When Crime and Family Collide

This is an interesting judgment. The facts of it are very sad (vulnerable, isolated teenaged brother and sister who somehow manage to end up as mother and father of a baby at the age of 14) – but I’m more interested in the bells it rings regarding the interplay between family and criminal process : Y (disclosure to MPS) [2021] EWFC B33.

As is usual for HHJ Atkinson the judgment is well crafted, thorough and poignant. It is not obvious at the outset just how cross she is, but by the end you certainly know it, even though she remains fair and polite throughout.

Because what happened in this case is something I’ve seen happen in a number of my own, and to me it feels like HHJ Atkinson is highlighting something that may be happening more widely :

  • Firstly, the police and / or CPS seem to be waiting for a decision in the care proceedings or disclosure from them before making a charging decision – sometimes the police just won’t send the case for a charging decision until any application for disclosure has been dealt with, based on their expectation that the CPS will decline to make a decision.
  • Gone are the days when a criminal trial could be expected to take place before we can set up a fact finding hearing meaning that in some cases the need for a fact find would be obviated entirely, and in others the criminal evidence could inform the care process (long gone to be honest).
  • Secondly, the police are increasingly likely to fail to meet disclosure requests of their own material – sometimes because they are too busy – and sometimes because they have an open investigation. If I was a cynic I’d say there is a distinct whiff of the Police or CPS hoping something will turn up in the care process (perhaps in oral evidence) that will short circuit things and make their job easier – police are under huge pressure, and whilst we are running around trying to analyse phone records and ABE interviews and gathering expert evidence, it often feels like not a lot is happening on the criminal side of things. That may be unfair to the police – it is probably only half the picture – but that is how it often feels in the face of inexplicable delay and radio silence.

Anyway, the upshot of all this is that cases are delayed, the parents in the care proceedings are left in limbo – worried about potential future criminal charges hanging over them, probably often too scared to be frank about what has really happened. And often not knowing whether there is a risk of prosecution, conviction and imprisonment or deportation may mean the family court will struggle to resolve care planning too – how can you place a child with someone who might be detained at Her Majesty’s Pleasure within the year? It can be very chicken and egg. And if the police are tardy with their own disclosure the fact finding process in the family court can stall too.

Charging decisions are two pronged of course – its not just about the evidence and whether they could secure a conviction. It’s also about whether they should try in the first place (the public interest test). Sometimes, as in this case, the public interest arguments against prosecution are really clear and obvious, and ongoing proceedings are no reason to delay a charging decision – but in others the outcome of the case may be materially relevant to a decision whether or not to prosecute: for example in a case where a child is rehabilitated to the care of a reformed parent, jeopardising that by prosecution might not be in the public interest. In those cases it can really be difficult to reconcile the tensions.

But in this particular case HHJ Atkinson is describing a police service (the Met), which was causing delay to both processes, was wasting its own time and money – and that of the family court and the professionals working within it – by making sweeping disclosure applications for family court papers that served no purpose and would not help them with the public interest decision (the evidence of an offence was pretty clear cut in that case so it was all about the public interest in prosecuting the parents who the judge considered were both vulnerable victims rather than perpetrators).

The judge made her view pretty plain way back in October 2020 and yet the Police were still persisting well into 2021. HHJ Atkinson’s post script to her judgment tells you all you need to know about how the amount of energy and resource the family court had to expend in order to get the MPS to see sense :

I handed down a copy of this Judgment on 27th October 2020.  On the same day the MPS made a further application for disclosure of documents; this time specifying the documents so as to narrow the focus but by very little.  The application included a request for documents that I had made clear, in my Judgment, contained nothing of additional value for the police or CPS. 

The MPS attended the Issues Resolution Hearing on 4th November but there was insufficient time for a further argument on disclosure and so I had to earmark more court time for a full contest a little over a week later. By then there had been a further petition on behalf of the child-parents from the NSPCC expressing concern that in the view of that organisation any prosecution was very obviously not in the public interest and the failure to make a swift decision, one way or another, on the ample information available was contrary to good practice in matters involving sibling sexual abuse. Keen to ensure that this Judgment had been read, and to understand what more the CPS needed to make a swift decision, I directed the attendance of the officer in the case and the CPS reviewing lawyer.

Three days before the listed hearing the MPS withdrew its application indicating that the CPS lawyer had marked the case as ‘finalised’ and without the need to view anything else. It was confirmed that by ‘finalised’ it was intended that there would be no further action taken against either of these child-parents. 

