Posted on | October 29, 2013 | 3 Comments
This is the text of a Keynote address given by Sir James Munby, President of the Family Division at the Law Society’s Family Law Annual Conference ‘The sacred and the secular: religion, culture and the family courts’ on London 29 October 2013 (H/t to Adam Wagner)
Only a little over a century ago, in 1905, a judge in a family case could confidently opine that the function of the judges was “to promote virtue and morality and to discourage vice and immorality.” So the purpose of the law was the enforcement of morals. And that morality was, of course, Christian. In 1910, the Divisional Court had to consider whether a landlord was entitled to recover the unpaid rent on a flat let to a woman who was the mistress of the man who actually paid the rent. The decision was that the rent was not recoverable. There was evidence that the woman was in fact a prostitute and using the flat for purposes of prostitution, but that was not the basis of the decision. Darling J described her as “an immoral woman, being the kept mistress of a certain man” and the rent paid by him as “the price of her immorality”. He continued:
“I do not think that it makes any difference whether the defendant is a common prostitute or whether she is merely the mistress of one man, if the house is let to her for the purpose of committing the sin of fornication there. That fornication is sinful and immoral is clear. The Litany speaks of “fornication and all other deadly sin,” and the Litany is contained in the Book of Common Prayer which is in use in the Church of England under the authority of an Act of Parliament.”
Posted on | October 26, 2013 | No Comments
Listen chaps, if you want in depth analysis and full on witty commentary head over to Suesspicious Minds. He’s banging em out so fast after they appear on Bailli that I’ve lost the will to live, fearful that whatever I start will have been done better and faster by the Suessmeister. Bless him.
Here are some things I’ve seen, considered blogging about, and gone “nah. other priorities”…
Litigant in person gets punchy. I suppose it was only a matter of time. According to reports the President dealt with the the contempt of court issue on Weds, but nothing on Bailli yet.
The Case of Re F – another adoption case. This time placement order was not appropriate but really on the basis that it was not yet clear that adoption was the right outcome for the child (child needed therapy first). In fact an application of existing authority.
Family law related autocorrect amusement via Huffington Post here.
Decode your legal 500 entry here. I think mine decodes as “send her all the messy ones”.
Oh. And this. Compare. And Contrast….I say it again: Compare… And Contrast… This Daily Mail article with this case on bailli (In the Matter of W and In the Matter of H). YES. They really are the same case. Whilst the putting of a slant on a case is entirely unsurprising, however this particular assertion :
[The President] also warned that in future, there would be ‘consequences’ for social workers, suggesting that they could be jailed for contempt if they fail to comply with court orders – an offence that carries a sentence of up to two years.
Of course, if you read paragraphs 52-55 of the judgment (or any other bit of it for that matter) there is absolutely no reference to committal for contempt of court as a response to a failure to comply with a case management order. This is highly misleading representation of implications of this judgment. Even if the single reference to “consequences” in the judgment were a reference to contempt of court this case is not about consequences for social workers who remove children in circumstances where there are irregularities in the removal (as the headline suggests), but rather about ensuring cases are conducted fairly and thoroughly after children have been removed (or if not after, removal is a distinct issue). But you don’t want to hear me rant about that. Go read it.
Also, rather late I confess, Lord Neuberger’s recent lecture “Justice in an Age of Austerity” (h/t to @joshuarozenberg)
Oh. And I couldn’t let this post pass without observing that someone has stolen my book title. And unfortunately that someone is a bunch of senior judges. Cheeky mares. Oh well… Shall I sue? Nah. I’ll just take the opportunity to self-promote.
Posted on | October 26, 2013 | 5 Comments
Last week I had me knittin’ needles confiscated at Swindon County Court. The week before I had chatted with security about their new technique of searching handbags with a chopstick, which was as I correctly guessed, to avoid accidents with needles. Hence I was not surprised when the security guard very discreetly asked me if I would mind terribly if she looked after my knitting. Not discreetly enough mind you : the queue sniggered at the oddness of a besuited red lipsticked woman (yea yeah – I was on a smart day) with equipment from a shreddies ad…
In more wool related antics, I have today spent more hours than I care to mention making pom poms from black wool (for halloween spiders you know)…It seemed likely to be less frustrating than trying to teach garter stitch to a boy who can’t yet manipulate a pencil (although he is a bloody whizz with an ipad). Such is the burden of being mother to boys whose eyes are bigger than their stomachs when it comes to making things. “Mummy, can you teach me to knit?” sounds like a small enough request, but of course I have had to re-teach myself to do it (last time I knitted I was probably about 8). Thank god for youtube as Grandma has been dead fifteen years. This then is the background to my heinous security breach at Swindon. Pom poms I managed from recall, although I my recollection let me down on scale – leading to mega pom poms and a lotta winding… Tto give him credit the boy did pitch in and wind his pom pom for a good length of time, but you know how it goes “Mummy can you finish it?”. And so he waned and I wound. And wound…But both boys went to bed with a legless spider with a tuft of white where the black wool ran out (that’s his face mummy). Sixteen legs to make tomorrow…..
