The portal of doom cometh…

I’ve had my first taste of the new public law case management portal this week. By a process of trial, error, clicking, clicking, unfurling and furling, clicking, scrolling and yet more clicking – I have established that this is in fact an inter-dimensional portal into a parallel universe where logic does not apply, and where the three click rule has been inverted so that every action requires a minimum of 3 clicks, and every fifth action opens a new browser window, just for larks.

I’m sure it will improve with user feedback, but it is fair to say that my first journey around a case in portal world left me feeling a bit like the girl with a crush on Morten Harket in that ‘Take On Me’ video… (yes, yes we all had a crush on Morten Harket. I mean the girl who is taken by the hand and inside the comic book through a bright white maze of confusion).

Sadly, I did not find Morten Harket.

I did manage to upload a case outline. I’m not sure I put it in the right place or that anyone will ever find it, but it is there, listed under a heading where nobody would think to find it because I couldn’t find a more suitable location to put it. I am idly imagining that if the judge successfully navigates the maze and finds my case outline he will cry ‘Aha!’ triumphantly, in a style perhaps more reminiscent of Alan Partridge than of Morten…

Anyway, its been a long and surreal day here at Pink Tape towers. I just dropped by to say : welcome to the future, my fellow comic bookers… the portal is coming to a screen near you this autumn…

 

 

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?

That harms report – Part 3

PART 3

 

This is a three part blog post. Part 1 explains what these posts are about and I invite you to read it first along with Part 2.

 

Part 2 was a bit long and rambly. There is so much to think about in the report that it hard to wrangle into shape. Especially whilst also trying to wrangle individual cases and get good outcomes for clients and children.

 

Here I try and summarise where I’m at, having wrestled with the report as best I can.

 

This report is the product of a huge amount of work, not only from the panel members, but also from those who contributed. It contains a lot to think about and a lot of learning. That doesn’t mean we have to – or that we should – accept everything that it says blindly – or that we no longer need debate in these areas. But there are some very obvious areas for improvement and this report will help us with that. Frankly, that ought to have been obvious before now, but if it wasn’t there is no longer any excuse.

 

The submission that was sent in by the Transparency Project was misreported in the report – it attributed views to us that we hadn’t expressed (see here). I raise that only because there is, I suppose, a risk that in sifting and digesting such a volume of information under pressure of time similar mistakes will have been made in respect of some other submissions. And because of course many of the submissions are grouped or summarised – and even where the panel may have had more contextual information as a base from which to evaluate what is said, we the reader, do not.

 

In Part Two you have seen me struggle with some of the disembodied quotes or summaries of evidence provided in the report and with what to make of them. But even if I hold some scepticism as to whether an account of a professional apparently minimising or misunderstanding domestic abuse is really what it seems, or whether instead it I can instead be explained by a communication breakdown between lawyer and client – that doesn’t stop me thinking about whether I’ve sometimes been guilty of the same errors, or about how I might improve my client communication to make sure that I understand my client and s/he understands what I’m telling her/him and why. How can I reconcile my duties as a lawyer to advise frankly and realistically about the system as it is rather than how it should be and in light of my client’s resilience or vulnerability to cope with what might be thrown at her, with the need to support the client to make sound decisions free from undue influence – whilst at the same time nudging the system towards best practice? In truth it is sometimes almost impossible to square the circle in a difficult case, but that doesn’t mean we shouldn’t try.

 

Quite how and when the recommendations of the report will be implemented given the pandemic is anyone’s guess – we’re told implementation will be delayed, but not much more at present. But that doesn’t stop us thinking and talking about the report in the meantime. I hope that if nothing else my 3 blog posts will remind everyone the report exists and that at some point we need to deal with it.

 

For now, we bob along, and it seems private law cases are being heard – often remotely, often by phone. Many of them are being heard by 2 magistrates or even by a legal adviser sitting alone. The system is under huge pressure, and as I noted earlier, safeguarding checks are now in some areas being conducted by way of a questionnaire sent out to litigants to complete. I have no doubt the authors of the report will consider that to be entirely retrograde. Interestingly there seem to be some advantages of the new ways of working forced upon us by covid in that some (not all) victims of abuse report the experience of attending court and giving evidence remotely to be more manageable (others though find that their ex being able to see their private space intrusive or find that managing hearings whilst children are in the house makes it very difficult to talk – see Transparency Project survey results here and here). Whilst my recent observation of two cases heard by magistrates involving domestic abuse allegations suggested that PD12J was being properly considered and applied broadly as it should be, I have other recent experience which is less reassuring. No doubt things are still patchy, and the pressure that Cafcass, Magistrates and the court system generally are all under will not be assisting with the task of ensuring that victims of abuse are supported and facilitated in bringing forward allegations of abuse, that PD12J is properly adhered to and that the orders that are made are safe and appropriate.