Ruminations of an Apologist

I often feel as if I may come across on this blog as some kind of apologist for the family justice system. Those who know me would chortle at the notion of me as propagandist for The Man, but I am conscious that I often find myself defending the system against a partial or inaccurate attack from the disgruntled, the militant or those with an axe to grind. Not so much because I think the system is flawless or even adequate but I suppose (I have concluded after some self analysis) because of some  strangeexte sion of the commitment to equality of arms and fair trial. It’s easy to criticise the system, the judges, the lawyers, the social workers or cafcass officers – harder to accept the realities of relationships, people, personalities, emotions and the financial constraints that both the public and private purse place upon the system and the possible outcomes. And those who are criticised are mostly unable to answer back.

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Of course those who complain have some really valid points. Yes, the system fails children, families because of delay, lack of resources, bureacracy, a lack of expertise or poor practice in some cases. And sometimes (although I think less than many would have you believe) the system fails families or parents because of discrimination. Generally I’m of the view that  those involved in the system act with the best of intentions, although there are exceptions to that rule.

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But you know…there’s no danger of that side of the story going untold. I don’t think we have to worry about a lack of healthy criticism.

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So does that mean I have taken on the mantle of self appointed advocate for the family courts or the justice system? Not really. For sure I don’t mind telling you that there are some real anti-family-court cranks and crackpots out there, but I also value those other voices – it’s important that criticism of the system is alive and well (and it is kicking hard) – it provokes reform and discourages complacency (in my pre-bar years I did my fair share of challenging authority, campaigning and gibing voice to the disatisfaction of others by generally shouting loud and making a nuisance of myself – but that’s a story for another day). And in various posts I have done my fair share of criticising the family justice system or describing examples of poor practice (but I too am limited by confidentiality, perhaps in some ways more so than the anonymous parties who tell their stories through journalists or even than the journalists themselves – I can’t resist stating out that I at least feel constrained by the known facts). What I hope I do is to point out the unfair, the inaccurate and the downright misleading – to add an other voice and to contribute to the overall balance of what is ‘out there’ which is often so overwhelmingly negative and demoralising. I don’t expect everyone to agree with me, and I say what I say in the knowledge that I am just one voice amidst a clamour of so many others. For saying my piece I don’t apologise.

17 thoughts on “Ruminations of an Apologist

  1. “Strangeexte sion”? Is that some bizarre thing lawyers do to liven up their tatty old wigs?

    More seriously, a very senior member of the family justice system – I’d better not name him – said off the record that there were four fundamental problems:

    The greed of lawyers,
    The bigotry of CAFCASS,
    The complacency of judges,
    And the lack of any political will to change anything.

    Of course, not all lawyers are greedy, not all CAFCASS are bigoted and not all judges are complacent (witness the efforts of Coleridge or Ryder). But there is certainly a lack of political will.

    Others would probably add to that list some criticism of the litigants themselves; without at least one party in each case behaving appallingly there would be no need for litigation at all. I would also add criticism of the system: the legislation, the forms, the processes, and even the architecture of the courts which encourages fear and trembling in the litigant and arrogance in the judge.

    The bottom line as far as the fathers’ rights/equal parenting movement is concerned is simply that the family courts are the worst possible environment for resolving these disputes. But don’t take it from us; many, many others have said this from Mr Justice Munby to the academic Liz Trinder.

    What is needed is the political will to act against the vested interests of the lawyers, CAFCASS and judiciary, and to act in the interests of the children.

    • Hello, thought that might bring you out of the woodwork 😉
      don’t understand your first line??
      p.s. since you are at liberty to blog you obviously weren’t at heathrow this morning then? 😉

  2. I disagree with Nick’s comments. For one it’s certainly not the political will that’s lacking. The government clearly has motivation for change: more than ever due to the financial strain of the family legal aid sector. The problem faced by this change however is institutionalisation – predominantly in the form of the LSC and, dare I say it, the barristers. In fairness the approach of both parties is completely reasonable but something has got to give sooner or later. The family legal system is in a better position than any other sector for a complete overhaul – but it is picking up most of the controversy because it is the closest to the front line.

    [Furthermore family lawyers are the least greedy of all the sectors, although perhaps this makes them the easiest target for economic reform.]

    The judiciary might be a better target for your criticism: these are the most institutionalised of them all – but this is the fault of the legal system as a whole: they are not “complacent” but they do have a bunch of gifted barristers in front of them and nothing but regressional precedent and human nature to help them make decisions.

