Also this past week we celebrated the 800th anniversary of the Magna Carta, “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”,  and the 50th anniversary of the first judgment handed down by the European Court of Human Rights. It seems only right therefore to take as my theme this week “the trouble people get into for saying stuff”. Funny stuff can turn out to be dead serious and vice versa The ironic collision of both anniversary and verdict is not lost on Charon QC, but then not much gets past him, other than ducks.

Libel reform then: Jack of Kent hosts a post from libel survivor Simon Singh in a plea for further signatures on the libel reform petition. In a trans-atlantic libel case reported on Afua Hirsch’s Guardian Law Blog, lawyers in London have obtained judgment and an award of damages in a defamation action relating to remarks on a US website viewed in the UK. Question is, how will they enforce it, and do they care? Nonsuch reflects on the Paul Chambers twitterstorm and the current libel reform campaign in the UK, opining that such in the US, where people are reasonable (allegedly) and where legal principles are rather different, many such potential storms would amount to no more than a gust.

Also in trouble for apparently saying stuff he oughtn’ta done was a firearms officer giving evidence at the inquest into the death of family barrister Mark Saunders, alleged to have played the lumberjack game whilst testifying, by quoting song titles (I attribute my 2:i entirely to the repeated use of the word lumberjack in my finals). Much bluster in print media and online, skillfully deflated by (yes, again) David Allen Green on The Staggers.

Popehat continues to entertain with its exposes of hopeless spammers, in this instance via The Bloggess (thank you popehat for that introduction). And also with its thoughtful posts about adoption, here a recent post about what not to say in response to difficult questions about adoption. Legal Satyricon also know’s that it’s hard not to be an asshat when it comes to speaking out to protect your kids, also covered by abovethelaw (spot on about Eyes on the Prize btw, important to watch). We are reminded also that on the internet stealing other people’s words is liable to result in a ‘web justice driveby’ if not an action for copyright infringement. Scott Greenfield covers the same story, with language in technicolor. Web justice drivebys involving such linguistic artillery are clearly commercially very dangerous (the jealous guarding of recipes for apple pie is it seems, a tradition as American as – urm – apple pie**). Damola Awoyokun, writing on opendemocracy.net has so much to say to his unborn daughter that he writes her a letter. She will have a thoughtful teacher in life, but it will be many years before she is able to fully understand the importance of To Kill A Mockingbird.

There is a raft of Parliament related stories, all of which raise interesting political and legal questions. Firstly, in a spot of bother for saying stuff in election material he probably shouldn’t have is the now ex-MP Phil Woolas, as reported by Head of Legal. Who knew there even was such a thing as an election court? Head of Legal also reports on the ruling that the three MPs being prosecuted for expenses fraud cannot rely on parliamentary privilege to avoid a prosecution. And thirdly, the e-storm (she said, struggling to find the collective term for a combined twitterstorm and frenzied blogging / media interest) surrounding Tory MP Nadine Dorries, her “70% fiction” blog and her apparently contradictory accounts to constituents v the public accounts committee continues. A good summary of why this matters can be found here, and those with stamina will wish to immerse themselves more fully in this may begin by visiting both Dorries’ own blog and  this counter blog – warning: caffeinate first. Finally, a councillor called Compton tweeted a ‘menacing’ joke about stoning Yasmin Alibhai-Brown to death and has wound up arrested (totally predictable outcome, both ought to know better). It is a long established proposition that stoning jokes should only be attempted by highly skilled comedians.

On the subject of public servants with controversial online activity: in Michigan the sacking of the Assistant Attorney General was definitely not for exercising his right to free speech (h/t The Daily Show, although only a little h/t since we can’t view your clips in the UK so I haven’t linked to it. Tsk). No, it was for engaging in conduct unbecoming a public office including calling someone a radical homosexual, a Nazi and Satan’s representative by internet.

