In November 07 the Bar Standards Board published the results of a piece of commissioned MORI research on Perceptions of Barristers. Somewhat shamefully I have failed to comment on it before now and it was only when a review of the report appeared in this month’s Counsel magazine that I have been galvanised into action and finally looked at the detail of the report.

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There are some interesting findings, and some stark mismatches between what we barristers think of ourselves, what we think other people think of us and what other people actually think of us! In very broad terms the views of the general public appear to be less negative than we expect them to be, for example 47% of barristers believe that the public think barristers are out of touch whereas only 16% of the public think this. However whilst 56% of barristers believe the public think barristers are a trusted and highly regarded profession when in fact only around three in ten members of the public feel this. 80% of barristers expect the public to think barristers are well paid, whilst in fact only 60% of the public think that. And only 27% of us believe we are well paid.

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Whilst this report plainly covers some of the issues touched upon in this blog and in the comments arising from various posts – around the integrity of the bar, the effectiveness of the family court system and the levels of service provided to clients sadly, like so much material published about the Bar, this is really a piece of work about the criminal bar. Although a large sample of the general public were sampled (some of whom no doubt have had a brush with a family barrister), 100% of the lay clients sampled for the purposes of the qualitative element of the survey were either prisoners, acquitted defendants or ‘commercial’ clients. There were no lay clients interviewed who had been involved in the family justice system, and so I would say these results are likely to be unreliable in terms of perceptions of the bar both overall and specifically the family bar. Aside from the criminal justice system it is through the family court system that most people encournter us and the criminal bar is simply a different kettle of fish.

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I should think that similar issues would arise to those that cropped up in this report, such as the question of client care and the time spent with a client before a hearing (I would hope that the Family Bar would fare better on this than the bar as a whole) and the question of the integrity of the profession (where I fear the Family Bar might fare rather worse, at least in the eyes of lay clients or litigants in person). But as far as I am aware there is no equivalent report out there which can help us answer those questions except anecdotally. It would be an important piece of work in times when the family legal aid system is under review and the family bar is under siege as the Government tries to cut costs for the important work that we do and tries to ensure that public funding is utilised in cost effective ways.

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Wouldn’t it be interesting to see a comparative piece of work commissioned that told us what family barristers think of themselves, and what the general public think of them? However, I don’t suppose the Bar Standards Board has the inclination and I don’t suppose the Family Law Bar Association has the money. What a shame.

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The Family Bar is the one area of the bar that people are likely to come into contact regardless of who they are. They deserve to be recognised as a distinct and important part of the Bar. This report unfortunately demonstrates the common assumption that what is applicable to the Criminal Bar is applicable to the rest of it (or perhaps of forgetting that other areas even exist). It would have been so much more interesting if the report had considered whether or not perceptions of the Bar were uniform across all areas of work or not. I do not know if this is a flaw in the brief from the Bar Standards Board to MORI or the work carried out by them, but someone somewhere needs to examine the perception that ‘The Bar’ is synonomous with ‘The Criminal Bar’. It is not.

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P.S.

I am afraid it is no surprise to me that the limitations of this report are not brought identified in Counsel magazine which is just one culprit of the sloppy thinking about the (criminal) bar identified above. It is a source of long-standing irritation on my part that Counsel Magazine (‘The Journal of the Bar of England and Wales’ and paid for by my subscriptions) contains precious little applicable or of interest to those of us who practice at the ever expanding Family Bar. I read it hopefully every month, and almost every month I am disappointed (it is redeemed only by the regular inclusion of articles on overarching topics like Human Rights). But this is a whinge for another blog entry, or perhaps I should just write to the Editor and make my point directly?….

I came across a rather unpleasant cluster of websites today whose focus is on the divers ways in which women and feminism are evil / destructive / conspiring with the communists to bring about the apocalypse etc…Your run of the mill women-hating rot? Well, they made me shudder.

Starting at what men are saying about women which is wholly and unapologetically misogynist (perhaps its not considered rude in Oz), I follow blogroll links to the UK based end of men (which includes the very measured claim that feminism destroys not just the family but also destroys whole populations – see ‘why feminism is a fraud’ Nov 8 and the About page which develops the argument from feminists=men-haters to a government conspiracy to global depopulation enslavement and (dun dun DUUUN) THE END OF MANKIND! Crikey. This blog also expresses some incredulity at the suggestion that a father who punched two social workers (one heavily pregnant and one holding his four month old baby) before snatching his child and going on the run (the baby was under a care order) should get a prison sentence. Clearly he should have got a pat on the back and a lollipop for the kid.), and fembot hunter (‘Applying logic, facts and accountability to the mindless droning of the feminist hate movement’ – apparently) and ukmensaid (which purports to demystify the UK law around divorce and children and tells you what lawyers won’t – (lawyers won’t tell you it because much of it is simply inaccurate and mis-states the law or misinterprets data. For example I’m unlikely to write an article on a piece of legislation that doesn’t exist viz ‘Children Act 1991′).