This chronology speaks for itself.  In the space of a matter of days a decision was made by the CPS on the merits of pursuing a prosecution in this case without the need for any further documentation from the family proceedings.  It must follow that this is a decision that could have been made many months before.  It is unfortunate and indeed a terrible waste of court time and effort that the impetus to reach this decision seemingly required my intervention.  That is to say nothing of the impact of such additional delay on the three children at the centre of these proceedings.

 

The Judgment also records this (pa 57 onwards) :

This is not the first time that I have had to devote precious court room time and resources to this sort of application, but I am pleased to observe that it is a rare occurrence.  In most cases, I deal with disclosure to the police on paper, without the need for a hearing and in the face of no or negligible objection.  However, there has been a noticable [sic] increase of late in applications for blanket disclosure by the MPS made at the behest of the CPS who refuse to make a charging decision until they have in their possession every piece of paper relating to the individuals under consideration, or so it seems.

I completely understand that this approach has grown out of a series of cases in which the late discovery of evidence which should have been considered at the outset has very publicly undermined confidence in the process.  However, the need to investigate thoroughly does not mean that investigation should proceed blindly.  A tick box approach in which there is no charging decision is even considered until all social services records have either been secured or refused by court order is unhelpful and has been a waste of my very limited and precious court time.  It is an exercise which is focused on ensuring that no criticism will be made further down the line and has replaced the exercise of professional judgment.

Delay

Finally, in the interests of the child who is the innocent product of this ‘incident’, can I politely remind the MPS and the CPS of the potentially devastating impact any further delay in the decision making is likely to have on Y?  Although I have yet to see evidence from the family finders, it seems obvious to me that the fact of her parentage, together with possible genetic uncertainties, will narrow the pool of people prepared to care for her.  A continuing criminal investigation and, worse, the spectre of a criminal trial looming may only serve to narrow the pool even further; possibly even empty it.  It may not be possible to conclude the processes in relation to her until after the conclusion of a trial, if there is to be one.  The older she is, the harder she will be to place and the harder it will be for her to settle in a new placement. In short there is the potential for further damage to be done here by reason of the unforgiveable delay in the process.  Not just to A and B through their inability to access their much needed therapy, but also to Y.  I would respectfully invite the decision makers to bear that in mind.

 

I don’t know if there is some sort of policy or organically evolved practice within the CPS of requiring the chasing down of family court disclosure for the sake of completeness as some sort of default – but I really hope not. Perhaps there isn’t and the problem is with the Officers in the Case misinterpreting what the CPS actually want from them (though I have to say that based on my experience and reading of many many police logs I’m pretty sure the police are sometimes TOLD by the CPS ‘you must have x,y,z before we’ll consider the case’). HHJ Atkinson may use the phrase ‘rare’ but she doesn’t appear to be describing a one off either – this seems to be the particular case that has tipped her into publication, having tried more diplomatic means before without effect. Is there a pattern emerging? What HHJ Atkinson is describing is definitely not unfamiliar to me, a barrister practising in an entirely different part of the country (with various different police forces coming across my radar), but nor is it a feature of every case – but I wonder if this phenomenon is also familiar to others? It doesn’t need to be happening often for it to be to be both causing harm to individual families and adverse impact on the family court system as a whole.

From a place of purity…

I’ve been wrestling with a couple of blog posts to post here for a while. They are stuck. I am snorkling through metaphysical, ethical, topical treacle with them. They may never be published. Luckily for you.

But this. This comes from a place of passion and purity and will write itself in a jiffy. And I will feel purified for getting it off my chest. Which I really need to do.

The damned templates.

I spent a long time today wrestling with templates. Time I don’t have and I don’t care to waste on inconsequential irritants.

Perhaps I should just submit my draft orders full of hanging brackets] and slashes / and occasional words in red or green. But quite apart from the twitching it induces, I like to think I’m vaguely professional.

I had hoped when I saw yet another iteration of the helpful templates that this time they would have taken heed of years of us griping about the awful, wretched formatting and would have spared a few minutes to sort it out. Before promulgating it to the entire family bar (and solicitors), to taunt and torture us daily. But no.

I don’t know if this is because the people who prepared the templates didn’t know, whether they just don’t care or whether they are just too technophobic to work out how to fix it. I prefer to think that they it was not a case of we know but can’t be bothered to sort it – after all, we have been given a short form order, explicitly in acknowledgment of the time pressures upon us (for which I am grateful).

But searching for an explanation is arid. What I do know, and what any other person who has ever had to use one of these templates knows, is this :

The templates do not save us time. They giveth with one hand and they taketh with the other.

