Category Archives: legal news

Hair Strand Testing – some interesting information

Photo : lab stuff courtesy of iTc on Flickr - thanks!

Hair strand testing of parents (and other family members) is relatively common in family court cases, especially care proceedings. Most judges, and social work and legal professionals working in this field are therefore used to reading the now lengthy reports that are produced by drug testing companies, setting out and analysing the results. Over the years these reports have become increasingly lengthy due to the increasing amount of standard explanatory “blurb” that needs to accompany the bare result to assist with interpretation and in understanding the proper limits on the testing science. There is an evaluative element to hair strand testing, particularly in cases of suspected excessive alcohol use, and it is important to be aware on what the science is and is not capable of telling us and how probative an apparently positive result really is.

In a recent case Lextox reported as follows (the Family Court has given permission for this extract to be published in anonymised form).

Q : The donor of these results has afro-caribbean hair. Is the growth rate of this type [of] hair slower than other types of hair? Would slow growth of this particular type of hair affect the time it would take to show a negative result or have any other impact on the tests results?

When assigning time periods, Lextox use an average growth rate of 1 cm per month as per the guidance from the Society of Hair Testing (SoHT). However it is an average growth rate meaning that in some people hair can grow at faster or slower rates (With a distribution generally between 0.6cm – 1.4cm per month). In addition, the time periods calculated assume that the hair was cut as close to the scalp and as straight to the scalp as possible. Due to the very curly nature of Afro Caribbean hair, this can make cutting the sample close to the scalp difficult. Therefore the time periods are quoted as approximate and should not be over-interpreted.

It is my understanding that Afro Caribbean hair grows at a slower rate than Caucasian hair. A 1 cm section of Afro Caribbean hair may therefore cover longer than the assigned 1 month time period. If [the subject’s] hair has a slower than average hair growth rate then the levels detected would be unaffected however the time covered by the hair analysed would be longer.

It is possible for a donor to provide a positive hair test result for approximately 3-4 months following cessation. This is because with Caucasians approximately 85% of scalp hair is growing at any one time, with the remaining approximate 15% in the resting (non-growing) phase. When an individual has regularly used a drug for example cannabis, stops and continues to abstain from using the drug it usually takes approximately 3-4 months for a person to return a “Not Detected” result. This is because the resting phase of the hair usually last [sic] 3-4 months. As the resting phase consists of only approximately 15% of the hair the levels detected are expected to be at “low levels”. A large decrease would be expected after the first month once an individual stops using cannabis followed by smaller decreases until a “Not Detected” is obtained after 3-4 months.

It is also my understanding that Afro Caribbean hair can have a higher percentage of hair in the resting (non-growing) phases. If this was the case, although it may not take longer to see a not detected result, the decrease in levels may not be as large as seen with Caucasians.

The usual blurb that this firm uses is as follows (I’ve not included all of it, just the bits that seem relevant to this issue):

Normal hair growth is a cycle composed of three stages, active growing (Anagen phase), transition (catagen phase) and a resting stage (telogen phase). There are significant differences in the relative proportions of actively growing hair and resting hair between different areas on the body. Scalp hair has been selected as a test specimen as it grows at a reasonably constant rate, ranging from between approximately 0.6-1.4cm per month with a population average of 1cm per month, and approximately 85% is actively growing (Pragst & Balikova, 2006) (Harkey, 1993).

…the time periods are approximate and calculated with the following assumptions :

  • The donor has a growth rate of 1cm per month
  • That the hair sample was cut as close to the scalp as possible
  • That the hair sample was cut straight with the scalp

A variation in any factors detailed above will affect the approximate time period calculated. …it can take approximately 2 weeks for hair to have sufficiently grown above the scalp to be available for inclusion within a cut hair sample…

When an individual stops taking a drug, it is still possible for low levels of drugs to be detected in a hair sample. This is due to the fact that at any one time approximately 15% of the hair is not actively growing. This hair would contain drugs that would have entered the hair during the period of drug use (Tsanaclis, 2007).

