Well, that was a bit of a marathon…

So. It’s been a bit of a week on many levels, but if I manage nothing else it will be to let you guys know that I need you to chuck a bit of cash my way – that is to say, would you mind terribly sponsoring me to run the Bristol half marathon in September, in aid of The AMAZING Transparency Project (if you don’t know why we’re amazing take a look at our website or the links below). We’re in the process of applying for charitable grants, but in the meantime we could do with any contribution you are able to make, whether through sponsorship or some other form of donation. You can click the link below to find out more about my individual fundraising effort, or you can look at The Transparency Project’s own fundraising page to see the various ways you can donate. OR, if you are feeling really lazy you can text TRPR16 £10 to 70070 to donate (this will donate £10, if you want to donate a different amount just change the amount in your text).

I would really like to get a team together to run with me (even if you are slower – or, more likely, faster – than me and we don’t actually run *together*. If you think you are up for the challenge let me know. At present I can just about run half the distance without having a cardiac event, so I have a pretty epic training feat ahead of me. I will post updates on this blog from time to time, but hopefully not so frequently that they are terribly tedious…I can promise pictures of me in due course looking unattractively red and sweaty but victorious*.

And if you can’t donate, do tweet the link to this blog post or to my fundraising page here : https://www.justgiving.com/fundraising/Lucy-Reed2.

Thanks, you.

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*that last bit is not guaranteed

Just for the record…

It is an astonishingly poor judgment to plant a bug in the clothes of one’s own child. Mr Justice Peter Jackson was not impressed at the actions of a father who did so repeatedly, in order to gather evidence in a court dispute about his daughter (See Guardian article here for summary). The poor child was sent to school with bugs on her person, her every move recorded – and ultimately the vast amount of recorded material produced not one shred of evidence to support the father’s case, instead demonstrating clearly that he could not meet his daughter’s emotional needs.

It was ever thus. Ask any family lawyer if they have been presented with a recording by a client and most will say yes. Ask them if they have ever listened to a recording that either proved the point the parent thought it proved or was anything other than damaging to their own case and most will say no. Don’t secretly record your children in the hope you will win your case, people. It almost always backfires.

I wanted to write a short blog post about this because there has been some linking on twitter between the judgment in this case (which you can find here : M v F (Covert Recording of Children) [2016] EWFC 29 (16 May 2016)) and the guidance on the recording of meetings which The Transparency Project published earlier this year (Parents Recording Social Workers – a Guidance Note for Parents and Professionals) (I’m the Chair of The Transparency Project for those who don’t know).

The clue is in the title – our guidance was about parents recording social workers, not parents recording children (although of course there is some cross over). Under a heading “What this note isn’t about”, The Guidance said this :

It does not apply to making recordings of children or of court proceedings. The appropriateness and value of recording children depends very much on the circumstances and nothing in this note should be taken as suggesting that children are recorded making allegations or expressing views except in a controlled environment and under the supervision of appropriately qualified professionals.

And, rather than being “for” (or “anti”) recording, the note sought to explore some of the legal issues around recording and to encourage sensible discussion about recording issues, seeing this as a flag that there were trust issues that needed a bit of social work doing to them. Often parents want to record because they feel fearful and distrustful. At a recent discussion at Community Care Live conference that I participated in there was some useful discussion about the potential for recording to be used to manipulate and control and those are of course issues that we all need to be alive to.

@celticknot tweeted on reading the judgment that :

“clear message in opening sentence [of the judgment] may be unhelpful…”It is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence.” I consider the detailed guidance of @seethrujustice here to be much more helpful”.

He went on to say that

The problem, it seems to me (and earlier caselaw reflects this) is always about trust: the decision to record reflects a breakdown in trust, and the breakdown in trust has consequences. In this case, the breakdown in trust was in the family, and the judge is quite right about the consequences of breakdown in trust between parent and child. In other cases, the breakdown in trust is between parent and State, and I really don’t think the way to repair that trust is for judges to express their disapproval.