    I agree completely with familoo’s points regarding that we cant help but defend the system: The negativity directed at the family system seems totally disproportionate. There will always be cause for complaint. It seems that the worst thing about modern democracy is that we have ended up backing ourselves into corners where workable economics meets a need for fairness: This is the error of the system – but not one individual in the family sector is responsible: we are all doing the best we can to keep both sides of the dichotomy afloat.

  3. […] Pink Tape: Ruminations of an apologist I often feel as if I may come across on this blog as some kind of apologist for the family justice system. Those who know me would chortle at the notion of me as propagandist for The Man, but I am conscious that I often find myself defending the system against a partial or inaccurate attack from the disgruntled, the militant or those with an axe to grind.. More… […]

  4. I’m not sure that the government’s reduction of the legal aid budget and determination to make the courts self-financing is evidence of a willingness to change.

    Given the huge costs involved in bringing a case to court, and the imperative on the government to reduce public spending, is it not merely sensible to examine alternatives to the courts? Is the adversarial process ending in adjudication necessarily the best way to serve the interests of a child?

    I’m afraid I do see evidence of complacency, and an urge to bury heads in the sand. There seems to me to be much that is wrong with the system and much that could be better. I don’t understand the impulse always to defend it (I work in education and feel no need to defend, for example, the relentless dumbing down of examinations).

    As for the negativity being disproportionate: first, it isn’t always mere negativity, it is often accompanied by genuine proposals for reform; second, those who criticise the system have often lost to it those who are most dear to them: their children. Surely that doesn’t require explanation.

    • There has been a significant input into alternatives to court based resolution in recent years, which is sensible. But there are cases not suitable for mediation or collaborative law etc. and some which are not capable of resolution by agreement. There will remain a need for a court based system to deal with those ‘hard cases’. And as you know even in those cases which come to court the general thrust will be to try and resolve by agreement rather than adjudication if possible.

      I agree with you that in amongst the negativity there are good and genuine proposals for reform (opening up the courts being one of them) but there is so much sound and fury that it is difficult to really hear what is being said or to pick out the common sense. I think that’s a shame because sometimes the good stuff gets lost.

      On your last point: just as it can legitimately be said that the lawyers may find it difficult to be objective because of their financial interest in the system, it is also the case that the parents who criticise the system may find it equally if not more difficult to be objective precisely because of the loss they have suffered. Which is why each version or viewpoint needs to be tempered by others and seen in context. The difficulty with the current arrangement is that the ‘victim of the flawed system’ narrative is the only one which is able to be published and is also the one which makes for more ‘compelling’ journalism.

  5. Hi Familoo

    “I am conscious that I often find myself defending the system against a partial or inaccurate attack from the disgruntled, the militant or those with an axe to grind.”

    I find that sentiment both typical amongst Family Law Proffesionals and annoying, in my experience it is one of the stock arguments used by those practicing family law to conveniently set asside the views of anyone who is not in agreement and it seems to conveniently assert that anyone who has been through the Family law process is incapable of objectively analysing it.

    I understand the view that Family Law legal professionals are all noble servants of the Court tirelessly defending vulnerable Woman and Children etc. however in my opinion and experience the majority of what is done in the name of Family law is little more that exploiting people when they are at their most vulnerable.

    As Nick stated I agree the main problem with Family Law is the endemic Greed of the Legal Profession, there is simply no incentive for a legal practice to encourage parties to be reasonable, and then it becomes very easy to hide behind the noble idea that you are “following instruction” whilst the two “adversaries” Battle it out and the bill mounts up, deal with this bit (and lets be honest why would you) and any process can be improved and worked on.

    Having invested so much time and money into a legal career could the legal professional be at bit blinkered when it comes to objective analysis of the process?

    Jonathan

    • ‘anyone who has been through the Family law process is incapable of objectively analysing it’ – I would not put it so strongly. It is inevitably hard to be objective when your children are at stake and you fele wronged.

