About the Family Law Week blog
The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.
Friday, 30 March 2012
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
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
Friday, 16 March 2012
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
- Posted using BlogPress from my iPhone
- Posted using BlogPress from my iPhone
Tuesday, 13 March 2012
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
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: email@example.com
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.