What I’ve been up to over there…

I’ve been on a bit of a blogathon, which is good. I’m back in the groove.

But I’ve been doing much of it over there, on Transparency Project.

Here are a couple of things you might find interesting :

One about Johnny Depp…

http://www.transparencyproject.org.uk/did-everyone-see-that-because-i-will-not-be-doing-it-again-jack-sparrow/

One about the new lockdown rules and how it does (or doesn’t) affect contact.

http://www.transparencyproject.org.uk/lockdown-2-and-contact-what-are-the-rules/

And one about Domestic Abuse and Family Courts…

http://www.transparencyproject.org.uk/media-coverage-of-family-courts-and-domestic-abuse-fake-news/

 

There is lots of other good recent stuff on the site by others, but those ones are my babies. Hope you like ’em. I have another one brewing (resulting from a day I recently spent in the High Court (by “in” I mean on a remote link to a hearing in the High Court of course), so keep an eye out for that…

 

 

The Secrets We Hold – Towards a New Professionalism

candlebyjamingrayonflickr

This is a guest post by Judith Trustman. Judith is a door tenant of St. Ives Chambers, but retired from the Bar in 2019.  She specialised in public law care proceedings.  Before moving to the Midlands to join St Ives she had been a member of Garden Court Chambers for 14 years.  Since retiring she writes across a wide range of subjects, promotes arts events in Shropshire and works pro bono at The Poetry Pharmacy and a local refugee support group. Judith tweets as @mcgrathauthor.

 

My wig and gown have been retired to gather dust for a little over a year now, providing a time of reflection on a career spent at the family bar.  Leaving a place where the fundamentals of family life are constantly in focus carries with it a sense of relief, to be free of the relentless work schedule, yet also, unexpectedly, a touch of sadness from the loss of intensity.  Yet being in a high octane environment day after day is not normal.  With the benefit of distance comes an opportunity to gain some perspective on the job.

 

None of us need reminding that this has been a year to strike at the heart of even the most robust workers.  It has demanded new and yet unimagined skills as workplaces and courtrooms migrated early in the year to kitchens and corners of the home offering some kind of privacy – circumstances allowing.   This year, when viewed in hindsight by those still at the coalface, will throw up visions of even greater pressure than those unrelenting pressures already faced by everyone working in the family justice system.  Undoubtedly this is likely to have been coupled with heavier financial outlay on computer equipment, home workplace needs, (possibly for some extending to kitting out garden offices,) cyber security and the like, thus sending up each person’s expenses bill (even as our travel costs go down).  The combined pressures of lockdown, work and parenting for many will have tested even the most vocationally committed.

 

A wellbeing programme for barristers has been slow to arrive, but has been much in evidence, particularly at the family bar in the last two years or so.  Articles have appeared here and there and the view from the President’s Chambers has been leading the way.  It is extraordinary to think that it was only in May 2019 he said this:

 

The need to address our individual and collective ‘well-being’, which hit me full-square as soon as I became re-acquainted with those working in the system this time last  year,  has  continued to  be  a  priority.  It is a  topic  about  which  I  speak during each court visit, often five or more times in the day as I meet various groups of professionals and HMCTS staff. I have been heartened, in a number of ways, by the reaction that there has been to the focus on ‘well-being’. Firstly, from what has been said to me in response, it is crystal clear that there is indeed a need to own up to the impact of the current workload in emotional, social and physical terms on each of us in whatever role we play in the Family Justice system.

 

And that was before a global pandemic arrived to add to everyone’s stress load.  What then, are the wellbeing considerations for the workplace as we know it now?

 

Last week I read with great sadness of the death of Ian Griffin, former HoC of 4BC.  Being out of the day job, I had not seen him in a while and did not know of his illness.  I remember him with great fondness, having worked many a case over the years in which we both appeared for parents. The link provided to his article WB and the big C came as a poignant shock.  I neither knew of his illness, nor of the man behind this important and intensely humane article.  I read it as if I had heard it from Ian directly.  In his voice.  It spoke deeply to the heart of the job undertaken by every family barrister.

 

The perspective from which Ian wrote was, in his own words, acute.  Yet what has not left me since I read it is the abiding feeling that the perspective he describes, in particular drawn from his earlier experience as a nurse and his humanity as a man, must have been there before the diagnosis.  And I never knew.  This prompted a reflection on wellbeing in which I ask what place does ordinary friendship have in the day to day lives of barristers?