I asked for the extracted information above to be published because it seemed to me to be that although we all know (and are told in the blurb) that there are many caveats, assumptions and limitations to the interpreted results we receive, it is very easy to forget about the need to consider how the information contained in the report matches or jars with the other evidence in the case, before drawing conclusions. The extract highlights the fact that for a parent of Afro Caribbean extraction, there is a greater risk that the assumptions relied upon could lead to the court concluding that the subject has been untruthful about the date of cessation of drug use in circumstances where that was not warranted. There is of course a risk of this in all cases, because all hair growth rate assumptions are based upon an average, but the risk is by definition greater for those who are part of a subset of the population whose hair tends to grow more slowly, is more difficult to cut and test, and which has a tendency to have a higher proportion of hairs in the resting phase. It’s just a risk, but it is not one that is likely to have been actively considered in the absence of any warning in the blurb materials.

I asked Lextox about this extract and whether or not they were aware of any research papers specifically covering the differences between Caucasian and Afro Caribbean hair, and whether they were considering expanding or altering their general blurb to highlight the differences in hair behaviour and characteristics between different ethnicities. They have sent me this response, from which it appears that they consider their general blurb to be sufficient. They did not point me in the direction of any research studies, indeed they did not answer that particular question.

The use of hair testing in family courts is a well-established science in use across the UK in thousands of family law and child care cases annually. Lextox’s expertise lies in the detection of drugs, metabolites and alcohol markers in hair using highly specific and sensitive instrumentation accredited by the United Kingdom Accreditation Service (UKAS). Lextox experts are also members of the Society of Hair Testing (SoHT), an independent international body which provides guidance on appropriate analysis techniques for the detection of drugs, metabolites and alcohol markers in hair. By complying with the SoHT consensus, Lextox therefore provides hair analysis within internationally agreed recommendations.

Among those operating within these guidelines, it is well known that there are a number of assumptions when it comes to hair testing, particularly regarding the time period covered by the hair analysed. It is not possible to determine the exact growth rate of hair on a case by case basis for each individual donor. Therefore, a common assumption regarding hair growth rates is required for use in all cases in order to apply an approximate time period to the specific hair section analysed – this being that scalp hair grows at a reasonably constant rate, ranging from between approximately 0.6 – 1.4 cm per month, with a population average of 1cm per month.  

As such, when assigning time periods to a sample, Lextox uses an average growth rate of 1cm per month as per the guidance of the SoHT to calculate all time periods reported. The SoHT does not recommend that hair types from alternative ethnic backgrounds are treated any differently, although it is also documented generally that scalp hair from donors of Afro-Caribbean descent may grow more slowly, sometimes as slow as 0.5 cm per month. In our opinion this does not differ sufficiently enough from the extreme ranges of Caucasian hair growth rate to have any significant effect on the testing procedures involved, and as such Lextox applies the guidance from the SoHT to calculate all time periods reported. This practice is standard within the industry.

With regards to the percentage of hair in the resting phase, again this cannot be determined on an individual basis, and can only ever be an assumption. As such, Lextox uses the percentages of growing and non-growing hair derived from scientifically published data to help in the interpretation of the analysis results.

In summary, Lextox assesses each hair sample submitted on an individual, case by case basis. Any hair sample that is deemed too curly to section into the requested sections, whether of Afro Caribbean descent or not, will not otherwise be sectioned and this information will be relayed back to the client with a number of options on how best to proceed with that particular sample. In such a case, the assessment is made purely in consideration of the physical nature of the sample submitted, as sometimes the hair is manageable by our suitably trained laboratory technicians to handle and accurately align, measure and section.  

In all cases if a client has specific questions on the analysis results, including those regarding growth rates and the growth cycle of hair, Lextox also considers these on a case by case basis and in doing so responds to all client and court related enquiries free of charge.

This statement (which I’ve quoted in full) refers to the Society of Hair Testing, of which Lextox are said to be members. I’ve no reason to doubt that, but unfortunately the SoHT website does not publish its members, which is surprising. And nor is there anything on their website which helps to illuminate matters. There is no mention of ethnicity or of different hair types in any of the material I can find on that site.

