About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Friday, 26 October 2012

Data Protection news

This report on Family Law Week refers to yet another fine being dished out by the Information Commissioner - £120,000 for a local authority when a solicitor sent 11 emails about a child protection case to the wrong person. Ouch.

Saturday, 20 October 2012

In an interesting so-called shaking baby, Emma Sherrington of http://www.fishermeredith.co.uk reports that the discovery of previously unseen medical evidence resulted in her client's exoneration as she describes in her article in the Guardian.  The case is also covered by the BBC.  Sadly the father in the case had already been convicted and served time - he did successfully appeal the conviction on other grounds.  The full judgment in relation to the medical issues is here - essentially there was an innocent explanation following on from airway obstruction.  The Judge (Hogg J) summarises the evidence of each medical expert before giving her conclusions both on the individual medical areas and finally on the totality of the evidence.  The final decision approving the return of the children to the parents is here.  One cannot but be moved by the human cost for parents (and others) who had been locked into court battles for over 6 years.

Thursday, 18 October 2012

Data Protection issues

A couple of words to the wise about recent Data Protection issues with a more analytical piece to follow.

Apparently a complaint was made about Counsel leaving documents on the court attendant's desk in the PRFD followed by a swingeing fine.  I have not yet checked whether it is an urban myth but was told it by a reliable source so I am not taking any chances myself.

Secondly my chambers has been contacted by a court notifying that similar concerns arise about leaving bundles in the robing room and has asked all lawyers to remove their papers.  I don't know if this is as a result of a complaint.  There is less clearly a risk if the robing room has keypad protection but I have a feeling the Information Commissioner would not think that adequate.

Wednesday, 2 May 2012

Famil.li Law & Decree Absolute: new paper.li newspapers

I have created a paper.li newspaper called Fami.li Law which can be found here

This takes snippets from twitter and other family law blogs and I add stories from websites as I come across them.

I have also created Decree Absolute which as the name suggests covers stories on divorce. 


Tuesday, 24 April 2012

Great Ormond Street Hospital: GOSH indeed

I watched an interesting programme about Great Ormond Street on BBC4 on my Iplayer but you'll have to hurry as it will only be watchable for another day.  Interesting views from former staff member Professor Christine Hall and discussion about the doctor in the Baby P case.


This is the BBC's summary of the programme content:


Great Ormond Street Hospital is facing accusations that it is downgrading child protection work and "victimising" staff who raise concerns. 
Doctors claim the hospital has ignored warnings about the reduction in its specialist expertise in diagnosing abuse. 
According to the former head of its radiology department, its withdrawal of services since the death of Baby Peter is putting children's safety at risk. 
And a senior Conservative MP has also criticised the hospital over its treatment of another consultant, who was accused of falsifying expenses. 

Further BBC News story is here 

The GOSH response of the Radiology Department.

Wednesday, 18 April 2012

Lawrence v Gallagher: financial relief & civil partnerships - Guest Post by Peter Burgess of Withers


The Court of Appeal recently ruled on the first reported case of financial proceedings from the dissolution of a civil partnership (Lawrence v Gallagher). The case confirms that the division of assets on the dissolution of a Civil Partnership should be approached on identical principles to the division of assets on divorce. Since the two statutes are identical, and since the Courts since the decision of the House of Lords in White v White have long trumpeted the importance of non discrimination, the Court of Appeal’s decision in this regard is hardly surprising. It is a significant barometer of how social attitudes have changed that only a few sentences of the judgment is dedicated to the fact that Mr Gallagher’s claims derived from a civil partnership rather than a marriage.

Mr Lawrence was 47 and Mr Gallagher 54. Mr Lawrence was an equity analyst and Mr Gallagher an actor. The parties had been together for 11 years, but in a civil partnership for less than a year before the relationship broke down.

Mrs Justice Parker awarded Mr Gallagher roughly 45% of the assets, including a cottage, a share of Mr Lawrence’s pension and a lump sum of £557,000, to bring the total up to £1.6m. In doing so she rejected Mr Lawrence’s team’s submission that either this was a dual career case and Mr Gallagher should be restricted to his needs only or, in the alternative that the valuable London property to be retained by Mr Lawrence should be excluded form the case altogether as being non matrimonial.

