissions. the court would be better informed of the shape of the case to decide what sort of hearing is needed - whether a FF, composite, FH or risk assessment.

Triage - popular buzzword. A FHDRA encouraging parties to resolve matters is not appropriate where there are serious allegations. Court may say need a ff even if parties don't think its needed. She wants a longer early hearing. These case have to be grasped early by a trained J.

JB is encouraging consistency with criminal court. She is saying the criminal court is further ahead. The President has pointed out Holroyde LJ's expression (evidently a criminal judge) which he jokes is 'one of smug satisfaction'.
President says point is well made.

The President notes the DA Bill is in Parliament and that it includes a more detailed definition of d.a. The court will have to grapple with that in due course.

JB on funding for respondents. Referring to case of Q (I was in that one) where the issue of prejudice to F's was raised but not dealt with. These allegations have really serious implications for the relationship with the child even if allegations not made out.

It remains a real problem for many. They either bankrupt themselves or represent themselves and find they can't ask questions. Is a real gap that doesn't do justice to respondents or the children.
This is not really something that the CoA can do anything about of course.

Voice of child now : some of the skeletons are suggesting that there should be more regular involvement of cafcass, guardians etc & earlier involvement of cafcass, incl meeting the child. JB says in many of these cases children should be parties with interested separately rep'd.

JB raises concern about @MyCafcass investigation into lived experience (this is from their skeleton) which suggests evidence from a Cafcass interview might be introduced in a ff.

P : that feeds into arguments for more inquisitorial approach rather than court sitting back and saying you prove.
That the court should be more proactive and itself commissioning reports. what do you say about that?
JB : don't tear up process and go wholly inquisitorial. but...

A J needs time to read in. The J might be able to say they need more information about the child's lived experience. To see if its possible to resolve/might say to see if there is a need for a ff I need a further look at a particular issue.

But you would need to be careful not to trespass on the requirement of a person having to prove their allegations but there may be a gap in evidence.

Burden of proof should stand. Fundamental. Must always rest on applicant. if not proved entitled to be treated as not having done it. may need to look at what process has done to family and relationships.

... where is a lower standard of proof particular rigour is needed or there is a real risk of injustice to accused and the children. She isn't suggesting the standard of proof should be raised. The rigour she is referring to is on a balance of probabilities.

Some of the submissions seem to suggest that because of trauma the court should still find proved even if inconsistent. Still have to analyse evidence with rigour.
Court reminded about fallibility of memory- but in some cases the court may say the evidence doesn't come to proof.

Mr Hames is now replying on the first appeal. He is dealing with the text message / notice to admit issue and its evidential value. Even if it shows some consent to sex on one date doesn't prove consent at another time.

He says his submissions ARE made on the consideration of the judgment as a whole. It's not right the M agreed to going abroad without her for 6 mths. They went for a short period of 3 months and the M joined to take over primary care.

Hames says that where the J (Tolson) really fell into error is he took it upon himself to almost usurp the position of a psychiatrist by finding the mother's conduct could be attributed to her 'demons' and this flavours his approach to her entire evidence.

168 in the hearing now. Including Press Association, a few interested family lawyers who aren't directly involved in the case, d.a. researchers etc.
By the way @alicetwaite is tweeting her thoughts on this account separately. Will be interesting to compare later!

President is characterising the M's appeal as an attack on fairness. He is saying the points of detail that Hames is replying with 'don't have traction' in the appeal. He's moving on. He agrees that schedules (or whatever replaces them) should have the discipline of a pleading.

President: Summarising the appeals as saying that if scott schedule is leading courts into error it needs to be replaced, should look at pattern not discrete events. The q of how it should be prepared is really tricky - we need help with this question :

The qu is : If a pattern is to be established is there the potential for even more specific allegs? Each may not be earth shattering but are impt. Then case will take even longer. It's a matter of concern. Court is overrun.

Hames says a threshold should be treated as a developing document as in public law. You don't see this with scott schedules. they could be added to as evidence emerges.

(Me: not sure about this - LA thresholds develop because the LA wasn't there and doesn't know everything till it gets disclosure. the parties DO KNOW. At the start? However, the P says it makes sense so what do I know?)

Court is breaking now till 1.45pm. Good, need to stretch legs.

So, That was the appeal in the H-N case. The remaining 3 are the snappily titled H, BB and T. Nobody seems to know which one is up next, and the list doesn't help because H-N is showing as last on that! https://twitter.com/GeorgeJulian/status/1351417686027284481?s=20

Anyway, H is another appeal from HHJ Tolson. Mother rep'd by A Weston QC and Dr Proudman.
BB is an appeal from HHJ Scarratt. Mother there also rep'd by Weston and Proudman.
Don't have a skel from any respondent so not sure who is representing F (or if he is represented at all?).