Of course, strictly that isn’t what judge is doing here, because context specific. But it’s very difficult to detect the ratio of this judgment and its scope, where the judge has expressly given a ruling for the purposes of expressing disapprobation of recording, and chosen NOT to publish the substantive judgment which would be necessary to truly establish the ratio of the case.

@seethrujustice (me tweeting) said “our guidance doesn’t relate to recording of children, only of meetings. different issues arise.” @celticknot’s response was :

Issues are very different, yes. But I fear judicial disapproval of covert recording will be picked up on…and the significant differences won’t. And your guidance addresses some real misconceptions; don’t think the case does…which is why my following tweet tried to open up the wider issue of trust: [links back to earlier trust tweet]

@suesspiciousminds pitched in with 

I thought that too. But it must be covert recording of a child to be directly applicable to this case….I think tho that Judges may take this as a lead to be squeamish about recording per se

The judgment links to an equally egregious case of very bad behaviour around recording (C (A Child) [2015] EWCA Civ 1096, oddly only on FLW not BAILII).

When one reads the judgment it is expressed very strongly and whilst I don’t disagree with the sentiment expressed and I would condemn the behaviour in either of those cases, I think there IS that danger that it will be seen as criticism of any recording, whether covert or not, whether of a child or not, regardless of purpose or manner. There is a risk of the baby being thrown out with the bathwater.

I also noted with surprise that the CAFCASS guidance on this was criticised. It is only partially quoted, and in my view is quite thoughtful (I know, pleasant surprise). It is I think intentionally neutral about recording, merely objectively pointing out some of the potential forensic issues which may arise – I don’t agree that it would be appropriate or helpful to appear judgmental in this document about hypothetical recording – CAFCASS have to work with parents. This is an operational document for cafcass officers (what should officers do if X happens) NOT guidance for parents (you can read it here – do ctrl+f and search for “covert”).

Sadly I think that what is easy for us to see as professionals or as parents who are not caught up in some awful dispute, and not under threat of their children being taken away, is not always as easy for parents to grasp. Many are the clients who have talked about recording, hinted they have recorded, or told me about recordings they have made. Dictaphones on a high shelf, ipads behind a toy… it might not be right, but I don’t think its uncommon – what is uncommon is the level of planning, secrecy and the extent of the invasion of privacy that the child in M v F underwent. That I think is exceptional. But many parents do in desperation wonder if they should record their child or their ex to prove their wishes or prove their behaviour. Sometimes they do that by interviewing, prompting, coaching or putting pressure on a child, sometimes the child spots the recording device, sometimes they are blissfully unaware. I think we need to talk to parents and give them guidance about how that might be perceived, how it might feel for a child and how it might help or hinder their case. What the father in M v D did is on a scale I’ve not seen, but I don’t think that it would be accurate to suggest that no parent has ever thought of embarking on a spot of covert recording in a misguided attempt to protect what they see as the best interests of their child, or even to suggest that there are not lots who have once or twice, discreetly pressed record on their iphone at a critical moment. And whilst I would not advocate it, I would not want to suggest that it should never be done or never admissible or that it could never be probative. I can think of one case I dealt with not so long ago where an old recording of an argument between parents that was recorded on a mobile phone by one of them inadvertently provided important corroborative evidence about an injury inflicted upon the child by the parent who was being recorded (the child also participated in the phone call so was the subject of recording).

Perhaps The Transparency Project should do a Guidance Note about this, having intentionally steered clear of this aspect of the recording debate when we prepared our first guidance?

I’ve posted this blog on my own blog rather than The Transparency Project because at present the project group have not considered or formed a view about this issue, so this post represents my personal thoughts only. I will repost on the project blog in order to contribute to broader discussion. As with the previous guidance, any guidance the project produces is likely to attempt to help parents and professionals think through the issues and why recording a child may be a good or bad idea, rather than telling them what to do in an individual case or expressing a policy view.

