Family Justice Narratives : No. 3

This is the third of the Family Justice Narratives. You can find out what the Family Justice Narratives are all about and how to get involved here.

NARRATIVE NO 3 : ANONYMOUS PROVINCIAL BARRISTER

Tell us where you fit in (solicitor, barrister, social worker, guardian, judge, researcher, court staff, something else)

I’m a Barrister. It’s a job I have been doing now for over 30 years. I am in independent practice, but work with others in a busy set of provincial chambers.

 

Tell us about your typical week Tell us about where you’re at this week (bad week, good week, rewarding week, soul destroying *headdesk* kind of week?)

Like the ‘Anonymous Social Worker’, I too never have a typical week. A lot of my work is in family courts, undertaking cases involving children – public law disputes concerning care proceedings and private law conflicts about residence and contact – and of course money (called financial remedies).  Here, over 60% of my colleagues are women, many of whom are young. It is fun interfacing with bright, intelligent, innovative younger people. I cover two other specialist fields which have nothing to do with family law, so I do get a break from the emotional side of practice. As well as acting as advisor and advocate in cases, I also have a mediation practice. This is the most enjoyable part of my work. Mediation is quite transformational, turning bitter conflict into workable solutions.

Tell us about the highs and lows and the reasons you do the job

You have to be passionate to be a barrister. After all, the main part of the job is taking on issues (some of which are very challenging) and fighting the case for your client. The ‘highs’ come from the sense of a job well done, although being competitive, I have to admit that ‘winning’ gives me a particular buzz. Getting to the end of a case and hearing those immortal words from your client “You were wonderful” is the best reason for being a barrister. The lows arise when you have a particularly challenging client, opponent or judge. The client who thinks that they know best, or the opponent who will not work flexibly, are my two biggest bug-bears. Judges are quite another thing, but these days if they get awkward, I just tell them to behave, or appeal their decisions. The job of barrister does require a lot of work out of hours, and this can be a drain on personal energy. Fortunately, being older, I get fewer last minute instructions, and when I do, I generally know from experience how to handle things. Then, there is the paperwork…..don’t get me started on that!

 

Tell us about what works well in the system and tell us about what does not work at all

Some say that our system of law is the best that can be devised. I disagree. In the area of family law, I think that the adversarial approach is out of date, and should be scrapped. It used to work when judges just had to listen and decide on what they heard. These days, judges are more proactive and investigatory – and this sits badly with an adversarial approach by advocates. I would like to see this change in family proceedings. Judges who want to inquire…let them inquire. Where advocates are needed, let them assist with this process. Currently, we have an uncomfortable balance between the one and the other.

 

Tell us about how you see the family justice system and how you think others see you and the system you work in

Tell us about an important influence on your work

The family justice system pretends that it is ‘child focussed’ but I am not too sure that this is strictly true. Frequently the voice of the child, or children, is drowned out by the battle between parents – or parents and local authorities. It is rare to come across a case where relationships between the adult players are functional. I often feel that they get in the way of proper, child focussed solutions.  Rather radically, I question whether parents in care proceedings, or private law proceedings, really need ‘party status’? Generally, parents want to tell a judge how they feel and what they want. They do not really want to run cases. They are certainly not good at it. On the other hand, the job of case management cannot simply be handed over to local authorities.  Why not give that job of case management to a properly resourced Children’s Guardian? The parents could then say what they wanted as compellable witnesses, each proofed by the Guardian’s solicitor. It would mean lean time for lawyers, but would simplify and speed up what is currently a protracted and expensive process.

 

Tell us about how you combine your family with your work and how your experiences impact on your relationships and your parenting

Being a barrister requires discipline, and part of this is ‘knowing when to stop work’ – for the day, the week, or the season. I learned from a colleague’s experience. One weekend, as usual he was reading a brief when a little note appeared under his study door, “daddy, are you coming out to help celebrate my birthday?” When my son was young I always took two months off work in the summer so that I could enjoy summer holidays with the family. Yes, its two months without an income, but then you simply budget for this, if you have the right practice. Normally, I will avoid any mid-week commitments, as almost certainly, a late brief will come in on the night you have arranged to go out or entertain friends.

 

Tell us – would you choose this job in your next life? and will you be doing it in ten years time?

In ten years time I will be well past working age, but if I wasn’t I probably would still be working as a barrister. I much prefer the collaborative approach of problem solving, so would hope to develop my mediation practice. What about my next life? As a barrister?…most certainly not! I want to come back as a creative artist – art, music, dance: everything that is the opposite of what I do now.

 

And tell us your bright ideas for change and for dialogue

First, move family law from the adversarial process. Introduce more collaborative working practices. Use some of the money that is spent on ‘fighting cases’ to bring about change – in parenting practices, local authority resources, representation of children. Next, save the judges for the final stage of cases, where options are balanced and tested, and decisions need to be made. The ‘case managers’ need only go before a judge if they cannot agree what is needed. Most advocates (especially some of the younger ones) are very good case managers. Why should they, their clients and other professionals spend a morning, or worse – a whole day at court to deal with administrative decisions which they could fix by email or over the phone? Finally, keep politics out of family proceedings. Ken, I think you know what I mean….

 

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3 thoughts on “Family Justice Narratives : No. 3

  1. I admire the honesty of this post, and the willingness to consider controversial options. There are too many in the industry merely demanding more of the same and more funding to pay for it.

    The question as to why parents need to be parties is particularly interesting, and finds support amongst many I have discussed this with in parenting organisations.

    There are cases in which arranging for a child to instruct a solicitor – who can also act as a guardian – and keeping the parents sidelined has reduced conflict and produced positive results where before there were only years of litigation.

    As the anonymous barrister recognises, this would be unpopular amongst lawyers – and it takes a very special lawyer to take on this role – but it is child-centred and ends the adversarial proceedings which are so destructive.

    It is radical ideas like this which will surely be necessary if the system is not to collapse.

  2. Some radical ideas become mainstream, and this could be one of them. Removing party status for parents would not contravene Article 6 or 8 European Convention on Human Rights so long as the system allow for parents to be heard. Nick Langford makes a good point that the more prominent the parents’ voice in court, the less time, energy and resources can be applied to the the real needs of the children – especially the need to have two committed parents equally involved in their lives.

  3. “Why not give that job of case management to a properly resourced Children’s Guardian? The parents could then say what they wanted as compellable witnesses, each proofed by the Guardian’s solicitor. It would mean lean time for lawyers, but would simplify and speed up what is currently a protracted and expensive process.”

    Sorry to come across as critical, but this sounds a bit too good to be possible, and rather suspicious. You’d have to say a lot more for this to be anywhere near convincing. My worry right off the bat is that you go from “putting kids in the middle” (as they already are) to putting more a burden on their shoulders. Kids do not know what they want, and it is absurd that there are some people working in the industry that actually believe what a kid says should be taken into consideration. It should not! This is very dangerous. A kid says what the alienating parent wants her/him to say. A kid is victim to the conflict of loyalty engendered in her/him by the alienating parent.

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