      Of course I can’t completely rebut your suggestion that the financial reward of the job prevents us lawyers from being completely objective: even the most noble of us want to remain in a job. However, it is fair to say that in many respects there is no incentive for us in stringing out a case that ought to be capable of compromise, particularly in publicly funded work where we are positively incentivised to settle or resolve speedily, and where even without settlement supplements we can often get paid just as much for a very short time spent at court sorting out a consent order as we would if we messed about contesting it. From a selfish rather than client led point of view I think you would find that most advocates would rather settle that which is capable of settling either to avoid a bad loss at the subsequent contested hearing or to free up the diary for something else which may be better paid or more legally interesting. But notwithstanding all of that I understand why some would view my opinions with caution. For my part I try to absorb a wide range of information and views, not just those who are saying the same as me (that would be dull and pointless). I would hope that others would do the same. I don’t see the voices ‘out there’ as us and them (disgruntled parents versus lawyers). We all have something to offer. Hopelessly relativist I know, but that’s my perspective.

      I don’t think there is any shame in standing by instructions as you suggest. It is the client who at the end of the day determines the course which is taken, whether in wisdom or folly. If we did anything other we would surely be subject to criticism – the whole purpose of our instruction is to ensure that the party’s position is capably set out no matter how foolish or weak or cantankerous it may seem. Many a wrong decision would have been left unchallenged or a miscarriage left unrighted if it were not so.

  6. I immediately felt uneasy when dealing with my Solicitor I intuitively felt as though I was being set up, I have been involved in managing caseloads and dealing with antagonistic issues for many years and from my experience knew she was going about things in a very inefficient way, when I questioned this I was told “this is how we do things” which did not exacly fill me with confidence.

    The following is an extract from the Selfish Gene which In my opinion sums up Family Law very well.

    Game theorists divide games into “zero sum” and “nonzero sum”. A zero sum game is one in which a win for one player is a loss for the other. Chess is zero sum, Because the aim of each player is to win, and this means to make the other player lose. Prisoners Dilemma, however, is a nonzero sum game. There is a banker payingout money, and it is possible for the two players to link arms and laugh all the way to the bank.
    This talk of laughing all the way to the band reminds me of a delightful line from Shakespear:
    “The first thing we do, let’s kill all the lawyers”
    In what are called civil “disputes: there is often in fact great scope for cooperation. What looks like a zero sum confrontation can, with a little goodwill, easily be transformed into a mutually benefitcial nonzero sume game. Consider divorce. A good marriage is obviously a nonzero sume game, brimming with mutual cooperation. But even when it breaks down there are all sorts of reasons whey a couple could benefit by continuing to cooperate, and treating their divorce, too, as a nonzero sum. As if child welfare were not a sufficient reason, the fees of two lawyers will make a nasty dent in the family finances. So obviously a sensible and civilized couple begin by goping together to see one lawyer, don’t they?
    We.., actually no. At least in England and, until recently, in all fifty states of the USA, the law, or more strictly-and significantly-the lawyers own professional code, doesn’t allow them to. Lawyers must accept only one member of a couple as a client. The other person is turned from the door, and either has no legal advice at all or is forced to go to another lawer. And that is where the fun begins. In separate chambers but with one voice, the two lawyers immediately start referring to “us” and “them”. “Us”, you understand, doesn’t mean me and my wife; it means me and my lawyer against her and her lawyer.
    When the case comes to court, it is actually listed as “Smith versus Smith”! It is assumed to be adversarial , whether the couple feel adversarial or not, whether or not they have specifically agreed that they want to be sensibly amicable. And who benefits from treating it as an “I win, you lose” tussle? The chances are, only the lawyers.
    The hapless couple have been dragged into a zero sum game. For the lawyers, however, the case of Smith v Smith is a nice fat nonzero sum game, with the Smiths providing the payoffs and the two professional milking their clients joint account in elaborately coded cooperation. One way in which they cooperate is to make proposals that they both know the other side will not accept. This prompts a counter proposal that, again, boh know is unacceptable. And so it goes on. Every letter, every phone call exchanged between the cooperating “adversaries” adds another wad to the bill. With luck, this procedure can be dragged out for months or even years, with costs mounting in parrallel. The lawyers don’t get together to work all this out. On the contrary, it is ironically their scrupulous separateness that is the chief instrument of their cooperation at the expense of the clients. The lawyers may noteven be aware of what they are doing.
    Like the vampire bats that we shall meet in a moment, they are playing to well-ritualized rules. The system workes without any conscious overseeing or organising. It is all geared to forcing us into zero sum games. Zero sum for the clients, but very much nonzero sum for the lawyers.
    What is to be done? The Shakespeare option is messy. It would be cleaner to get the law changed. But most parliamentarians are drawn from the legal profession, and have a zero sum mentality. It is hard to imagine a more adversarial atmosphere that the British House of Commons. The law courts at least preserve the decencies of debate. As well they might, since “my learned friend and I’ are cooperating very nicely all the way to the bank.
    It is fair to add that a few lawyers play exacly the opposite role, persuading clients who are itching for a zero sum fight that they would do better to reach a nonzero sum settlement out of court.