 

We have inherited from our parents and our grandparents – to use Philip Larkin’s acerbic phraseology, those people who in ‘old style hats and coats’ were ‘half the time …soppy stern and half at one another’s throats’ – a Victorian idea of professionalism; it is the world of the stiffened collar, obscure language and, more significantly, the embargo on social chit chat : social chit chat, beyond the gracious nod and essential courtesies, being seen all too often as ‘unprofessional’ or vulgar.   But in a profession often accused of being hidebound by tradition and ancient custom (wigs!), still regarded by many as advertising its own lack of connection with modern society, isn’t it time to make room for change including in the way  that professionalism is understood?

 

We were taught absolute deference to the Court, and rightly so – we are after all at the Bar, participants in the process whereby the law is enacted, enforced.  A court room is a place of formality, of solemn decision making, where the machinery that supports our society can hand down powerful judgments upon citizen or institution.  Formalised behaviour has to be the order of the day.   Our dress code is prescribed, our language less so.  As Hashi Mohammed so eloquently points out in his book People Like Us: What it Takes to Make it in Modern Britain, there is a discernible style of language and accent used by those in the profession which is virtually an unspoken qualification.  Outside of court we were taught, or somehow absorbed at the knee of our pupil supervisor, the custom never to shake the hand of another barrister.  This ancient custom of unknown provenance, explored by Alex Aldridge writing in Legal Cheek in 2016, is one of many quaint practices still alive at the bar.  Many jokes are told and retold in robing rooms up and down the country of circumstances in which counsel has been told by a sitting judge that they ‘cannot hear you’, as a result of some transgression of clothing of posture (hands in pockets being the ultimate sin).   From time to time surveys are undertaken and the bar votes to retain the wig and gown, yet the public more often than not vote to abandon it, measuring the gap between social convention in 2020 and the Bar.

 

But resolute formality as a mode of respect to the court, should never be an excuse or substitute for decent and humane conduct between barristers.  Those are of course admirable qualities, easy to sign up to, but what about if there was positive encouragement to be sociable, friends even, at court? My sense of regret in reading Ian Griffin’s article was that in all the years I had worked with him and during so many shared adjournments or court waiting time, I had never come to know the man whose article so moved me.  He was not shy, nor I, yet the nature of our ‘professionalism’ and the structure of our working day seemed to disallow getting to know what made each other tick.  Some may argue that this is a result of individual personality type (mine or his) or that the appropriate opportunity for such engagement exists elsewhere, at Cumberland Lodge weekends and the like*.  But whilst these may contribute in part, an outmoded idea of ‘professionalism’ may also play a part.

 

Many may read this article with surprise and horror, think this a naïve, misplaced view: that we are there to work under solemn duties, social stuff should never be brought into it etc. etc. Yet as Ian so rightly points out in his article, ‘we  are  inevitably hurt by what we do and what we are’.  Our feelings and our humanity are engaged. We are not made of stone, nor should we pretend to be…  Permitting a little part of us to be extended in friendship to our colleagues at work – yes, even at court – is an essential part of being human.

 

Formality and ritualised behaviour are part of the necessary scaffolding that ensure the court is seen as important, is properly respected, its procedures and orders obeyed.  Yet from a distant perspective, the institutional formality person to person is part of the ‘professionalism’ created by those social architects of the 19th century.  What then should it look like in 2021? Nurses who work closely together, particularly in theatre, over many years often refer to their work team as family.  This is not unknown in other professions.  Could there be a greater connection between colleagues at the Bar, a more natural approach to working together? Sometimes this happens on a long case where attendance at court is in person, but what happens when hearings are virtual, or when the idea of professionalism gets in the way of simple human exchange?

 

A friend to whom I once provided a recommendation of a family solicitor needed for her brother’s very difficult personal circumstances told me afterwards ‘the solicitor was very good, but I was appalled that in explaining her availability for conference, she mentioned she was being treated for breast cancer and was having some days off’.  It was, she told me, ‘so unprofessional’.    It must be right that the clients who are facing formidable and mostly distressing proceedings at a crucial point in their own private lives need to be spared details of the professionals’ own circumstances.  Not only that, but of course, the relationship is also one which requires professionalism as we understand it.   That said, it was hard to hear, not least because I knew what an outstanding solicitor she was and just how good a service my friend’s brother would have had.  So professionalism with clients is a given, it is necessarily formal, yet in the family courts we all know that sometimes employing simple humanity and caring talk gets the job done.  An experienced family barrister who took a young teenage mother for a coffee to help her reach a very difficult decision about her children was doing the client and the court a service, although the magistrates were unable to appreciate that the additional hour had saved the expense and torment of a week long hearing.  So there may be times when you could say we have employed informality to get the job done, or simply been ourselves acting  as caring humans, resisting the impersonal face of ‘professionalism’.  It is always a delicate balance.

