Tonight’s episode struck a real chord – those cases where clients make a remarkable turnaround are so fantastic, and so awful. Because you are hoping against hope it won’t go wrong. But sadly, most often, it does. It is no surprise that the social workers who bear the responsibility for making the judgment call to terminate those mother and baby foster placements drop like flies. Its a terribly stressful job, especially if you put your heart into it like the social worker in today’s case. Some social workers become hardened, no doubt to protect themselves, but the best are warm and sympathetic – and of course all the more vulnerable because of that.

It was a surreal experience watching the #protectingourchildren hashtag on twitter tonight. It cascaded down my screen almost to fast to read – faster that #bbcqt. It seemed to be a mixture of “that social worker / foster carer is amazing”, “social workers do such a hard job”, “heartbreaking”, messages of hope that the mother would succeed, and angry comments about how irredeemably awful the parents were: “they should be sterilised” and “disgusting”, “how could she choose drink over her baby”. These latter display a lack of understanding of just what a big achievement it was for the mother depicted to break free from her unhealthy relationship, remain dry and parent apparently very well for the first five weeks of the baby’s life – albeit that it could not be sustained. 

I’m really pleased that this series seems to be generating a certain amount of goodwill to social workers, and it certainly is a reminder that what we lawyers scrutinise and criticise in witness statements and in cross examination, was a real lived experience for the social worker – with all the shouting, crying, noise, smell, emotion, hope, frustration, stress, danger, responsibility and fear that goes with it. Lawyers criticise and defend their client – they bear responsibility for doing a job well or poorly, but the burden of decision making rest elsewhere. Social workers must bear responsibility for making decisions in the field and then often have to defend themselves in court. I wish I could say that the kind of social work demonstrated is a reflection of what I see day in and day out in care cases I deal with. In truth it’s not. The picture of social work we see is far more inconsistent than that. But this series is a reminder that the court based professions must constantly remind themselves of what it’s really like to be out there, working against the tide. And on top of that, what the show has yet to tackle is the chronically high caseload and lack of resources that most social workers struggle with.

At court recently we were all struck by the young social worker who, having weathered quite an attack in cross examination from myself and another counsel, chirpily joked “thanks for going easy on me”. It was his first experience in the witness box and he made a point of being polite and friendly throughout the rest of the trial. Often social workers are ill prepared for cross examination, and misperceive the experience as personal attack – this is partly a product of inadequate training about how the court system operates and what a lawyer’s role is, and partly because social workers as a profession are used to being under attack. David Norgrove was partially right when he identified a dysfunctional relationship between the social work and legal professions, but this young social worker was a breath of fresh air. I hope he doesn’t bring the barriers up and become like so many of his stony faced colleagues. He will be a poorer social worker for it.

For anyone who has not seen this series there is a useful guide on Community Care, as well as on the BBC website.

The full Government response can be accessed here.

Today the Government has announced that children and families in England and Wales will benefit from major reforms to the family justice system which will tackle delays, streamline processes and rebuild trust.

In response to the recommendations made by the independent Family Justice Review Panel, Ministers have outlined their plans to reform the system to help strengthen parenting, reduce the time it takes cases to progress through the courts, and simplify the family justice system.

The major reforms are outlined below:

Shared parenting for the best interests of the child:

• The changes in education and the introduction of parenting agreements which the Review recommended will help ensure better recognition of the joint role of parents within wider society.
• The Government also accepts the need to clarify and restore public confidence that the courts recognise the joint nature of parenting.  We will therefore make a legislative statement emphasising the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests.  The Government is mindful of the lessons which must be learnt from the Australian experience of legislating in this area, which were highlighted by the Review and led them to urge caution.  We will therefore consider very carefully how legislation can be framed to ensure that a meaningful relationship is not about equal division of time, but the quality of parenting received by the child.

Speeding up care and adoption cases by reforming the Public Law System and increasing transparency.  The Government has already begun to publish data on the timeliness of court cases so we can see where delays are occurring.  We will introduce legislation at the earliest opportunity to enable a six month time limit to be set and wherever possible we expect cases to be completed more quickly, while retaining the flexibility to extend complex cases where this is genuinely in the child’s interest.

Simplifying the family justice system to help separating couples reach lasting agreement speedily, if possible without going to court. The Government will make it mandatory for separating parents who propose court action to resolve a dispute about their child to have an initial assessment to see if mediation is something which would be suitable instead, to help them agree on the arrangements for their child.  We estimate that we will spend an extra  £10m a year on legal aid for family mediation taking the total to £25m per year (although we have placed no upper limit on this figure).  We will also examine how to give the Courts more robust enforcement tools to combat failure to comply with judgments.

Driving culture change and better cross-system working through the establishment of a new Family Justice Board, accountable to Ministers, made up of senior figures representing the key organisations who play a role within the system and who will have a clear remit to improve performance.