T is an appeal from HHJ Evans-Gordon (cross appeals there I think). The appellant M is rep'd by @JoDQC, C Barnes, A Cameron-Douglas. F repd' by @twitbarrister, R Foulkes & M Best. They seem to be newly on the case?

Intervening generally are @MyCafcass - rep'd by M Jarman, M Gration, M Carew and S Jaffar.
@FNF_Media are rep'd by Sarah Morgan QC, T Wilson, L Maxwell.
Also @Tweets_ALC apparently intervening but no skel from them I've seen.

Yikes, screechy child on the link - not on mute! Perils of WFH. And @JoDQC has just come on screen - with a fantastic backdrop (william morris green fabric screen - luscious). That may mean that its T up next. Someone else is on an unmuted (but thankfully inaudible) phone call.

Right, it is T up next. From the skeletons there are 3 grounds of appeal by M (summarised) : 1 J failed to ensure a fair hearing, premature indication prior to xx, failed to apply PD3AA (special measures), allowed unfair xx.

2 failed to appreciate significance of findings made and wrong to find F no risk to child or M, failed to consider findings on totality of the evidence and in light of the findings she did make

3 inadequate self-direction which led her into error on consent, relevance of sexual history, demeanour in context of trauma and vulnerability.

Prof D @JoDQC starts. Going to call her PD. The judge appealed from is a female judge FWIW. PD is going to pick up some of the threads from this morning's interchanges. I do so with some humility. You will hear obs from senior members of the bar to senior members of judiciary.

And, she says, we are a long long way away from the front line. We don't know what goes on. We try to identify some of the problems well before a FF or SSchedule. In our argument we point out the way many of these hearings start. Key points :

Many apps begin as ex parte emergency apps by victims who are traumatised.
well before FF a schedule there is an air of urgency, financial and personal crisis that impacts on the ability for court and those acting for victims to extract evidence that will guide the case.

highlights just how limited the info on an ex parte and a Ci1 (she means C1A I think) to extract and inform the court. The funding to speak to clients at this point is v limited, maybe an hour, possibly paralegals. They take the instructions needed for injunctive relief.

The focus will be the first incident, the last incident and the worst incident.
[More chatting interrupts.]
No time in first encounter to build rapport to go behind that brutal summary of what is necessary for injunction.

Also junior status and means won't have life skills or exp and over phone to deal. this sets in train the process by which the court understands the nature of the case.
The next change to work out if there is more is when the client comes to fill out the C1A.

PD asks the court to look at the C1A its stark & out of date. How can the court unravel?
There's a checklist: 5 categories of abuse. A ticklist. Only explanation is in a schedule asking for a short description & relevant info. Told to identify when, nature & if sought help.

There's no guidance. It's not translated. No concept of what abuse is and predicated on assumption that the person filling out will understand what abuse is. It's an intimate document, no help. Filled in at a time of crisis. It's limited to 5 topics.

Pres : says its meant to be a v basic method of sift, not intended to be a sophisticated pleading doc?
But, says PD it becomes one. It goes to CAFCASS.
(Me I agree). It becomes a forensic woman. If it doesn't identify rape its a first complaint as to why it wasn't said then.

That's routine. It happened in our case (this appeal). Criticism can be made if don't raise CCB or rape at first opportunity.
Actually I'm going to call her JD not PD as its going to get confusing with the Pres!

She says C1A needs to be address.
JD says she has adapted her submissions based on what heard this morning - its clear she has and she has done so brilliantly. she is really responsive to the judges interventions. Her submissions are pacey but not rushed, and very engaging.

She's showing the J's the DASH risk assessment questions (tool used by the police). Its in that document in response to those questions that the M identified first some serious incidents of assault (bag over head being one)- in this case the M was criticised for not including it.

She's using it as an illustration of how its possible to do things better and get a better narrative 'out' i.e. its all in the questions and how you gather evidence.

Surprised tbh that even the CoA is unfamiliar with a DASH risk assessment (as Pres evidently is). Pretty common in police disclosure!

Due to legal aid rates its likely to be a junior barrister or limited or if private funds are limited. Issues such as CCB are identified as the most difficult to plead and prove as is rape. reasons similar. rape generally private and relies on one person's word against the other.

At that early stage its likely the focus will be on the allegations that can be more easily proved, tends to be where is physical damage. recalibrate to focus on the issues its necc to place before the court for the welfare of child.

