More LASPO Gloom

An Ad Hoc Statistical release by the MoJ that doesn’t mention fat cats…. (h/t @LAWrixon)

This one is about LASPO s10 exceptional funding applications.

Because we like to “add value” (barf) here at PT, I can share the following depressing nuggets with you :

I calculate that for the period April – December 2013 ….

  • Only 3% of applications were successful.
  • 54% of all s10 applications were for family cases.
  • 0.69% of all the applications granted were family – disproportionately low.
  • Family applications had a success rate of 1.29% (the overall success rate of 3% is skewed by a high 15% success rate for inquests with every other category faring far worse. Immigration had a success rate of 1.6% for example.
  • 5.38% of applications were made by individuals without the assistance of a solicitor. Of the 62 such applications, all were rejected or refused, bar one which was withdrawn and one which received a “positive preliminary assessment”. I call that a success rate of NIL. The Guidance suggests that the process is sufficiently straightforward to enable litigants to complete these applications without the assistance of a solicitor but the figures do not bear this out – individuals are not applying in great numbers, and when they do they are FAILING. Given these figures – why would solicitors put in the work? They are almost bound to fail.
  • 14.5% of the applications made by individuals were family applications. They all failed, bar the positive preliminary assessment.

The statistical release says of family applications, predominantly private law children (on page 4) “The overarching question to consider is whether the withholding of legal aid would make the assertion of the claim practically impossible or lead to an obvious unfairness in proceedings.” Whilst I recognise that s10 is by definition meant to be an exceptional provision, I’m not sure that I think that is a satisfactory gloss or even a precis of s10 and the relevant regulations and guidance. I think it sets the test too high, as is rather borne out by the figures.

Judiciary v MoJ

The Senior Judiciary’s response to the recent MoJ consultation on fees is a humdinger.

Parliament is referenced 28 times in 80 paragraphs.

Pa 2:

The Judiciary’s response to this Ministry of Justice (MoJ) Consultation is predicated on the fact the Government does not accept this position and intends to ask Parliament to render the justice system self-financing. As has long been made clear there is a fundamental question as to whether the court system which benefits the economy and society as a whole should be financed by those whose use of it benefits not simply themselves but society as a whole. Ultimately it must be for Parliament to decide whether access to justice and hence the maintenance of the rule of law are to be self-financing. Under our constitution issues of taxation and expenditure are the province of Parliament.

pa 10:

While the Consultation Paper opens with a clear acknowledgement of the role of the courts, the bulk of the Paper, the proposals it contains and the prevailing approach appear to be based on a view that recourse to the courts is a matter of discretionary spending by those who can afford to and should pay its full cost and, in some cases, more than its full cost. It must be a matter for Parliament to consider how these two conflicting principles should be reconciled.

pa 24:

In summary, the proposals, particularly the novel concept of enhanced fees, give rise to major issues of policy which require public debate:

(i)  How is the position of the courts in providing access to justice for all and maintaining the rule of law for the benefit of all to be reconciled with the proposition that they should be financed only by those who actually use them?

(ii)  Should those who use the civil (non-family) courts subsidise those who use the family courts?

(iii)  Should fee remissions for those who cannot afford to pay fees be financed by other users of the courts?

These are issues of policy which it will be for Parliament to decide, but we are concerned that they should be openly acknowledged and explained so that there can be a fully informed debate about them.

On the proposals relating to family the judiciary rightly criticise the proposals to increase the fee for a divorce to a whopping £750.

They point out that as the majority of petitioners are women they would be disproportionately affected by fees that might negatively affect their ability to access justice, thereby depriving them of the legal protection of marriage in future relationships.

What is particularly staggering is that the revenue generated from divorce cases is already £16.8 millions. And that the proposal for increase would generate a further £40.8 million.

And in a polite twist of the knife they point out the *cough* “misconception” about the person who pays the fees of a divorce.

The only thing I can really fault is the heinous reference to custody arrangements.

Goddamit. You remember that Parliament thing you mentioned 28 times? They abolished “custody arrangements” almost as many years ago.

Which is better? There’s only one way to find out…

So. In a fight between a Father’s Rights Campaigner of your choosing* and Christopher Booker – who would win?

