Bundle of hyperbole

Legal Cheek has done a good job of upping the ante in relation to my “bundle rage” post last week. Lashings of phrases like “Top Judge”, and “rows”, “ranting” and “slamming”. I’d characterise it as more of a pitiful howl of frustration than some kind of legal punch up. But hey. That’s Legal Cheek for you – everything is a story not a conversation.

What I’d wanted to say even before Legal Cheek posted his “Bundle rage: Lawyer hits back after top judge labels page limit rule-breakers as ‘delinquents’” (but which I had been prevented from doing due to the more pressing need to compile, read and analyse a number of actual bundles for actual real live clients), is that the President gave a speech on Friday last to the FLBA, and in it he did two things : he gave credit where it was due to hard working professionals and he opined on the merits of electronic bundles. And I kind of like that idea.

When I say “like”, that’s a heavily qualified “like”. I don’t particularly want to have to learn a whole new way of working, but I recognise that in theory at least e-bundles make total sense and could represent a massive improvement in efficiency and cost terms.

But but but….I am just not sure how that can be translated into reality in the current economic and political climate where investment into the justice system is (sadly) just not a priority.

My husband is forever reminding me how ridiculous it is that we cart around these vast swathes of paper, in suitcases and shoulder bags, on trains and in car boots. And if we did it properly we’d just need an ipad or a laptop.

And in my turn, I am forever reminding my husband that we don’t even have wifi in court, and that in most courts the 3G signal is so poor (read non-existant) that we can’t even email the judge the draft order we’ve just agreed…that the  judiciary are using laptops that were once uber-whizzy but which now look as outdated as the kit from the original startrek series, that we have barely functional secure email set-up that tends to frustrate efficient communication more than it actually enhances security, that electronic bundles requires more than just hardware (which, incidentally not all practitioners have or can afford), but also requires software. Good software that deals with pagination and navigation and annotation and cross referencing.

All those things require resources. And planning. And coordination (both of and between the judiciary and other professionals). And as far as I can tell we have none of that. Every bit of the “modernisation” of our Family Court is being done within existing budgets.

Electronic bundles are more than an ipad and a giant pdf.

I don’t think electronic bundles can be done on a shoestring.

I don’t think electronic bundles can be done on the basis of need and desire.

I think we should aspire to electronic bundles, regardless of the personal inconvenience of learning something unfamiliar.

But I don’t think we should abandon paper until we have a plan for making electronic bundles a functional reality.

As ever, the practicalities require careful thought. What about witness bundles – will there be “witness ipads”? What happens when a witness is IT illiterate?

What about parties who don’t have access to the internet, or can’t afford a device, or just can’t work the damn thing? How do they access (literally) justice? And, I might ask the same question of the recent suggestion of online judiciary. My client base often have mobile phones, but this is generally their only means of accessing the internet or of viewing electronic material.

So. For the avoidance of doubt, this is not me picking a fight with a Top Judge. It is me asking the question – how can we make it a reality? And how can we make it happen so that it promotes justice rather than degrading it? I’m not sure we can do that right now.

Bunch of fools(cap)

I’m feeling like a bad girl. I’m feeling like I’ve just come out of one of those school assemblies where the Head gives the whole school an earful because someone has set off the fire alarm for the third time this week. Yes, I’m feeling like a delinquent.

Last week we had Re A, and it was all about forensic rigour :

The first is that the local authority, if its case is challenged on some factual point, must adduce proper evidence to establish what it seeks to prove. Much material to be found in local authority case records or social work chronologies is hearsay, often second- or third-hand hearsay. Hearsay evidence is, of course, admissible in family proceedings. But, and as the present case so vividly demonstrates, a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it. As I remarked in my second View from the President’s Chambers, [2013] Fam Law 680:

“Of course the court can act on the basis of evidence that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority’s files.”

It is a common feature of care cases that a local authority asserts that a parent does not admit, recognise or acknowledge something or does not recognise or acknowledge the local authority’s concern about something. If the ‘thing’ is put in issue, the local authority must both prove the ‘thing’ and establish that it has the significance attributed to it by the local authority.

