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.

What’s in a name?

A small but important practice point. I remember drafting lectures on the BVC, and being told that precision was really important. It never hurts to remind ourselves of that, even when working in so-called “woolly” or “law free” areas like children.

Care must be taken about accurately recording the FULL name of all children named in s8 orders, including middle names. It’s no big deal for most purposes, but it can come back and bite a resident parent who later needs to obtain a passport for a child whose name does not match that on the birth certificate. Care must be taken to name both parents in any residence order.

Imagine, the situation. Resident parent not named. Child’s middle name omitted. The applicant for the passport purports to be the resident parent of the child named in the order, but presents a birth certificate that does not match the order. Result? No passport. No holiday.

Easy enough to correct under the slip rule if you spot it in time AND have the consent of the other parent. But not so easy if you realise the problem not long before your holiday date or can’t afford the issue fee that the court would no doubt wish to charge.

The moral of the story must be always to put in full names of children and the names of Mum and Dad to avoid difficulties at the Passport Office. We were all taught this as pupils and trainees – it really does matter.

Perhaps this is something that might be incorporated into Mostyn J’s templates project? This is not hypothetical. I am writing about it because I know this scenario has arisen – it may no doubt arise more in future as there are more litigants in person, so whilst I am no fan of standardisation perhaps this is one situation where it would be helpful.