Other key commitments in the Government’s response are:

• To consider how Parenting Agreements could be used to emphasise the need for parents to consider how the child can maintain a relationship with other close family members, such as grandparents.
• To reduce expense and delay caused by the excessive use of expert reports, strengthening their quality and ensuring only essential reports are commissioned
• To reduce the amount of time spent by Judges and Courts scrutinising care plans, focusing instead on the core or essential components when making care orders.
• To bring court social work closer to other court services by transferring Cafcass sponsorship to the Ministry of Justice;
• To create a single family court across England and Wales, with a single point of entry, to simplify the system and make it more accessible for families using the system.

“In court, for example, lady prosecutors can be tricky, tight-lipped and complex throughout a case, while their male counterparts tend to be solid, focused, reasonable and straight to the point.”

I feel for him, really I do. It seems his daily experience is that “with women there’s always a mood, a sub text.” That must be very irritating. It’s our hormones you see. If only we could be more compliant and reasonable.

Or possibly his tendency to wear his views about women on his well cut sleeve may create a self fulfilling prophecy? Bit of self reflection required there Mr Freeman?

As the UK Legal Feminist Group notes, he’s probably a right bundle of laughs to work with. If he goes around the workplace making remarks like those contained in this article to his female colleagues he’s a potential sex discrimination claim in a suit.

Also irritating the feminist me this week, was this article featuring the perfect Ms Gwyneth Paltrow, who no doubt took her daddy’s advice, got married and went on to be a shining example of perfect womanhood before issuing the guidance from her £6m mansion that “women who want children should be stay at home mothers“. Thank you Gwyneth, could you go back to being blonde and beautiful now please? We can manage without your opinions on how we should run our lives – unless you’d like to subsidise us to stay at home, maintain a tranquil and nurturing home and cook for our men whilst they go out to hunt and gather for us?

I feel like I’ve slipped into another dimension….

Media coverage of the Bill remains pretty thin on the ground, but it has picked up a little (See for example this example from a local TV station, showcasing the lovely Totnes). There have been concessions on some points not connected to family law, such as police station representation. The Bill has had a rough ride in the Lords, and is due to go to Committee stage there next week. It should be interesting.

There is a whiff of good news, although I wouldn’t get too excited. There is some talk of a concession on domestic violence – with Djanogly saying that the Government view the definition of domestic abuse in the Bill as consistent with the ACPO definition of domestic abuse (it plainly isn’t) and that they would be happy to amend it – I think the argument runs like this: “Look, they say the same thing, you just can’t see it. But just for you, we’ll amend it. Alright?” Which rather begs the question “If you always intended it to mean what the ACPO definition says why the hell didn’t you just use that definition when you drafted the thing? And why has it taken so long to “clarify” that you always meant it to say that?” (that’s two questions, my bad).

Anyway, carping aside, this is good news if it happens – but it still does not deal with the important point that the detailed criteria to be met in order to actually qualify for legal aid are not contained in the Bill, and it is those which are most likely to exclude so many d.v. victims from accessing legal aid (the green paper makes clear that the criteria will be strict and victims will need to provide objective evidence from very limited categories). Baroness Butler-Sloss has asked for those criteria to be published so that they can be scrutinised alongside the Bill. That is essential, as they will otherwise be slipped through in some piece of secondary legislation. The manner of the climbdown on the ACPO definition is significant – this is not an acknowledgment that the Government had got it wrong, had been attempting to use too narrow a definition, to adopt a too stringent approach. All that has been acknowledged is poor drafting, not substantively bad policy. Campaigners on this issue must not let the Government off the hook the moment they adopt the ACPO guidance. And beyond that still undealt with are all those arguments about equality of arms for alleged perpetrators, the cross examination of victims by LiP perpetrators. Much to be dealt with…

Also significant, Jonathan Djanogly appears to have waved the white flag on the economic justification of the LASPO Bill. No-one round here is surprised to learn that the austerity drive was a convenient cover for an ideologically driven slash and burn. That it has taken so long for the Government to admit that it is impossible to say how much the proposals will save us or cost us is remarkable given the wealth of analysis demonstrating the lack of prior research and the non-existent evidence base for the Government’s figures. There is an excellent analysis of this development on Social Justice First, pointing out the inevitable rise in Litigants in Person that will flow from the Bill if enacted. Djanogly appeared last week to be still of the bizarre view that there will not be any significant increase in the numbers of litigants in person. “Constructive knowledge” is a phrase which I have rarely used since law school, but it seems rather apt, for surely this must be a wilful closing of the governmental eye?