The templates deploy a number of techniques :

  • Green text is commentary to assist the draftswoman (and should be deleted before filing – BUT NEVER IS (don’t start me on that one))
  • Red text denotes something that needs to be edited, deleted or inserted
  • [square brackets] are a placemarker for text that needs to be inserted, edited or deleted.
  • Where there is more than one option each item is book ended with [square brackets] and separated from the next square bracketed item with a / like this.

There is duplication of devices here.

Whilst the red text can (if one can resist the urge to do it sooner) be removed in two quick clicks at the end of the drafting process (ctrl+a to select all and then click in the font colour settings), the brackets and the dashes – which PERFORM THE SAME SIGNPOSTING FUNCTION are quite something else.

Let me illustrate the problem using template 8.3, the public law first CMO (sorry compadres who actually use these things, I know you know this – this is not for your benefit). In this document there are :

  • 166 pairs of square brackets (332 bracket ends, separated in each case by a word)
  • 19 instances of [ren] at the end of the word child : child[ren]
  • 11 instances of the feature [s] for example after the word parents : parent[s]
  • 44 dashes /

For a conscientious draftswoman EACH ONE of those items needs to be manually removed. Most cases involve more than one child so orders need to refer to ‘children’ 19 times, not child (and not child[ren] 19 times). To complete an order in a case involving multiple children the draftswoman must perform 114 entirely unnecessary keystrokes :

  • click to locate cursor after [ren]
  • delete ]
  • move cursor 3 spaces to the left
  • delete [
  • repeat 18 times

There are other ways of doing it but that’s the best IMHO. I know. I’ve tried the other ways.

Same thing for plurals of parent / parent[s]. 4 keystrokes times 11.

Not forgetting all those dashes… and whole words that need deleting.

This sounds utterly pedantic. But it does add up. This can add considerable time when drafting under pressure, as we usually are (And no. I’m not filing an order with those brackets still there. I still have a shred of self respect left).

[UPDATE: Thanks to JB who pointed out one can use ‘find and replace all’ to remove the [square brackets]. Truth be told I am usually in such a lather as a result of some sort of primeval response to paragraph numbering hell – see below – that I am scarely rational : it is hard enough to hold back from removing the red and green as I go, let alone leave all the brackets till the end, and I am in a perpetual state of ‘oh I must have got most of them by now’…I actually might need a holiday.]

When one combines this with the numbering problems it gets super infuriating.

Again, I’ll explain for the uninitiated (Trigger warning to advocates) :

The templates are prepared in Times New Roman, 12 point font (of course they are). And yet.

Every time you create a sub paragraph – you get an unheralded change of font and size.

The templates purport to have numbering. And yet.

Every time you try to create a new paragraph something wild happens with the formatting – font or size change, random indent. Mystery effects each time. Adds to the excitement.

The template appears to build in multi-level lists (sub paragraphs using a) b) c) or i) ii) ii) etc below an arabic numbered paragraph). And yet.

The templates are not in fact set up so that the paragraph numbering is ACTUALLY a single multi-level list. Oh no. They just look like they are. Which is fine. Until you try to create a new paragraph following an a) b) c). And get a new paragraph 1. And clicking ‘continue previous numbering’ won’t work because the ‘previous numbering’ is not the child of the main arabic numbering, meaning you have to un number and RENUMBER all the sub paragraph lines in the preceding paragraph to get you numbers to run on.

It gets EVEN MORE fun when you are in a track change war with your opponent and someone tries to add a new paragraph. Let’s not go there.

I sense this post may be losing it’s punchy quality at this stage. So I’ll conclude by saying this :

This is not rocket science. The legal profession, the judiciary, the court service – someone for goodness sakes – ought to be able to sort this out in our world class legal system. It is basic. And it is a simple step towards more efficiency, and I’d like to think towards respecting the workforce and improving our wellbeing.

So. I finally snapped today. I got VERY CROSS.

And fixed the bloody templates.

I’ve REMOVED THE [SQUARE STUPID BRACKETS] AND SLASHES. They serve no purpose – all you need is the red to show you where you need to customise, and you can clear that at the end. I’ve cleared and redone ALL the formatting, numbered it properly so paragraphs should run on without messing up your font size. And I’ve even made it into an ACTUAL WORD TEMPLATE so that you can open it and it will open a new Doc1.docx stopping you from accidentally saving over the original.

