“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.

I have now made good on my promise and gift aided 5% of the funds I have raised through advertising on Pink Tape to BAILII. Not a fortune, but it’s better than a poke in the eye.

This seems like a good opportunity to remind others that BAILII do struggle for funds, and that they are hugely important to the legal blogging community and more broadly in terms of access to justice.

If you run a blog that links to BAILII, or if you are a lawyer that relies upon BAILII for transcripts – ask your chambers, firm, boss – yourself – if you could donate something.

You could also do their online survey.

Go on.

Go on gowahn gowahn gowahn gowahn

Go-wan.

I have been hounded repeatedly for this review by the representative of what appears to be some self publishing promotional service employed by Mr Pseudonym  - have I read it yet, would I like to interview the author, can he write me a guest post? So lady, here’s the review. And thanks but no thanks to the other stuff.

First of all let me explain why I’m not going to tell you the name of the book or the Mr Pseudonym’s pseudonym. The reasons are fourfold:

1. I wouldn’t do such a thing to you, my loyal readers. If you knew what it was called I fear you would feel compelled to seek it out. You would thank me, if only you could understand just how excruciating a read it was. If there wasn’t already a law against it (see 3) I would be saying there should be.
2. Whilst I am not shy of saying what I think, I have no particular desire to publicly humiliate another human being, let alone one self evidently suffering from the anguish of a lengthy and acrimonious family dispute, and the loss of a child.
3. Whilst it may have escaped the author, the publisher (a US self publishing house) and the many many international distributors who are offering this book for sale online (Amazon, WHSmith, Barnes & Noble to name but a few), there are (as I see it) some legal problems with the publication of this book. Of which more below.
4. Even if I’m wrong about the legal problems I am uncomfortable with the extent to which the privacy of the ex Mrs Pseudonym and the parties’ child is being invaded, and the possible impact this book might have on them were it to become known to them. I want no part in that. Sadly, this limits the extent to which I am able to quote the more exquisitely awful passages.

So why publish a review at all? The reasons are also fourfold:

1. I have dedicated a significant number of hours of my life to reading this book, when I could have been poking my eye with a sharp stick or watching X Factor. At least if I can get a blog post out of it this time will not have been entirely wasted.
2. The legal issue itself is an interesting one and one which other would be campaigning novelists – and publishers – should be mindful of.
3. I have a theory that the author of the book (or possibly the ghost writer) was under a bet to get the most number of instances of the word “nipple” in one novel. This has inspired me to adopt the same approach in my blogging. That’s 1 “nipple” and counting (2 now).
4. The writing is dire and the proof reading non-existant, one might say ghostly. I need to purge, exorcise the ghost writing if you will.

This book purports to be both a “real life story” and a novel. It doesn’t know if it is Arthur or Martha (what are the odds of the parties in fact being called Arthur and Martha in real life I wonder?).  It is very obviously an account of real life events from the perspective on an individual right in the thick of those events, and largely based on scarcely revised diaries compiled by that person. This much is evident from the frequent slippage into the first person mid-sentence and back again, that one can only assume the “professional ghost writer” neglected to notice or inserted deliberately as some kind of post-ironic uber-clever literary device (I’m being ironic there). And from the entirely random detail (techniques for animal husbandry and dairy production in the main) that interrupts the telling of the story and that serves no narrative purpose. It is either an emblematic motif or a lack of perspective, the latter seeming most likely.

A rather more troubling symptom of the identity crisis from which this book suffers is the insertion into the diary narrative of self-evidently fictional chapters written from the perspective of the ex-wife, detailing conversations and actions which the real Mr Pseudonym cannot, on his own account, have been privy to or aware of. These chapters are his retrospective imaginings as to what machinations and evil schemes ex Mrs Pseudonym was cooking up, slotted nonchalantly into the telling of this “real life story” as if they were fact. Telling your own story is one thing, but telling her story through the prism of your bitterness is another. It makes for an unintentionally unreliable narrator.

And of course, the law and legal procedure is all wrong. There are numerous accounts of advice apparently given by lawyers, most of it is garbage or utterly incomprehensible. To give but one example, a lawyer advises the anonymous protagonist that a parent can’t make an application for contact until they’ve issued a divorce petition and he would have to include a residence application in the divorce petition if he thought he might want to make such an application further down the line. That is of course advice that not even the most minimally competent family lawyer would ever give, and there are many such examples of misunderstandings, misinterpretation or misremembering of advice given, and of legal events and sequences, something which is not uncommon for clients involved in such disputes but which is indicative of the impossibility of them giving a full or objective account. It was like watching a legal drama, where one inevitably spends much of it saying “Well, that wouldn’t happen in real life” every five minutes, but much much worse. Of course it is possible that this is an accurate account of very bad advice, and if so I hope said lawyer is no longer in practice. But it is entirely commonplace for those in my line of work to hear distorted versions of advice given by laypersons who have not fully grasped the legal nuances, or who are prone to hearing what they want to hear, so you will forgive my skepticism.

Back to the point: that’s a #FAIL on the “real life story” criterion then.