I despair at what is on the horizon. It’s a perfect storm for family law. Strip away funding for advice to help families with housing, debt and benefit problems, all of which are chronic family stressors and may contribute to relationship breakdown. Strip away the legal aid for families who have suffered relationship breakdown, point everyone in the direction of mediators, who will turn away many where there are domestic abuse or control issues apparent, most of whom will fall outwith the strict d.v. definition for the purposes of legal aid notwithstanding the fact that they can’t mediate…And if the storm didn’t sink the ship, the plan to reform the Children Act to create some new presumption of contact about which everyone will be either mightily excited, ill informed or petrified is a metaphorical torpedo to the hull of the good ship Family Justice. As any fule no if you want to create more litigation, reform the law.

Anyway, more on the reforms to the “custody” laws anon…Back to legal aid.

What once seemed like a conspiracy theory that many wryly postulated but few actually believed, seems to be more frequently being put forward as a serious theory: sharp practice by the LSC. One example in the Gazette, as reported by Family Lore. Whether it is a deliberate policy or incompetence matters little to those of us who are perpetually anxious as to whether or not there will be a rejected claim in the morning post each day. It becomes a sort of bloody minded game of correspondence chess, trying to outwit the unseen opponents by guessing whether it is missing seals, illegible signatures or wonky staples that they will be hunting down this week. It’s like fighting the Borg – you think you’ve found a setting that will work but by the time you’ve worked it out “they’ve adapted Captain – our phasers are useless”. Sometimes I think that resistance is indeed futile.

And reading the post on Flawbord this week has prompted me to go back to HMCTS / the MOJ to call them out on their promise to publish updating stats on 12 Jan via another FOI request. Watch this space for news as to whether or not the numbers of LiPs rose between July 11 and Sep 11.

What do we think people? “Higher! Higher!” Brucey bonus if I’m right.

I went to a local Resolution dinner recently. It went as these things usually do: the waitresses played “spot the judge”, the solicitors gossiped, the bar tried to market themselves whilst pretending not to, and I was too sober to be anything other than my clonky self. Whilst it was fun, the conversation was punctuated with ponderous musings on the changes that have happened in family law, legal aid, and the marketplace generally – relationships between the bar and solicitors, patterns of instructing, coverage of services have all changed and all remain in flux. Nobody knows what the future holds be they solicitor, barrister or judge – except that it is certain to be uncertain. I talked to one female solicitor about how she and her colleagues had created fantasy alternative careers. They are not alone. Whether it is midwife, small business owner or yoga master I think there are many of us who often ponder what other life there could be. Some other idyl, that we tell ourselves we could choose one day when the corrosive effect of never ending family breakdown gets too much. Something with more job satisfaction, shorter hours and more reliable income. I fancy running a chic B&B, making handmade craft items (something for which I have no talent at all) or novelist. But this is pie in the sky, temporary antidote not reality. I can’t do much apart from family law.

In fact, life at the legal aid bar is so unstable that I’ve decided I will begin a sort of legal sector tote, a little hedge against the risky and volatile market in which I find myself. Currently I am conducting user polls to assess the odds of a given item getting past court security or not, with successful items including a jar of honey, and a pointy key, with bicycle repair kits, hair straighteners and forks all suffering from overregulation. I am also conducting research into levels of zipper fatigue at different times of day (zipper fatigue is the behaviour that is observed in security staff whereby the numbers of handbag zippers that are opened reduces as the time since last coffee break increases – if I can model an algorithm to predict this I can create a whole new betting market).

I’m looking for a booky who will take a bet against the LSC paying me the substantial sums they owe me before the end of 2012. That has to be win win, right? Don’t suppose I will get great odds though.

Other predictions also worth a punt:

• the Government’s mediation as alternative to court hypothesis to be proved wrong within a five year period
• court delays to increase, numbers of appeals to rise, within a 2 year period
• recruitment of family trainees and pupils plummeting

That.

So in lieu of a calm considered post (or even in lieu of a lengthy and time consuming but ill considered ranty post) please accept the following offerings:

Contempt: Don’t be in it to win it. You’d think that journalists that do reporting for a living would have a clue about what contempt of court is and what they can and can’t report. Goodness, I know nothing about criminal law but even I can work out that tweeting the name of a member of the jury in a high profile tax evasion trial is probably not a great idea. And I don’t think you have to be a lawyer to work out that reporting the evidence of a witness given under oath while the jury was not present is also a bad idea. So bad in fact that said journalist has been reported to the AG (yes this is a real story not hypothetical). And the jury in the Harry Redknapp trial have been discharged. Not a great start for the new era of in-court tweeting. On the up side, through this article I found two other great articles on the Legal Week website about contempt of court: Avoiding Contempt of Court : Tips for Tweeters and Bloggers by @Adamwagner1 and What Not to Tweet – A Lawyer’s Guide by John Bloor. (h/t @inner_temple). Perhaps the lady in this article should have read those articles before she face booked her way into clink (well, at risk of clink anyway).