The Court of Appeal accepted that the Judge had made a few incorrect findings, but supported Mrs Justice Parker’s rejection of the two arguments run below. Lord Justice Thorpe, however, criticised Mrs Justice Parker for not explaining how she arrived at a 45:55 split of the assets. In his view, the lump sum should have been calculated on the basis that Mr Gallagher would receive the cottage and the pension and then considered what balancing lump sum was required, rather than starting with a percentage and working backwards. Without explaining how he arrived at this figure, Lord Justice Thorpe determined that a more appropriate figure would be £350,000.

Moreover, he felt that Mrs Justice Parker had erred in awarding 45% of Mr Lawrence’s deferred compensation to Mr Gallagher; in his view this was not a present capital asset but formed part of Mr Lawrence’s future income.

The case offers little beyond a reminder that the judicial devices we have encountered since White are but no substitute for the wording of section 25 of the Matrimonial Causes Act which should be consistently applied by trial judges. Beyond identifying the problem of sharing a deferred income stream, however, the case does little to add to the array of case law that purports to give guidance to practitioners. It is to be hoped that the Law Commission’s report on the division of property on relationship breakdown, due in 2012 and referred to in the Judgment, will clarify matters.

Tuesday, 3 April 2012

Unreasonable behaviour vs No-fault divorce: Guest Post by Peter Burgess of Withers

Today's Guest Post is by Peter Burgess of Withers LLP.


An article appears in the Daily Mail last week about a Wife whose case went to the Court of Appeal. Apparently she was arguing that her husband should never have been "allowed" to divorce her because the grounds were so "trivial".

The article tells of how she had broken down in tears in Court when she described the particulars of his unreasonable behaviour petition as "normal squabbling between a husband and wife". According to the piece, the Court of Appeal , though sympathetic, did not allow her appeal. Thorpe LJ said that although the marriage could not be saved he felt "the sadness of the wife’s position and her complete inability to accept what has happened to her."
 
As practitioners, we often come across situations where one client wants a divorce and the other does not feel ready to let go of the relationship. In those circumstances, it is only right that the person who feels the marriage has irretrievably broken down has the right to bring it to an end.
 
Having explained to many clients over the years that if they have not been separated for two years and both parties have been faithful, they need to be prepared to cite some aspects of the other party's behaviour, I am very familiar with the appellant in this case's emotional reaction to the particulars cited by the husband.
 
The current practice among family lawyers for making unreasonable behaviour particulars as anodyne as possible is the next best thing to the no fault divorce system contained within the Family Law Act 1996 which was never brought into force. It is a compromise position; a practical means of mitigating the animosity when marriages come to an end within the Matrimonial Causes Act 1973. This case does show, however, the pitfalls operating a no fault system within a 40 year old legislative framework and the difficulties for lay clients trying to grasp the finer points of the system. For a system that is meant to help parties move on, reflecting on the wreckage of a broken relationship by picking out the aspects that are least offensive (but still offensive enough) seems an odd starting point. 
 
The current system defies logic. On the one hand, if one client is not ready to accept the end of the relationship, then citing their behaviour (however anodyne) is only going to rub salt in the wound, inflame tensions and lead to an escalation of ill-feeling. I have sat with many clients who feel guilty that they have come to the end of the road before their partner has got there. We then ask them to point the finger at the other party to achieve the finality they seek.
 
On the other hand, if both spouses are agreed that the relationship has come to an end, there equally seems little point doing what one High Court Judge memorably described (in the context of financial provision on divorce) as "rummaging in the attic of the marriage".
 
Clients are always amazed to hear that the reasons for the breakdown of the marriage and one party's behaviour towards the other has a negligible impact on the division of finances. Contrary to popular belief, bringing into force new legislation will therefore not mean more gold-diggers are allowed to swindle their rich spouses because it is easier to get a divorce. The current system would allow them to cite anodyne particulars in any event to pursue their financial claims on divorce.
 
Although it is often found within the factual evidence in disputes between parents, spouses' behaviour towards each other has no place in law in children proceedings, where the child's welfare is the court's paramount consideration. The reasons for the marriage breaking down will usually have no bearing on decisions over contact and residence.
 