Trigger warning - bit graphic now. I've toned it down.

This requires a culture change. Difficult to achieve unless we value the work of those on the frontline.
In this case M complained of repeated anal rape and a bag over her head. In criminal case to prosecute such offences it would require grade 3 level RASSO prosecutor.

Goodness someone ELSE Is talking over this. Possibly P is getting a bit irritated about this now.

To become a grade 3 you need to apply, go on courses, references etc. If you were defending it you would know you might face a sentence of 7-9 years.

In this case for the same allegations the M was represented by a barrister 2014 call and with entry level accreditation for magistrates court work in crime. F's solicitor was 2015.

This explains why later in the trial it went so badly wrong because didn't have the skillset to see where it was going wrong & couldn't assist the J when she failed to see the procedural errors.

It's a matter of regret the skill deficit is so present when these cases can have such a fundamental impact on the family.

in a moment of interactivity King LJ interrupts to say someone in the chat box has helped answer the earlier query about what DSAH stands for (which JD frankly said she didn't know!) In fact several members of the public have chipped in with the answer.

Now she's talking about the need for culture change via training. JD is saying she's not sure if judicial training covers it yet. King LJ confirms that there is a mandatory training element for Js on this topic now as a result of Russel J's judgment in the earlier Tolson appeal.

In addition to triage it would be helpful to have a tracking system. Tracking a case is a way of identifying regional differences, court based differences and the time it takes to come to resolution. There is a need for continual evaluation.

Ooh, now the chat box on Teams is being used for general observations - not sure that is what the court is expecting!

Pres : notes she is talking about relationship building and observes that requires time that often doesn't exist?
JD - there is protective stage, then return date, then set down for a hearing. R will say I need to see my child.
Pres : so at the v first stage may be superficial?

...but the stage imm after should be where more time is taken.
JD yes when R engages and where can identify if is a child welfare issue needing resolution. You start to then think carefully about planning for next stage.

Moving on to the specific appeal in Re T. She is going to pick out areas that relate to the themes that are emerging as well as the specific case.
Bias : danger of court coming in with pre-formed view, where has to deal with a witness who (on her account) is vulnerable.

JD is highlighting an intervention from the judge at the end of M's evidence when F had given his evidence in chief along with two other lay witnesses.
Pres says it wasn't a preliminary observation, all that as left was xx of F and closing?

You say 'all', says JD, but...J said (couldn't catch it all) 'it seems to me this is a shocking waste of court time... you've all heard and seen the evidence I've heard and I'm inviting you to make discussions...lots of pushing and shoving on both sides...

...it's not what one might call the type of d.a. one is normally invited to find facts about'
If having a bag over yr head with thoughts of death, hands around your neck & being told that is the way you are going to die is not the sort of abuse the court should be considering...

...the type of insults and anal rape that was being discussed - if this is not the type of case where the court should consider d.a. then : WHAT IS? to say it just before F is to be xx'd is significant...

Impact on him : maybe emboldened.
M felt little point on proceeding. Impacts on quality of evidence yet to be heard.
Cor. Powerful stuff.
President says : it's not bias is it? It's the judge's view of the evidence. You say it's wrong.
JD : yes I do.

JD is showing the court some exchanges during the trial. She is reading a rather testy early exchange where the judge says to counsel 'well that takes some face' in dealing with various preliminary applications! Judge complains about shockingly unprofessional conduct/preparation

Then it becomes clear her documents have been wrongly prepared (she speaks another language), in English then translated to her rather than the other way around. But it results in a v significant degree of pressure to adapt her case to the info available.

JD : the J says its a disgrace F hasn't seen his daughter for almost 2 years.
It is of course a disgrace but its not the fault of the M, which is how it comes out.

... JD says its difficult to summarise in a short time the cumulative impact of the first 14 or so pages of transcript, but we say it shows she had already formed a view (didn't quite catch that last bit)

So, both taken at the beginning, and at start of F's xx there was not a fair opportunity for her to be given her voice to express the experiences she had.

Now unfairness to M as a vulnerable litigant. It's accepted she fell to be classified as 'vulnerable'. That was obvious before the hearing. Duty is on court & parties. It has to be engaged before the FF. ground rules need advanced thought. Not just screens & interpreter as here.

All they do is erect a barrier and remove a language barrier. that is lip service.

it requires thought to how you will cope, anticipating a need for childcare, familiar with the evidence you are going to give and that is going to be put to you. identification of support. to contemplate what could go wrong eg sexual history.

the judge did give time to translate documents. but what's notable is that only her second and third statements were translated. not her first, not her police interview. or the audio in her own language.

