trial by banana split (Photo: arboltsef)

To split or not to split? That is the eternal question, answered here by new Prez in new guidance. In short: split only when it serves a purpose. And don’t forget split listing (or not) is a judicial decision. Lord Justice Wall (little known founder of Wall’s Ice Cream) also adds a reminder that splits of the banana variety are absolutely not to be eaten whilst the court is sitting. During the luncheon adjournment only please. (Okay, I made that last bit up, but it was a VERY dull post without it).

Guidance: Split hearings May 2010

So I thought I would draw your attention to the Family Proceedings (Allocation to Judiciary) Directions 2009, in force since 16 February 2009, which you can read at your leisure here.

It is worth being up to speed on the question of jurisdiction. Today it didn’t matter much but court staff are not infallible in listing a matter in front of an appropriate judge and a judge who is given a list may not spot the problem. I recall an early appeal against Jacqui of Bloody Relations where I successfully overturned an order for committal made by an over eager District Judge who had no ‘power to pot’.

So, for future reference, a DDJ can deal with enforcement of children act matters only, not including residence or special guardianship. So that’s pretty much nothing. And it doesn’t even matter if it’s straighforward or by consent. It’s an interesting rule in the current climate of downshifting as much as possible to the FPC and trying to spread the burden of cases across the court system as widely as possible, and even more so when one thinks that some of our most experienced but semi-retired DJs are sitting as DDJs.

Still, it is not for me to question, only to inform.

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As a story this piece would have us believe that social workers have acted on the basis of one dichotomy: age versus sexuality – and have ignored all other features of the case (including the welfare of the child) in the name of political correctness. From reading the story one might reasonably form the view that the grandparents were in some kind of direct competition with a specific adoptive couple and have been sidelined simply to give the gays a shot. Of course what in fact will have happened is that the matter will have been approached in stages: 1 can the children remain with family (preferably a parent) long term? 2 if not what is the best non-family arrangement for them? On the basis that this is how the law and the procedure works, question 1 must have been answered negatively by the social workers and subsequently the court quite separately from the second question (although often in practice the court will sanction both decisions on the same day they are legally distinct processes).

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It is common for news pieces to fail to distinguish properly between the judgments of social workers and the sanctioning of those judgments through the decisions of the courts. Although social workers will have formed a view and prepared a care plan for the children, and although their views will have been important to the court, we know from the article that the litigation continued for 2 years. That in itself is an indication that the social work view has not simply been rubber stamped, and so the validity of the social workers views about the grandparents and the issue of adoption has been aired at length. We know that ultimately the court must have accepted the social work view that the children could not remain with their grandparents long term. The reasons for that will have had nothing to do with the identity or characteristics of any proposed adopters.

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It is apparent from the article that the grandparents both suffered from quite serious health complaints which might realistically have had implications for their long term ability to act in a parental capacity, particularly when considering that the grandfather would be over 70 by the time the children were 18. We can make a reasonable guess that these little children had been subjected to some significant disruption in their lives prior to placement with the grandparents owing to their Mother’s drug addiction, making it very important that whatever arrangements are made for them were permanent. So many other factors are likely to have played a part in the assessment of whether or not the grandparents were suitable long term carers – what is the background to the Mother’s drug abuse? Are there intergenerational or family wide problems of substance abuse or other difficulties in the family background which may have led to the drug abuse? Are the grandparents able to manage the relationship between the children and their mother without exposing them to disruption or risk? And many other questions. I don’t know the answers to those questions but I do know that the decision is highly unlikely to have been based just on the age of the grandparents, even though that may be their perception.

The tone and construction of the article tends to suggest a degree of sympathy for the grandparents indignation at the placement with a gay couple. The immortal lines ‘I’m not prejudiced but…’ are followed by the clearest ever demonstration of why the grandparents would be unable to emotionally allow or support the children in settling into the adoptive placement. The old argument about playground taunts is the same one used years ago to discourage mixed marriage or dual heritage children (‘it’s not fair on the children’). It didn’t wash 20 years ago and it doesn’t wash now – children are just as likely to be teased for living with their grandparents as for having 2 dads.

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And then, to cap it off, in wades someone from the Catholic Church with a blanket statement to remind us all why no children should ever be parented by gay parents. And apparently ‘There is an overwhelming body of evidence showing that same sex relationships are inherently unstable and reduce the life expectancy of those involved.’ REALLY? Being in a homosexual relationship makes you DIE EARLY? I’d like to see that evidence.

