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.
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