In short : you have to prove stuff. And you have to prove it through proper evidence.

But this week we have Presidential bundle rage in the form of Re L (here I imagine the President doing murder to an offending bundle, like those strong men of old ripping up telephone directories with their bare hands). And up and down the country next week bundles will be sacrificially burnt, shredded and quartered, in pyres outside every court in the land. With a lawyer roasting like Joan of Arc atop each one, most likely.

There was a moment late last week when this blog post was looking likely to comprise of a single three letter acronym for a well known sweary phrase – after all every word must have maximum impact, and space is at a premium.

But I am resisting. I am going to spell it out, I will spread my words liberally over the page and I shall end when I’m ready. I shall not (in this blog at least) be constrained to a single swear word or a single page of double spaced 12 point A4.

The President may think that the High Court bench have invented bundle rage, but I can say for sure that they have not. We live our lives in a continual state of low level bundle rage. Rage at the absence of the bundle, the index, the right documents or the right pages. Rage at the overloaded file, the broken file, the scag your suit and cut your finger file and (more common these days) rage at the failure to put the bundle in any file at all. Rage at the arrival of the bundle in thirty separate pdfs spread across 21 different emails in no particular order at 6pm the day before a hearing. Rage at the LA not having included half the documents in the index. Rage at the LA having included multiple witness statements all saying the same thing, at having included a chronology that isn’t chronological, an analysis containing no analysis…

No. I haven’t finished.

Rage at the arrival of your brief just before the 11am core documents deadline, but after you have left for court to deal with another matter. Rage at the absence of the last order from the bundle because the court haven’t issued it yet even though you slaved for 2 hours late at night over it and exchanged a string of emails with others about the fine detail of it to get it lodged in time to avoid a trip to the compliance court (yes, Mostyn J’s “Delinquent court” invention is already a reality in several DFJ areas).

So down here in the stalls the bundle situation is not exactly peachy either.

I didn’t set the bloody fire alarm off. And I’m not in control of the bundle situation either.

The reality is that nobody has any power to control what goes into the bundle because the LA control the index. There is no opportunity to liaise about indexes because the index arrives late if at all and is inevitably wrong because it has been completed by some administrative assistant who wouldn’t know PD27A if you slapped them in the face with it. My experience is that in 95% of cases anything that has been ordered to be disclosed or produced is put in the bundle automatically by the LA without reference to anyone else. And in the 5% of cases the LA unilaterally selects which documents go in, using the PD as an excuse for not putting in documents at the request of any other party forcing the other parties to bring copies of the excluded documents to court and to make an oral request for permission to rely on those documents. Perhaps more cordial liaison between solicitors goes on than I think, but invariably when I chase an up to date index my instructing solicitor is tearing their hair out trying to get any damned index at all for me, let alone a conversation with the LA about what documents should go in it.

So yes, I hate it when the fire alarm goes off, but why am I in detention?

My day to day bundle grumbles aside though, my real concern is this : if you want to prove important facts that are in dispute you need primary evidence. You need contemporaneous records. You need witness statements from independent witness statements. Not summaries of documents or positions in not more than 5 pages. You need as much evidence as you need. The PD of course allows for the court to permit the inclusion of such evidence in the bundle where appropriate, but my anxiety is that when the Presidential ire is so starkly expressed as in this judgment (and when it has the starred care plan-like imprimatur of having been specifically cascaded meaning it is “to be noted and followed”) some courts will interpret this as a directive to exclude material from bundles that is properly necessary. And that LAs, anxious not only to obtain their orders but also to avoid a trip to Juvie and a wasted costs order for having filed a bundle of 351 pages, will adopt the role of gatekeeper of the bundle, squeezing out what they view as extraneous documents in order to ensure that the core documents (i.e. their evidence) fits in.

Look, I don’t want to point the finger. But the sprinklers are going off and “it wos the LA, Miss!”

