Left in the lurch

Last week District Judge Read (no relation) published a shocking judgment. I have been thinking about it a lot, waiting for enough quiet time to write down my thoughts about it. I am very bothered by it.

The judgment is here : JY v RY [2018] EWFC B16 (27 April 2018).

In the meantime a number of others have written their own posts on the judgment, and I link to some of those at the end of this post. The case has also, belatedly, made the BBC news.

District Judge Read was tasked with conducting a fact finding hearing in relation to allegations of domestic abuse including rape, made by a mother against a father. He had to make findings one way or another as a basis from which safe decisions about contact could be made. Neither parent was represented (they were not eligible for legal aid), and so the judge undertook questioning himself, working from pre-prepared questions submitted by the parties. Or he would have done, but for the fact that the mother was too stressed out to prepare any questions for the father, and left the witness box half way through questioning and would not be persuaded to return.

The upshot was that the judge felt unable to make all of the findings as some of the evidence had not been tested. He said this :

I am in little doubt that had one or both of these parents been represented, the fact finding process and probably the outcome would have been very different...

the lack of legal representation gravely affected the fairness and efficiency of the process of questioning both parents. So far as my role in this was concerned, although I did my best to abide by the guidance in PD12J at paragraph 28, I was hesitant about participating in this way, being reluctant to be seen to step into the arena myself. Ours is an adversarial (i.e., led by opposing parties) not an inquisitorial or judge-led legal system: judges have neither the training, tradition nor natural inclination to subject witnesses to detailed questioning...

No English or Welsh criminal court would proceed as this court had to, in the absence of representation for parties dealing with such grave allegations...

I therefore think there is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented.

He also said that there was no bundle, police disclosure was a mess and the mother had been unable to prepare questions without the help of a lawyer.

The judge did make some findings of domestic abuse, and based on those he said that :

There is always the fear in the mind of the Court that the questioning of an alleged victim about their abuse merely prolongs that abuse by other means. Given my findings in this case, limited though they are to only the first few allegations, I think that fear is borne out here.

Basically, the judge is saying that the cross examination (even through the judge) was abusive.

For me the most striking passage is this one :

I therefore think there is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented. [underlining my emphasis]

I have struggled to read this in any other way than as an acknowledgment that the judge believed (at least some of) the further (more serious) allegations, but didn't feel that he could legally 'find' those allegations proved because of the limitations of the process.

I am surprised that the judge did not give both parents permission to appeal.

When I read this judgment I immediately thought of a case last year called A (A Minor : Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam), in which Mr Justice Hayden (a more senior judge than Read) was faced with a similar situation : a father accused of domestic abuse who appeared in person, but there he permitted the father to ask questions directly (the judgment doesn't show any consideration of questions being put by the judge himself so we don't know if that was considered and rejected or if it was just not raised). At the end of the trial Hayden said :

It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.

It's not clear in that case whether the difficulty was around a lack of legal aid or a choice by the father to represent himself. There was some press coverage at the time - see for example "Judge vows to ban domestic abusers from cross-examining victims in his court". Sadly that press coverage didn't result in any change to the funding or legal position.

The predicament in District Judge Read's case was even more complicated, because the issue was not just about the father asking her questions (which Read attempted to solve by asking questions himself), but the mother's lack of legal support exacerbated matters and prevented her from running a positive case and left her struggling to deal with the pressures of cross examination.

I think it was absolutely right, and fearless of both judges to publish their judgments in the way they have. But whilst it is all very well for a High Court Judge like Hayden to stamp his feet and say "I won't do it!", that is much harder for a District Judge. Refusing to hear the case was not an option, and I can't think of much else that District Judge Read could have done to magically make this process more satisfactory - but I am deeply deeply troubled by the fact that the judge conducted the trial, made findings (including as a matter of law that some of the mother's allegations didn't happen because they weren't proved) and then published a judgment telling the world that those conclusions were probably wrong.

How is that justice to either party? And what is the point of a fact finding hearing if the court itself has to acknowledge that it is probably not an accurate reflection of the facts and the risks? How is that keeping children safe?

There is no news of a replacement for the lost Bill that fell when the General Election was called last year, which would have at least dealt with the direct cross examination point. Even if those provisions do re-emerge in a new Bill, they will not cure the difficulty faced by DJ Read - that the mother was debilitated by a lack of her own legal representation - because she did not meet the eligibility criteria for legal aid (presumably because of enhanced benefit income or the amount of capital in her property).

There has to be a better way than this. Even ignoring legal fees, vast amounts of public money are spent on fact finding hearings like this in terms of court time and judicial salaries, and on the work by other agencies that follows and is based upon the findings. It is money down the drain if the findings are as unreliable as this judgment candidly accepts they are.

[update 2 mins later : oh rats I forgot to add links to other posts...

Here Is Gordon Exall's take. I will find the rest in the morning!!]

[Further update :

See also : Matthew Richardson on Family Law Week.]

 

Transparency in the Family Courts: Publicity and Privacy in Practice

Today seems like a good day to give you a little preview of my forthcoming book, written with Julie Doughty and Paul Magrath - the rather lovely Foreword written by Sir Andrew McFarlane, soon to be President of the Family Division (congratulations!). Here is what he has to say. Further details on the book can be found here.