Please and thank you

I first published The Family Court without a Lawyer in 2011. Since then I’ve always had a trickle of requests for help of one sort or another, sometimes in the shape of a proper direct access enquiry, and sometimes in the form of a desperate sounding late night facebook message, tweet, or email. That trickle seems to have grown into a white water rapid lately and my clerks get an increasing number of phonecalls and emails. I’m not sure if this is something to do with the way web presence leaps exponentially sometimes when you get mentioned in some interwebby hot spot or other or do something that inadvertently increases your google ranking, or if it is to do with reputation more generally or – and this is my sense – to do with there just being a lot more people out there who have been cut adrift, and a lot more people whose relationship with their previous lawyer has broken down. Whatever the reason, sadly I often can’t help.

Here are the things I often find myself saying :

  • I can’t help because the case is not suitable for direct access or it would not be in the client’s best interests to use direct access
  • i can’t help because the client hasn’t got any money
  • I can’t help because they might be eligible for legal aid and they need to go and find a solicitor who can apply for them
  • I can’t help because the hearing is next week and I am already committed
  • I can’t help because they already have another lawyer (who invariably they are not happy with but they haven’t told them this)
  • I can’t help because they can’t tell me what it is they want me to do

Sadly, I suspect that apart from a few people who are local enough for me to be able to signpost them to local firms I know of, most of those I speak to never find a solicitor who will take them on, I certainly rarely ever hear back from them via the solicitor they have instructed briefing me. But I don’t consider it right to take a client’s money when I think they would be better served by instructing a solicitor, and nor can I take on a client where I do not think I will be properly paid for the amount of work that is needed, so I do have to turn a lot away (it takes time to do it, but I do always explain why, however briefly – I’m not sure that others always do this).

This week I returned the call of someone who had rung into chambers – I thought I was ringing a solicitor. Once this lady realised she had me on the phone she gasped and gave me a full, galloping run down of the last 20 years of her life from start to finish without taking a breath – because if she took a breath I might stop her. She’d been trying to get a solicitor to help for ages and had got nowhere – it was obvious why. I gave her some help with how she might go about finding a solicitor who would listen and make an application for legal aid for her. It made me think that this would be useful for more people than just this lady, who is far from the first person who has come to me because they are struggling to find a solicitor to take them on – and far from the first to do an “information dump” in this way (more often the information dump is in the form of very very long emails with 20+ attachments). I’ve also had repeated direct messages from one poor sod who kept being told (wrongly) by solicitors that legal aid for committals was not available. He eventually got legal aid when I got twitter to recommend (criminal) legal aid firms who were able to persuade the LAA that it really was in scope (it is).

So. If you are out there flailing around looking for “help” from a lawyer, here are some things that might help :

  • Funding / legal aid :
    • If you are a parent or carer involved in care proceedings you are entitled to legal aid. Use it. Instruct a solicitor.
    • If you are dealing with an appeal or any application that happens after care proceedings (eg about adoption, or discharge applications) you might be eligible for legal aid but it depends on your income and whether your case has any merit. It takes time to prepare and process an application – do it early.
    • If you are in dispute with an ex about a child you probably can’t get legal aid, unless you are the victim of domestic abuse (there are a few other exceptions like child abduction, wardship or where you are seeking orders to protect a child from a proven child abuser.