The “consensus” document referred to is on the site, and dates from 2004. It includes the simple line “In general, head hair is estimated to grow at approximately 1.0 cm per month.” But otherwise nothing much of relevance to this issue. Read in context it appears this was originally agreed by the members of the society as long ago as 1997.

There is a 2011 “statement” which appears to be good practice guidelines. It includes this passage :

It is accepted that head hair grows at an average rate of 1 cm each month [12] and a sample cut from the posterior Vertex region of the head, close to the scalp is preferred as this region of the scalp is associated with least Variation in growth rates. The amount of hair required for analysis is a “lock of hair” or a pencil thickness of hair. It is important to collect sufficient hair in order to carry out routine tests and to allow for a repeat analysis or confirmation test by a second laboratory.

Concerns are often raised in relation to leaving a visible “bald patch” of particular concern with small children or individuals with baldness or thinning hair. In these cases, collection of several smaller hair samples from multiple Sites, focusing where possible around the posterior Vertex region is acceptable.

Head hair is the preferred sample, however, if head hair is not available alternative collection sites should be considered including pubic, underarm and beard hair. Collection of intimate samples requires consideration for the privacy of the donor while ensuring that the integrity of the collection process is not compromised. Growth rates and dormancy characteristics of hair from these alternate sites, differs from head hair.

The reference [12] is to a 1993 paper : M.R. Harkey, Anatomy and physiology of hair, Forensic Sci. Int. 63 (1993) 9-18, (a time when hair strand testing was emergent, as far as I understand it – indeed the SoHT was founded in 1995).

None of the references to research papers that I can find on the SoHT OR appended to the standard blurb in Lextox reports appear superficially (i.e. based on their title) to relate to the issue of different characteristics of hair taken from particular ethnic groups.

I do not presently have the capacity to track down, pay for and read all of those references, or indeed to search for those not listed – so I may be wrong about this – but it is not entirely clear that there is very much good research about this issue at all, and I wonder (it is no more than that at present) whether when it is said that “it is also documented generally that scalp hair from donors of Afro-Caribbean descent may grow more slowly, sometimes as slow as 0.5 cm per month”, this may mean that this is anecdotally a known issue, but nobody has yet bothered to do any robust research on it.

When I have a moment I will send a copy of this blog post to the SoHT and ask them if there is anything relevant, and will update if and when any response is received.

If anybody has had cause to explore this issue or read the relevant papers in one of their cases I would be grateful for any further light that you can shed on this. I doubt in reality that I will have time to do much follow up any time soon given other commitments.

 

Feature Photo : lab stuff courtesy of iTc on Flickr – thanks!

We Believe – doing violence to due process

Note : I’ve used “r*pe” throughout this post to stop it being flagged as rated 18. I’m not being oversensitive, but use of the full word without asterisk can cause things to be blocked.

 

This blog post has been rumbling around inside me for some time, waiting for me to find time to write it. It has been giving me indigestion. And it won’t go away. This last weekend’s frenzied and ill informed condemnation of the Ched Evans retrial verdict has galvanised me into action. Nobody seems able to talk about it without accusatory language.

I am really concerned about the conversations we are having (and not having) in public about domestic abuse and about violence towards intimate partners. We are talking about it all the time, but I don’t think we are doing very well and I don’t think the way we are talking about it is advancing the cause of condemning such violence and of making people safer. I think the debate is polarising and unhealthy, and I think it is diminishing the complexity of the issue. It is promoting disengagement and rejection by some groups of the fundamentally crucial and righteous message that violence towards those we love or have loved is unacceptable, and is harmful to those children who hear or see it. Our public debate is as dysfunctional and toxic as the abusive individual relationships we are talking about, and the intractable battle to control and dominate the narrative is sadly familiar to those working in the family courts. We see it played out in private and in individual cases, but it happens on the macro level too – and the one drives the other.

