Consider the carers: the impact of COVID-19

COVID-19 working practices threaten further significant and disproportionate attrition of women from the Bar. Rachael Goodall sets out the Western Circuit Women’s Forum’s call to action and proposals to mitigate the risk

In Back to the Bar 2019, the Western Circuit’s Women’s Forum (WCWF) published evidence showing that two-thirds of those who left the Bar over a six-year period were women. Almost all the men who left became judges or retired after long careers. The vast majority of the women who left dropped out mid-career, citing the difficulty of balancing work and family life.

Today, COVID-19 working practices threaten further significant and disproportionate attrition of women from the Bar. Our concern focuses on the primary carers, who are disproportionately women. In this article, we highlight these risks and recommend practical steps to minimise them.

A key finding of our 2019 survey was that most women who left the Bar cited the difficulty of balancing work and family commitments as a factor in their decision to leave. It was overwhelmingly the case in the survey responses that female practitioners had primary care of their children, and primary responsibility for arranging childcare.

Initially, COVID-19 restrictions meant a dramatic loss of commercial and gratuitous childcare and patchy and part-time availability of schools. Many practitioners had to combine childcare and home-schooling responsibilities while also trying to keep meeting professional commitments and maintain some income. (While barristers are classed as ‘key workers’, we heard of many schools open only for children of ‘critical workers’; and where open, the school day was shorter than the court day.) As the rate of infection increases, requirements for self-isolation and local lockdowns will cause these issues to recur, this time unpredictably and at short notice.

In our paper about COVID, we recorded the concerns raised by members about the pressures of remote hearings and our concern that initial guidance issued by the Judiciary appeared to compound the problem. Our example was from 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.’

WCWF’s recommendation to the Judiciary and HMCTS was to ‘Consider the Carers’:

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.
Use that information to ‘triage’ and decide whether reasonable adjustments can be put in place to ensure a fair hearing – eg aim to set clear boundaries regarding 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 we commend 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.’

We were heartened by the positive response by many courts to this.

Re-opening courts for more substantive hearings is welcomed, but may increase practical difficulties for those who are clinically vulnerable and who are shielding themselves or others, as well as primary carers until childcare has returned to normal.

There looks likely to be a significant risk over a prolonged period now to the practices of those with shielding and caring responsibilities who are unable to attend court. We are confident this risk can be minimised by clear judicial leadership and guidance as to the listing and conduct of cases, and our recommendation is 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:

Reduced income and increased costs on return: As long as practitioners are required to home educate/shield vulnerable people, incomes are diminished. On eventual return to normality, with non-existent/reduced aged debt, the costs of getting back to the Bar are likely to be prohibitive.
Reduced cushion from previous earnings: WCWF’s Response to the Coronavirus Self Employment Income Support Scheme set out our concerns that the £50,000 threshold test to qualify for the Coronavirus Self Employment Income Support Scheme discriminated against primary carers who had incurred significant childcare costs in order to earn the previous years’ income. These practitioners will often not have had sufficient previous income to save for these rainy days.
Reduced income for the more female sectors of the Bar: the financial challenges of the publicly funded Bar prior to the pandemic are well known. Women disproportionately practise in publicly funded areas of law such as crime and family. These are predominantly ‘court based’, compounding the issues faced by primary carers.

WCWF's message to chambers is: ‘Support, Plan and Retain’

When making plans or considering changes to how chambers runs, take into account the practical difficulties faced by primary carers and people shielding the vulnerable and consider the impact of the guidance on their income.
It is even more important than ever that there be an active review of distribution of work. It will be easier for those without caring responsibilities to take on last minute work and work more, but care should be taken not to exclude those with caring responsibilities.
When considering new ways of marketing, some strategies (webinars, for instance) may be impossible for those with childcare issues because of the additional work involved, or the time they are to be recorded or broadcast.
Maintain active communication, particularly with those with caring responsibilities. Their career is important to them and the support of chambers and clerks goes a long way to help them cope with daily struggles.
Help barristers get the message across to the court staff and judiciary about the need for greater notice and greater flexibility.
Ensure all barristers have access to up-to-date guidance.

Further information

This article is based on Back to the Bar Update: The Impact of Covid-19 – Consider the Carers published by WCWF in May 2020.

The WCWF Steering Committee: Rachael Goodall, HHJ Tacey Cronin, Catherine Flint, Jo Martin QC, Carol Mashembo, Selena Plowden QC, Caighli Taylor, Emma Cross and Grace Nicholls.

Other useful resources include:

WCWF’s Back to the Bar 2019 survey

Issue:

October 2020

Author details:

Rachael Goodall

Rachael Goodall is a barrister at 3PB and Chair of the Western Circuit Women’s Forum (WCWF).

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