Why then, is there a need for particulars of behaviour to be cited in a petition? It has no relevance to anything. Behaviour petitions are a "means to an end" and that is the advice that clients are receiving every day on the ground. The lady in the Daily Mail case is right, in the sense that we ask clients routinely to escalate what could, in one marriage, be perceived as normal behaviour between two spouses instead of allowing spouses to simply accept that sometimes relationships do not work and that neither party is to blame.
 
Furthermore, at a time when the Family Justice System is under intolerable strain and where both judicial time and time spent by court staff is at an absolute premium, a more straightforward system which recognised in legislation the position on the ground would have practical benefits as well. The case for removing divorce from the court system was well put by the President of the Division himself last Saturday at the Resolution National Conference when he said:-

"At the moment, it seems to me we have a system – so far as divorce itself is concerned – which is in fact administrative, but which masquerades as judicial. No doubt this has its roots in history. In the 19th century, and for much of the 20th, divorce was a matter of social status. It mattered whether you were divorced or not, and if you were, it was important to demonstrate that you were the innocent party. All that, I think, has gone. Defended divorces are now effectively unheard of."
 

California paved the way with the introduction of no fault divorce in the Sixties.  It is the norm throughout much of the developed world.  Perhaps it is time that we moved into the 21st Century in this regard?

From: Jacqui Gilliatt [mailto:jacquigilliatt@blueyonder.co.uk]

Friday, 30 March 2012

Guest Post by Natasha Phillips: What Do Family Law Clients Complain About

Natasha Phillips is a fellow blogger who amongst her many talents runs a website called  Researching Reform


Family proceedings, whether in public or private family law are usually charged with emotion and calling upon the system to help with family issues can leave parents and children with very mixed feelings. And although there is a distinction made between private and public family law proceedings, to my mind the complaints from each sector are startlingly similar, not least of all because the sectors often using the same services, lawyers and judges.


What families often need and what the system provides are sadly sometimes at odds with each other and these conflicts manifest themselves in some of the more frequent complaints which are aired. Sometimes, the complaints are fuelled by a lack of understanding of the process, either because noone has taken the time to explain it to the family or simply because the spouse or parent is unrepresented. And sometimes, they are borne out of direct contact with a glitch in the system. It is also true to say that whilst some complaints are unfounded, because of the nature of the cases we come into contact with, the majority merit concern.

I didn’t say that!”

Experts’ reports can be hugely variable in the family justice system and sometimes they are so poor that even a layman who is not trained in psychiatry or medicine can see that some very serious errors have crept in. From basic typos, like getting the gender, name or age of the child wrong in a Cafcass report to claiming one parent has a history of mental illness in a S.37 Report when it’s clear from their medical records that this is not the case, these errors take their toll and whilst the former are less serious, they indicate a lack of care which can sometimes be a sympton of a more serious recklessness to follow. The latter errors though, are more readily understood to be life-changing.

Families often feel that when errors like this happen, they are being victimised. An unwelcome and highly invasive intrusion which makes the families quite understandably feel fraught with anxiety, their relationship with their social worker can quickly change from being civil to hostile where a lack of understanding on both sides creeps in. This becomes particularly evident where reports include statements by one or both parents which were not made by them. What may just be a heavily overworked social worker failing to take the time to get the report just right is quickly perceived to be a professional with an axe to grind. In the absence of evidence which bolsters the view that a professional is allowing their emotions to get in the way of the job at hand, all that’s left to do is to explain possible reasons for errors and omissions. The trouble is, once the error is established, it can be very difficult to get the report edited to reflect the truth. This of course, is the follow on complaint that crops up the most in situations like these, not least of all because they change the path of the case, forever.

“They don’t believe me”

This is a phrase that comes up often and usually in cases involving domestic violence or sexual assault. A mother who has been subjected to domestic violence can feel as if the system treats her complaint with more than a hint of suspicion and whilst that may be understandable where emotional upset can cause people to be less than honest about their spouse, a very cynical outlook seems to have set in and it is affecting the way complaints like these are processed. It often takes the mother a great deal of time to make the admission and even then she might change her mind several times before committing to a statement, if she ever does. And even where incidents of domestic violence are lodged with the police, it is not a guarantee that the mother’s complaint will be taken seriously. Mothers in this situation feel very much alone. Having worked with women who have been abused by former partners who then went on to abuse other women, this complaint is perhaps one of the more disturbing I encounter.