The motif that sums this up for me is the hashtag #webelieve (or #ibelieve or #ibelievewomen). Because ultimately, what is this hashtag other than a badge that says we believe anyone who calls themselves a victim of domestic abuse or sexual violence, and we are not prepared to look at the individual circumstances of each case before making our minds up? #webelieve is not prepared to consider the evidence, is not prepared to accept the outcome of a trial process, is not prepared to countenance the possibility that some (perhaps a very few) of the people #webelieve might have misremembered, misidentified, have been coached, exaggerated or even falsified their account (yes, false allegations may be rare but they do happen). Or just that the evidence isn’t there to prove the thing to the necessary standard.

#webelieve is ostensibly about securing justice for victims – ensuring that they are heard, believed, that they are not re-traumatised by a brutal and (potentially) abusive trial process, or put off from pursuit of their complaints. Those are all entirely legitimate aims. But the sad reality is that since it’s inception in (I think) about 2014 in the USA in connection with sexual assault and campus r*pe issues – see here for example) #Webelieve has become more about moral outrage than actual justice. And anyone who questions the premise is said to be a r*pe apologist. Therefore, I fully expect to be tarred and feathered for questioning the narrative. Bring it on. I want actual justice for women (and men) who are victims of physical or sexual violence. And we don’t get that by sidestepping a proper process or by failing to sift the truthful, evidenced allegations from those that are untrue or can’t be substantiated – what we get with a blanket #ibelieve is a degradation of the issue and a reduction in the perceived credibility of genuine victims.

We see this in debate about campus r*pe, in discussion about celebrity domestic violence, in treatment of domestic violence that doesn’t quite fit our male perpetrator : female victim (once a perp always a perp) model (we really can’t cope with that, see here – life is complex, relationships are messy. Even women do bad things sometimes). And of course we see it in connection with the historic child sex abuse inquiry and the broader debate – all attempt at forensic rigour appears to have simply been abandoned and an allegation is as good as truth, is equivalent to proof. Except when it all unravels as demonstrably untrue or impossible as has happened in a significant number of celebrity historic SA cases.

Take the Ched Evans acquittal last week. Whatever we think of Ched Evans (and I doubt many of us think very highly of his approach to women given his admitted conduct) a jury of our peers has heard all the evidence and was not sure enough that he r*ped X to convict him. Perhaps they thought he was entirely innocent (of r*pe, rather than his general behaviour), but we will never know. Whatever the ins and outs of the jury room discussions though, that’s an end of it. Except that twitter has gone wild. And (I’m sad to say) the Women’s Equality Party (@WEP_UK) were feverishly tweeting about the “flawed retrial [that] raises grave concerns about justice for victims of sexual violence” (and less feverishly ignoring tweets from actual lawyers pointing out that the trial appears to have been conducted in accordance with the law and with due regard for the restrictions on the introduction of evidence about the victims prior sexual conduct). They said “This put the victim on trial, not the accused. Historical evidence of consensual sex does not preclude the possibility of r*pe.” Notwithstanding the obvious fact that if someone has suffered the horror of r*pe, the experience of giving evidence about that r*pe will be horrid, it is and I hope will always be considered necessary for evidence to be adduced of the fact of the r*pe before someone’s reputation is ruined and life altered. This does not mean a victim is “on trial”, but it does mean her (or his) evidence is being tested. That can be tough – and I don’t underestimate that : r*pe is awful, as is reliving it. But it is also awful to be wrongly accused, condemned or convicted and we must never forget that either. We must strive to make sure trials are fair to all, but we can’t abandon them altogether. I don’t suppose WEP really mean to suggest that the burden of proof should be reversed in these cases, when they say “historical evidence of consensual sex does not preclude the possibility of r*pe”. I agree it doesn’t, but where exactly does that get us? If it did preclude the possibility of r*pe I guess the trial would have been unnecessary. And I guess if #webelieve a survivor, survivors per se – and know better than any jury that actually heard a survivor’s own evidence, our trial process is also worth pretty little. Juries get things wrong, judges get things wrong – but very little of what I’ve seen about Ched Evans’ trial appears to set out a proper legal basis for complaint, it’s largely just raw disbelief – because someone has made an allegation…(one or two have quite legitimately complained that the Court of Appeal decision on admission of the new evidence was weak. They are entitled to do so. I don’t feel qualified to comment authoritatively on that).

