Booker – not biting

As Suesspicious Minds reports, there is another scandal story on the Telegraph by Booker. It appears to resemble this case on Bailli: LB Barnet v M1 [2012] EWCC 5 Fam, but it is impossible to be sure, although this report seems to make it more likely to be the same case : Deported, Imprisoned and Beaten for being a parent (I note in passing at the bottom of that article the apology for what appears to have been significantly inaccurate reporting of a “secret” event at which Mr Booker appears not to have been present, which one might think would have chastened Mr Booker to the risks of relying on potentially biased or unreliable sources). This week’s report in the Telegraph relates to a further phase of proceedings – a JR – and there is no judgment of that available. As Suesspicious Minds says, we await that judgment. But if this is the M1 case it is very concerning, and not only because of the vast chasm between the account of that case in the judgment of HHJ Mayer and Booker’s reports of it, but also because of the advice that appears to have been given to a vulnerable litigant. I expect that the judgment will be made available in due course because it appears on the face of the reporting to have significant implications for McKenzie friends, or possibly for those granted rights of audience or perhaps who have been conducting litigation.

 

Et Voila! C’est Ici! Finalment!

No, I’m not sure why it’s in French either.

But voila all the same. Or Abracadabra. The mystery of quite how a custody residence or access contact order will be treated in the era of the Child Arrangements Order and how it might transform itself into the fundamentally different CAO is a mystery no more.

For, it seems, such old orders will morph themselves as if by magic, without so much as an issue fee or a puff of smoke, into an equivalent CAO. This much was promised in the guidance notes to the Act when it was a mere Bill, but the promise is now made flesh.

And they will do this by the power of greyskull secondary legislation: The Children and Families Act 2014 Transitional Provisions Order Article 6.

Now forgive me for repeating this. But if an old s8 order can transmogrify itself with the click of a finger into a new style s8 order, and if it has exactly the same consequences as its old self (well almost), what exactly is the difference? And what exactly is the point? That’s rhetorical. You don’t have to tell me labels matter. But actually attitudes matter more. And if attitudes had changed all that much people wouldn’t still be talking about custody. And you know as well as me people will still be talking about residence in another 20 years. They’ll probably still be banging on about custody too, but if they are I will have poked out my own eyes by that stage.

Back to the automatic conversion. May I extend, nay overstretch, the emerging magical trope that is beginning to become apparent? As they say : “As if by magic, the shopkeeper appeared…”

Mr Benn used to like a bit of fantasy cross dressing. But at the end of the day he was still Mr Benn. I think we could all learn a little something from Mr Benn, particularly the episode where he’s a Wizard.

And on that slightly surreal note, ladies and gentlebugs, I bid you over and out for a little while. I have a book to rewrite extensively and a headache to have, thanks to the torrent of primary and secondary legislation, guidance, observations, hints and mandates which now render my existing edition entirely obsolete. Anyone got a magic wand?

Come In Number 1 Your Time Is Up

Last October The President promised me an interview. I compiled a list of questions thunk up by me or suggested by colleagues and Pink Tape readers. The observant and slightly sad amongst you will have noticed the absence of the much trailed Presidential Scoop on the pages of PT.

I have no doubt that the Pres has a massive and mind boggling workload, and no illusions that my piddling interview is at the top of his to-do list and so, although he has been courteous enough to apologise for the delay more than once, I have reached the conclusion that waiting any longer is not within my timescales (I have a short attention span you see).

In point of fact it has been almost 26 weeks since this all began, and we all know that a 26 week longstop translates into a requirement that all the parties’ evidence must be in by week 20 at the latest to make that happen. So, you know: Ding ding. Too late. No excuses…not ready? We must crack on anyhoo.

I pause to note the absence of any application for relief from sanction or extension of deadline since January. This is not trivial. Thank goodness we are not in Mitchell land over in the almost-Family Court. If you don’t know what this paragraph means a) you do too much family law and b) count yourself lucky. Seriously.

So (in an exercise that bears no resemblance to anything that ever happened in any real case living or dead ever at all) in the absence of actual evidence I’ve decided to offer a case summary that says what I think the evidence would have contained if I had it. And then I shall cross my fingers and hope no-one notices…This is what they call active blog management.

INTERVIEW WITH SIR JAMES MUNBY*

Can you give a layperson’s sketch of the role of President of the Family Division?

I am the top “Top Judge” of the “secret courts”. My mission is reform.

What might a typical day in the life of the President look like?

I rise at six, workout and then sit down at my ipad to check Pink Tape before a breakfast of that raw egg concoction that Rocky drinks…On arrival at work I take time to reflect on the view from my chambers. It is of an area of roofing adorned with a rusty air conditioning unit and some pigeon poop. It inspires me to get back to work…Then I work until 4am before indulging in a spot of sleep. 

Rumour has it that you are an avid viewer of Downton and Shameless. Can you confirm or deny?