 

  • Decide what you want help with and if you want to instruct a barrister or solicitor.
    • A barrister cannot carry out work under legal aid unless instructed through a solicitor so if you have or are eligible for legal aid – solicitor first.
    • If you instruct a barrister through “direct access” you need to be able to run your own case, and sort out your own paperwork. You will need to deal with any court correspondence yourself (although a barrister can advise you how to respond it’s up to you to do it). If you don’t think you can do this without having a panic attack direct access is not for you.
    • Make some enquiries of a range of solicitors and barristers to see what might be more cost effective for you. Sometimes direct access is cheaper, sometimes it is not. Think about what sort of work you need doing – if you need someone to see you through the case and be available to deal with any queries as and when they arise, writing letters etc you probably need a solicitor. If you want a discrete piece of work like representation at a hearing or you want some advice to set you off on the right path a barrister might be more suitable. But most solicitors firms now also offer an “as and when” service too, so you can pay them only for what you ask them to do (sometimes on a fixed fee) and don’t end up paying for every letter they read or send.

 

  • If there is any possibility that you might be eligible for legal aid you need to approach a solicitor first, not a barrister. Once you have a solicitor you can ask them to instruct a particular barrister for you.
    • Use the .gov.uk website to find a legal aid lawyer who specialises in family work.
    • Several people have told me they don’t want local solicitors because its all too cosy / corrupt etc, but you will find that solicitors who are miles from where your case is going on will be reluctant to help because the travel costs mean they cannot turn a profit. Local solicitors (and barristers) will know how other local lawyers and the local judges operate – this is helpful to you. What you need is a GOOD lawyer, not necessarily one who is from out of area.
    • Solicitors are busy, don’t be afraid to chase if you don’t hear from them.
    • Be prepared to provide your bank statements and financial details when asked
    • Turn on your information filter : Do not ring a firm of solicitors and try and get everything into one phone call. The important information will get lost in the detail, which you can provide later once a solicitor is on board. Legal aid solicitors work on very narrow profit margins. Applications for legal aid are time consuming and unpaid – if legal aid is refused the firm makes a loss and the individual solicitor loses brownie points. A solicitor has to make a judgment as to whether they can afford to take on a client – they need to be able to quickly identify that the client is a “manageable” client and that they have some hope of getting legal aid at the end of the day (there is merit to the case). A client who has no off button and who gives an impression they are going to be “high maintenance” is sadly at higher risk of getting the brush off. Attempting to squeeze everything into an initial email or phonecall in an attempt to persuade the solicitor of how strong your case is will do the exact opposite. Start with the basics, detail can follow. If you get anxious and can’t stop gabbing you might find it better to write a short email setting out the basics such as :
      • name, age, address of you, the children (and your ex if relevant)
      • contact details – phone and email, when is a good time for them to respond
      • whether there is a current court case or application and if so what sort (e.g. application for revocation of placement order)
      • whether there are orders in place and if so what sort (e.g. placement order made Dec 2012)
      • what hearing dates are coming up and what the hearing is listed for if known
      • what applications you are thinking about making if applicable
      • the basics of what your financial situation is (e.g. unemployed / net income of £12k pa, no savings)
      • explain whether or not you have all the papers from any concluded court case, or if not whether some other solicitors firm has them
      • in ONE SENTENCE, two at most, explain why you think your case is strong or your main argument
    • once you have allowed time for them to have seen and digested your email you can ring and chase – asking if they have received your email of whatever date. Don’t race on the phone, keep calm and listen for the lawyer questioning or interrupting – if they interrupt it is because you are telling them something they don’t need to know and they will be trying to get a useful piece of information out of you, so they can form a view about the case. try and answer their questions even if they don’t seem to you to be asking about the important things.

 