She was cross examined on those documents immediately. she was xx'd on her police interview and inconsistent account. she didn't have the F's evidence translated so didnt know what case she had to meet. It's not good enough.

Pres : says did her counsel raise it? Yes she was represented.
Pres : so the answer is it wasn't raised. May be resp on court too but the judge knew some statements not translated and gave up the morning to that. what should she have done?
JD its a collective responsibility.

The fact that one party's rep doesn't identify doesn't absolve the court from its responsibility to deal with it fairly. inappropriate for her to be required to read over 20 pages when in those statements she was talking about the most exquisitely painful -

Pres - interrupts, pressing her : right so what should she have done?
JD : J should have identified what she'd seen, whether realistic to proceed, and whether viable and fair for M with her male interpreter to go thru evidence in court building and immediately go in the box.

JD the court has to stand back and say is this good enough despite the need to get the matter done.
CH (for F) interrupts to say M had a support worker throughout and at the earlier hearings these issues had not been raised.

JD confirms a support worker was there. She says she nonetheless had a panic attack during F's evidence. If the judge is going into error by allowing questioning on sexual history, or falling into error by dealing with consent and duty and culture without knowing the significance

then a support worker outside doesn't deal with the unfairness in the court.
Holroyde LJ : you're criticising standard of representation. What procedure exists within family court for criticism of that nature to be brought to the attention of the legal rep before the appeal

because one of the things you've asserted is the M didn't know F's case. But the legal reps knew, there is a q if they communicated it adequately.

I'd like some info about what the system is if at appeal stage reps are criticising on quite specific bases what was or wasn't done.
Ooh. Tricky q there from Holroyde.

JD's reply: M hadn't had his voluminous doc translated. No doubt counsel wld have done her best to explain general nature but can't go thru scores of pages of material emanating from F & explain to her in time. Important to distinguish btwn what cld have been done b4/on the day.

Holroyde isn't letting it go: But you haven't answered my q re the process for alerting either counsel or sols?
Holroyde suggests a phrase 'insufficiency of representation' she accepts.
I'm not sure she has answered it really, caught up typing.

Charles Hale is itching to jump in and try & answer it now. The Pres move it on saying he doesn't want to get sidetracked. He can deal with it when it's his turn.
Moving on...
JD: J made some findings but didn't then step back & reassess the picture. It's missing from the j'ment

Pres says this is strong ground - she did find he held hands around neck and accepted M's account of bag over head and words 'this is how you should die' but held it was some sort of prank where F simply denied it. But nowhere does the J put those two findings together.

He gets this. He continues : The judge goes through and makes isolated findings, metaphorically puts her pen down and never looks back to see if there is a pattern or the impact of the findings of what happened on M? correct says JD.

JD picks up : It undermines fatally the J's remark this was a relationship of pushing and shoving because the bag over head incident didn't have a trigger - can only be explained as an act of extreme intimidation and control.

Moving on to consent and sexual history and rape myths etc. [argh have to deal with an urgent email]

right, I'm back.
President summarises for me! : you have 2 points, 1 lack of clarity before xx about what was to be permitted - you say none should have been.
2 but you also say a lack of clarity about what she is finding re impact on M of his behaviour and consent? JD yes

and (says JD) she also she gets the evidence wrong - the J talks about M consenting to sex as a matter of duty. Its clear M is talking about vaginal / oral sex but NOT talking about anal sex which is contrary to her culture. So the J gets that wrong too.

JD says all these cases involve rape. It's important theres a proper understanding of consent but also so it's obvious why the judge came to the conclusion she has. The error here is cos when u read it you won't know she gave evidence thru an interp. Or that culture was an issue.

or the way she gave evidence, that she had to leave court at distressing moments, may have impacted on quality of evidence. Or how J has disentangled M's 'inconsistencies' weren't because of lies but because unable to recall because of trauma and questioning.

Whatever the judgment is its right you should be able to see how those issues of partner rape and CCB are tackled.
It was a grave mistake not to go back and consider the findings and whether there was CCB.

an eg of going badly wrong at the outset in terms of gathering information, an eg of how women who claim rape enter court disadvantaged, an eg of the inability to give an account when come as a woman without english, and talk about experiences as a non white woman.

She concludes by saying the failings are individually and collectively fatal to the safety of this decision.

End of her submissions.

President is now asking people not to use the chat please to communicate. Trying to replicate the circumstances of an actual courtroom and observers couldn't pop up and interject - please restrain yourselves!

Break till 3.05pm...