It is also a complaint heard in relation to allegations of sexual assault. Working with men who have been accused of assaulting either their children or the children of others, sometimes the evidence is so scant it can be hard to understand how the findings get made. An ensuing complaint for this usually relates to observations about breach of protocol or policy – where experts have not carried out interviews or evidence gathering in the way in which they are supposed to and in this way, compromising the quality of the evidence itself.

“I’ve applied for legal aid but it’s not going to come in time for my hearing!”

Whilst the first two complaints are at their heart about the quality of reports and evidence gathering, one of the most concerning complaints relating to process is this one. If you are one of the lucky few who are eligible for legal aid in the family courts and you apply for your legal aid, you are not always going to get it in time for your hearing. The huge backlog of applications for legal aid mean that processing these applications has become very slow indeed. At a time when the government and the courts want to speed things up, this would certainly be a good place to start. Lawyers cannot help families on legal aid properly unless that certificate comes in and this also leaves families feeling emotionally and procedurally stranded.

Another complaint which stems from this is that once legal aid is granted to a parent, if they are involved in public family law proceedings and wish to appeal a decision made in favour of the Local Authority, they often find that their certificate will not be renewed, even if the family have been advised that they have permission to appeal.

“Why can’t the judge deal with this at the next hearing?”

Families can feel that time is of the essence in family proceedings because they feel the effects of impending decisions or interim ones immediately. From waiting for contact to finding out if their child is going to be returned to their care, families suffer hugely with the generally slow and inflexible nature of the process and children suffer the most acutely as a result. Another common complaint then, made by parents relates to the lack of dynamism in the family justice system. When a parent manages to gather evidence which bolsters their case they often find that they cannot admit it at the next hearing, because it is not a hearing designed to deal with that evidence.

The effect of this is that the evidence cannot be considered in light of what is going to be discussed at that hearing, evidence which undoubtedly would have had a bearing on other matters discussed at the upcoming hearing and would have prevented the case from taking a wrong turn. Sometimes, the evidence is turned away for being too ‘last minute’, but at other times, evidence is allowed in at the eleventh hour. This lack of consistency across the board gets noticed by families inside the system, and although they are not legally trained, because they are living the effects of every decision made, no matter how small, they can instinctively see that the system is not as dynamic as it could be and that badly applied discretion can sometimes create a very unlevel playing field.

“I don’t feel that my lawyer is on my side”

The adversarial nature of the process, which is still deeply engrained, gives families the impression that the family justice system is a boxing ring, with them and their lawyers on one side and their partner or local authority and their lawyers, on the other. Further confusion is created when families are advised that ‘their interests will be protected’ and ‘their lawyer is on their side’ and whilst lawyers will be sparring with each other over a case, further mixed signals are sent out when families find that their lawyers are unable to take their word on trust or act as counsellors. Lawyers in both the private and public family sectors are usually the first port of call for families and families find themselves not only spending a great deal of time exchanging documents with their lawyers, but sharing with them the most intimate details of their private lives. This in turn, gives the impression that lawyers are confidantes in the truest sense of the word, when in reality they are not.

Families often ask why it is that their lawyer becomes less and less available to speak. That professional distance creates a sense of mistrust and starts to eat away at the relationshp between adviser and client in family law. Parents and spouses can feel terribly emotional and unwittingly look to their lawyer for solice, without realising that that is not their function. When the lawyer no longer has time or wishes to hear the often very drawn out concerns and anxieties of their client, it can feel like a form of alienation by a person who is being relied upon to support and advise. Yet sometimes, that distance is not created by the function of the job; sometimes, families call their lawyers for help and advice and find that their calls are ignored. With a little research, the families find out that the lawyer is either very junior and working on their case almost single handedly, which is extremely complex or has been given so much work that they just can’t take the requisite care needed for each client. At best this can result in families having to wait two weeks for a call back and at worst, it can mean the difference between getting advice on a crucial piece of evidence in time for filing at the next hearing, and not getting it filed at all. And all these things make families feel as if noone is there for them.