It’s not entirely hypothetical, although it is (I hope) metaphorical (let’s face it, if it were real fisticuffs the you’d get better odds on the superhero). But, in this metaphorical fight the Father’s Rights Campaigner would not be possessed of super powers. That would be entertaining, but would give an unfair advantage. However, they are allowed to wear tights and a cape if they so wished. Empowering from the inside, undermining from the outside.

I’m only asking (which is better? etc) because although the respective stances of the Father’s rights corner and the anti-forced adoption corner are, on any sort of inspection, mutually incompatible, they tend on a day to day basis to travel in parallel, never directly confronting one another. And in the impossible middle is the judge. Wrong in all directions.

It goes like this (muster up your WWF imagery here to make the most of this guys):

In the purple corner, Super Dad! (I’m picturing Big Daddy here) Fighting for justice for underdog dads, who are routinely discriminated against by pro-mother traditional family judges, and against alienating false-allegation-making mothers.

In the blue corner, the Curtain Ripper! (I’m getting Nic O’Teen) Fighting for justice and transparency and advocating for mothers who are victims of the evil childsnatching family destroying family courts. Advising women not to report domestic or suspected child abuse in case they are accused of alienating or being non-protective.

You get the popcorn. I’ll plump the cushions.

It’s unusual for Booker to stray into private law territory, to comment on a dispute between parents and involving no evil state agents (apart from the judge, natch). But in covering the case of RS v SS [2013] EWHC B33 (Fam) he’s done just that. But he’s given it the usual Booker treatment so if you read it in the usual breathless way I imagine many of his fans do, you might not notice the absence of the “SS”.

So, whilst you have one corner of the press / social media crowing about how this case is a triumph for fathers, victims of malign alienating mothers (with a few mavericks pointing out it is probably too little too late), across the ring you have Booker and co shrieking about the awful snatching of a child from his mother on Xmas day morning, and all for a spot of overindulgence on the xbox. And in a mark of its true crossover potential as a piece of family court newsworthiness adoption and care guru Martin Narey has popped up to chuck in a few pence worth about a topic not quite his usual “bag”.

I commented on it last week here, and I observed that “It is quite possible that the transfer of residence will fail, or at any rate will not run smoothly“. Sadly I was right, because the transcript of RS v SS has now been updated to reflect that it has indeed not run at all smoothly. And if Booker is right it has all gone very badly. However, the case is on appeal now (according to Booker) so it would be sensible to await the outcome of that appeal before commenting further upon the substance of the case. That is not what this blog post is about, and I’m not in this tongue in cheek post making light of the family’s situation.

Of course, it is axiomatic that every case that Booker is involved in is a case of hideous injustice. I suppose if it weren’t he wouldn’t be interested. Such is the self-selecting bias of the journalist, and a fortiori of the campaigning journalist. But it is interesting isn’t it, that even in this private law dispute the paradigmatic wronged mother who has her child wrenched from her, and the child-snatching family severing judge are still central motifs. This very case which, for fathers’ rights campaigners is said to break the mould of extreme reluctance to remove children from mothers who, in the eyes of the court can do no wrong.

In an earlier article, Booker said this of the case in question :

Why is it that, in so many cases I have followed in recent years where complaints of abuse are made against a father, judges seem so keen to remove children from the mother who has brought them up, to hand them over to the care of the father? This has become such a common pattern that, if only the new head of the Family Division, Lord Justice Munby, can succeed in his admirable campaign to expose the workings of our family courts to “the glare of publicity”, it may come to be recognised as one of the more disturbing features of how this system seems too often to have gone off the rails.

which, although it has always been apparent to those who pay attention to the themes of argument employed by the various camps, brings the argument between these two camps into stark view in a way I’ve not seen articulated this clearly before.

They can’t both be right, can they?

And if the appeal goes the other way will the purple corner be lamenting it as more proof of how the institutional bias towards mothers is still dominant, whilst Booker parades it as a victory over interfering judges, always poised to sever the unique mother-child bond at the mere hint of harm?

As ever, the facts and the nuances always seem to get lost in the mele. Calm down boys and read the judgment over a nice cup of tea.

*I’ve lost track of which of them are currently not engaging with the press, or are distracted arguing with whoever is seen to be a splitter this week. And they get all mardy with me if I refer to them by name, so you can choose your own.