So, how does it fare on the “novel” front? It would be wrong to mince my words: it was unutterably awful as a piece of writing, ghost writer or not. Not apparently proof read, nor edited, and not written I’m afraid with any skill. No particular structure or balance is evident (half the book is taken up getting to the starting point i.e. the relationship breakdown and by that point the writer has run out of steam and just resorts to regurgitating a chronology of legal proceedings, hearings, orders, breaches, legal costs interspersed with a superficial critique of the family justice system. This is an odd contrast with the heady romance of the first half, which is liberally sprinkled with nipples). Cliches, hackneyed phrases, repetitive use of language. Hyberbole without drama. Typos, inconsistencies, reference to events or people who had not previously been introduced so nothing made sense, skipping backwards and forwards in the timeline without markers (no, not a flashback, just poorly planned writing). And the sex scenes….O…M…G… Me and my mate used to steal a peek at my Grandma’s Mills & Boon when we were kids. We’d try and find the sexy bits before she came back into the room. I didn’t think I would ever read anything more excruciating, but I have, thanks to Mr Pseudonym and his nipple infatuation. The first half of the book (which covers the meeting, the early days of the romance and the relationship up to its breakdown) is littered with sex scenes. Now call me an old prude, but in a novel which is about the injustices of the family justice system it is not necessary to give detailed accounts of who did what to whose nipples, although perhaps it was felt this would afford a little light relief to the intended (male?) audience? I do not know if the irony in the oft made allegation by Mrs Pseudonym that Mr Pseudonym only thinks about one thing was intentional, but it was exquisite.

It’s a shame really. I don’t doubt that there is the subject matter there for a compelling account to be written by someone. But such a task is very difficult for the person caught up in the events themselves, and requires a combination of writing skill, passion and objectivity. And there are important points of public interest, sadly not as well articulated as they might be.

So, onto the little legal difficulty.

This book contains an enormous amount of detail about the proceedings and about the lives of the parties. It gives a high degree of geographical specificity and the employment backgrounds and business careers of the parties are highly specific. It appears that the anonymity is limited to the changing of the names of the parties and child and of the lawyers, judges, experts and CAFCASS officers involved in the case. I seems highly likely that Mrs Pseudonym would be quite able to identify herself readily should this book come to her attention, and it seems highly likely that she would be both upset and angry at its depiction of events and indeed of her (in essence she is drawn as an evil, manipulative, warped, emotionally abusive individual). It appears in part that the book has been written in the hope that it will one day explain to the child (who must I think be approaching his teens) what “really” happened. How the child might react to that is anyone’s guess, but it would be concerning indeed if he were to find it on the internet and recognise his family described within it. I would hazard a guess that the professionals involved in the case would recognise the case and themselves.

Amongst other things the book contains some details of CAFCASS recommendations and lay, professional and expert evidence, judicial comment and submissions made in hearings. One can track the case through a particular County Court near where the parties lived and ran their businesses up to the Family Division. The judges are described, although sadly, since it is not a court I am familiar with, I have not been able myself to identify them. I am sure local practitioners would be able to do so with ease.

I have been deliberately quite careful not to repeat any of the specific information that could lead to identification. The book is not so cautious.

Unless the author of the book has sought and obtained specific permission from the court to publish the material contained in his book it is in my view a publication contrary to the Family Procedure Rules 2010 and contrary to s12 Administration of Justice Act 1960. I make no comment as to whether or not it may be vulnerable to a claim for libel since this is not my area of expertise.

The law in a nutshell:

s12 Administration of Justice Act 1960 provides that the publication of information relating to proceedings before any court sitting in private is a contempt where the proceedings are brought under the Children Act 1989 or otherwise relate wholly or mainly to the maintenance or upbringing of a minor, unless authorised by court rules.

Rule 12.73 (2) of the Family Procedure Rule 2010 makes clear that whilst certain documents may be disclosed to specific individuals or organisations for specified purposes (as set out in PD12G), the rules do not authorise any communication to the public at large, or any section of the public, of any information relating to the proceedings (and it is worth saying that the 2010 rules are by and large identical in this respect to the previous 1991 rules as amended). That is to say, they do not negate the provisions of s12 AJA.

Caselaw has established that s12 bites even after the proceedings have concluded and that “information relating to proceedings” includes:

“accounts of what has gone on in front of the judge sitting in private, documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed int he proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive); extracts or quotations from such documents; summaries of such documents.” (Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 142).

And crucially, “These prohibitions apply whether or not the information or the document being published has been anonymised” (also Re B).

In addition it is a criminal offence to publish information intended to or likely to identify a child as involved in Children Act proceedings (s97(2) Children Act 1989). As established in Clayton v Clayton [2006] EWCA Civ 878, [2007] 1 FLR 11 this provision is not applicable after the conclusion of the proceedings, so it is probably not relevant in this case, although query what the position will be if proceedings revive.

There may be an order permitting publication of this material, but it seems unlikely, not least because the website associated with the book gives the simple explanation that the author can’t publicise what has happened until the child is 18 so he can’t give too much detail in case he identifies the child. There is no further explanation.

So, whilst I’m happy to publish a review, albeit not an enormously positive one, I am not prepared to run the risk of further publicising or publishing material in breach of s12.

Hence, the anonymised anonymous review, complete with more nipples than Scaramanga.