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So…I’ve picked a few holes, speculated a little and hopefully demonstrated that this is very probably only part of the story. In fact there is only really a ‘story’ in the sense of something one can utilise to express moral outrage and disgust at the erosion of ‘traditional family values’ if the factual information is pared right down. Each time I read an article like this that plays off of the sadness and anger of families it makes me more convinced about the need to open up of family courts to the media. Because these articles do nothing to genuinely inform but they do erode public confidence in the system and for the families who are the subjects of these articles they may well instill in them a sense of justified grievance that may not in fact be valid in law or reality. Whilst all cases are difficult, important and heartrending for the families involved, 99% of cases do not raise any point of public interest that is genuinely newsworthy as opposed to being merely prurient or an exercise in headline over substance.

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PS 1 Feb Oh God…it gets worse. The Daily Mail has waded in…

PPS 2 Feb And worse yet still…

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You can find the decision here. You can find the ‘recent additions’ list here.

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In my experience a child attending court is comparatively unusual let alone meeting with the judge in their case. That is not to say that it should not be considered more often – many children clearly feel disempowered and frustrated or confused that they have no say decisions that affect them. It is a delicate balance between empowering children without burdening them with the responsibility for making a decision or expressing a preference between parents which can be excruciating for children.

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The article can be found in the Hilary Term issue (#39) of The Barrister magazine.

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Sorry to anyone who is wondering what I’m ranting about, but I DO feel better now. Back to work….

I watched a Circuit Judge swiftly dispatch a raft of motions (applications) covering subjects as varied as road traffic accidents, insurance and contract disputes, criminal sentencing appeals, juvenile matters, and child abuse and neglect investigations. Circuit Judges everywhere are, it seems, expected to know a little of everything.

Noticeable differences:

Juries – juries appear to be much more widely used. Smallish road traffic accidents worth a few thousand pounds, or disputes over the value of goods insured under a policy were all allocated the not insignificant resource of a full jury trial. It seems like a somewhat disproportionate approach to relatively straightforward questions of fact that could and would be determined pretty swiftly by a Judge at home.

Drug tests – on the spot drug testing by urine sample. The local probation officer was at court and where a parent was asserting their absention from drugs or alcohol in order to obtain contact with a child the court was able to form a view on the spot as to whether or not this was just bluff. Of course a urine sample doesn’t show abstinence over a sustained period but it would be a great addition to our system where the question of whether or not a parent is clean remains hanging for a period of probably six weeks before anyone has an answer of any kind.

Informality – court dress, manner of addressing the Judge, toing and froing in and out of court by lawyers, noise levels whilst a matter was being heard, chit chat level between lawyers and the Judge in the intervals between cases (largely about football)  - all far less formal than at home, although I think a little of this is likely to have been local practice, pre-xmas spirit and some very big news in the world of wv sports fans the day before the hearing rather than a state wide norm. In some respects a less starchy approach can’t be a bad thing, but on balance I think I’m more comfortable with the way we do things at home, which I’m surprised to see myself saying.

Framework for family matters – WV has since about 2000/1 a separate family court which deals with divorce and custody disputes. I did not see this court in action. However, the circuit court retains concurrent jurisdiction and takes referrals from the family court wherever an allegation of abuse or neglect is made (which we all know is frequent by one parent against another in private (parental) disputes). I saw several of these abuse and neglect referrals, the closest equivalent of which is a referral by CAFCASS or a parent to social services for investigation (or the early risk assessment model promoted by the use of a C1A) although this would not necessarily result in court involvement. I saw a few of these but none was concluded, and it was difficult to understand what the consequences of an investigation would be if the allegation were made out – what then would the court’s role be? Criminal proceedings or some equivalent of care proceedings? How does this information feed back into and inform the private law dispute? What doesn’t yet seem to have evolved is a way of managing these referrals in a proportionate way so that the circuit court is not clogged with petty allegations that could be dealt with in a more measured way – this method is heavy on court and Department of Health (social work) time and resources, and I sense that the problem of insufficient social work / CAFCASS resources is as much a problem in WV as it is at home.

Judgments – the giving of reasons was pretty succinct. Where we would expect full judgment in any contested application the reasons were given in a far more perfunctory way.

Recording – rather than by tape a summary of the proceedings is spoken (Whispered?) into a face mask by a court reporter. It took me a minute to realise what this was all about!

Court personnel – cases called into court by the bailiff – an ex sheriff in police uniform, armed with a gun.

Similarities:

In fact almost everything was surprisingly easy to understand. Terminology is different, plaintiff and defendant are still used, applications are motions etc, but it was easy to get the gist of what was happening. I was able to have a sensible discussion with my hosting lawyer about the merits or weaknesses of the various arguments put forward without having to know the detail of WV / US law. The biggest differences in framework were in the family / juvenile side of matters where the structure appears to be significantly different.

And sadly from what I can tell, both family and criminal representation work appears to be as badly paid as it is at home, in fact probably more so.