Assisting families can leave lawyers and McKenzie friends with mixed feelings too, who are often torn between what can be done and what they wish could be done. It’s a privilege to be able to help families and for me at least it’s the most important aspect of the Researching Reform project and whilst there are professionals who care and work above and beyond what is required of them, the system itself still suffers with being less than enterprising when it comes to making sure families and children are treated with the care they deserve.

Thursday, 29 March 2012

Guest Post by Shaun O'Connell: When LIP & McKenzie Meet the Legal Professionals

I am a self-employed McKenzie friend (Southern Family Aid) and such have had almost 15 years’ experience of the Courts. During this time, the ethos and attitude of the professionals has changed with regards to litigants in person (LIPs) and McKenzie friends.


There are now many McKenzie friends helping others some for free, some on expenses and some seeking payment. For those without recourse to legal aid and without sufficient funds for private representation, McKenzie friends are virtually the only form of legal help and support available.

For years the system has bemoaned McKenzie friends and persons acting alone for creating delays, not understanding the procedure, failing to follow directions or orders of the Court and in not assisting the Court as they should be.

As a McKenzie friend one has to remember that the person you are helping is a party to the case, usually a parent and that all professionals and parties have a duty to the Court. The relationship between the LIP and opposing parties can be fraught due to feeling under threat, worried about any decision made about their own children, being emotional, distraught and not thinking clearly.

The relationship between the McKenzie and the client is important but so too is the relationship between the McKenzie and the opposing party. Remember, the legal team – solicitors and barristers are there to carry out their role for their client. It is not personal and McKenzie friends need to behave the same way.

In my experience Solicitors and Barristers do not always follow their role to the letter, but usually do. The more experienced McKenzie friend by now accustomed the Court procedure, rigmarole and tactics, can help by defusing the emotion felt and at the very least smoothing over and bringing the two sides together where possible to mutual benefit and certainly for the benefit of the child or children in the middle.
I have had a few shocks such as being put down for talking with a Barrister in front of a parent (on their instructions as he had a psychiatric disorder that meant communication was difficult). The Barrister decided he was going to bully the parent on witness list needed for trial, which he duly did and two important witness were not included (but did get included at later date), or a barrister who misled the Court on the LA having to pay costs of a transcript from criminal proceedings contrary to an order of the Court of Appeal but overall I seem to be accepted as a quasi-equal with many barristers now preferring to talk direct to me and then I can explain at leisure to the client the issues raised.
I am aware of McKenzie friends (as I did at the outset) who become emotionally involved in cases and this needs to be avoided. The Court is about facts and law, and emotions merely hinder the process. The LIP needs assurance, to have confidence in the support given and to understand as best as possible the procedure being undertaken in order to make an informed decision.

Solicitor advocates and barristers have a duty to put their clients’ case in the best way possible, to raise issues for their client and against the opponent and that duty should be followed by McKenzie friends. Further all parties have a duty to the Court and McKenzie friends should keep this in mind. If the process is transparent and the arguments properly put to the Court, then the Court will have a better possibility of making a decision in the children’s best interests.

Solicitors and barristers will have to become accustomed to LIPs and McKenzie friends and there is no harm in the lawyers giving the LIP /McKenzie friend procedural advice to their opponent to smooth the process, rather than what sometimes happens where a LIP is left to founder on their understanding, sometimes gained erroneously, from others or the internet.

Solicitors and barrister need to remember the process (although adversarial in nature and semi-inquisitorial in public law), is about the parents/children or the assets of the family often gained over years of hard work. It is about a human issue rather than simple cement and mortar, and anything that can be done to make the procedure less painful then all the better.

Some legal representatives introduce themselves then proceed to either give smarmy looks or remarks. This is not helpful although having seen it too many times, for me it becomes water off a duck’s back, but it does inflame parents anger.

Some of the advice for the formal legal representatives includes;
1. Being courteous and helpful within the professional role.

2. Explaining to an LIP or McKenzie friend where they clearly do not understand procedure or the nuances of the law.

3. Keeping their own client calm and relaxed and not provoking the opponent.

4. Keeping their duty to the court first and foremost and not bending the rules against a naïve or less experienced opponent or being overly adversarial.