The excellent UK Human Rights Blog runs a piece on the future of control orders including a speech on the topic by Mr Justice Silber to the Bar Council Annual Conference.

The Guardian reports on the Feminist Judgments Project, a “dynamic and innovative research project in which a group of feminist socio-legal scholars have written alternative feminist judgments in a series of significant cases in English law. Rather than simply critiquing existing judgments, the participants have put ‘theory into practice’ by engaging in a practical, ‘real world’ exercise of judgment-writing, subject to the same constraints that bind appellate judges. In doing so, they have pioneered a new form of critical socio-legal scholarship, which seeks to demonstrate in a sustained and disciplined way how judgments could have been written and cases could have been decided differently“. What a brilliant project. The recently published book is on my christmas list – a sort of ‘what they should have said’.

Sometimes of course it’s not talking that can get you into trouble. And Family Lore reminds us that sometimes you just have to think the wrong thing before it causes all sorts of unfortunate consequences. For US troops who don’t want out of the forces it seems the love that dare not speak its name must remain unspoken.

Lowering the Bar offers tips on what to say under the voir dire in order to skyve off of jury duty.

Binary Law gives up on trying to use words to tell us he’s got the social meeja blues, and resorts to diagrams instead. Here’s hoping he climbs out of his trough of disillusionment soon.

And Cari at Rincker Law (a food and agriculture law blog – who knew?) offers the best argument yet on why it is romantic to say ‘I do’ to the prenup before tying the knot. A gal needs to know who’ll get to keep the cows apparently. My clients’ concerns tend to focus more on such important items as cheap leather sofas, flat screen tellys and (in the really big money cases) gas barbecues. The bovine descriptor is usually reserved as a romantic epithet for one’s soon-to-be-ex; the male equivalent most often as a descriptor for the quality of his disclosure. We are still grappling with the Radmacher decision over here, which seems unlikely to make it much easier to predict how many head of cows with which one will exit a marriage, and certainly will not help us carve the one scrawny old knacker that many families have in the pot to feed the family. I know, there’s only so far you can take a cow analogy. I’ll stop.

Well, I hope this blawgreview has given you a few things to ruminate on, some moos and views (sorry – can’t help milking it). It’s been fun (some blawgreviewers enjoy it a little too much), but sadly I can’t afford to give up the day job just yet, although we family legal aid lawyers may be on the scrap heap before too long.

I’ll end on this: in these times where so much is said and written and at such pace (all ) Armistice Day / Remembrance Sunday prompts us to spend a few moments in quiet contemplation of the really important things. I rang for the Remembrance Service today and even with my cackhanded assistance our 8 sounded beautiful half-muffled, though not quite as grand as these (iplayer recording of bells at Westminster on Remembrance Sunday- 6 days left). I’m not religious (no good bellringer is although, in truth, I am not a good bellringer), but sometimes in quiet moments just listening and breathing your perspective is different – perhaps it’s all be no more than tales told by idiots, full of sound and fury, signifying nothing?

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

**Food related tenuous aside: This weekend I myself have been dry running a recipe for cornbread in advance of thanksgiving: my husband of 10 years having recently remembered he is a US citizen it seems we are celebrating it this year, notwithstanding that I have not the remotest idea what I am supposed to be giving thanks for (tweet me a summary of thanksgiving in 140 characters please). Celebration of thanksgiving it should be said was not in our pre-nup. But the cornbread was pretty damn tasty. Incidentally, and by way of translation I can confirm that corn meal does = polenta. Still, whilst I have been whirling around the kitchen baking, whilst simultaneously frantically typing hilarious, informative etc blawgreviews in a display of multi-tasking Sunday awesomeness, the kids have been well looked after.

Did anyone else listen to this? Was it as confusing as I thought it was, or was I simply too distracted by the traffic on the M5 to listen properly to what was being said?