I’m a bit self righteously annoyed right now but I’ll cool down. In the end it didn’t take that long to do but it seems mad for ALL of us to spend time doing this, so here you go chaps. Use it if its useful. If you want to say thanks send a quid to my fave charity The Transparency Project.

I haven’t tackled the epic long precedent library yet – but I’ll get that up here too in due course, promise. Someone else can do the private law and money templates though.

Well, that WAS cathartic. I feel fully purified. Happy drafting campers.

Dowload from dropbox here.

Wellbeing fatigue

Enough. I’ve had too much wellbeing. Like that moment you realise you’ve had one square too far in your mission to demolish that giant bar of Dairy Milk you picked up at the garage – I feel rather nauseous now.

WARNING : Don’t read this post in the hope of a warm fuzzy wellbeing. Go buy a big bar of Dairy Milk and get your serotonin rush that way. In fact, have some Dairy Milk to hand to comfort eat with during or after this miserable grinch of a post.

There has been an imperceptibly building sense in the pit of my stomach for a while now, that our current obsession for all things wellbeing is in fact somewhere on a spectrum between hopelessly naive and borderline delusional. I had been wondering if I should try and purge it in a blog post, but thought it would pass, like a wave of nausea does.

It did go off a bit, but today really did me in. Today I went into chambers where I found a giant stack of four months worth of Counsel magazine, Family Affairs and other assorted legal journals and legal industry mags. This afternoon I’ve diligently waded through them all, ingesting page after page of wellbeing advice, articles about diversity, recruitment and retention, the gender pay gap, pieces about the pros and cons of working from home, the digital bar, tips for digital working (2 screens a must), working from home, maintaining work life balance and a reminder of how great it is that in the Family sphere, our President is leading from the top with clear guidance about reinstating professional boundaries on our work life to maintain wellbeing.

It’s all baloney, of course. I once had an optimistic rose tinted view – perhaps 9 months ago, when remote working was starting to be practically doable without encountering the sort of frustrating problems that bring on the urge to lob the laptop out of the window – that the silver lining of covid might be a revolution in the way we work, might help us to break down the deep cultural need to bang on about how busy we all are, to compete for who can send an email at the most bonkers time of the night, all as some sort of pathetic proxy for success – maybe then I thought that there was some emergent cultural change and maybe we’d all emerge healthier in 2021 when covid was over.

Well, chaps, I hate to break it to you but its 2021 and covid isn’t over. More to the point I’ve given up running, put on a stone and have gone right back to the bad old days of taking on too much work. I’m trying to look after myself, of course – I realised I was overheating somewhat in early April and when a chance arose as a result of 2 trials coming out I bagged those days for R&R and consequently haven’t done a lot of work in April. If I’m honest I don’t feel a lot better. And now I’m just fed up, because I am constantly confronted with the cognitive dissonance between the wellbeing talk and the reality on the ground. Frankly, you can shove your top tips in the confidential waste.

A reminder if I may : before lockdown we were in crisis from a workload point of view. So said our leaders. So said us. We were already talking a lot about wellbeing, but not in truth doing a great deal about it. We were ‘working up’ to making actual change (just like I’m ‘working up’ to my first run after lapsing, as I have been for several months now – as I type I note somewhat passively that my left trainer is half way down the garden in the rain where the dog took it yesterday, having been chewing it lovingly for several weeks). To borrow from social work, we were in the pre-contemplative stage of the cycle.

Lockdown hasn’t removed any of the pre-existing, underlying issues – there hasn’t been any real change. I bet you’ve voluntarily extended your working day on at least 3 occasions since last March to attend a webinar about wellbeing when you could have been watching rubbish telly or spending time with the kids – but actually, is your wellbeing any better than it was in March 2021? No. It isn’t. You’ve relapsed – you’re overworking again, your boundaries between work and off work are as blurred and dysfunctional as they ever were, possibly more so. You haven’t sustained it any more than I have. Because the pull is too great and we all cave. Because we are committed professionals.

Here’s what I’ve (finally) learnt due to the pandemic : the problems that were frying our resilience and longevity are structural not internal to us as individuals – take away the ‘look how busy I am b***s**t’ and there is still a major problem. We’re all talk and no action because ultimately we as individuals are almost powerless.

Look, I’m marginally better at saying ‘No’ than I was, I’ve decided it would be good to see a counsellor for ‘supervision’ as a sort of wellbeing insurance policy, and I am making the most of working from home where it offers benefits. But the truth is, I’m still committed to my job and my clients and to doing justice – and neither being marginally better at saying ‘No’ nor letting off steam to a counsellor once a month alters the fundamentally messed up structure of our profession, the fundamentally knackered state of the family justice system, the inherently demanding nature of the job, or the requirement for long unpredictable hours. None of those modest adjustments to my own way of responding to the job changes the fact that the system and its people are chronically overburdened, underfunded and under resourced. Or that the content of the work takes an inevitable emotional toll.