However, it’s as well when criticising others not to forget the minor fact that the building is actually on fire. That is to say, bundles are (understandably, dare I say it) not the top of the priority list for overstretched LAs. Getting final evidence of sufficient quality prepared and filed within increasingly tight timescales is understandably higher up the list than the pagination of said evidence (although in some LAs not, it appears, quite as high up the priority list as it ought to be).

Anyway, enough analogies.

I’ve also been hugely exercised by the Foolscap v A4 references in Re L. What are these things called foolscap folders and who is filing them, I thought last week. So exercised was I by this, fearful that I might inadvertently commit a contemptuous stationery related transgression, that I did some research on the topic. Suesspicious Minds is fearful that the folders we all routinely use are the “wrong kind of files” – but fortunately I think he is wrong (this is the one and only time I will ever be able to say that as he is NEVER wrong).

I am just old enough to remember Foolscap paper. Foolscap is a bit taller and a bit narrower than A4. See here.

Most of the lever arch files on sale in various outlets are A4, but some places sell both A4 and Foolscap lever arch files. There is generally a far wider range of A4 than foolscap lever arches. All the files I could find in chambers either said “A4″ on them or were identical in size to those marked with “A4″ (phew).

A4 paper fits in a foolscap file and so a foolscap file can be used interchangeably with an A4 one.

See the product description on the Ryman’s website :

This Ryman Colour Lever Arch File is a foolscap ring binder for storing A4 documents

Our most popular lever arch file, this A4 folder operates by a lever arch mechanism with paper clamp for extra capacity and easy removal of papers. There is also a handy write on spine index strip for easy labelling.

[my emphasis]

The dimensions are not very different – a bit taller, a tiny bit narrower. They give a little bit better protection for you papers as the corners are not so close to the edge of the file. They look identical to the A4 files we are used to seeing, and I don’t think you would notice the difference unless you stood them side to side.

Critically, these files are cheaper than an A4 folder (£3.29 v £3.99). There are limits to my research so I don’t know if this is the case at other suppliers, but since we know both LAs and solicitor firms have been attempting to cut their costs of copying and bundle supplies by reducing the quality of files, delivering counsels brief electronically, and increasingly often using treasury tags in lieu of a file – it would be wholly unsurprising if the use of foolscap files was on the rise because they are cheaper and do the job just as well.

The upshot of course will be that more LAs will adopt the treasury tag approach and we will forever more be consigned to the last page of our bundle floating around in the bottom of our bags, and damp cornered, torn and unturnable bundles being brought out of suitcases on rainy mornings. I don’t foresee my bundle rage subsiding any time soon.

Notes :

For the avoidance of doubt, I never set off the fire alarm at school. I was a “keener” as they say in these parts.

Mum forced to write to childrens’ dad in prison

Most of the tabloid press have reported extensively on this story of a mum who had her throat slit by her ex and who is said to face jail if she doesn’t write to him in prison. All of the reports I have seen identify the adults by name and give the general location of where the mother is or was living. Some of them identify the children by name, and some by photos. I find myself in the unusual position of linking to the Daily Mail coverage which is the only report I can find which does not identify the children by name or show their faces : “Mother who was tortured for seven hours and slashed across the throat in front of her sons by her ex-boyfriend is forced to write to him in prison and give him updates on his kids – or face jail herself
This is a shocking case, and every report I have seen has extremely graphic pictures of the Mother’s injuries, and some photos of the children, in some instances unpixelated. Some reports show the Father and pictures of the Mother’s now faded scars. One shows the letters written by the Father to the children. I am surprised at the level of identification of the children and at the amount of local information, but I take it from the number of papers that have run with this that the proceedings must be concluded (the order described appears likely to be a final order) and that therefore there is (probably) no criminal offence in naming the children. However, although it seems unlikely that anything I do will make a blind bit of difference to these children in light of the extensive national coverage, apparently with the Mother’s consent – I prefer not to name them and not to link to an article naming them. I will not accept any comments on this post that attempt to do so. There are no reports on BAILII that I can identify as relating to this case.

Most of the reports seem to be very similar in terms and are drawn from an agency report, and the photos all appear to be different images from the same photoshoot of mum and children.