You may think that, I couldn’t possibly comment.

We know you are aware of Pink Tape and as a proponent of transparency alive to the fact that the Family Justice System is often a topic of discussion online. What are your views on the internet, social media and how (whether) we should engage with and respond to it?

Social media is dope. You know that Legal Cheek website? ROFLFAO. 

Cameras are now able to film in the Court of Appeal. Is this likely to include family cases?

I understand that the Lord Chancellor is in discussion with Jeremy Kyle to see if we sponsorship of the tv rights is a possible way to make the family justice system self funding. 

Can you tell us any more about progress on transparency and the proposal for the routine publication of judgments? Have responses to the consultation on transparency led to any change of approach or confirmed your initial view?

Since this question was drafted I have published my transparency guidance. I suggest you read it.

How can better quality reporting of legal issues in the mainstream press and elsewhere be promoted, and better quality information about how the system operates be made available?

The reforms to the family justice system in particular the transparency provisions will ensure that better quality information is publicly available. As for the press. Don’t get me started on the press…

Do you see any benefit in publishing final anonymised threshold alongside judgments, for clarity?

Already on it, ta. 

What future topics of research would be of genuine benefit to the family justice system?

Research into the long term outcomes for children in the care system. Sorry, did you want an amusing answer? 

Is courtroom security adequate in light of the increase in litigants in person?

Quick wit is all that is required. I usually find that quoting Pliny is sufficient, it has a momentary stupefying effect – just long enough to make a sharp exit from the court room in times of dire emergency. 

How can the competing pressure of public law reform and the need to ensure a functioning court process in private law cases post- LASPO be reconciled?

They don’t need to reconcile, they need to mediate. 

What are your views on the increase in professional Mckenzie friends, unbundled legal services and public access instruction of the bar in family cases?

Evidence that the system and the bar will adapt and survive. You’ll be just dandy!  

In your seventh “View” you compared with regret Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam), [2004] 1 FLR 1226, with what McFarlane LJ said only a few weeks back in Re A (A Child) [2013] EWCA Civ 1104 a decade later – what can you say to parents seeking help  from the courts to obtain contact? Are fathers wrong to think not much has changed / improved? Thinking back to Re A, will guidance on appropriate use of enforcement feature in forthcoming proposals regarding private law cases?

Oh Ye of little faith. The CAP will make it ALL better. 

You have said there must be a “cultural change” in relation to family law? By whom?

By all of you. Yes, and that includes you at the back. 

How should practitioners who require an extension of time where applications and correspondence with the court are not dealt with promptly?

That question does not make sense. But in short Courts MUST deal promptly with correspondence. They must so they will. Ergo the question is moot.

There has been an unusual amount of quite complex and voluminous caselaw handed down by the Court of Appeal recently. What training will there be for magistrates and legal advisers to help them understand and properly apply this?

None. There is no need. Magistrates are great, the lynchpin of the Family Court. Except when they get it wrong. Like when they don’t write their own reasons. Or when they try and write their own reasons. 

Re B [2013] UKSC 33 and subsequently Re B-S (Children) [2013] EWCA Civ 1146 seem to have prompted a profound shift in judicial approach and social work practice. If Re B and Re B-S are merely a restatement of known good practice rather than new law, how have we collectively got it so wrong for all these years? Were the anti-forced adoption campaigners right?

These authorities are merely a restatement of existing law and best practice. We really shouldn’t have had to spoon feed you this stuff to start with.    

What should the case management approach be where an LA has filed final evidence pre-Re B-S which does not analyse all options or list potential support / resources? How will this affect the progress of the aspiration to achieve resolution within 26 weeks in most cases? How will it affect the proportions of cases resolved with a plan for placement at home under public law orders?

It can happen it must happen it will happen. Does that help? 

Will the various social work and CAFCASS Templates recently issued be revised in light of Re B-S?

Yep. But not because of Re B-S or because there was anything wrong with them or nuffink. Ask the Department of Education, they started a whole flipping consultation about it. 

Directions for “the LA to file and serve its final evidence including a Re B-S Balancing Document” have emerged recently. Is there a danger this will lead to precisely the tick box approach that the Court of Appeal has deprecated?

Oh for the love of…. 

When will the pace of delivery of guidance, views and judgments slow down?

Never. Mwuhahaha!!! 

Members of all the professions responsible for the functioning of the Family Justice System comment on Pink Tape, often anonymously – often their comments raise serious concerns about the reforms that are underway and of the failings in and pressures on the system. What is your perception of morale within the legal and social work professions and within CAFCASS? Is there a danger that constructive criticism is being stymied as a result of demands that professionals must adapt and embrace the reforms?

Low morale is a positive indicator that culture change is underway. It can happen it will happen it must happen.

 

* NOT an interview with Sir James Munby. Conducted in my imagination.