I commend to anyone banging their head against the desk or slightly confused about this case to read Secret Barrister’s excellent 10 Myths busted about the Ched Evans case, which explains many of the follies out there. As others have pointed out, one can be a bit of a turd, one can treat women like dirt, but in and of itself this does not amount to sufficient evidence to prove the specific crime of r*pe. Much of twitter seems unable to draw the distinction, and I’ve no doubt the hysteria being created by womens’ rights groups about the injustice of Ched Evans’ acquittal is making many real and anguished victims less likely to come forwards. Well done there.

This paucity of intelligent discussion is not a new issue. I’ve been raising concern about the debased and polarised public “debate” about domestic violence for some time. See here for example about the Womens’ Aid 19 Homicides report published earlier this year (I’ve yet to see any acknowledgment or response to the issues I raised): 19 Child Homicides and here : Talking AT & OVER not TO & WITH.

2016 is littered with further evidence of our dysfunctional public debate, our weird distorted victim culture in which the taking on of the mantle of victimhood makes people somehow unchallengeable, or anyone who dares to test that victimhood as good as a perpetrator…I often wonder about victim culture, and whether it has gotten out of control – I’m not sure our insistent victim focus is helping anyone. I noticed today the recent publication of a consultation about vulnerable witnesses in criminal courts – I spotted it via a tweet from Dr Hannah Quirk, who observed the absence of any mention of fair trial for the defendant…

HannahQuirk1
Courts reform gives stronger protection for victims & witnesses-not even a token mention of fair trial for defendant gov.uk/government/new…
29/09/2016, 09:51

Around the same time as the consultation was launched back in September (in the culmination of their campaign launched in January with the publication of their 19 Child Homicides report) Womens’ Aid took their criticisms of the role of Family Courts in failing victims of domestic abuse to Parliament, see here MPs call for end to abusive men using courts against families. The event was foreshadowed and accompanied by a significant (social) media campaign and at the event a number of MPs adpoted the Womens’ Aid line :

Peter Kyle, the Labour MP for Hove, said: “The family courts are being used to perpetrate abuse against extremely vulnerable women … One of my constituents has been cross-examined by her former partner on three separate occasions, the man who beat her, broke her bones and battered her unconscious.”

He said a transformation of family courts was “desperately needed” to end the “abuse and brutalisation of women” via the legal system….

Angela Smith, the Labour MP for Penistone and Stocksbridge…said the family courts needed to properly implement “practice guidance 12 J”, which is supposed to force judges to put the safety of children and their residential parent before the access rights of a violent and abusive parent.

She highlighted the demands in the Women’s Aid report for an end to the cross-examination of a survivor by an abuser in family courts, and for special protection to be brought in, such as separate waiting areas, to keep victims safe from violent partners in court buildings.

Smith said there was a need both to end the assumption that men who were abusive to women could be good fathers, and to embed a culture in the family courts of putting children first…

Keir Starmer, the former director of public prosecutions and Labour MP for Holborn and St Pancras, said it was important to look at the changes made to the criminal justice system to better protect victims of domestic violence – including special measures for victims and witnesses, and the presence of independent abuse advocates – and ask why the family courts were not making similar changes. 

He said there was growing evidence that perpetrators of domestic abuse were using the family courts to continue to harass and control their victims…

The article also made reference to the All Party Parliamentary Group report on Domestic Violence, published in April, which I’ve commented on here which makes some valid points and identifies some real problems, but which shares some of the flaws I think of the Homicides report (no doubt not unconnected to its heavy reliance on the homicides report and Womens’ Aid’s evidence).