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The Information Tribunal making the decision apparently cited the example of a very senior judge who was reprimanded by the LCJ and said that if barristers had known about the behaviour which had led to the reprimand, they would have used the information to try and get an adjournment of the hearings or ‘in some cases an application that the judge in question not hear the particular case’. No doubt they would. The Tribunal goes on to say that ‘this clearly has adverse implications for the public and for the administration of justice generally’. Riiiigggghhhht.

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No, I’m not getting it. As far as I can see it all rather begs the question ‘Why the hell shouldn’t counsel be able to ask a judge to recuse himself if he has engaged in relevant misconduct?’, and I rather think that the decision to keep such matters secret when they plainly hold a legitimate public interest is far more likely to have adverse implications for the public and for the administration of justice than the suppression of such information simply in order to avoid administrative inconvenience or embarrassment. The new fashion for transparency and the principle of open justice clearly only goes so far.

Or am I getting this wrong?

this however is not the primary focus of blogging discussion about the ‘BIG, BAD’ Lexis Nexis at present as can be seen from the link.

As far as I can tell most of my clients think I’m alright. They are often frustrated with the system and some expect miracles (which I’m not always able to perform), but I don’t leave court every day thinking the world hates me. I leave court most days thinking I’ve done the best I could do, and on a really good day I leave court thinking I’ve really made a difference.

But I’m surprised at how much the responses to some of the posts on this blog unsettle me. If the people who have posted comments on this blog are representative then the bar has a serious image problem. And the family bar has a catastrophe on its hands. How can the public perception of us be so very different from the world I inhabit every day, where people try really hard to patch up other people’s often unfixable problems and to get families working again? Where has it gone wrong?

I think its quite likely that the posts I’ve got are not truly representative of the public’s view of us. That is to say, those with strong negative views are far more likely to be bothered to comment on a blog like this than those who have no axe to grind. The unhappiest are often the loudest. But I can’t ignore the fact that there are enough of ‘em out there who feel strongly enough to pebble dash this blog with invective to warrant some serious thought.

I’ve never thought the family justice system was perfect. But the problems it has to deal with have no easy solutions. And if there is a bias against fathers inherent in the system then soundbites about every father’s inalienable right to contact don’t solve that problem like a magic spell. Because families are complex and every parent and every child is different. There is no formulaic answer. Fathers are not always let down, Mothers do not always get away with ‘it’. But it does happen. But is that because of bias against fathers / men? My view is that its usually not, that there are all sorts of factors which come together to make it practically difficult for non-resident parents (usually fathers) to obtain speedy results through the courts. And it does produce unsatisfactory results. Its a constant battle for judges and lawyers to continually reassess a case to work out what is best or (more often) the least worst solution when there are limited resources and when time is ticking by.

And of course one of the criticisms of the family justice system is its ‘secrecy’. One man’s secrecy is another child’s privacy, and I do think there is an important reason why proceedings involving children are private. I also agree with the increasingly popular view that we need to work out how to let the public see more of what goes on in family courts, so people can understand the system instead of having to rely on partial or incomplete information. Just as campaigning groups for fathers are unable to publish the full details of the cases they say are examples of miscarriages of justice, it is also difficult for me to back up my assertions about the family justice system or the conduct of the bar because of the privacy rules. Additionally of course, I have ongoing duties of confidentiality to clients. So its hard to give examples of cases that are a paradigm of fairness, where Judges see through attempts to frustrate contact for reasons nothing to do with the child’s welfare, where Judges refuse to permit a case to be eternally delayed and cases where a Judge will try anything and everything to get contact going, and of course the rarer cases where contact is refused because it would genuinely be detrimental to the child. I see these cases all the time, sometimes from the perspective of the Mother, sometimes from the Father’s perspective (I represent roughly equal proportions of mothers and fathers).

