While you’re at it, boss…

In The Transparency Review the President says he is going to amend PD12G so that ‘Accredited media representatives and legal bloggers should be added to the list of those to whom a party may communicate information relating to children proceedings under FPR r12.75 (1), PD12G and PD14E.’

That’s good news, but in truth there is a lot more wrong with PD12G than suggested by this simple ‘fix’. Actually, let me frame that more positively – PD12G could be made much better than it is.

It’s got a long history.

Once upon a time the tables in PD12G were a part of the main rules. Eventually it’s tabulated list of people and purposes became too cumbersome to manage and it was hived off into a PD, and every so often it’s terms are expanded to capture something that it has become obvious should be permissible, but actually isn’t. Usually something that has been happening for years inadvertently or blatantly with various people turning a blind eye.

Going even further back, the precursor to rule 12.73 (from which rule 12.75 and PD12G hang) was old rule 10.20A of the Family Proceedings Rules. It was implemented as a result of the decision of Sir James Munby (as he then was) in Kent CC v B (RE B (A CHILD) (DISCLOSURE) [2004] EWHC 411 (Fam) [2004] 2 FLR 142) to render lawful that which Munby had said was a regular but inadvertent contempt precluded by s12 Administration of Justice Act 1960: disclosure between professionals in furtherance of child protection. That same decision also prompted amendment of s97(2) Children Act 1989 in apr 2004 so that the term ‘publication’ in the context of the identification of children as subjects of proceedings was relaxed slightly so as to bite only on publication ‘to the public or a section of the public at large’. Here the amendment was aimed at rendering lawful another inadvertent consequence of statute – parents being able to share the fact of proceedings with school teachers and the like.

So, in 2004 professionals and parents had been happily sharing information in ways that it turned out were technically unlawful. Rules were made to enable them to carry out these obviously unobjectionable acts lawfully. So it has been at various points since – PD12G now encompasses the right to pass information to an MP, to a legal regulator, to the Childrens’ Commissioner and various other individuals and organisations, for specified purposes.

The problem is there are still a whole host of things that ought to be included in PD12G in order to render them lawful that aren’t, and a whole load of things that people assume are permitted through PD12G but aren’t. Here are a few examples of what FPR 12.73 / 12.75 and PD12G don’t (or don’t obviously / clearly) permit :

  • there is no provision for parties to proceedings (or their lawyers) to tell reporters any detail of a case in order to help them understand what the case is about (as noted above), though in truth they very often do,
  • there is no provision for an expert to share their reports for the purposes of peer review, supervision, to professional regulators or insurers or to deal with complaints – even anonymously (lawyers can share with their regulators and insurers, experts can’t, and parties can share information in order to make a complaint against an expert – but if they share incomplete information an expert can’t share the balance. It is pretty clear, based on my experience that experts DO share their reports for such purposes, and I can’t really see it ought to be objectionable),
  • there is no provision for disclosure of the detail of court proceedings for the purposes of anonymous surveys, or interviews in qualitative research studies except where the study is an ‘approved research project’ as defined in the PD, which is often NOT the case (I know this, I’ve checked a number of them),
  • there is no provision for survivors of abuse (or false allegations) to share the contents of a fact finding judgment with a support group or organisation.

On this last point, in fact PD12J in fact requires findings to be set out in the court’s order. Since s12(2) dis-applies the contempt provisions of s12 from the order itself, this would mean that if PD12J were adhered to the order could be shared by victims in order to secure non-legal support. However, this part of PD12J is actually honoured more in the breach in my experience, and particularly post Re H-N where schedules are now out of favour, the order would really need to incorporate the narrative of a judgment for depth of understanding in order to be of much use. So, arguably, PD12J ought to be amended to provide for inclusion of the judgment rather than just any schedule or summary of findings. However, it would probably be more simple to amend PD12G than to leave the ability to share a judgment contingent on whether or not that judgment is actually incorporated into the order by an overworked lawyer.

Needless to say, there are similar issues with the sister PDs on Communication of Information in relation to other sorts of information – PD12E, PD9B etc, which are considerably more restrictive than the unwieldy PD12G (but which also relate to other sorts of proceedings where s12 Administration of Justice Act 1960 generally does not bite or where there are particular reasons to heavily restrict release of information).

There are probably other sorts of disclosure that aren’t permitted by the PDs, but which could or should be permitted – above and beyond those I’ve set out. It would be great to see a more thorough review of the PD whilst it’s being tinkered with for the purposes of the Transparency Review (I mean, it’s not like The President or the Rules Committee have anything else to do – ha ha).

So, while you’re at it boss…would you mind taking a look?

 

The micro-politics of email

Grrrrr, but it’s impossible. One thing I don’t need on top of all my work stress is feeling guilty for contributing to your work stress because I sent you an email at the wrong time. These rules about when the sending of emails is forbidden are well intended but, I have concluded, counter productive.

