Transparent with our hands behind our backs

A post from the point of view of those of us who would like to improve the quality of publicly available information and inform debate about family law.

Transparency is progress. Anonymity is necessary.

The case recently reported by Christopher Booker regarding a mother’s failed JR and the wasted costs order against her “McKenzie friends” is an example of some of the difficulties (see earlier blog post).

I (and, I suspect, others) would like to offer an alternative perspective to the slant given in the mainstream press, which is understandably causing disquiet. But we can’t.

And the reason we can’t is this.

Blogging lawyers appreciate the reasons that anonymity is necessary. They appreciate the nuances of the rules on privacy and the sanctions that are available if not complied with. For blogging lawyers these consequences could be career ending. For the children at the centre of these cases the consequences could be life changing, placement ending. So blogging lawyers stick to the rules.

Campaigning McKenzie friends, MPs and journalists are not so constrained. Sometimes they name, sometimes they misstate, forget or “misunderstand” – sometimes they just apply lashings of hyperbole with a conspiracy theory cherry on top. And I’m sorry to say that they rarely give a complete and balanced account (I’ve no doubt not all fall into this category but sadly this represents my broad and regular experience). I’m genuinely sorry, because there is a pressing need for many stories to be reported to a wider public audience. A case I was recently involved in which is pretty straightforwardly set out in a concise judgment on BAILII appeared in the mainstream press last week very sloppily misreported. The only available information about it is in that judgment and it is a simple case of not reading it properly and then inaccurately summarising it. I really despair.

The recent Booker story is a particularly poignant case in point. It’s inaccurate. I’m confident this is so. But I am hamstrung, hands tied behind my back (choose the restraint metaphor of your choice). The first hand because it’s reported before a judgment is available on Bailii. And my right hand – because there is a wealth of information on the internet which I could link to which would demonstrate clearly that it is sloppy, wrong, incomplete etc. But I can’t link to it. Because I care about the rules on anonymity.

And so transparency is an unattainable ideal. Some people can and do report what they like, to satisfy their own agenda. Some cannot.

It’s poignant because it appears to be a prime example of the dangers for litigants in person or vulnerable parents of taking advice from unregulated, uninsured, untrained, unqualified “McKenzie friends” or campaigners for justice. And a prime example of the dangers generally of unregulated McKenzie friends with a campaigning agenda to the court process generally. This is a story that needs to be told. The public need better information about these risks, particularly where there is a recent report suggesting that we should embrace (paid for) McKenzies. Some might say policy makers also need better information about these risks but that is for another blog post.

The only solution to this it seems to me is for the family courts to more proactively police the many many wilful examples of the naming of parties to proceedings. Or to lift the anonymity provisions to enable proper and balanced debate. I don’t know how we can hope to achieve that. It might be that the court has permitted the naming of the parent in this case – if that is so it is not known to the legal blogging community. Could there be (for example) a public register of cases where anonymity has been lifted so that citizen journalists can check it? I hope that the second round of transparency reforms that we are expecting soon will grapple with this. I suspect they will not. [edited - duplicate text removed - cut and paste error!]

Because surely balanced public debate is the purpose of transparency and it is a risk with no benefit if it does not achieve that aim?

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.

Clare’s Law – an ideal

[EDIT : Readers should take a look at the helpful (but depressing) comment from Steven Barratt regarding the way in which LASPO is being interpreted, along with my response. It seems that my idea is unlikely to work :-(]

I’ve had an ideal, as they say in Bristol. “Lightbullb!” as Gru would say.

Banksy depicts marital breakdown... Pic thanks to Williamsdb on flickr

Banksy depicts marital breakdown… Pic thanks to Williamsdb on flickr

I’ve been a mite negative about so-called Clare’s Law (the domestic violence disclosure scheme), but it occurred to me today that it has an unforeseen utility. And it is this…

Applicants for legal aid in private family disputes need to provide evidence of domestic violence from a long but very specific list.

For all but one of the categories of permissible evidence there is a 2 year cut off, that is to say historic dv don’t count. Not, of course, that 2 years and a day feels very “historic” for the victim, or indeed the child witness. But I digress.

So. There will be many people who have suffered domestic violence at the hands of the person now taking them to court about the kids or the house, and who have suffered it not so long ago, and who have evidence of that domestic violence – but who are nonetheless left out in the cold as far as state assistance for legal advice and representation is concerned. Because it’s not quite fresh enough to trump austerity. Thank you LASPO. Gert lush.

Unless.

Unless they are able to fit within Reg 33(2)(a) of the Civil Legal Aid (Procedure) Regulations 2012 by providing evidence of “a relevant unspent conviction for a domestic violence offence” that is.

Doesn’t have to be a conviction for an offence against the applicant for legal aid.
Doesn’t have to be a conviction in the last 2 years. It does have to be unspent, mind you but doesn’t have to be in the last 2 years.

(Of course, if there is recent or ongoing behaviour they can apply for a non-mol and get in that way. But in such circumstances there is unlikely to be a 2 year problem.)

This is where Clare’s Law comes in. A victim of domestic violence say, 3 years ago, needs legal representation to be able to deal with proceedings brought by his or her ex. No recent incidents, but that is because the violent partner has not known where they fled to, but its no less terrifying for the 3 year distance.

Chances are s/he may have relevant pre-cons. Chances are one of them might be unspent. Clare’s Law potentially enables the victim to obtain that evidence and protect themselves from the vulnerability of being a litigant in person.

Yay. *Small Bristolian dance*. Not ideal. But an ideal.

Similarly I suppose, Sarah’s law (same but for sex offenders) may assist the so-called “protective parent”.

I’m certainly not encouraging fishing expeditions to get dirt on a former partner as a device to get legal aid. But in circumstances where there is a regulatory set up involving a vast amount of technical hoop jumping with sometimes arbitrary and concerning results, it is necessary and legitimate to assist people who ought to be eligible for help to obtain that help. Parliament intended for LASPO to catch victims of domestic violence. We know in practice some of them are falling through the net. And it is not beyond the bounds of possibility that a person who was violent three years ago was also violent five years ago, and got caught and convicted. Sadly repeat perpetrators do escape without convictions over many years and across multiple relationships, but it might help someone. One of the real difficulties with the LASPO evidence requirements is the need for victims themselves to obtain evidence. Clare’s Law might help them access information they might otherwise struggle to get hold of. And although I haven’t been able to access the up to date protocols for the scheme now it is nationally rolled out it must be right that one factor the police will consider when making a disclosure decision is that the applicant proposes to use the information to protect him/herself and their children through the seeking of court orders (or through resisting them).

Of course it doesn’t assist at all with the elephant in the room which is the absence of legal aid AT ALL for those accused of domestic violence, some of whom of course are not guilty of such allegations.

But it is at least some small comfort to think that one daft ministerial ideal might unwittingly help to undo some of the injustice of stupid ministerial ideal (or do I mean idealology?).

Gert lush.