5. On opening putting both sides clearly and not using the moment to influence the Court unduly.

6. No unprofessional tutting or eye raising in Court.

7. Managing an agreement on issues or outcome where possible with the opponent remembering the decision to be made is ‘in the best interests of the child.’

8. Reminding themselves of Resolution’s Code of conduct and the Law Society’s Family law Protocol. Resolution’s code of conduct sums it all up:-

• Conduct matters in a constructive and non-confrontational way

• Avoid use of inflammatory language both written and spoken

• Retain professional objectivity and respect for everyone involved

• Take into account the long term consequences of actions and communications as well as the short term implications

• Encourage clients to put the best interests of the children first

• Emphasise to clients the importance of being open and honest in all dealings

• Make clients aware of the benefits of behaving in a civilised way

• Keep financial and children issues separate

• Ensure that consideration is given to balancing the benefits of any steps against the likely costs – financial or emotional

• Inform clients of the options e.g. counselling, family therapy, round table negotiations, mediation, collaborative law and court proceedings

• Abide by the Resolution Guides to Good Practice for more detail see http://www.resolution.org.uk/editorial.asp?page_id=26

Some advice for LIPs and Mckenzie friends includes;

1. The person you are helping in court is a parent and is liable to feel emotionally distraught. Explain the procedure before the day and keep them calm and informed of the process.

2. Arrange whatever procedure you use prior to the Court hearing and be prepared.

3. Do not get emotionally involved with the case, separate out your feelings and act professionally. Whether as LIP alone or with McKenzie friend the Court is there for facts and law.

4. Be polite and courteous with the opponent. Be willing to compromise where possible.

5. Seek a ten minute adjournment is you need to discuss the issues with LIP/ McKenzie friend.

6. Remember if the other side is represented their solicitor or barrister is a paid professional and have their duties, it is not personal even though it may feel like it.

Saturday, 17 March 2012

Experts

More news today on the topic of the antics of experts: the Daily Mail reports a story about Dr Hibbert over claims that he deliberately misdiagnosed parents he was asked to assess.

 

 

Friday, 16 March 2012

Interpreters Part II

Imagine my surprise: 2nd day at court and still no interpreters from the agency or any explanation. More costs and court time wasted. Back next week to see if we can have an effective hearing. Am not holding my breath.

Anyone else having interpreter issues?

Thursday, 15 March 2012

Research on Experts

I will post a commentary about the expert research covered in the Channel 4 news item earlier this week but in the meantime here is the link to the full report -

http://www.uclan.ac.uk/news/files/FINALVERSIONFEB2012.pdf


- Posted using BlogPress from my iPhone

It's all a matter of interpretation!

How very topical: I find myself being adjourned today because of the non-appearance of interpreters who I was assured had been booked by the court. I wait to see whether they turn up tomorrow. Some thousands will have been wasted & I suspect I know who will be footing the bill.



- Posted using BlogPress from my iPhone

Tuesday, 13 March 2012

Experts in the News: 20% of experts are not qualified

Channel 4 News tonight at 7pm will carry a full report on some research by Professor Jane Ireland undertaken for the Family Justice Council in which she found that 20% experts in family cases were not qualified.  Further details are on the Channel 4 site  She was also concerned to find expert psychologists reporting on parents without ever meeting them.  The Channel 4 page says the research has been published but I cannot yet find it on the net.  I will post again when it is available.

I must say I have not found this to happen much in practice.  I can only think of one case involving a Psychiatrist instructed before proceedings were issued  who, outrageously in my view, wrote a report on both mother & the children without meeting any of them and concluded that it was highly likely the children had been sexually abused (without a shred of hard evidence).  As soon as I became aware of it I argued that the report should be ignored and that another expert should be instructed and the court agreed and expressed concern about the manner of the instruction in the first place.  I think I may also have seen a report done where a parent did not turn up.  Have others come across this happening a lot?  Or at all?

Reminded of Penny Cooper's research which showed a frighteningly large number of lawyers did not check out expertise in family cases - you can get a copy of it by clicking on the link and emailing her.