Of course I can refer to published judgments like this one but no doubt the response would be that this is an exception that rarely ever happens. Because the fact of the matter is this: Even if I could tell you about all my cases this would all be anecdotal. Would it change the minds of those people who are posting? I think probably not. Because I think essentially people’s views of what happens in the family justice system are either coloured by their own personal experience or what they’ve been told by a sister or an uncle or a friend. And in the same way that the soundbites of Fathers4Justice about individual cases tell us nothing really about why the court reached a decision (because there is simply not enough information), the necessarily selective information that is passed between family members about what is really being discussed at court is never going to be the full picture. At best it will be one half of the story and at worst a lot less. And of course when you are in court yourself that’s usually because you don’t accept the other half of the story is valid.

And even if we could magically mend the family justice system so that resources were limitless, so that court reports could be written instantaneously and hearings obtained at a moments notice, and even if delay were a thing of the past – wouldn’t people still feel this way? Because at the end of the day, people feel very strongly about their kids, their homes, their families. And more often than not somebody leaves court feeling like they’ve ‘lost’ or been cheated or been treated unfairly -simply by dint of the fact that the Judge has disagreed with them. People might accept a Judge’s view when it comes to a dispute about a debt or a contract, but when its their family people believe unswervingly that they know best. And at the end of the day a Judge usually has to disagree with somebody (although a really good judge will sometimes be able to get parties to agree or will find a ‘third way’ that everyone can live with). So you’ve got to reckon that a decent chunk of people are going to leave the family justice system thinking the whole thing stinks even if it were in perfect working order. It is very hard to accept someone else knows better than you do what is right for your child. But clearly the privacy rules do allow the misinformation (on both sides) to multiply and fester. And it seems to me that everyone has a view about family justice but most people have very little first hand knowledge. 

But I suppose what really irks me is the underlying belief inherent in the comments appearing on this blog that we family barristers are somehow implicated in this charade of justice, that we are agents of discrimination and that we are untrustworthy and unscrupulous sharks who don’t give a shit about the people and the children involved in these cases as long as we get paid. I cannot begin to tell you how wrong that is in this post. I will reserve this for another day. But the short version is if I were in it for the money I wouldn’t be in it at all – I’d be a corporate lawyer or an investment banker or doing some other job where I’d get more money and less crap for my effort. And although I suppose this will cause gasps of outrage, I have to say that I’m not at all surprised that reports of bullying and underhand conduct at court come from litigants in person or representatives of fathers groups, many of whom can be extremely difficult to deal with themselves and who interpret any attempt to speak to them outside the door of the court as bullying or an attempt to trick them into agreeing something they shouldn’t, and most sensible barristers will back off if its clear that their approach is unwelcome. Hostility to barristers from non-lawyers and the unrepresented is a natural reaction to being unfamiliar with the court process and feeling threatened by the unknown, but it doesn’t actually mean that those who report bullying are presenting an accurate reflection of what is happening.

But this is a long and rambling post. And I am still left wondering what we / I can do to rebalance the public perception of us?

I suppose I must just keep plugging away posting entries that inform. I suppose I must just keep plugging away trying to communicate widely about what we do and why we do it. I suppose I must just keep plugging away going to court and doing my best for whichever client instructs me. I suppose I must just keep trying to explain to clients why things are happening in their case and how the system works. And I suppose I must just hope that those clients go back and tell their sisters, their uncles, their friends that they felt they had a fair shot and some good advice. But at the end of the day the biggest success stories are the ones where the lawyers are long forgotten because people are concentrating on more important things, like watching their children grow up. So I won’t be holding my breath for any thanks or praise, I’ll just have to rely on myself for the odd pat on the back. Which was ever the way for us lawyers I’m afraid.

Also on 1 October (amongst other things) a new s6A Children Act 1989 will be in force providing a requirement for CAFCASS reporters to conduct a risk assessment for submission to the court where they think a child may be at risk of harm.

PS North v North  is a case about a wife who got a divorce settlement in 1981 and came back for more in 2004, having lost a sizeable portion of her settlement through her own life choices in the intervening period…

UPDATE – article now published. Link here.