A blog post on the MRA-UK site says this :

The blame here lies with the MPs. A lobby group cannot be expected to be balanced. But MPs are under an obligation to represent everyone fairly, and are assumed to be intelligent enough to seek balance. Instead it appears that our parliament can very easily be led by the nose by a lobby group which presses the right emotional buttons.

I don’t agree with everything in that blog post but this is spot on. There is so much more complexity to these issues than is being presented. And there is no balance in the debate.

I don’t doubt or minimise these individual stories. I don’t deny that in those cases, and probably in others, things don’t appear to be working as they ought. But I think we are focusing on the wrong issues. It is the job of a family court to test the evidence. It sometimes feels as if the courts are being criticised for carrying out that job. If the Family Courts are failing sometimes to do it as well or as sensitively as they might (and I know that is so), we need to focus on the barriers to doing the job better and more consistently – not on criticism without acknowledgment or understanding of those barriers, which are largely out of the control of those working in the courts themselves.  Accompanying the Guardian article I’ve cited above was a welter of tweets from MPs, and  a slew of tweets from Womens’ Aid about the (then) culmination of the Helen Archer trial, in which it was asserted the failures were not just about operational and resource issues but a fundamental failure of understanding:

This was also repeated by Polly Neate (CEO Womens’ Aid) at greater length in articles like the one linked to and here in the Telegraph :

I wish I could say that justice was the outcome for all the real-life Helens. But this is not the case – in either the criminal courts or the family courts.

There is an acute failure in both to understand the dynamics of domestic abuse, especially coercive control. More specialist training on domestic abuse is needed for all who work in them, especially judges.

After the acquittal Womens’ Aid predicted (wrongly as it turned out) that the family courts would fail again:

And finally, inevitably, the hashtags #webelieve and #freehelen converged :

Thus we saw The Archers (of all things) used as a lobbying vehicle by Womens’ Aid and other DV groups.

There is a fundamental cultural difference between the many groups that support and campaign on behalf of women victims of domestic abuse and the courts. It is not so much the fact of the cultural difference that is the problem as our inability to acknowledge it. Courts don’t do #webelieve, they do looking at the evidence from both sides before making up their minds. Evidence first, judgment follows. Support groups are all about #webelieve. Rightly, from one perspective, they accept what they are told by services users and clients and operate on the basis that if someone says they are a victim they are entitled to be believed. The very real risk of the #webelieve mentality contaminating the evidence and even encouraging the making of allegations is the subject of a whole different blog post (suffice to say that it can both put victims at risk of not being believed and put innocent parties at risk of false allegations or criticism. See here by way of example). It was easy to feel as if the verdict in the Helen Titchener case was right, not just because we were safe in the knowledge it was fictional, but because the listener was in the privileged position that no support worker, no lawyer, no judge and no jury can ever be – a fly on the wall as the abuse happened. Who knows whether a real Helen Titchener would have got off (I think probably not) – even I as a family barrister can see that the trial and pre-trial process itself was nothing like real life and things would have unfolded very differently so it’s impossible to reconstruct with just a tweak (I wrote about the trials here). Helen Titchener’s barrister passionately believed her client, but although she miraculously got her off it doesn’t seem to have made her a better representative (for example her incessant coaching in order to get the “right” evidence).

But in real life we don’t have the luxury of such certainty or inside knowledge or the easy abandon of fair procedure. We have (usually) only the accounts that two people tell us, mutually incompatible as they are. So the #freehelen hashtag was easy. There was only ever one side of the fence we listeners could be on, the side of #solidaritea with Helen, thus signalling our virtuous understanding of the scourge of domestic abuse and coercive control. No need to engage with the messy uncertainties of real life or the very real practical difficulties of securing a finding of coercive control even on the civil standard let alone in a real criminal court :

Taken to its logical conclusion #webelieve demands that we abandon any forensic process because such process is unnecessary when WE KNOW BETTER. And what’s more it tells us that such process is itself abusive, so those who argue for fair trials are part of the abuse. I reject such binary propositions, such lazy complaints. Court process can be used manipulatively, and in a controlling or abusive way – I have seen it happen and we must all be alert to it. We do fail sometimes to do justice to these cases (I include myself in this). But we cannot abandon evidence for hashtag justice or we are all doomed. We are an intelligent species. We can hold in mind two possible alternate realities whilst we listen and decide. And we must be prepared to do so, not condemning either complainant or accused whilst we carry out that process respectfully and calmly.

