I have been modernised…

This week I attended a lecture by our new Designated Family Judge here in Bristol, His Honour Judge Wildblood QC, to inform the legal community about modernisation, the new PLO and how things will be in the new world order. Although some of the lecture dealt with local approach to particular issues, the majority of it will, I think, be illuminating for those practising further afield. So below are my notes of that lecture. Lawyers beware.

4 Concepts:

  • Communication
  • Collaboration (team work)
  • Change (recognise and accept)
  • Committment

New PLO due out 24/6/13, under Pt 36 FPR.

Family Justice Review noted that in Mar 11 average care case duration was 53 weeks. By time of  final report an average of 56 wks (61 in care centres).

Ryder’s role – guiding judiciaries response to the proposals NOT implementing Government policy.

Case Management system continues amended. Bristol stats : Cty Ct 34 weeks, Bristol FPC 30.4.

We MUST make it work.

FJR considered whether courts should be involved at all. This is the last chance for the court system. Time for debate about 26 weeks is past. Its happened. It is the law. Treat it as in force no. Do our utmost to implement overnight.

PLO in force 1 July – 26 weeks = deadline not target.

Family Court will be up and running by December 2013.

Gloucester issues 1100 private law cases, Bristol 1600 (p.a.?) – DFJs to draw submit proposals for structure for the local area by 14/6 – strong argumetn for keeping Gloucester as an issueing court.

New PLO – Day 1 LA to file and serve chronology, threshold, care plan, genogram, assessment and statement. Usually 2 years worth of neglect in a chronology is sufficient.

Thresholds – short with 5-6 allegations maximum. Separate particulars if necessary.

Social work statements – analysis not evidence (I have written “not evidence” in my note, I’m not sure that was said – I think it was my sardonic note to self)

Pre Proceedings Protocol being drawn up for Bristol area – aware some research is not supportive but this is based on mutuality, discussion and agreement. Expectations on both court and LA.

Pre Proceedings work will not be duplicated in proceedings unless necessary.

Structure:

  • 1st Case Management Hg Day 12 (FDA).
  • 2nd CMH (if required)
  • IRH
  • Final

LA compliance essential. Importance of pre proceedings work – but must ease path of overworked social worker.

Day 2 evidence (serve not file) with application. Minutes and records by list – disclose on request. Only last 2 years.

Must be sympathetic and realistic with LAs.

Allocation vital. In Bristol there will be a daily team meeting, and monthly meeting with Designated Family Judge (HHJ Wildblood QC) and Nominated Family Judge (HHJ Marston). Any appeals will go to DFJ or NFJ but they are hardly likely to arise.

Draft allocation criteria.

Magistrates – key role in private and public law. For real. Not less interesting work. A proper proportion of both public and private law, a significant amount of public law. In Bristol 23% care work is magistrates court. That will increase. They must be supported and helped by lawyers and judges. It’s no good complaining if you (we?) are not prepared to get stuck in and help. Can’t expect them to perform as lawyers without training.

1st CMH – deal with experts under Pt 25.

Oral information and CV NOT ON. Comply with the rules if you want to be heard. If you don’t I will take it out of the list or list it at 4.30 and that will ruin your day.

In Bristol at CMH we will list final hearing and IRH. We will not list final hearings at IRH stage as in some other areas. We will keep it under review. I acknowledge Bristol research concluded listing early didn’t speed up – but that was under the old PLO. Here we will list at 1st CMH. Do best we can. If don’t eye off ball. (note unclear).

Has been suggested IRH can be after week 20 – NO. It doesn’t allow for an effective IRH. IRH by week 18 if possible.

The DFJ and NFJ’s view is wholehearted support for v strong body of research re delay and impact on child. (note unclear – speaker referring to slide I could not read)

CMS was amended April 1 2013. Judges responsibility to record reasons. Please remind the judge.

Listing is a judicial act NOT an administrative act. If it is left to the parties please nominate one person only to communicate with the court.

Self reporting direction – is now default.

E-filing must be within 48 hours. If you need more time ask at the hearing or within 48 hours. If in default the party responsible will be called to attend court and explain. Just ask

CoA guidance expected (Munby) shortly. TG [2013] EWCA Civ 5 makes clear necessary is a significantly higher hurdle than reasonably required. Also:

  • strong case management
  • control of evidence essential part of it
  • particular responsibility re experts
  • support for 1st instance judges – robust but fair
  • Hoffmann in Piglowska v Piglowski re exercise of discretion. Appeals – generous ambit. You won’t be overturned unless the decision falls outwith the generous ambit.