  • If you decide you want to instruct a barrister :
    • Do not wait until the last minute. Family barristers are heavily court based – they only get paid when they are in court so they keep themselves busy. If you try and instruct a barrister to represent you at a hearing within the next few weeks you are likely to find they are already booked up.
    • Think about geography. I often turn away clients because they are at the other end of the country and it is either impractical for me to travel or just not cost effective for them (and I don’t think it is always helpful to have an advocate who is unfamiliar with how things are done locally).
    • If you can, be clear about what work you want the barrister to do and what your goals are before you make contact. Do you want advice on what to do, do you want representation at a hearing, do you want a barrister to draft a particular document for you? Don’t simply ring and say “please help me” – if you really don’t know what you want a barrister to do you probably need a written advice and / or a conference with a barrister so they can advise you what to do / suggest how you might best target your funds on advice and representation. If your barrister knows your goal (e.g. I want to get my children back) they can advise you about whether anything can be done to achieve that.
    • It is no good contacting a barrister in the hope that they will work for free. Most barristers do some work for free but they usually do this through the Bar Pro Bono Unit (or sometimes for existing clients whose funding has run out) rather than in response to enquiries that come “off the street”. Barristers need to meet their monthly business and personal expenses and most have a limit on how much free work they can do – and this applies as much to barristers who write books or blog posts that are aimed at helping litigants in person (like me, but there are others). I take on cases through the bar pro bono unit, but each day I work for free I have to work an extra day somewhere else to make up the shortfall. I can help more people by writing a blog post or a book, than I can by spending the same amount of time working for free for a single client – so that is what I prioritise. Ironically, because of all the other stuff I do I am probably less likely to take on a case for free than some other lawyers. Incidentally, most barristers will only start work under direct access once you’ve paid up front so don’t go into an enquiry thinking you’ll just work out how to pay at some point down the line. You need a plan before you call.
    • Work out what your budget is before you enquire – you may need to prioritise what you really need doing and what you can do yourself.
    • don’t start off by sending very lengthy emails with multiple attachments – this will not set you off on the right foot. If there is an order that is being appealed or you are trying to change, or if there is an order setting a date for a hearing it is usually a good idea to send that order.
    • check if the barrister or their chambers has a direct access enquiry form on their website. Use it. It is there for a reason – it gives the clerks basic information so that they can carry out conflict checks and work out who is available on the date of any hearing. it is a waste of your time to do more if the barrister you want is conflicted out or unavailable on the hearing date.
    • if the barrister does not have a specific form you could model an email around the bullet points above for solicitors.
    • If you ring the barrister’s chambers to enquire be ready to provide the sorts of information I’ve outlined above so that the clerk can go back and discuss the case with a barrister who can decide whether or not they can help, or whether they need more information. All those points about being clear, focused and not overwhelming the recipient with too much information are just as true when instructing a barrister. Clients who cannot focus or explain themselves are difficult to justify taking on from an economic perspective. Remember, switch on your filters.
    • don’t try and instruct a barrister whilst you have another lawyer acting for you – one lawyer cannot advise where another is acting, unless it is a barrister instructed by the solicitor to do so. if you want a second opinion ask your solicitor to seek counsel’s advice.

My direct access site is here : www.lucyreed.co.uk – on it you will find some information about direct access and my own direct access enquiry form which I use to get the basic information I need to work out what to do next. Other barristers do things differently, but it might help you to look at the form even if you are thinking of instructing someone else. You can find other direct access barristers at www.directaccessportal.co.uk.

Some of this probably sounds horribly mercenary – its your life and it shouldn’t be about the money. But at the end of the day the lawyers who do this work have to do it in a way that makes some profit, and cannot help anyone if they are running at a loss – the sad reality is that lawyers have to consider “how much work is this person going to be for the money I will get paid”? That doesn’t mean that a lawyer won’t take on a deserving case just because it’s going to be hard work or challenging, or that a lawyer won’t take on a “needy” client – we do that all the time. But in cases involving means and merits tested legal aid or direct access there are higher financial and professional risks for lawyers that make them more cautious about which clients they accept, and that makes you vulnerable to being left without a lawyer – there are things you can do to maximise your chance of getting a positive reaction from a solicitor or barrister, and I hope I’ve set out some of those above.

On a more positive note, I’ve had a really lovely letter from a man who bought The Family Court without a Lawyer and who found it helpful. I thought I would share that with you (I’ve edited out some case specific information).Screen Shot 2016-05-24 at 23.38.12