All of this is of course one long yarn (fnar) by way of excuse for not blogging. Yes, its the knitting and the small matter of actual work…
I have a confession to make though. There is something totally addictive about the repetitive action of knitting and, to a lesser degree, pom pom winding (I like to make mine tidy). I have yet to reach the inevitable frustration that goes with realising I will never be able to knit consistently well but I was surprised how relaxing I found it as a way of unwinding, taking my mind of things or even of allowing me to think through things. Space to breath I suppose. Like a silent car journey.
Posted on | October 26, 2013 | No Comments
When I was a fresh young blogger I used to plug the gaps by making light of silly searches that people made to reach my blog. They are 95 % searches related to the different types of lawyers these days, but there are still a few that are worth a cheap gag.
chihuahua pull along trolley – because I am the spit of Paris Hilton?
uk drought 2013 – admittedly I haven’t posted much lately but…
advatages of being a litigant in person – um. nobody will care if you can’t spell?
tips on how to express in court - first take your breast pump…
do you actually get punished if you break contact order – good question.
i won an enforcment daughter against my daughter what does it mean – good question. not sure what it means. but good question.
weebles uk – they wobble but they don’t fall down.
somethings bohered me all night – ah, pink tape induced nightmares…a common side effect.
Posted on | October 19, 2013 | 6 Comments
Walking past a member of chambers banging her head on a computer keyboard in an escalatingly frantic attempt to get into her cjsm secure email earlier reminded me this a topic close to my heart (and on occasions my own forehead, which is thereby imprinted with a qwerty shaped haematoma).
Because you see “secure” email is a really funny joke. The word secure is in fact a reference to the fact that nobody can get into their own email accounts. “Well”, say the IT “helpdesk”. “I could tell you but I’d have to kill you”.
Of course it’s PEBCAK most of the time. But by god they dunnalf make it easy to slide into the chasm between keyboard and chair and into a weeping heap beneath the desk.
And of course in the brief windows when one’s secure email is working (there is a golden period in the cycle of about three days following a successful password change and the next reminder that its almost time to change your password again) you spend your time emailing everything via secure email to the court and then relaying it *gasp* insecurely to the other legal representatives who don’t seem to have secure email.
Still, we’re pretty bored and underworked. We’ve not got much else to do. Keeps us occupied. Kept my chum in chambers occupied for 2 hours today before I cam across her shouting expletives at the screen. I slipped out quietly incase I ended up with a mouse lodged in my cranium.
And it’s not just the super-user-friendly CJSM, that we all love to hate. Oh no. CAFCASS have their own special secure email whizzy thing, called egress switch.
So. The other day I received an email from a Guardian attaching a report that directed me to a website to set up an account in order that I could access the report. Fine, I thought. I have navigated (periodically) the labyrinthine security of CJSM – I can do this.
I pause to note that this is the ONLY time before or since that I have had an email from CAFCASS in this format, so there appears to be a consistency problem, borne no doubt of the fact that secure email is a barrier to actually doing anything. Read more
Posted on | October 4, 2013 | 10 Comments
Threshold is something that pains me.
I frequently groan when reading them, I get a headache when drafting them, and I am not even sure what they are supposed to look like any more…
First there was a time when threshold was routinely forgotten and cobbled together on the back of a fag packet at the last minute…. That was deprecated.
Then developed a practice of proper schedules of findings sought, particulars if you will of the case the LA wished to prove. They became massively detailed, bloated, chuck it all in and something will stick, cite every page reference that vaguely supports your proposition affairs. And still they sometimes get forgotten…
Now we are required by statute to condense our threshold documents onto a piece of paper no bigger than a rizla.
I exaggerate for effect of course, but to use a gratuitous smoking related pun, threshold is a drag. To do it again – a wafair theen threshold monsieur?
The President has made it clear in his “views from” that threshold has to be pithy, “no more than a few lines”. This provoked concern (I know we aren’t allowed to have “concerns” [see A Local Authority v A Mother & Ors  EWCC 4 (Fam)] in court anymore but I think we’re allowed them in private – as an aside nonetheless my oppo recently asked a Guardian in xx to confirm that the “concerning concerns” she had outlined in her question were indeed “concerning”. He agreed they were. He did look concerned. Concerningly so. To the extent I almost became concerned myself.)