I thought that it would be useful to attempt to offer a view of what may have happened in this case and what the court’s approach usually is to this sort of scenario (where a father has committed some really heinous violence on a mother which the children have witnessed). It’s difficult to say too much, but there are a lot of incredulous, disgusted, and confused comments out there – so I’ll do my best to put it in some sort of context. Obviously, I’m doing my best with the limited information available, but I’ve tried to make reasonable guesses at the sorts of scenarios that the published material point at. There may be others I haven’t thought of – and of course if the reports are inaccurate my assumptions based upon them may also be wrong.

So here’s a bit of background.

Whenever the court makes a child arrangements order (what we used to call a “Contact order”) it MUST attach something called a warning notice to the order. This says that if the order is breached the person breaching it can be punished through an enforcement order or imprisonment. So firstly, this wording, scary as it is is nothing out of the ordinary – it has always been the case that the court can send someone to prison for breaching it’s orders, but from 2006 Parliament legislated to say this warning must be placed on every contact (now child arrangements) order made as it was felt that contact orders were not being enforced as well as they ought to be.

Secondly, imprisonment for a breach of a contact order very rarely happens. It can only happen IF the other parent APPLIES to the court and PROVES beyond reasonable doubt that there was a breach AND that a sentence of imprisonment is justified (it rarely is if the Mother is caring for the children, particularly if the other parent is in prison and couldn’t take over care). In reality the prospect of this mother being sent to prison for failing to comply with the order seem to me to be pretty remote. However, that is not to say that it couldn’t happen – and it may still feel pretty threatening for the Mother to have read this in the order.

However, one report (that I’m not linking to) refers to “negotiated terms”, saying “The negotiated terms stated that she would have to send letters three times a year – at Easter, September and December”. That raises the possibility that this was an AGREED order, although the tenor of the article (and all the other articles) suggests it was not agreed. In particular various articles say the Mother “spent £3,000 on legal fees to fight the demand, but a court ruled that she would have to send three letters a year, updating Hughes on the children’s school progress, health, and emotional development” [my emphasis].

This is puzzling because it appears that the application was made in Jan 14, and the mother “was asked to go to court just before Easter [14]”. The impression is that there was only ever one hearing, yet I’d be surprised if she spent £3,000 on legal fees for a single hearing. The published letters begin in April 14, however this does not necessarily mean the order was made at this stage and even if it were it might have been a temporary order whilst the case proceeded. If the court were told that there were any disagreement about contact, particularly where there has been significant violence as in this case, I would expect the court to list a further hearing where the matter could be properly aired – and very probably to seek assistance from CAFCASS before that hearing. If the Mother did not agree to this contact and this was an order imposed at a first hearing anyway something has gone awry (in my partially informed opinion).

It is significant for me that nowhere in any article is there any suggestion of the Mother seeking to appeal the order, then or now. It is also apparent that the Mother has been complying with the order to date, and some reports suggest the childrens’ reaction has not been positive (unsurprisingly). I don’t know if the fact that the Mother has been “told to keep the [letters] in case the boys want to read them one day” is guidance she was offered at court when the order was made or that she has been offered subsequently, perhaps when she has reported her difficulties. It is the sort of thing that might be said at that point or at the point of making an application to vary, but other than that remark there seems to be no suggestion that she has or intends to return to court to vary the order.

It seems possible therefore that the order was agreed by the Mother at court when, because she was no longer represented, she did not appreciate the court’s powers of imprisonment in the case of breach, and would have had no idea what a warning notice was. Alternatively she may have agreed it on advice (i.e. that she was unlikely to successfully resist an order). Best practice would say that someone (the Judge / Magistrates / her lawyer) should have told this Mother about the warning notice before she agreed to the order, and certainly before she left court, but if she was unrepresented it would not surprise me if this had not happened – indeed the articles all suggest that the first point at which the Mother became aware of this risk was when she read the order. It is possible that the order was drawn up by the Father’s solicitors at the request of the court (this often happens because the court uses very long templates for its orders and doesn’t have time to draft orders between hearings) and sent out on a later date by post, leaving the Mother to open up and order and read the rather scary warning notice with no explanation. If the Mother did by then have solicitors they should have checked the order and sent her a letter explaining its terms.