Recently discussing with HHJ ? whether a psychologist be report should be limited to 5 or 10 pages. Put what they want in annexes. But need a condensed summary of conclusions.

If you want your head to remain on your shoulders follow local police protocols. Police disclosure may be reason for 2nd CMH.

People must come to IRH knowing what their case is and ready to record what the issues are at FH.

If listed at 10 you must be IN COURT at 10. It is not for the usher to find the parties. Ask for time.

You must be at court when ordered.

Production orders – be realistic about timings.

Placement – there is often a problem with parents who can’t be found to be notified of adoption proceedings. Standard direction at conclusion of care proceedings – parents must keep LA informed of address for purposes of adoption proceedings.

Final hearings – case summaries essential 48 hours before. Position statements required from all parties. Including G.

Bundles proposals – compliance is essential.

Guardian not seeing child and parents cannot be the basis of decision on welfare.

Subgroups –

on LiPs and how to achieve justice. LiPs are not a subculture – they are as entitled to justice as the represented. It is for us to ensure they get it. When I gave evidence it was exhausting, frightening and disempowering.

DJ Watkins – financial remedy subgroup

DJ Howell – private law

Late transfers from FPC – I may send it back.

Email – until the system is changed for judges in Bristol only – send all emails to J and court office. Must use secure email only. Data protection concerns. Subject line to include name of case name of judge and date of hearing.

Email – ONLY send case summary, skeleton, position statement, reports (not statements) which have been received within 7 days of the hearing, and other documents required by the judge.

Email is not a substitute for filing or hard copy. Don’t assume printing by the court. Do not send docs to J on morning of hearing. Send by 12 noon the day before at least. The court won’t print except a small number of pages in an emergency only. Any misuse of the system by any person will result in the facility being withdrawn and the email will be deleted and not read.

Thus endeth the lesson.

 

A Little Local Practice

“Local Practice” used to be a term issued with a sneer by London counsel, lording it about how parochial sticks-based courts were (in truth I may be guilty of muttering it under my breath myself occasionally when I appear in an unfamiliar court that appears to have had an article 6 bypass).

However, Local Practice is positively de rigeur these days. In my neck of the woods we are struggling to maintain our composure in the face of three distinctly distinct local approaches. My head is spinning with guidance and protocols and emailed admonitions, pleas and explanations of new rules.

In Bristol, where (as one newcomer recently observed) “They don’t really do IRH’s do they?”, practitioners have received an emailed “Exhortation” from the DFJ. At least it is in the form of a request for cooperation rather than a demand or a pre-emptive criticism. And it is admirable in its 2 page brevity. This and other requests for help and joint working in Bristol cases have resulted in courteous exchanges of emails between HMCTS and local practitioners, resulting in finessing of the guidance to make it more workable for all. Collaboration gotta be good. Bristol’s “Exhortation” is a sort of judicial poetry, the “Not Waving but Drowning” of local PDs. It made us feel wanted and I think in Bristol practitioners work together to try our best to achieve good and just outcomes whilst minimising delay. Less good was the communication about secure email, which I blogged about before and which has still not resulted in any workable system and has been largely ignored because its impracticalities have neither been thought through nor addressed by HMCTS, and the necessary changes have not been made by most practitioners. Its stuck in a chicken and egg feedback loop (or something). Although I’m a fan of the comparatively flexible Bristol approach to case management, it has to be acknowledged that average care case duration in Bristol has not been great (although there are no doubt many drivers of those stats including the fact that historically Bristol has suffered particular CAFCASS difficulties).

Moving along the M4 to Swindon: Here we have a local PD with LOCAL standard forms (not the same as the ones they like to use elsewhere so you have to have them all on your computer at the ready). We’ve had it for a while, and it’s all fine as long as you remember to switch hats and mindsets somewhere around the Chippenham exit of the M4. Average case duration in Swindon is pretty dire, but the PD arises from the tenure of a new DFJ in January, and the new, more proactive approach signalled by the issue of the Local PD has perhaps contributed to a rash of appeals from that court (some successful others not).