 

Foreword to Transparency in the Family Courts: Publicity and Privacy in Practice

 

Just 25 years ago, when the Children Act 1989 was coming into force, I doubt that many, if any, family lawyers would have acknowledged the relevance of the term ‘transparency’ to the work of the family courts. Events have moved swiftly and there can now be no family lawyer or judge who is unaware of the justified impetus towards greater transparency in family cases or of the importance of the need for a clear understanding of just where the line is drawn between what can or cannot be disclosed to those outside the court about what has gone on within it.

Affording due transparency to family proceedings has turned out to be, as Sherlock Holmes might say, ‘a two-pipe problem’ which has, at its core, two entirely conflicting policy drivers: the need for the public to know what goes on in their name in the Family Court and, conversely, the need to protect the privacy of individuals at the centre of any particular case. Whilst it may not have delivered a solution, the title of the 2006 Government consultation paper issued by Lord Falconer, who was then Lord Chancellor, was spot on target – ‘Confidence and Confidentiality’ – in highlighting the conflicting needs of public confidence and private confidentiality.

Over the years, the understanding of what transparency may require has developed. Initially, many of us will have held an unduly simplistic view that the issue was to be resolved in a binary manner by either letting the press and the public in to the Family Court, or keeping them out. Thanks to the ground-breaking and inspired work of The Transparency Project, and now this book, transparency is to be seen as a much more subtle, sophisticated and flexible concept. There is much that can be achieved to ‘open up’ the Family Court in terms of describing and explaining its workings and decisions which falls short of allowing unrestricted access to all and sundry.

The publication of this excellent book is extremely welcome. It is a work written by those who have been on the front-foot on the issue of transparency throughout and who understand the subtleties both of the law and of the policy debate that lies behind it. There is real value in having a detailed and neutral account of the route that has been travelled thus far set out, as here, with clarity and in one place. Above all, this is a practically based text written by practitioners for practitioners, giving a thorough account of the relevant statutory law, case law and procedure. With the publication of this work, there will be no need to look elsewhere for an account of the law relating to transparency in family proceedings and this will rapidly become the ‘go-to’ book on the subject, not just because it is the only one but because of the comprehensive, clear and insightful nature of its coverage.

Inevitably, given the topic, this First Edition of ‘Transparency in the Family Courts’ can only tell the story so far. As the section on ‘Looking Ahead’ records, the book goes to press at a time when thought is being given to what, if any, further steps towards greater transparency may be taken. Given the impossibility of totally squaring the ‘Confidence and Confidentiality’ circle, any development will involve an element of compromise and sacrifice of one or both of these competing principles. Whatever the future may hold, it will, however, be a ‘must’ for all those involved in charting and implementing its course to have read and understood the contents of this important book.

The Rt. Hon. Sir Andrew McFarlane
Lord Justice of Appeal
Maundy Thursday 2018

 

It’s not my job to believe you – here’s why

tombstone by Johnny Silvercloud on Flickr

I had to do the 'it's not my job to believe you' talk to a client recently. I thought it might be a useful topic to discuss on the blog, because it is so often a source of worry and confusion for people unfamiliar with taking advice from a barrister.

Q : 'You do believe me don't you?'

A : 'It's not my job to believe you'.

I get a lot of enquiries from potential clients who want to instruct me because something they have seen makes them think I will see their case as they do, that I will have sympathy for it and understand where they are coming from. That may be so - a good lawyer tries to see their case from the client's perspective and to understand their actions and objectives in order to do their best for that client. And of course will protect that client's interests. But a really good lawyer knows that protecting the clients interests requires them to also try and see the case from other angles too. And to do that properly you need to steer clear of believing your client.

If I say I'm not here to be your friend it may make me sound like a cold fish. But it really is critical that a lawyer maintains a certain professional distance. Not only for her own sake (the job would be emotionally too hard if you got too close to every case), but for the sake of the client.

Any client wants a lawyer who will fight hard for them. And understandably they often think that requires the lawyer to believe their story. It really doesn't. Believing doesn't make weak evidence stronger. And believing can make it harder to do that rounded job I've begun to describe above.

A lawyer who believes 'butters no parsnips' (as they say) - what you need is a jury or a judge who believe you. The lawyer's job is to get the jury or judge to believe you (if such a thing is possible - lawyers are not magicians).

Think of your case like one of those sets for a cowboy film. From the front the Saloon looks convincing and sturdy. From the rear it's just a facade and it's easy to see that a good nudge will topple it right over leaving nothing but dust. Cue tumbleweeds and scuttling lizards...

A client will typically tell their lawyer all about the front of the building, about how fine and grand it is. They won't mention it's made of plywood and can't withstand a gust of wind. Usually that's not because they are intentionally misleading - they just haven't noticed. Sometimes a client will emphasise certain points and finesse away others because the they think they need to persuade the lawyer - but to get the most out of a lawyer you need to equip them with information so they can advise you and persuade someone else. You don't need to persuade your lawyer. If you don't tell your lawyer the less good bits of your case you are giving them a pistol but blindfolding them before they've worked out where the sheriff's men are hiding.