Mea culpa – I have been inconsistent both in my views on these things, and in my application of my own self-set rules and those notionally imposed upon us. No doubt I will continue to be so. I am at least consistent in my inconsistency.

[Post-script – I wrote this post a coupla weeks ago. I have indeed continued to be consistently inconsistent, and have been happily sending emails all weekend because, well, no I’m not going to pretend I somehow managed to read that brief or do that short notice task in the working week when that is OBVIOUSLY not possible. Pretending I have some magical ability to be at court all the normal working hours AND absorb new briefs simultaneously or whilst I sleep is another sort of dysfunction masquerading as good manners or pro-wellbeing behaviour].

I said notionally, because these rules are largely ignored [post-script, last week was a blur of late night emails in the run up to an appeal, we all gave up apologising in the end], so any potential they might have to change culture is lost. But I try hard to be a part of that culture change and thus I try hard to follow the guidance : no late documents, no emails after 6pm.

Nothing in this post is any sort of manifesto for solving these issues. All this post amounts to is an expression of chronic malaise, and of weariness at never being able to get it right. ‘It’ being work-life balance (on a macro level), and the timing of emails (on a micro-level).

Truth be told, attacking the wellbeing crisis by attempting to regulate our email hygiene is like rearranging the deckchairs on the titanic. It doesn’t reduce our workload or the numbers of emails that require to be sent. But it does add to our guilt levels.

Sometimes, in spite of all my planning and good diary and time management I cannot finalise my prep or document before close of business. Sometimes I have to work on a weekend. (Who am I kidding – not sometimes – often). There are myriad reasons why, mostly outwith my control.

Should I send my document or query as soon as I am able, or hold off because of a diktat until the next morning, when the recipient will have less time to consider and respond to it? I have been trying to remember to schedule emails for first thing the next morning or, on a weekend for first thing on a Monday – thereby keeping to the rules, whilst also avoiding the risk I will forget to send the email if I leave it, and thus managing my own anxiety. But sometimes I forget. And sometimes I calculate its actually necessary or better for the recipient to send it now.

The truth is my opponent is probably in the same boat as me. They may prefer to work in the evening when the kids are in bed and may have valued the opportunity to see my document and have time to sleep on it. In being ‘helpful’ by withholding my document I am robbing them of that opportunity.

‘Yes’ (says the devil on my other shoulder), ‘but in sending it you are putting pressure on them to read the email at an anti-social time’. You know what? I think I’ve actually reached the view that I am not responsible for someone else’s working practices. Nobody can change this but each individual. All my emails are sent with a message that explicitly says there is no expectation my message will be read or responded to out of hours. And I think I prefer sometimes to give people a choice. They are grown ups after all. Dysfunctional grownups, I’ll grant you. We all slip into email exchanges late at night which sometimes could really wait, but…

I have become really fed up of late at the gnawing guilt this change in email culture inadvertently creates when I hit send late at night having forgotten to put a delayed send on – what is this pretence? I find myself spending time wording my email sent on a Sunday night to look as if it was written on Monday, or explaining that it was prepared on a Sunday but queued, just in case it is superseded by someone else’s queued email that arrives first. These are just games designed to make someone feel better, but that someone is not me. Maybe the only result is that the recipient wonders how come it is only them who was working at the weekend and why they aren’t as efficient as the 8am on a Monday emailers? Maybe they just roll their eyes, correctly guessing that I am just pretending to be in control of my work-life balance, and wishing I’d sent them the blinking email the night before when they were wrapping up their own prep.

I work evenings and weekends. I try not to, but I do. There is no point pretending otherwise and it isn’t going to fundamentally change – though I continue to strive to reduce the extent of it. In future, unless my email is something which is not particularly time sensitive and can be happily queued until the next day / Monday, I’m just going to send it when its finished, and I’m going to give the recipient as much time as I am able to read and respond. I do so in the knowledge that realistically (whatever we pretend) my opponent may also be working in the evening. In doing so I am going to treat them like a grown up who can make a choice as to whether to ignore a message till morning or whether to deal with it immediately. Late night emails from opponents are annoying, and we all hate bombshells dropped before a hearing – but if I’m going to receive one, I’d rather have a late night bombshell than an 8am bombshell.

 

I stayed up till midnight – can I have a snooze now?

The interminable wait is over. I suppose that means it wasn’t, ultimately interminable. But it was quite long. And the embargo has just expired, so…

BUT. That’s ok because Sir A, the big A, Andy the Great, El Pres etc etc – has come up with the goods.

I am so super pleased I don’t know what to say. Also, I already said it on the Transparency Project blog.

And now I have to go to bed and get some beauty sleep because apparently I might be doing an interview about it tomorrow and my mother will notice if I have bags under my eyes on the telly. She probably won’t notice if my words come out in the wrong order through lack of sleep, but that is a risk if I don’t get some shut eye right now.

Happy reading.

Here it is (or a post about it anyway, the web team at Judiciary have clear had an early bath and are going to put it up in the morning) :

Seeing invisible elephants – the transparency review is published