We also have supplementary guidance from Swindon asking for initials and case numbers only in email subject lines. I think this must be right, but it contrasts with guidance received in June from a Bristol judge that we should email material in the following format: “Subject: 3:30pm 13.06.12 Smith v Jones (and Judge’s name if you know it)” (subsequently countermanded by the edict in September that the court in Bristol would accept nothing that did not arrive by secure email, referred to above). I’ve given up worrying about what this week’s guidance is and adopt a common-sense-information-commissioner-aware approach : I use initials and case numbers and I try not to send stuff to hotmail accounts (but there are a surprising number of advocates who insist on using hotmail and advocates are expected to circulate to other advocates and e-file – so secure email is a nonsense for the time being).

The Swindon PD wins the prize for length, coming in at 45 pages (although that incorporates tailor made templates for case summaries and orders). In Swindon the approach on threshold is as follows: “…it is not anticipated that this document should need to be revised or a “final” version filed before final hearing unless there is a particular need to do so. No schedule should be filed described as an “interim” document.” Wiltshire evidently adopts the approach set out in pa 47 of the Family Modernisation Programme Final Report, namely that the distinction between interim and final threshold is one without a difference. One might argue (and I have heard far more eminent people than myself argue) that this slightly ignores the difference in law between s38 and s31, but hey. It’s only statute. And I’m a pedant.

Back along the M4, and over the bridge… In recent weeks the Cardiff Practice Note arrived. Cue much incredulity, weariness, huffing and triumphant spotting of typos. Contrary to Practice Direction 22A it contains no page numbers, but I can report that it numbers 15 closely typed pages of unnumbered paragraphs. In what is presumably an homage to the Self Represented Litigant it includes a full half page of close typed BOLD UNDERLINED CAPS LOCK ON “INVERTED COMMAS” LADEN TEXT. So I guess it must be serious (its about EXPERTS). On the plus side, none of it is in GREEN or ITALICS.

Of thresholds, the emphasis (and tone) is distinctly different from that in Swindon. It is said, “The document is focussed on the factual disputes and does not need to be completed in legal language. It is not a pleading [Er…Isn’t it? What about Re J-L (although no judgment is yet available so I’m dependent on the case summary)]. There is a tendency for threshold documents and schedules of findings and the replies to these documents to be complex unfocussed and to obfuscate. It is the experience of the court that such documents can be a thinly veiled attempt to hide the weaknesses on threshold or the weakness of the case of a parent [Er…or alternatively they are a parties best attempt to articulate the strengths of their case or the weakness of their opponents?]. The question which the court will want answered is “what is the factual evidence which establishes or negates the particular concern”?

What really itches my wig though, is the remark on page 7 that “If the court considers that the hearing cannot be effective because of an uneccessary professional default, attendance costs may not be certified for that advocate and the hearing adjourned”. Where the failure to have an effective advocates meeting is due solely to the professional default of a legal representative or the local authority the court will consider the issue of wasted costs and other sanctions.

The underlying assumption in this paragraph is that entitlement to payment for services rendered is within the gift of the court – and that payment may be properly withheld by the court if it is displeased with the conduct of an advocate – including it appears conduct falling short of that which might merit a wasted costs order. I hope I do not need to spell out why this is so hideously objectionable (it is part of one’s job to fearlessly defend the client even if the judge is looking distinctly tight lipped about our efforts so to do), but I will state the obvious fact that of course such a power (if it actually existed as suggested) appears only to apply to the publicly funded advocate (i.e. the advocate who has agreed to do the work for a significantly depressed rate of pay in the first place). It seems to me that an advocate whose professionalism is lacking could not properly complain if the court referred the matter to the BSB or gave notice to show cause on wasted costs – but this? This is oppressive and demoralising. If you don’t achieve the impossible you won’t get paid? REALLY? Some rather more forthright advocates than myself might say* “Well Fudge to THAT. I’m orf.”

There remains a lot of local practice. Jokes about the Children Act (Wales) 1989 are commonplace because procedural expectations are so very different at different ends of the bridge. In South Wales for example there is a standard direction that all parties are mandated to inform the court of any non compliance of a direction by any party (recently adopted in slightly softer terms in Bristol). In South Wales police and medical disclosure seems to be far more routinely and frequently ordered at the outset of proceedings than in most other court areas I visit (no doubt bundle uplifts are used up very quickly in Wales). In Worcester there is a “three month rule” in relation to the instruction of experts. Whilst in many areas there are now standard directions requiring advocates to attend 45 mins or an hour prior to a hearing, in some** exception is taken to such a course of action, presumably because it is expected that advocates should be ready to rock and roll at the listed time because the case is all ship shape and Bristol fashion (ha!) on arrival at court. Some*** will expect a C2 to be issued for every teeny communication with the court where common sense suggests a letter would be more proportionate, others will deem everything and anything to have been issued. This is the sort of stuff that makes the Red Book a waste of money. And I’m sure there are many many other examples from further afield than my area of practice, lying in wait to trip up an advocate appearing in unfamiliar territory. Not to mention the differences in judicial approach within even one court building.