It is very sad that there are so many campaigns and campaigners whose aim is to protect women and to educate the public about this awful, difficult, complicated stuff that hurts so many people – and yet somehow many of them have become collusive with the shutting down of proper discussion of the complexities of abusive behaviour and the ways in which the justice system responds. We cannot conquer abuse by silencing or ignoring those who challenge us.

I hope this post doesn’t sound like a vehicle for bashing Women’s Aid or any other group for that matter. I’d genuinely like to have a discussion about this, and am happy to hear where I’m wrong – but sadly that has not happened to date and I’m not holding my breath. I have thought long and hard about whether I’m an inadvertent apologist for the system in which I work, but I hope I’ve made clear I share some of the criticisms that are made of it and welcome what can be learnt by listening to other perspectives. I disagree with much of what the mens rights lobby say about these issues too, and whilst that hasn’t been the focus of this blog post it has been of others. In my experience neither “side” of this debate listens very well to the other.

If #webelieve in justice, we must let each person say their piece before we rush to judgment.

FLBA Chair calls for more resources for family justice system

Philip Marshall QC, chair of the Family Law Bar Association has made some forceful remarks in his latest email to FLBA members, which I think merit emphasis. He is talking about the President of the Family Division’s 15th “View” in which he says ‘we face a clear and imminent crisis…for which we are ill-prepared and where there is no clear strategy to manage the crisis’.

I commented on the view here. Philip Marshall QC says this of the President’s. It needed saying.

…Such observations are unprecedented in my experience.

We must all take notice (a) because if the Family Court is unable to manage the current surge in care cases, we risk having some other system (e.g. tribunals) imposed upon us, and (b) because the very real challenges posed by this unprecedented increase in the number of new public law cases impacts upon the courts’ ability to process private law cases in a timely and appropriately specialised manner. And if the private law cases abandon the family courts in favour of privately funded alternatives, there is a real danger that we will indeed begin to see a two tier justice system dependent solely on the ability (or inability) to pay. That is something we cannot allow to happen.

Perhaps understandably, the President is constrained to acknowledge that at least in the short-term there is unlikely to be any increase in judicial resources. Everyone who uses the family courts on a daily basis – whether as judge, advocate or lay client – knows that the system is already massively stretched (I hesitate to say to near breaking point). I hope that doesn’t sound too defeatist? It is not intended to be. Rather it is an acknowledgement of the reality of the enormous challenge that we all face day in, day out simply to get cases heard. Delay is now endemic at all levels (as the recent Court of Appeal consultation made plain). This, perhaps, is particularly acute in family cases, in which there is an over-abundance of litigants in person, particularly at appeal court level.

And so our overlords and paymasters at the Ministry of Justice and at the Treasury need to take notice. I repeat: the family courts face a clear and imminent crisis which has to be addressed. So let me be bold, and I hope not too obviously naïve:

As Chairman of the Family Law Bar Association, I call on government to take notice, act now and inject urgently needed additional funds into the family justice system. 

I don’t, of course, ignore the £700 million – or is it now £1 billion? – to be invested across the wider court estate to modernise and digitise procedures (including setting up the much heralded On-line Court). This is much welcomed, long overdue, and makes up for years of under-investment. And it probably (i.e. definitely) won’t be repeated any time soon. But what is actually needed is extra funding year-on-year, to ensure we have more specialised family judges, both nationally and locally, so cases can be processed properly, in something approaching a timely fashion.

And perhaps some public acknowledgement or even a response – i.e. any response – to the President’s statement would be a good start? I’m not aware that any has yet been forthcoming. [my emphasis]