Now a lawyer would listen to your tale of the mighty fine building, take your dollars and say 'Yessir that sure is a mighty fine saloon' would truly be a 'cowboy' in the pejorative sense. A lawyer should say 'Would you mind if I take a look inside your saloon?' and when they step across the threshold into burning hot desert rather than the expected dark room full of liquor bottles, they should politely point this out to the client and advise that there is a problem.

You don't want the sort of lawyer who accepts your blind spots and who doesn't even peek inside the swing doors.

Heck, I wish I hadn't started this darned metaphor now...

As a rule of thumb your lawyer should be challenging you and asking irksome, irritating, mildly offensive questions. Because if they don't ask them the other side's lawyer will sure as hell ask 'em at trial.

There are two kinds of lawyers who don't ask questions : the lazy kind who can't be bothered to find out, and the kind who are easily drawn in and believe too easily. Actually there is a third - the lawyer who has too much on to have time to probe.

Let's begin at the beginning.

Sometimes when I'm giving some tough advice a client will question whether I'm on their side or ask 'You are my lawyer, right?' as if I perhaps they have accidentally walked into the wrong conference room. That's a sign I haven't explained my role well enough : When I'm giving you advice it's private - privileged. What goes on in conference stays in conference (except that one time when a client threatened to shoot someone but that's another story). What I say to you in conference is not what I will say to the judge. Lawyers can't mislead the court - if you tell me the building is made of plywood I can't then say it's made of brick. But if your case is the house is in fact made of brick and it's just an optical illusion, or that it is in fact made of super strong plywood that is as good as brick - that is the case I will argue. Even if in the privacy of our conference room I have told you that this is a position that is frankly never gonna fly. I operate on the basis that if your case is pants you would prefer to know that before i go in and crash and burn on your behalf. I advise. You decide.

We all have cases and clients who are more or less persuasive, engaging, sympathetic... Some clients are hard to like and even harder to believe. Some are completely convincing and apparently lovely. It is easy to go with the flow - sometimes very hard to resist the pull of the likeable client or the case where it is 'obvious' whodunnit - but in the course of a career most lawyers will encounter persuasive clients who were absolutely shocking in the witness box and caught out in a lie, of unsympathetic clients who turned out to be innocent, of unwinnable cases surprisingly won, of strong cases destroyed at trial and of cases where the science points to an explanation that is very hard to accept on a human level. The truth is lawyers have no magical ability to divine the truth, any more than judges do. All that lawyers can do is assess the evidence and attempt to predict the outcome. All that judges can do is get as close to truth as possible, knowing sometimes they will get it wrong. There is always an element of unpredictability. So lawyers learn to put their hunches and emerging beliefs to one side, because they are a distraction.

Lawyers should always be acutely aware that however much their client tells them, and however much the client thinks they are providing all relevant information - they don't know what the other side is telling their lawyer. Believing your client instead of challenging, exploring, warning your client means you aren't asking 'What would I do if I was acting for the other side?', 'Where are the weak spots?', 'Why haven't they mentioned this particular thing?'.

A witness statement drawn by a lawyer who has not walked around the back of the building, will describe the facade and will fail to shore up the building. A trial lawyer who has not walked around the back of the building will not spot these weaknesses. I have seen advocates sucked into their client's world view miss critical points. I have been instructed by solicitors whose briefs are all about how lovely the client is and which fail to mention the gaping hole in the evidence, leaving me to explain to an entirely unsuspecting client on first meeting that there is a teensy bit of a problem. It happens to all of us - some cases catch you unawares and you find you are too close. Some clients leave you cold and it is difficult to muster enthusiasm or find a creative way to press the case. But we do the same for all those clients, because what we do believe is that the system itself is the best way at getting close to the truth and to fairness (imperfect though it is). Because we know that until you hear both sides of the argument, and hear both sides being tested and challenged, it is difficult to form an accurate view of where the truth lies.

And so I tell my clients - If I believe you I can't be objective. If I can't be objective I can't give you sound advice - I can't help you make the call to change course before it's too late, and I can't argue your case to it's best if we do get to trial. Of course my advice is not always negative - but I can't confidently tell you your case is likely to be a winner unless I've given it a good old shake first.

Instruct a lawyer who believes you if you like - pay someone to tell you what you want to hear - but far better to have advice from someone who will tell it like it is before you get to the gunfight at the (not) OK Corral and find there are no bullets in your gun.

...I REALLY wish I hadn't started this metaphor...It was the wobbly buildings which attracted me to it not the guns and combat. In case I have inadvertently made lawyers sound like mercenary soldiers enthusiastically invested in some form of warfare, I should point out that part of our function is to try and steer client's away from the 'combat' of trial if that is in their interests. If we have to fight it is our job to do so fearlessly, but often our advice is 'let's find another way to sort this out. Here is what I suggest...'.

Feature pic : tombstone by Johnny Silvercloud on Flickr (creative commons - thanks!)