And in other news: “Litigants in person could struggle to secure access to justice“. Not really news you might say, but a really interesting article nonetheless. As is this guest post on Richard Moorhead’s blog by a US judge, who shares his excellent tips on how to deal with the self represented – different law, universal problem it seems. Also travelling well is this post by Bluegrass Family Law about aggressive lawyers. I agree with the sentiment.

Of particular interest to me, as a mum of a boy due to start school within North Somerset in Sep 12, is the Serious Case Review Report in respect of the Nigel Leat case (N Som Safeguarding Children Board) . It does not fill me with confidence. The basic failures in Child Protection procedure within a school run under the auspices of my own Local Authority is quite shocking.

Jonathan James writes about an interesting case about judges meeting subject children: AJ v. JJ and others [2011] EWCA Civ 1448. He also writes about the recent Daily Mail article by a mum who is hostile to the idea of her ex’s new partner being involved in her child’s life that has generate over 1200 comments. Probably best if I let him deal with that one: *Ma’am. Please step aWAY from the article*.

And that concludes my ramble.

I’ve ticked “do blog post” off my list.

Next up: “finish draft grounds of appeal”.

That said I am positively abrim with information, ideas, questions, and opinions about mediation – all of which have been percolating away in the background whilst I got to grips with my 10.30 con for tomorrow (It’s been like having an internal soundtrack of that old coffee advert where the woman makes pretend percolator noises to disgust he fact they she is serving instant coffee to her dinner guests, although in truth this is more to do with tinnitus than metaphor).

Anyhoo, when they are fully brewed I will share those thoughts with you. But not tonight…Not tonight. I need a few minutes of nothing in particular before I hit the sack and move seamlessly from one week to another.

Bring it on. Zzzzz

In short, the LSC says that some of the office addresses of NYAS were omitted from their tender application. So that’s it. They’re out. No right of appeal. Notwithstanding the fact that NYAS dispute the suggestion the address information was omitted, saying that there was a technical error with the online portal which was the sole route for submitting tender applications. And notwithstanding the fact that the LSC presumably had the information it now complains was missing, since NYAS has been a provider since 1999.

From discussions I’ve had with local solicitors, the application process and the portal left something to be desired: no way of knowing whether or not your application had been correctly received or received at all, coupled with an inflexible deadline and no right of appeal left many very anxious.

There are around 70 organisations in the same boat, with equally valid grievances, but the NYAS case stands out for me. NYAS are unique – they are the only body other than CAFCASS who are able to represent these children, and there are some cases where a child’s trust in CAFCASS has been lost, or where CAFCASS lack capacity or expertise.

Frankly it’s scandalous that the LSC can run it’s operations in such a way as to achieve results like this. “Computer says no” is no basis upon which to run a public body whose purpose is to serve the interests of justice. What possible public interest can be served by operating in this purposely inflexible way? I often ask the same question about the non-payment of counsel’s fees – but to that there are a number of obvious skeptic’s answers (to keep a bit more cash in the bank until the end of the financial year, or to  run the bar out of business if you are really paranoid). But what about the rationale for this? If I were a conspiracy theorist I might think that NYAS have fallen foul of the Government’s antipathy towards private law children proceedings in general, but I know that in reality there is no rationale. It is just mindless bureaucracy.

I don’t know which is worse.

You can read the full appeal documentation on the NYAS website.

NYAS are asking people to write to Ken Clark or to their MP.

For myself, I’m taking bets on a JR of the LSC being launched by someone before Valentine’s day is out.

Child maintenance is an essential form of support for many single parent families, but making arrangements to ensure it gets paid can be complicated and confusing. With the government talking of overhauling the way child maintenance is currently managed through the Child Support Agency, it pays to have all the facts.

Gingerbread’s child maintenance email pack gives single parents access to expert advice at the click of a mouse on topics such as:

• Getting the right amount of child maintenance
• Coming to agreements with an ex-partner
• Enforcing payments
• Using the Child Support Agency.

Single parents can get the pack sent to straight to their inbox by heading to http://gingerbread.org.uk/emailadvice.aspx and entering their email address.

The child maintenance email pack is the latest in a growing library of email advice from Gingerbread, which aims to give single parents the information they need on the issues that affect their families – quickly, privately and at a time that suits them.

The other email packs cover:

• advice for women who are single and pregnant
• advice for parents who are separating
• advice on looking for work
• advice on benefits for single people
• advice about help whilst studying

In essence the “packs” are just an email signposting recipients to a selection pre-existing factsheets available on the Gingerbread website that are relevant to the topic in question, but I can see that for some this may be an aid to navigation that will increase the accessibility of information and enable it to reach more people.