Much of what is said in these Local PDs is common or accepted best practice, and is a rehash of the PLO; although I confess to not having extensively cross referenced each of these documents, in order to ensure that any inconsistency or point of detail betwixt the PLO and Local PDs, or between various Localities, is identified. I’ve only highlighted a few of the discrepant views about what amounts to “best practice” – there are plenty more hidden in Local PDs and that are floating in the ether, ghostly edicts without identifiable documentary underpinning (such as the time a Legal Advisor insisted that the bench could not make a decision on transfer pursuant to the regs which give them that power, without the express approval of the DFJ by telephone first).

My point is not that there could or should be across the board consistency – it’s more about the counterproductive potential of too much guidance, and the deleterious effect it can have on morale and focus. It is actually quite impossible for advocates to be up to speed with all local PDs from all courts they visit when they are circulated on a one off basis to local advocates only – I’m still trying to get my paws on the Newport PLO forms. When one appears in a new court there is no easy way of knowing if there is some crucial piece of local guidance.

I don’t mean we shouldn’t try either to give guidance or to follow it – this is not a counsel of failure. But ultimately one can construct and define “Standard pathways” based on “standard cases” as much as one likes : I’ve yet to see the standard case that fits neatly into the PLO, or a standard child with a standard timescale (or even any individualised use of the concept of timescales to add meaning to the decisions we make about unique children).

Every case is different, and I dare say every area is different. I understand the perils of blanketisation****, and the urge for each DFJ to try their own approach. I don’t want to be standardised to within an inch of my life and frankly I’m grateful for being based in Bristol rather than elsewhere. BUT… the proliferation of guidance documents and practice directions is just one more layer of increasingly unbearable pressure on legal representatives. I guess it’s easy for me to complain from the ranks, far harder to be the plate spinning DFJ watched hawkishly by HMCTS and others, constantly reminded of their average case duration, the 26 week mantra throbbing in the background all the time. But the public law wing of the family justice system does still depend on the legal representatives to keep it afloat – and I wonder whether this guidance is actually achieving its objective of helping us do our jobs better. And it’s getting more like drowning than waving at our end of the pool too.

Can’t wait for Ryder J’s expectations documents…Then we’ll really know where we stand : except I’m our feet won’t reach the sea bed and there will be no dry land in sight.

* Not me obviously. Hypothetical protagonist.

** Oh alright, its Wales again but I didn’t want to look like I was being nasty about Wales.

*** Yep. Wales again. Sorry Wales.

**** Yes I just made that up. Copyright Lucy Reed 2012.

Family Justice Modernisation Programme Update No. Nine and Three Quarters

This press release just in from Mr Justice Schrodinger, Family Justice Modernisator:

Family Justice Modernisation Programme Update No 9 3/4 

I am pleased to announce that, in furtherance of the prime objective of efficiency and pace, all care cases issued after 1 January 2013 will be cascaded through the new algorithmic family justice hyper-rationalisation drive, which we have designed and constructed notwithstanding our budget of nil resources, reducing staff and technically obsolete IT estate. The system depends upon a simple scoring system, which has been developed with input from magistrates, with their unique insights and experience, and who are best placed to identify the key characteristics of families on the ground.

All public law cases entering into the system will be scored according to the following criteria before being allocated to one of three tracks, each with its own traffic light (to assist the understanding of the self represented litigant) : GREEN – proceed directly to adoption, AMBER – conduct perfunctory assessment and proceed to adoption in no longer than 26 weeks, and RED – cases where, as a result of failures in legal representation and filibustering, more than 27 weeks are required in order to achieve outcomes. Red light cases will be diverted to the newly constituted Muggle Tribunal, and parents will be able to access comprehensive legal guidance through an automated advice guide available at public library or post office internet consoles.

The system is designed to be simple to apply and understand, avoiding the need for complicated regulations, statutory guidance or the exercise of discretion. Any case scoring 20 or more will be allocated to the amber track. Any case scoring 30 or more to green. Cases scoring below 20 (if any) will be allocated to the red track.