Where was I? Yes, this “no more than a few lines” has provoked concern. It sounded to some a little tiny weeny bit too close to saying “parents rubbish, risky, concerning, danger will robinson, game over”. Does an LA’s “concern” amount to reasonable cause to believe? And if it does, does sufficient quantity of “concern” get you over the balance of probabilities in the absence of actual, you know, evidence? Read more
Posted on | September 27, 2013 | 9 Comments
*NB title must be spoken with Glaswegian accent to get the full pun effect*
Sometimes when I get really bored I look up pointless bits of law. And sometimes I happen upon them in the course of some actual legal research in furtherance of my case.
And so here is a little nugget I tripped across this week.
DNA tests? Obviously joint expense, split equally between all parties?
See s20(6) Family Law Reform Act 1969 which says
“Where a direction is given under this section [s20 FLRA gives power to the court to direct a bodily sample be taken] the party on whose application the direction is given shall pay the cost of taking and testing bodily samples for the purposes of giving effect to the direction (including any expenses reasonably incurred by any person in taking any steps required of him for the purpose), and of making a report to the court under this section, but the amount paid shall be treated as costs incurred by him in the proceedings.”
So alright, where everyone agrees it’s necessary – a consensus is often reached in care proceedings that it is required because there is a genuine uncertainty – it is legitimate to split the costs. But a putative father who applies for a DNA test, or a Local Authority who asks the parents to undergo one – must pay for the cost of that testing. They have a hypothetical prospect of recovering those costs at the end of the proceedings, but it seems likely to remain hypothetical in most cases.
A point of mere pedantry, but a provision which I had to rely on on behalf of an impecunious Mother recently who could not pay the half of the DNA test that the LAA were likely to say she should pay.
Posted on | September 26, 2013 | 10 Comments
I can’t compete with Sarah’s eloquent rant. So I won’t. This is a stream of consciousness therapeutic effort, not a literary one. I have insufficient energy to craft it, but I must must must let some steam / blood / stress… Or my head will pop.
First : SGO reports.
An SGO report is more than a paper exercise involving answering the headings that the SG Regulations require to be covered before the court has power to make an SGO.
An SGO report must, if it is to have any value or purpose, be an analysis of the risks and benefits of an SGO as compared to all the other options on the table (G, B-S).
The requirements set out in the regulations should not obscure or constrain or act as a substitute for proper social work analysis.
And if, after proper analysis, the recommendation is negative, the SGO report must still be a tool for the court to enable it to consider the appropriate order and to make such order as the court sees fit. A court is perfectly entitled to disagree with a negative recommendation – and if it does it will need a proper support plan AND a financial assessment. Skipping that because the recommendation is negative is NOT OK. Read more
Posted on | September 25, 2013 | 10 Comments
If you don’t know where you are going, any road will take you there – An Unapologetic Rant
I will start by setting out my credentials. I am no reform refusenik. I think it was 2001 when I wrote my first article about what seemed to be the knee jerk response in care proceedings to appoint both a psychologist and psychiatrist. These experts would often do little more than repeat the social worker’s chronology, add a few paragraphs of assessment then recommend a programme of therapeutic intervention for which no one could or would pay and which was way beyond the child’s timescales in any event. Experts were not being used in helpful ways as often the letters of instruction lacked focus and clarity.
Therefore I accept that many care proceedings had become bloated behemoths, dragging on for months even years beyond which the framers of the Children Act had thought likely. I accept that it is a reasonable assumption that delay is bad for children and parents. I don’t accept care proceedings became elongated because professionals in this field were lazy or stupid or wanted to milk the system. Most of us who do this work are keen at all times to do what we think will secure the best outcome for the children. These are difficult decisions with enormous consequences and we wanted to get them right. In an area of law with such serious ramifications for all involved, and which is sometimes heavily reliant upon the understanding and application of psychological research, it is hardly surprising that lawyers and the court wanted as much help as they could get.
However, when dealing with children’s lives, decisions generally need to be made swiftly and on the best evidence and I concede the way in which care proceedings have been operating for the past ten years was likely to thwart both goals.
Posted on | September 22, 2013 | 8 Comments
For those of you who had been pondering about the applicability of Re B  UKSC 33 to private law cases – Re A (A Child)  EWCA Civ 1104 goes some distance towards providing an answer. It concerns exceptionally long running private law proceedings, of the “implacable hostility” variety, which the Circuit Judge acknowledged on concluding them had been characterised by systemic failure. The order was for no direct contact between the girl and her father and a s91(14) order until the child’s 16th birthday (she was 13 at the time). The father appealed and did so in person. He criticised the manner in which the entire proceedings had been conducted. He did not accept that the Circuit Judge was right to draw a line under the proceedings, now that the child was 13 years old and firmly expressing her opposition to contact and the proceedings.
The proceedings had involved all the familiar features of implacable hostility cases – repeated orders, difficulties with progressing and maintaining contact, repeated breaches, appointment of a guardian, experts (Dr Weir saying that the child’s wishes should not be determinative), s37 report (conclusion – thanks but no thanks), talk of transfer of residence… Read more« go back — keep looking »