Friday, 9 March 2012

FJC Consultation on the impact of experts' fees & LSC limits

Malek Wan Daud of Garden Court Chambers has contacted me inviting contributions to a consultation exercise on LSC fees for experts.  You may be aware that he was appointed to the Family Justice Council last April.


The FJC are back in discussions with the LSC about the new rates of pay for experts and are trying to gather some evidence based information to help the discussions.

There have been many anecdotes about the LSCs reduction of experts fees limited to £95 (London) and £130 (out of London) causing delays in cases. The FJC are asking for evidence from practitioners to inform the discussions with the MOJ/LSC on the topic. If you have any experience of delay being caused by this reduction in fees, Malek would really like to hear about it. Some factual examples of difficulties in finding an expert to do the work for the said amount (citing the area of expertise and how it was resolved), where there have been refusals of prior authority, where the case has had to go back to court on a number of times to resolve the issue or in fact any other example of it causing delay to a case would be very helpful. It would be very helpful if you could cite the case number and if possible the LSC area office that made the relevant decision.

He would be very grateful if you could send him any examples by 29.03.12 to his email address: malekwd@gclaw.co.uk



Memories are made of this

I managed to get myself to the ALC conference this year - a treat I have been promising myself for some time.

One particularly interesting talk was given by Martin Conway on memory.  Martin is a Professor of Cognitive Pyschology based at Leeds University.  Some of his thoughts are summarised in this article in the Barrister magazine.  The full report of the British Psychological Society report on memory and the law to which he refers is here & there are some other interesting snippets about memory on this Open University page

All this caught my attention because I was just about to start a hearing where a key issue was whether or not a child was giving a genuine account of an incident of sexual abuse or not but of course, the reliability of memories are key factors in most forensic situations.

Another interesting expert approach to analysing accounts is that of Dr Bryan Tully who has been a key player in the development of the Criteria Based Content Analysis & Statement Validity Assessment approach which is well described in this literature review by Vrij of the University of Portsmouth.  You can download a chapter which Dr Tully has contributed to a Wiley book on Children's Testimony - note you have to register for this site and pay a fee for 24 hour access.

One point that stuck in my mind was the unhelpfulness of police interview questions to children about the time of day, clothes worn and other extraneous details in establishing whether an account is reliable.  I had always assumed that supporting detail was correlated to truthfulness but apparently not.

Thursday, 16 February 2012

Twisted by the Pool?