CRITERIA SCORE
Four or more children with names beginning with the same letter of the alphabet OR six or more children where all children of one gender have names beginning with the same letter of the alphabet 5
Case involves more children than lawyers 2
Presence of satellite tv dish or sky box in / on the family home in combination with rent arrears of more than £500 OR warning re noise from premises by Housing Association 5
Multiple tattoos (to satisfy this criterion “multiple” means more than 5 individual tattoos involving more than one part of the body one of which must include the face neck or décolletage OR all the knuckles of one hand) 5
More than 3 fathers as party to proceedings OR more than 2 unknown fathers OR one father with paternity of two non-consecutive children 2
Reasonable cause to believe at least one of the paternal / maternal grandparents to be a “nasty piece of work” or that they have been verbally / physically / sexually abusive to at least one of the parents or parents siblings 5
Case involves viability assessment of a great grandparent or step great grandparent of child where that adult is below pensionable age as at the date of assessment 5
Parents own staffie-cross dog 5
Parents own dog or cat (any breed) which is not reliably house trained 5
Parents own more than 5 animals (to qualify for this criteria this must include one reptile, one mammal and one bird or chinchilla) 2
Shopping trolley in garden (front or back) 2
Parent’s belly button visible through / between layers of clothing at two consecutive court hearings 2
Parents have in combination more than 20 piercings (any body part) 5
Parent has asked for help 5
Parent has not asked for help 5
Parent has agreed to s20 accommodation 5
Parent has requested s20 accommodation 5
More than two children bearing one of the following names (any spelling): Callum, Cayden, Jayden, Chardonnay, Jaya, Jordan (boy or girl), Joshua, Chloe, Tiana, Shayanne, Rochelle OR any hyphenated first name OR any first name including an apostrophe OR comprising an acronym OR any name closely resembling designer clothing brand name available for purchase at TK Maxx 5
Either parent attends court wearing trackie bottoms bearing sexually suggestive moniker across buttocks 5
Parent has at any time declined to sign a document at the request of the local authority without first speaking to their lawyer 5
Any two parties to the proceedings have referred to facebook arguments, threats or alleged harassment in the course of proceedings 5
Has no lawyer or has had more than 2 sets of lawyers during proceedings 5
Brings MP to court 5
Any member of the family has appeared on the Jeremy Kyle show as participant OR two members of the immediate / extended family have been in the audience 5
Number of years between birth of eldest and youngest child is greater than the age of the parent at date of birth of first child 5
Any adult in the case in receipt of any social security benefit 5
Case involves a subject child whose paternity is unknown or where dna tests have been required in order to establish paternity 5

The system will be trialled during a robust pilot spanning a period of 26 weeks, following which the scoring system will replace section 31 Children Act 1989, which can be cumbersome and can add unnecessary complexity to cases with obvious outcomes. Through this streamlining of the judicial process it is anticipated that by 2014 when the single family court is introduced average case times will have been reduced to below 26 weeks in 90% of cases. It must be stressed that such figures are aspirational and will not be achievable until a period of c26 weeks has elapsed (which may be extended only upon provision of evidence to the Minister for Justice up to a maximum of a further 8 weeks).

Presidential guidance for judges and magistrates in relation to case management of private and public law proceedings will then be published in the form of pathways*.

In order to ensure coherence of approach, expectations documents, setting out what the court expects of agencies and other participants in the proceedings are being drafted by those responsible for their content, to ensure they meet any rules or regulations, service level agreements and codes of practice, which govern their own processes as well as meeting the requirements of the family court. Relationships developed during the information-gathering phase of the modernisation programme continue to be vital and discussions are being held with colleagues across the family justice system** to develop these documents. It is important that the growing expectation of increasing amounts of work for decreasing amounts of pay carried out by the legal profession is recognised and formalised, and built upon in order to enable committed legal professionals to extend the pro bono ethos to all areas of practice.

Advocates will be pleased to hear that the Family Advocacy Scheme uplift rates will be amended to reflect the expectations placed upon them. Advocates will be able to claim an uplift back to 2005 rates of pay for all cases successfully cascaded down the green or amber pathway.

This is a time of profound change in the family justice system. It is vital to the success of the modernisation programme that all key stakeholders embrace that change and adapt to it in order to secure the overriding objectives of the family justice system***.

* When we can find someone fool enough to step into the role of President

**Apart from lawyers.

***as understood by Ministers from time to time

POSTSCRIPT : #satire. Please treat as such…Don’t blame me, blame the two very anonymous QCs who suggested it…