    By accident or design the current system of Family law effectively sets up two vulnerable individuals in a protracted and largely unnecessary fight with plenty of stock phrases and noble ideas to support it.

    • In many respects the criticisms you make can be met by a look at the emerging collaborative law practice (see http://www.collaborativefamilylawyers.co.uk/ ). And insofar as the more traditional methods of instructing a solicitor goes Resolution has a fairly rigorous code of practice for family solicitors which requires them to work cooperatively and to promote settlement. If anyone feels that their solicitor is not adhering to that protocol they should raise their concerns with the solicitor promptly, specifically referring to the Code, and if not satisfied with the response should complain in the first instance through the firms own complaints procedure.

  7. […] Pink Tape: Ruminations of an apologist I often feel as if I may come across on this blog as some kind of apologist for the family justice system. Those who know me would chortle at the notion of me as propagandist for The Man, but I am conscious that I often find myself defending the system against a partial or inaccurate attack from the disgruntled, the militant or those with an axe to grind.. More… […]

  8. I don’t think I actually said all lawyers were greedy, and I was quoting what someone else had said. His implication, I think, condensed into a deliberately controversial sound-bite, was more that lawyers will act to protect their livelihoods rather than support any reform which might put a large number of them out of work. If we are honest, many of us would do the same.

    I also agree with Familoo about objectivity. I’m not sure how easy it is for any of us to be entirely objective, or to be able to understand the point of view of another group within the system. A lawyer cannot begin to understand what it is to lose a child, and those who have experienced that are often affected far more severely than merely losing their objectivity.

    Indeed, one of the obstacles to the equal parenting campaign is the extent to which many would-be campaigners are damaged. It is one of the reasons the F4J campaign was shut down. It is certainly not possible to campaign effectively while your case is ongoing.

    Family solicitors and barristers come across as very defensive of their profession – which may be partially a result of the campaign against them. Judges – perhaps because their employment is more secure – are often more ready to discuss the failures of the system, and to acknowledge that there are failures.

    In his recent address, for example, Mr Justice McFarlane recognises that the introduction of parental responsibility in the CA 1989 has not had the effect intended. He also points out that ‘private law disputes… are not, in reality, legal issues’. These are not the sort of things one finds barristers saying, and they are very refreshing.

  9. Familoo
    I am a bit dissapointed that you fell back on the you can always complain routine so readily.

    The point of the extract was to try to succinclty explain that either by accident or design the current system of Family law is an exploitative mechanism which effectively funnels vulnerable people into an adversarial system which primarily serves the legal profession.
    The legal professionals do not even need to be consciously aware and by dutifully adhereing to the rituals/codes of practice etc it works a treat.

    Collaborative Law still requires two Solicitors working in a similar premise, ands smacks of reinvention rather than anything new.

    • Yeah I understand the point of the extract, but I don’t entirely agree, hence my response. Granted it would be better if litigants didn’t have to complain about solicitors (I made that response more for the benefit of other readers than you specifically) and collaborative law is not a perfect system (but then I would say that since it’s taking work away from the bar right?) but it’s an attempt at a genuine response to the types of criticism you raise isn’t it? One might form the impression you wanted to abolish lawyers, but I am afraid that even if you reduce the numbers and find other creative ways of resolving disputes there will remain cases which cannot be resolved by agreement and will have to fall back on law and lawyers.

  10. Not sure exacly what I want regards Lawyers? but there has to be a better way that setting people up for exploitation and putting them through a process that leaves many emotianally dammaged whilst the legal professional keeps the moral high ground and bangs on about noble ideas and when challenged effectlvely says I have to do it because the Law Society Told me, you can complain if you don’t like it.

    As I thing we have blogged before I appreciate everyone needs to earn a living but I don’t have to like the obvious duplicity and self protection that is needed to drive the current system.

    • Ah Jonathan, we have danced this particular dance before…in the interests of conflict resolution I think I’ll allow this thread to peter out. 😉

  11. Familoo, I appreciate debate around Family Law tends to be circular and when stripped down to basics most (Apologists?) Family law professionals find it difficlut if not impossible to plausably defend.

    I think the insights of the Judge Nick was talking with and the sentiment of the extract are remarkably similar.

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