This article by Harry Nosworthy on the main site rounds up and summarises some recent decisions on costs in public law proceedings, particularly relating to intervenors. I am starting to feel the shock waves arising particularly from the decision of Re T (A Child) [2010] EWCA Civ 1585 in which Wilson LJ as he then was (entirely supported by Munby LJ & Coleridge J)made an order that the local authority should pay the costs of the intervenors who were facing allegations of sexual abuse but were exonerated.  From the case report it does not seem that there was any criticism of the local authority's actions in bringing the case or maintaining the intervenors in the pool - on the contrary Wilson LJ makes a point of saying that the local authority had acted entirely properly.  The proceedings had a heavy financial impact on the grandparents who paid out over £55,000 in legal expenses which they had to borrow against their home. Wilson LJ said that the general proposition of no order for costs did not come into play in this situation and the point should be who was the winning party.  The unsuccessful party was responsible for the successful party having to incur legal costs and therefore they should pay. I hesitate to disagree with so learned a tribunal but I must admit not only to finding the logic difficult to follow but to agreeing 100% to the submissions which were made by Janet Bazley QC on behalf of the local authority. I could quite understand the approach to costs if a local authority had acted unreasonably in maintaining an individual in the pool (for example, where no complaints seemed to have been made against them, or where the evidence presented was flawed or tainted as a result of the conduct of the local authority (for example, in its approach to the best evidence interviews) or because of the unreasonable conduct of the litigation. But can it be right to saddle them with costs when there is some evidence to suggest that an individual is in the pool, when the real perpetrator does not tell the truth about what happened (and often is accusing others to create a smoke screen)?  The local authority is in the position of prosecutor in these circumstances and has a duty to ensure that there is a fair hearing on top of its child protection duties.   This decision seems to suggest that the local authority should act as judge and jury as well.  Social workers are not even specialists in the art of investigation albeit that some of them become quite expert at it.  They are often actively discouraged by the police and the criminal defence lawyers from interviewing potential suspects about matters which may also be the subject of criminal proceedings and relevant parties are similarly advised not to offer up any assistance, particularly ahead of a criminal case. Social workers are often deliberately misled by family members, even the innocent members of the family who may generally hold the view that another member of the family is innocent. From a logical point of view, if this decision is applied across the board, why should it not extend to publicly funded parties.  Do the lawyers's duties to the public fund mean that we should be running this argument whenever findings are not upheld against our clients?  Was this case in fact driven by sympathy for the impoverished grandparents (I don't mean to suggest that sympathy is not appropriate) who could not access public funding? From a fairness point of view surely it is right to examine the contributions of all concerned to the need for the intervenors to incur costs?  This could include the perpetrator who has generally tried to deceive the authorities as to what really happened.  Amongst those responsible for examining whether the quality of the evidence is likely to support a finding surely is also the Judge, particularly at the IRH.  If somehow it is simple and obvious to see how a child was injured or abused what on earth is the point of a hearing to determine the facts in the first place?  It is often only as a result of the testing of evidence in the forensic arena and taking a wholistic approach that it is possible to see clearly who is the guilty party. I have had two cases recently in which costs have been awarded following a fact finding. In the first case the local authority kept the exonerated intervenors in the pool of perpetrators of a physical injury right up to the point of written submissions.  The court made findings that the stepfather was the perpetrator and it followed from that that he had lied to all concerned and the court.  If I remember rightly the court also made adverse findings against the mother in terms of failure to protect and it was implicit that she too must have known that it was not the intervenors.  It is right to acknowledge that he and the mother had set the hare running as to the possible involvement of the intervenors but there was only one real thing they said that might genuinely tend to suggest that they were responsible and it was thin to say the least.  It is also right to acknowledge that it never looked very likely that the intervenors were the sort of people who would behave abusively to a child (but this is, of course, precisely the sort of judgment call that I question whether it is right for the local authority to make).  They had as much opportunity as the mother & stepfather to inflict the injury but that was about the extent of the positive evidence against them.  It seemed to me that there as least some logic in ordering costs against the perpetrator but was not the local authority and the court equally responsible for keeping them in the pool until the bitter end?  I seem to recall that the mother was not also ordered to pay the costs but I could be wrong about that.   In the second case, the local authority was ordered to pay the costs of the grandmother following a physical injury to the child when it was being cared for by mother and father and her in her home.  At the last minute, after he had given evidence denying any culpability the father confessed that it was him who was responsible.  Until that point the local authority had no information on which it could have concluded that it was him or to exclude the grandmother and mother in terms of a collusive account about what had happened.  All three adults had opportunity.  The grandmother looked unlikely as a candidate and I believe had been an approved foster carer in her time.  The Judge did not seem to accept the proposition that foster carers are known to abuse children so that she could not be dismissed out of hand.  There were in any event other concerns about the advice given by the grandmother as to when to seek medical attention.  The Judge ultimately resolved this in her favour but not without hesitation.  She had very little money and had had to pay the costs privately.  The Judge did not criticise the local authority for including her in the pool and no one seemed to have ever suggested that she should be excluded at an earlier stage.  The court was not persuaded that the villain of the piece ie the father who had deceived everyone should be held responsible.  He was, of course, a man of straw and the court made multiple references to the £10,00 legal bill of the grandmother being a drop in the ocean of the local authority's budget. It is difficult to avoid the impression is that these cases are being driven by sympathy rather than principle or logic and that Re T encourages this. I understand that Re T is on its way to the Supreme Court and may be looked at in June or July.  Of course, Wilson LJ as he then was, is now in the Supreme Court. In the mean time local authorities need to think through the ramifications of keeping people in the pool of perpetrators and keep that under review at all stages.  It may lead to greater resistance to allowing intervenors into court proceedings in order to avoid a costs argument.  Local authorities are likely to want the other people in the pool to make the running on how many people should be in the pool in order to avoid potential costs ramifications. This has all sorts of drawbacks if it discourages those with useful information to contribute to the forensic exercise from participating. How about automatic public funding for intervenors???