There is a further possibility though. It might be that the Mother agreed to this indirect contact, and that there was no need for an order formalising that at all. It might be that her agreement was converted in the drafting to an order, or that it was recorded as a “recital” (record of an agreement) on the court order, but no ACTUAL Child Arrangements ORDER was made (the law says that an order should only be made if it would be better for the child than making no order – if it’s agreed it may be inappropriate to make an order). It is not unheard of for an order to be drafted from the template, containing no child arrangements order, but where the default wording is not properly edited to remove the (redundant) warning notice. That is to say it is possible that the warning notice is on the order in error and that there is no threat of prison at all. Obviously I don’t know whether that is so, but it is one of the possibilities IF the reference to “negotiated terms” is correct. If the Mother were represented this should have been picked up, but the reality is that the templates have caused some confusion since their introduction and some lawyers leave in redundant text when they should not.

There is a quite separate issue of course as to whether this mother, if she were at court as a litigant in person faced with an application of this sort, was in any proper position to “negotiate terms” with the Father’s lawyers, but one would hope that if such terms were agreed the court would have checked her consent was given on an informed basis and not under duress.

It isn’t immediately obvious why the Mother was  litigant in person at all. I would expect a Mother in these circumstances to qualify for legal aid on domestic violence grounds (see here) but if the Mother now has a new partner who works or is herself working she may not have qualified on means grounds.

Let’s assume for a moment that this order was imposed by the court without the Mother’s agreement. Why would that happen? Lots of people commenting on the articles are understandably struggling with that. Well, it is not a case (as reported) of “parental rights” but of the rights of the child to know about and maintain a relationship of some sort with both parents, even rubbish parents – except in the most exceptional of circumstances. There is now a statutory “presumption of parental involvement” but for various reasons that would not have applied in this case – however caselaw is clear that, regardless of the statutory presumption, a relationship with a parent can only be severed in exceptional circumstances. Knowing about the failings of our parents can be quite important in our understanding of our own identity. I anticipate that this order would have been made for “identity purposes” so that the children retain a link to their Father – and probably so that they are able to read those letters when young adults to help them make sense of what happened to them and their mum. Beyond that it is difficult to speculate – it is possible that the children were confused and upset at their father’s absence notwithstanding the awful events and needed some reassurance he was ok (seems counterintuitive I know but children are complex beasties). We really don’t have enough information about what the children recall, how close they were since the events, what explanations they had been given etc. Different children have a vast array of reactions to life events – it seems unlikely that they would be anything other than traumatised and frightened of their father but the court would fuller information upon which to judge that than we do.

Taking the order as it is described in the various articles, I note that the Mother is required to send the Father updates on the kids, that he is permitted to write 3 times per year, but there is no (or no reported) requirement for her to show the letters to the child. That might be an accurate reflection of the order or not – it is possible that requirement was left out precisely to allow the mother to exercise her judgment as the situation evolved – from the articles we don’t know if she would risk contempt for not showing them the letters. An order for a parent to provide updates is often provided not for the benefit of the offending parent but to give them a reasonable chance to write letters that will be personalised to the child in question, for example by mentioning their interests and achievements and asking about their likes and dislikes. The purpose of the updates from Mother to Father are therefore likely to help the Father write letters the children will want to read and respond to (not that that purpose will make the writing of them any easier for the Mother).

I would expect this matter to have been finalised after the preparation of a s7 report from either CAFCASS or the Local Authority. If I were representing the Mother I would probably want to know what impact this had had upon her and whether the idea of managing this contact would re-traumatise her to the point where it impacted on the kids. I’d consider seeking a psychological assessment of her if I thought she could not cope with it. I’d want to know how the kids were managing in understanding what had happened and where their dad was. I don’t know what if any of that happened, but the court most likely had a wealth of information that we do not, before imposing the order or approving the “negotiated terms”.