 

What I am pointing to here in this post is not about losing a grip on our focus or our solemn duty towards our clients, but it is about how, in 2020, we can help maintain our wellbeing by a more natural and collegiate association between barristers at work.  It is ironic that from our forefathers we inherit the language of ‘my learned friend’.  Do we mean what we say when we use it?  Do we in fact regard our colleagues as learned and friends?

 

Wellbeing for those in practice demands more than a nod and is many layered.  In Ian’s moving article written in 2018 he describes wellbeing for the Bar as being in its infancy and this may yet be true.  He lists what can be done, making a powerful plea to resist trying to be tough, ‘fetishising how busy you are’.  He looks at the meaning of wellbeing for those in this job from someone with a perspective he describes as acute, but I would describe as absolutely clear sighted.  The job is after all many things: a privilege, but also a place where we experience pain and suffering.  The sadness is real.  Our refuge is our family, but it should also be our colleagues.  The sharing of time with colleagues is vital and chambers have long been places to go and unwind and share with others who ‘get it’.  Yet  there is also a need to recognise that if you’re a busy parent whose time in chambers is limited (need to go home, cook the dinner, feed the dog, help with homework etc. etc) or someone with other responsibilities, additional time after a hearing or on a day out of court may simply not be possible.

 

Now that work is in the home for many the opportunity to enjoy downtime with colleagues has diminished even further.  This reduces something which is important for the wellbeing of those who work in the profession.

 

At the beginning of the pandemic when workers were sent home, one global multinational company with a household name sent out email guidance for online Zoom working.  The guidance included the recommendation that the first five minutes of all meetings online should be purely social.  So one such employee who has worked entirely from home since March and whose first child was born during lockdown, occasionally now takes his infant son to those first five minutes, at the request of his colleagues.  Having lost the office space where ‘water cooler moments’ can be shared, this guidance has undoubtedly contributed to the wellbeing of the company’s workers.  It has no doubt been informed by research in the field of human resources.

 

At first blush such a proposal is unthinkable at the Bar where online means ‘at court’ or in an advocates’ conference.  Necessary social distance rules the day and when courts are closed or virtual, chambers too may be less safe than home.  Yet creative ways of setting up online meetings before the ‘business of the day’ are not impossible, it just requires some recognition of the importance of socialisation in a profession too often characterised by formality and adversarial distance.

 

Research led human resource initiatives recognise the important part socialisation plays in a happy and productive workforce.  Many workers spend more time at work than with family.  The picture becomes more complex if the worker is spending more time at work, yet is situated at home.  Family are excluded (albeit the newborn son was an unusual exception) and the work may be barren of socialisation, particularly in a highly formalised profession. Where the currency of the words ‘home’ and ‘work’ has changed radically, it is time to re-vision the nature of professionalism, to drag it out of the 19th century.  Taking time to be sociable with your colleagues should be regarded as a necessary part of a wellbeing-centred approach to the profession and making it happen, even online, should be given some serious thought.

 

* Cumberland Lodge is the venue for the Family Law Bar Association’s annual residential event.

 

Feature pic : candle by Jamin Gray on Flickr

 

The Structural Problems in Private Law

Been thinking since I wrote those posts about the harms report, about the many ways in which private law is structurally flawed. Consider this a follow on…it just covers two things that are on my mind right now.

Adversarial

The first is this : lots is often made of the ‘adversarial’ nature of proceedings, and whilst this may well be typified by cross examination of witnesses, unfortunately discussion of the ‘problem’ doesn’t generally go much beyond this  : eliding cross examination (by lawyers) with proceedings that are adversarial in nature – and often by extension categorising the involvement of those who do the cross examination, the lawyers, as adversarial in all they do. It’s laughable to any lawyer who does this work to think about themselves as entirely adversarial, but when a litigant approaches you in the expectation you are their ‘adversary’ perhaps it is a self-fulfilling prophecy.

The problem with focusing the criticism on lawyers and their cross examination is not just that such cross examination is sometimes necessary (where disputed facts need to be determined there is no better way, however much people understandably complain about how unpleasant an experience it is), but that it misses the broader picture.

Lawyers will of course also point out that proceedings are in many respects NOT adversarial – in that judges in the family court are by power and culture active case managers and quasi-inquisitorial. And those who are not lawyers complain again that lawyers just crank it up, bat it back, raise the temperature, fuel the fire.

BUT. Most proceedings don’t involve lawyers. And do you know what? Hearings in those cases often involve their fair share of ‘adversarial’ behaviour, in the sense of argumentative, competitive, bullying mud-slinging argy bargy, and point scoring to and fro behaviour.