And I also bet you have noticed a slippage back from those long days of summer 2020 when every judge insisted that everyone absolutely must stretch their legs for 10 minutes in every hour and we must not on any account sit after 4pm, so that we could go off for a reparatory G&T in the garden when the hearing was over – to hearings at 9.00 or 9.30 and 4.00 and 4.30 and advocates meetings before and after that, and the expectations increasing, because we must all do our bit and well, ‘What else are we to do, Ms Reed?’. I bet you don’t get your 10 minute leg stretch now (after a period of reminding judges it was time for a break only to receive a mildly irritated response that actually no we should press on, I’ve given that up too). This slippage was why the President issued his guidance in the Road Ahead in the new year. I remind myself that he had said early on in the first lockdown that wellbeing must be our priority and I was complaining in December that hadn’t worked and we needed a firmer line :

http://www.pinktape.co.uk/rants/the-princess-and-the-parsnip-of-wellbeing/

The Road Ahead guidance came shortly after and yet here I am again, complaining. Again. In spite of that absolutely clear guidance. In spite of more wellbeing top tips than you’ve had briefs.

But it remains true that fine words about wellbeing are a waste of breath when they are not implemented on the ground. Complaints that this guidance is being ignored through the continuation of the early morning and late afternoon hearings that are so difficult for all of us on wellbeing grounds, and which are particularly so for those responsible for the care of others, predominantly women – are a waste of breath too.

Because this is a circle that can’t be squared. There aren’t enough judges or slots in the diary to list everything between 10 and 4 within a sensible timeframe. Someone’s welfare has to be compromised here : will it be the lawyers, the judges or the parents and children waiting for interminable periods for someone to make a decision that can keep them safe or enable them to move on with their life? Will it be all of them? How can a DFJ implement this guidance in good conscience if it means a delay of several months in each individual case? The circle cannot be squared.

I’m tired of making the argument that if I burn out or the judge burns out and is off sick, or if my opponent makes a mistake through overwork – or god forbid if the judge makes a wrong decision through overwork – that will have been a false economy. I’m tired of doing that on behalf of the more junior lawyers who aren’t able to speak out, only to have colleagues look at me like I have said something heretical when I suggest that maybe, just maybe we shouldn’t keep working this way – as if I’m just being selfish in arguing for sustainable working to keep the system afloat (read the Road Ahead – its exactly what it says!). Because every time in the face of the individual case, the needs of the individual child or family it has to give way. We are expected to put the client first – we do put the client first. We rarely say no. And in truth, the day I routinely put myself first is the day I give up this wretched amazing wonderful awful job. And so, we bugger on, packing in as much as we can until we feel we are on the brink and go away to recover. And we start again. And every so often one of us will fail to spot it coming (the palpitations, the rising blood pressure, the hyperventilation) and will be off sick properly, or for good. Burnt out.

I’m not giving up on my own wellbeing, I’ll do what I need to do to be able to keep doing my best for my clients – I’ll book days out to ensure I don’t crash and burn from overwork. I’ll manage a few out of hours hearings if I have to in existing cases, but I will avoid them where possible. I’ll try and keep my eye out for those less able than me to say ‘No’ to their clerks, the judge, their boss or their instructing solicitor.

But I am giving up on platitudes and stupid optimism and the pretence we are making a dent in this. Those other swimmers you see out there in choppy waters – quite a few of them are not waving but drowning. And there aren’t any lifeboats (even the purple lifeboat has a hole below the water line).

I’m done with wellbeing webinars, and I’m done with pretending things are changing. There is no change beyond the slow creep of me getting older, greyer and gruffer about everything. I am in myself okay by the way, for those who might care enough to ask – and I will make sure I remain so. But I am crosser and less tolerant than I would like to be about this, because the situation is a daily reminder of a painful truth, which is that society doesn’t value what we do. Just remember, even those who talk genuinely and with enthusiasm about our collective wellbeing aren’t empowered to change anything any more than we are : this is the job, the system is broken. Nobody is going to fund the system so all of us (lawyers, judges (from the bottom to the top), social workers) can all do our jobs well, reliably and without unplanned absence or loss of skilled and brilliant people from our ranks. Value yourselves by looking after yourselves you wonderful people.