Passing the Brief: Julia Smart interviews Martha Cover

Leading child law barrister Martha Cover and I meet at Coram Chambers, where she is joint head. It’s early January, and for an hour over tea and hot cross buns, I attempt to recreate Desert Island Discs (without the music). As is customary at the Bar, our introductory small talk revolves around discussion of cases, and I ask about her involvement in two recent Supreme Court authorities: Re N (Children) [2016] UKSC 15 and Williams v LB Hackney [2018] UKSC 37.

Martha has recently been crowned Legal Aid Barrister of the Year. She was nominated secretly by colleagues, so when she received a generic email congratulating all those who had made the shortlist she presumed it was a chambers plaudit. Not considering herself to be ‘an awards person’, when thrust into the Legal Aid Lawyer of the Year Awards limelight last June she found it inspiring to spend an evening surrounded by like-minded practitioners. She was immensely proud to win, and thrilled to receive the award from Baroness Lawrence OBE.

It is difficult to think of a more worthy winner. Her credentials as a stalwart supporter of the publicly funded Bar are, as I discover, impeccable.

JS: As a Canadian, how did you end up at the Bar of England and Wales?

MC: There was no grand plan. I did my first degree in philosophy at the University of Western Ontario, and then moved to Vancouver. It was the 1970s, and I was sharing a house with some activist lawyers who did pro bono work. They represented the family of a man called Fred Quilt at his inquest. He was a First Nations Canadian, and it was alleged that he had been kicked to death by Canadian RCMP officers. This was a very high profile case, at a time of great social and political change in Vancouver, and it made me realise what the law could do. I moved to London with my British partner, fell in love with the place, and embarked on a law degree. As a non-UK citizen there was no funding but somehow my husband and I survived on his LSE grant! By Bar school thankfully I was eligible for a grant myself.

We then discussed whether Martha would have been able to take this path if she had been saddled with a £50k+ debt that those entering the profession often have now. She is not sure, but hopes she would have found a way.

JS: So you were called in 1979?

MC [Laughing]: Yes, but with excellent timing I actually gave birth to our first child on Call Night!

Martha explains that thereafter she effectively took three years out, sharing the care of her son, teaching and doing a Masters part time in employment law, which she assumed would be her future specialisation. In the early 1980s and before the expression had been coined, Martha negotiated the first flexible working arrangement with the Bar Council when she managed to do her pupillage part-time – 3-4 days a week over an 18-month period.

I had no choice but to be part-time: we simply couldn’t afford decent childcare. I was supported by Lord Gifford QC who gave me a pupillage at Wellington Street Chambers.

For those too young to remember WSC was the first ‘radical’ set of chambers. Lord Gifford’s vision was of an egalitarian set outside the Inns in Covent Garden, and ran on non-hierarchical principles.

In my second six I was led by Lord Gifford QC in the London City Airport Planning Enquiry. Often LG would have to go off to the Old Bailey and I would be left to lead our witnesses or even cross-examine the odd minor expert: I absolutely loved it. We ran a ‘shared purse’ system in chambers and we were all paid the same.

I queried this, tempering (I hope) my own incredulity. Martha confirmed that she – as a pupil – earned exactly the same as any senior colleague including the head of chambers!

I felt so guilty that I was receiving this money that it spurred me on to work as hard as I could.

Inevitably, perhaps, the days of this idyllic collective proved to be numbered. Chambers disbanded in 1988. In the meantime, Martha had managed to combine her busy practice with having two further children.

After Wellington Street dissolved, in 1990 I moved to 4 Brick Court. I had been doing employment, crime and family, but at 4BC I began to establish a heavier practice. Family law allowed me to do this. In retrospect, the Thatcher/Major era was a good time for the publicly funded family Bar. The real assault on legal aid began in 1998, with Lord Irvine QC, the first Lord Chancellor under the Blair administration.

"I think we may be the only set with a majority of women. This undoubtedly makes for a different chambers environment and leadership style. I remember with some pride when I overheard a (female) solicitor complaining to my (male) senior clerk when he was not able to find a barrister to cover one of her cases. ‘I’m sorry,’ he said ‘it is half term.'"

Martha confirms that family work then was fairly paid and plentiful. She was a founding member of Coram Chambers, a specialist family set which was formed from the merger of the family team at 4BC and another family team from QEB. She has been head or joint head of chambers since 2007.

JS: What are the practical effects of the drastic reduction in the eligibility of legal aid in family disputes?

MC: The rise in litigants in person leads to longer and ultimately more costly proceedings, but it is also all too common that women and older children who make allegations of sexual or physical abuse find themselves being cross-examined directly by their alleged abuser. Inflicting this on often traumatised individuals is completely unacceptable. Another particularly egregious example is when the court makes a care order to a local authority, approving a care plan of return home for the child. If the care plan later breaks down, the local authority can begin adoption proceedings, and seek what is known as a placement order, which authorises them to place the child outside their family for adoption. Parents are not automatically entitled to legal aid at this stage. They have to pass a means and merits test, and the financial limit is extremely low. It is at this point that the parents are facing the permanent loss of their child. They are usually socially and educationally disadvantaged, and ill-equipped to deal with the complexities of fighting such a case against the legally represented state.

JS: What one simple change would you make to the system to effect the most profound change?

MC: When children and family social workers were re-branded as child protection social workers, it marked a shift in the culture from welfare to control. I would turn the clock back to the time when social workers supported families in order to keep them together. This is a lot to do with money, but also to do with culture and ideology within social work departments and government. Now everything is brinkmanship, blue-light intervention. Child protection social workers do not intervene until it is almost too late and then they go in hard. We have lost the understanding that some families just require consistent, long-term support.

JS: Do you advocate greater transparency in family courts?

MC This is a very difficult issue for me. As the former Co-Chair of the Association of Lawyers For Children, our position was very conservative. There is good reason behind this: the level of detail in narrative judgments in child abuse cases is such that ‘jigsaw’ identification of abused children is frequently possible. That said, it is clearly in the public interest that these cases are reported. This balancing act is not easy.

JS: You are head of a chambers where women outnumber men more than two to one. How do you manage to retain good women barristers?

MC: I think we may be the only set with a majority of women. This undoubtedly makes for a different chambers environment and leadership style. I remember with some pride when I overheard a (female) solicitor complaining to my (male) senior clerk when he was not able to find a barrister to cover one of her cases. ‘I’m sorry,’ he said ‘it is half term.’ I was amazed and delighted. In relation to retention, we try to look after all our people, and recognise when they are under too much stress. We are incredibly lucky to have some excellent junior members who are completely committed to and enthusiastic about doing publicly funded work. The legal aid family Bar has to an extent been protected in a way in which the criminal Bar has not. The worst thing in a way is that we are regarded by the MOJ and Legal Aid Agency as a ‘low trust’ profession.

JS: What is your five-year plan?

MC: I am working at being part-time. I love the theatre, music, lying around reading novels, and looking at pictures. In the meantime, I would like to train as a children’s arbitrator. I think it allows for a more rounded resolution of family disputes, in a less stressful environment. It saves the family money too.

I bid goodnight to Martha, and notwithstanding the time of year feel strangely uplifted: a lifetime at the publicly funded Bar will never make us ‘comfortable’. But maybe that’s the point. 

Martha’s hero:  Lady Black of Derwent - a great judge, both at first instance and in the appellate courts.

Julia Smart, of Furnival Chambers and Barrister of the Year 2018 (The Lawyer Awards), takes silk in March. Julia was interviewed by Sarah Vine in the January 2019 issue of Counsel.