Is that coming from the process, or the people, or just from their wider situation?

There is obviously no single, simple answer to that question. But isn’t it worth asking? What drives that behaviour? Because whilst so much of the system’s energy is directed towards promoting settlement or at least achieving safe resolution through a fair and safe process, there is I think something about the process that drives the very behaviour that makes that settlement difficult, and which outside of the court building makes co-parenting so much more stressful and recovery from abusive or unhappy relationships much more difficult.

I’ve written before about the ways in which, to my mind, the combination of the ending of a relationship and finding oneself thrust into a litigation process means that litigants are often experiencing a profound sense of losing control over their lives, which in turn can lead to particular presentation or patterns of behaviour in the context of the court process, as they struggle to regain some sense of control – whether that is a parent who suddenly finds himself out of the family home, struggling financially and stopped from seeing his child, or a parent recovering from abuse, coming to terms with those experiences and trying to restore a sense of agency.

But the longer I do the job, and the more different angles I see, the more I think there is more to it than that those who come to family court are at a bad point in their lives. I think there is something about the process – not the specific detail of the process in the sense of The Child Arrangements Programme (though there may be things wrong with that, that is a different issue)…and nor either is it about the way we do things in family court particularly. What I’m driving at is something about court process generally – that provokes certain responses and patterns of behaviour (its seen in small claims too). The magic rules participants are supposed to abide by but which nobody has ever told them, the ‘sides’ and ‘cases’ and stages – and the function of the judge to be in charge and to make decisions – about whatever the dispute is about and about how to get to that decision and what is fair. All of it – regardless of whether a courtroom is populated by pompous lawyers behaving in a stereotypically ‘adversarial’ way, and regardless of how friendly the judge is or how hard they try to avoid jargon – all of it is taking away control, and exerting authority and pushing psychological buttons that are bound to very often provoke similar emotional and psychological responses by family court litigants as a cohort. Even without a psychology degree I can see there are patterns, I can see that some of the structures perpetuate and drive familiar responses that lawyers and judges wearily observe time and time again from one case to the next – powerless to stop them recurring.

If we are thinking about reforming the family court system I would like to make a hypothetical Part 25 application for an assessment by a behavioural psychologist of the systemic structures and how they drive and affect litigant behaviour. I’ve read enough psychological reports to know this stuff is going on, and enough to know that any attempt by me to cut and paste the phrases I’ve become familiar with into some pseudo analysis would be a fool’s errand – I think the system needs an expert assessment, to give us a psychological formulation and the language to help explain our patterns of behaviour, to give us a prognosis and a way of naming and talking about them, and of recognising and learning about them – and to tell us what we might to to break our unhelpful patterns of learnt behaviour and to relearn more functional ways of managing disputes. We may not be able to change human nature but if we understood these processes better we might be able to tweak or reform the structure so that the behavioural responses of the participants were altered too. Could we by doing family courts differently change the way litigants behave and in doing so make the system work better for everyone?

Any psychologist who wants to have a bash in a guest blog post – send me an email!

Representation

So, moving on to my second issue. It is unsurprisingly linked to the prevalence of litigants in person and the difficulties of dealing fairly with allegations of domestic abuse. I have dealt in recent years with a number of such cases where I have been instructed to represent the child in the case, but where both parents are in person. Of course there are far more cases where identical issues arise but the child is not a party and so there are no lawyers at all – but here I just want to make some observations about those cases where the court has decided things have got tricky enough to make the child a party, because such cases illustrate the breadth and depth of the difficulties wherever the parents are in person.

Inevitably where the child is a party, the legal representatives of the child are expected to pick up the slack and their duty under the overriding objective to assist the court is doing a lot of heavy lifting.

Firstly, the funding arrangements for lawyers acting for children in private law were not designed for the sort of work that is now expected. Advocates undertaking such cases are not even paid under the FAS scheme, so they receive no payment at all until the end of the case (and many of them are apparently interminable). These cases benefit from continuity of counsel, but when we take them on we effectively work for free for an indefinite period, in the knowledge that when we do get paid it will not be a fantastic fee anyway, and will be markedly less than we would be paid in care work, where sometimes (but not always) the burden on counsel for the child is comparatively lighter.

More importantly perhaps, the solicitors for the child are now often expected to collate documents, corral police disclosure, prepare bundles, organise expert instructions and generally sort out everything, engaging all the while in communication with and between assorted litigants in person who often do not understand or do not comply with orders, and who often do not understand the limitations on what assistance the solicitor for the child can give. Their fees are capped too, notwithstanding the significant headache such cases can involve. They are under pressure to take on risks in respect of the costs of experts that the LAA may later quibble with paying.