I had to give up trawling through these in the end, the few links above are just my personal favourites. And of course many of these sites link into the more acceptable face of father’s / men’s rights, such as fathers4justice / realfathers4justice (and probably realrealrealfathers4realjustice) etc. (everything’s relative). I think the scariest thing is the idea that men in the process of relationship breakdown who are struggling to understand what is happening to their family and why, and who are looking for explanations will find themselves surrounded by a wealth of sources like these all of which espouse the view that we (that’s women) are out to get special treatment and that the state or the family justice system is out to ensure that this happens. I mean, they have big words in them and everything so they must be right.

So, by way of example uk mens aid suggests here that the reason why the vast majority of divorces are granted to women (about 80%) is a grand conspiracy by the courts (not sanctioned by Parliament I might add – tskk) to deprive the man ‘of his home, his children and his money’ (my emphasis). The reality is that its far more likely to be because it is women who are in the most vulnerable position financially after a separation (childcare responsibilities curtail their earning capacity and they are often left in the matrimonial home with no means to pay the mortgage) and this means that they need to get on with the divorce quickly so that they can sort out the financial situation before the house is repossessed. Often men, feeling there is no incentive to get on with the divorce or the division of assets dilly dally whilst the mortgage company threatens repo. And what uk mens aid omits to mention is that the question of WHO gets the divorce has no bearing AT ALL on how the money is divided.

If this is the kind of information available to men, and the mindset with which men approach the family courts system then their perception of their experience may well be distorted by the kind of suggestions made on these sites – coming from this angle everything that the courts / lawyers do no doubt looks like proof of the argument that the system is biased against them. And the problem with this is that if you approach the system with a chip that big it can obscure your view of what is really happening.

So on the one hand the fathers / mens movement is complaining of the adversarial / confrontational nature of the family courts system and yet discussion boards and blogs are full of the rhetoric of war and hatred, pumping up men who are at a difficult stage in their lives to do battle with this injustice rather than agree with anything the women might say for fear of being branded a namby pamby metrosexual or feminised new man (these are apparently the actual creation of man-hating feminists – a bit like how Nation of Islam think white men were the freaky creation of a mad scientist? Oh…I digress).

I’m all for injustices being exposed and righted, but to suggest – as these sites collectively do – that everything is an example of some sinister and systematic anti-male ideology and to place the arrangements for resolving disputes about the breakdown of family relationships at the centre of this conspiracy, so that every court case is approached as a battle ground, is to encourage father’s and husbands to miss the point. Relationship breakdown involves real individual children with their own individual personalities and needs, and real individual adults with their own individual quirks and strengths and weaknesses. And real pain – hatred may be a byproduct but it should not be the fuel for or purpose of the exercise.

So anyway, now I really have to go and help my entirely equal other half with the cleaning. Or he might get paranoid.

Postscript 16 Nov: Charon QC’s post yesterday has revealed another gem of an anti-women website (see section on feminism in particular).

Of course whilst there might be £25m in the pot there won’t be a ‘£25m record settlement’ as one rag put it (or I’ll eat my hat), maybe a £12.5m settlement or something less. And, anyone without knowledge of how divorce works of course is likely to assume that Henry has been guilty of some terrible conduct in order for his poor wife to be granted a ‘quickie’, something apparently only celebrity divorcees can obtain.

All that this tosh splashed all over the front page means is that a bog standard divorce petition has been presented to the court and that because both parties want to get the matter over and done with Henry has not contested the petition. In the absence of adultery one of them had to allege unreasonable behaviour and since its the Wife who often wants to get a move on with the finances its often her who ‘goes first’ with her petition for divorce to get the ball rolling. Thats all a quickie divorce is – one where you don’t fight hammer and tongs about who was the biggest idiot. It leaves you with energy to fight about the finances (or if you’re sensible energy to get on with your life once you’ve agreed them). It must be really irritating to be the ‘accused’ in these stupid reports when you’ve agreed for practical reasons to let the petition to proceed. 

So basically, the ‘story’ boils down to this: Thierry Henry and his wife have agreed to get divorced in the usual way. They have to sort out their finances, and we think he’s worth £25m but we have no idea what she’ll get because they haven’t got anywhere with that part of it yet.

The pronouncement of a Decree Nisi, which is what happened today, is such a non-event – we already knew they were getting divorced for goodness sake. Isn’t there enough other rubbish to report in the interlude whilst we’re waiting for some news on the financial side of it? Couldn’t we have something more interesting on the front page? (just a big picture of Thierry Henry without words would do for me, but perhaps that wouldn’t have the right appeal). AND, whilst I’m being petty – Claire Merry has NOT been granted a quickie divorce, she’s been granted a NISI. She won’t be divorced until she gets her Decree Absolute.

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.

no such thing as a common law wife. not that you’d know it. and now it looks as if the law commission are recommending that the collective hallucination of this imaginary woman should be made flesh (and given property rights)