Sally Penni MBE, Barrister & Founder of Women in the Law UK

Sally Penni MBE, Barrister & Founder of Women in the Law UK discusses the ‘Nightingale Courts’ and their impact on women

COVID-19 working practices threaten further impact on the attrition of women from the Bar. In this article, I highlight these risks and recommend practical steps to minimise them.

The Nightingale Courts involve a proposal that the court sitting hours will be from 9 am until 6 pm. It is intended that the longer sitting hours will help reduce the backlog of cases in the criminal justice system, indeed all the courts. Two years ago, there was an attempt to introduce similar extended hours courts but they were rejected by the Bar.

Pre COVID-19 the difficulty of balancing work and family commitments was a factor for all practitioners but clearly is more problematic for those who have childcare responsibilities. In surveys conducted by the Western Circuit Forum, the responses showed that it was overwhelmingly female practitioners who had primary responsibility for caring and arranging childcare. The concern is that following the disruption of lockdown, these extended hours will be introduced without consultation to all courts nationally, despite objections from those who have caring responsibilities.

Such a change will augment the attrition rate of women leaving the Bar. This is already of great concern and if there is a failure to recognise the disproportionate impact of the extended courts on those responsible for childcare (currently largely women) it appears discriminatory.

Initially, COVID-19 restrictions meant a dramatic loss of commercial and gratuitous childcare as well as the usual mix of after-school clubs etc. Many practitioners had to combine childcare and home-schooling responsibilities while also trying to meet professional commitments and maintain some income. Barristers are classed as ‘key workers’ and, as such, they are more exposed to the possibility of infection and requirements for self-isolation which may occur unpredictably and at short notice. Combining this with current court hours can be a struggle but will become an impossibility for many if the hours are extended.

Remote hearings may assist but there are also concerns here and I highlight that initial guidance issued by the Judiciary appeared to compound the problem. I refer to the Guidance for the Conduct of Remote Costs Hearings [37] which failed to recognise the practical problems and threatened adverse costs:

‘In all remote hearing cases the parties must recognise that the hearings may not commence at the appointed time and/ or conclude in the time estimate and must make themselves available well beyond the time allotted to allow for such contingencies which may include technical difficulties or cases running over. Legal representatives are reminded that it will not be appropriate for them to expect to be able to conduct multiple hearings in proximity of time as a consequence of these matters and costs orders may be made against them if they are unable to attend as required.’

There is a helpful recommendation from the Western Circuit Women Forum’s to the Judiciary and HMCTS to ‘Consider the Carers’. It states as follows:

‘When issuing guidance on new court processes, or ways of working, nationally or locally, take into account the practical difficulties faced by primary carers and people shielding, and consider the impact of the guidance on their income.

All guidance should include a requirement that judges invite advocates (and other parties to the proceedings) to notify the court in advance whether they have any childcare or other caring issues relevant to the hearing.

At the start of any hearing, advocates and parties should be invited to indicate if there are issues that might impact during a lengthy hearing and on future timetabling of a case’.

This information should be used to ‘triage’ and decide whether reasonable adjustments can be put in place to ensure a fair hearing, for example:

■ aim to set clear boundaries regarding the time allocated to each case to enable carers to make arrangements suitable to those fixed times;

■ if a court hearing is moved, ensure sufficient notice is given to allow the carer to put other arrangements in place;

■ aim to ensure that counsel’s availability for future hearings is taken into account where possible.

There should be no suggestion (either expressly in guidance, or implicitly in the way the court hears cases), that unavailability due to reasons of care-giving or shielding could be considered improper, unreasonable or negligent such as to expose a practitioner to a costs order.

As a guide to good practice, the Western Circuit Forum commends paras 5 and 6 of the Commercial Bar Guidance Note on Remote Hearings:

‘5. It is appreciated, of course, that the pandemic will have differing impacts on individual hearing participants, in particular those with caring responsibilities and/or without access to a sufficiently quiet or neutral location in which to participate in the hearing.

6. If you or your client are affected by these issues and they are likely to interfere with your ability (or the ability of other hearing participants) to participate in the hearing, you should raise them as soon as practicable. In the case of an interlocutory matter that is listed for hearing, the issues should be raised straightaway by contacting Commercial Court Listing … giving precise details of the case and the hearing date. Listing will then put the matter before a Judge at the earliest opportunity. In the case of a trial, please do the same. If there is a forthcoming pre-trial review, the Judge may decide to deal with the matter then. COMBAR is confident that the Judges of the Commercial Court appreciate the need for these matters to be treated with sensitivity.’

The future holds a significant risk over a prolonged period to the practices of those with shielding and caring responsibilities who are unable to attend court. In my view, this risk can be minimised by clear judicial leadership and guidance as to the listing and conduct of cases, and the Western Circuits’ recommendation to continue to ‘Consider the Carers’ and ‘Consider the Shielders’ at the point of clerking, listing, interim and full hearings.

The financial impact of the pandemic on women is disproportionate and introducing extended hours will also impact them detrimentally. We must continue to build a diverse profession and not lose the great gains we have made through the various associations and initiatives to support women at the Bar. The proposed Nightingale Courts will inflict enormous damage on these developments; instead allow women to be Florence Nightingales by carrying out their work as barristers but with the essential flexibility needed. ■

Sally Penni MBE, Barrister & Founder of Women in the Law UK

Women in the Law UK is intended to inspire, support and connect. It addresses issues of retention, wellbeing and career progression and advancement through professional development education and training. You can refer to the website for over 109 webinars and workshops during COVID 19 empowering lawyers and young women. www.womeninthelawuk.com

Congratulations to Sally Penni MBE who was recognised in the Queen’s birthday honours list for services to diversity in the workplace, social mobility and law.