But my particular issue du jour is the fact finding scenario. When LASPO first happened counsel for the child would often tell the court it was not their role to conduct questioning on behalf of another party, and where counsel had expressed such discomfort the court would accept that. Now, half a dozen years later that is in the distant past. Nobody else is going to do it, the lists being what they are, the judge more often than not will have been unable to get to grips with the dense bundle in order to be in a position to properly assess the appropriateness of questions on the hoof or to ask them herself – and several judges have been successfully appealed and criticised for doing their (inevitably inadequate) best to conduct questioning themselves. Frankly, if the judge is to properly concentrate on and absorb the evidence, whilst case managing the hearing, they need not to be also worrying about carrying out questioning themselves. When I am representing the child my job is to make sure that the evidence is properly and fairly tested and the judge comes to a decision on the facts which is sound and that does not necessitate an appeal. If that means I have to roll up my sleeves and assist by asking questions on behalf of one party or the other that is what I will do. But I don’t like it.

It is a tricky, uncomfortable and exhausting task. Particularly where, as I recently was, counsel for the child is tasked with asking questions sequentially on behalf of both parties of the other, as well as (eventually) her own. The burden on an advocate of asking questions from three metaphorical vantage points in turn is significant.

  • proposed questions (inevitably received on the day) need to be studied and potentially inappropriate questions need to be flagged for a decision by the judge,
  • clumsily expressed questions need to be adjusted to make sense – to do this the underlying purpose of the question needs to be understood,
  • ‘live’ decisions need to be made about follow up questions – for me I think this necessarily means asking questions which obviously advance the underlying point behind the original question, whilst taking care not to follow up a party’s question with one I’d quite like to ask but which might undermine their line of questioning (and that also means making a note for my own use so I can ask that question later when it’s my turn) – to me it seems important not to mix up the questions on behalf of the other party with my own cross examination,
  • a process needs to be devised to allow the questioning party to pass supplemental questions arising from the cross examination and those then need to be asked,
  • embarking on asking your own questions following straight on from the task of asking questions on behalf of the other party can be tricky, because you have had no time to adjust your own notes of what you want to ask in light of the round of questions just asked on behalf of the other party, and your brain has been focused on the task of asking questions rather than reformulating your own – so a brief pause is often required. For me this task is one I usually carry out by fiddling with my notes as the preceding advocate / party is asking their questions. I have found that whilst the court is happy to permit a short break between rounds, this can mean that counsel for the child is effectively working through without a break and under some pressure for a very long session. Given that the questioning of counsel for the child can come at the end of such a long sting this does have potential to disadvantage those representing the child, so it’s really important to ensure that any break to undertake this work is not superimposed on a ‘proper’ break (particularly where remote when short leg stretching breaks are so essential to proper concentration).

There is of course always the concern that one or other (or both) parties (or the judge) will complain that somewhere along the line you’ve done something wrong – missed a question, asked it wrong, not asked a follow up question, asked a follow up question you shouldn’t have….or indeed that the burden of all this extra leg work will distract you from the task at hand of focusing on your own questions. This is all on top of the general subtlety and precariousness of counsel for the child at a fact finding hearing – often left to get on with it with no specific instructions other than ‘test the evidence’ or ‘assist the court’ or ‘tell me what the outcome is’, and effectively expected to use her own inevitably subjective judgment as to what aspects of the evidence warrant a bit of probing, need further exploration or even outright challenge – all whilst maintaining some sort of ‘neutrality’ (I prefer ‘proactive impartiality’), and left in the sometimes vulnerable position of having to make these judgment calls without the protection of specific instructions.

The pressure in many different ways and on many levels, can fall disproportionately on those who represent the child in such proceedings. If the future is that this is to be our more standard role (and it is undoubtedly the case that one possible way to alleviate the difficulties that arise where both parents are in person is to increase the number of of cases in which children are made parties) then I think that some thought will need to be given to the following four things:

  • there needs to be proper ethical guidance as to how counsel is expected to balance her duties to the clients and the court, and how in practical terms the task of assisting with questioning is to be carried out;
  • there probably needs to be specific training developed;
  • the rules / PDs may need to be adjusted to reflect what is and is not expected;
  • there needs to be a look at the funding system. This is complex and taxing work and private law is very poorly remunerated compared to public law, the problem being compounded by the delays in payment. It is essential that sufficiently experienced counsel are willing to undertake this work and the current funding structure is a massive disincentive both for solicitors and counsel.

 

So, those are my twin rambles about just two of the structural issues in private law. Will we ever sort it out I wonder? Or just create more working groups and guidance and tinkering around the edges?