The trans debate (no, not that one)

Sorry. Cheap headline, it’s not about that. Been talking to a mate about transcripts. Yeah, that’s how we lawyers roll.

We were pondering the judgment of Lord Justice Peter Jackson in M (A Child: Leave to Oppose Adoption) [2023] EWCA Civ 404. Ostensibly it’s (another) judgment about leave to oppose adoption – but it also contains a potentially important bit of guidance about transcripts.

It’s only short, so you can have it in full:

Transcripts of judgment in placement order proceedings

5. A decision to approve adoption as a child’s care plan is of huge importance to the child, to the birth family and to the adoptive family. The reasons for the decision will appear in a judgment or in justices’ reasons and are likely to be of interest or importance to anyone concerned with the child. They may also be important to the child in later life. There is therefore a duty on the court and on the local authority to ensure that the record is preserved. Considering the amount of care and expense that will have been invested in the proceedings, that seems elementary.
6. A further reason for creating a record of the reasons for a placement order is that the order may not be the end of the litigation about the child. The court may have to consider an application for permission to apply to revoke the order or an application for permission to oppose the making of an adoption order. In this situation, it may be difficult to deal with the application fairly without sight of the judgment that was made at the time of the placement order. In particular, as my Lady, Lady Justice Macur noted in Re S (A Child) [2021] EWCA Civ 605 at [32] a transcript provides the baseline against which to assess whether there has been a change in circumstances.

7. Accordingly in my view, when giving reasons for making a placement order, the court should always order the local authority to obtain a transcript of its judgment, unless it has handed down a written version or made arrangements for there to be an agreed and approved note. The same applies in cases where a final care order is made, though that is not the focus of this appeal.

I’d thought it was pretty straightforward: the LA must always ensure it has an accurate record of the reasons for a decision about adoption – If there isn’t a written form in existence the LA must get one. They will be needed for the benefit of the child later on – either to assist the court in the case of any application for leave to oppose / revoke the placement order or for the benefit of the child for some other reason – for therapy or life story purposes.

But I gather there may be some concern abroad that this might lead to local authorities expecting advocates to agree notes instead of paying for a transcript OR trying to get the legally aided parties to pay a share. To which my response was along the lines of: ‘Whaaaaat? I don’t flipping think so!’

My recent experience (for what it’s worth), independently of and prior to this judgment, is that when I’ve suggested the LA obtains a transcript for later life story work / for the child as an adult or for the assistance of carers or therapists, nobody has objected or suggested that the cost should be split. It has just been accepted as a part of the LA’s responsibility.

My mate however, suggested that the LA will simply tell their advocate to sort it out and agree a note, without increasing the fee. Some might try it, I concede. But of course this wouldn’t only place a burden on their own advocate, it would also place an additional burden on everyone else. And personally, I think it would be legitimate for those advocates to object (pssst, and I think you should).

There is (of course) a general duty on an advocate to keep a note of proceedings, and to agree a note of judgment where its required – but typically that might be when there is an urgent appeal (see PD30A), or where a recording is not available for some reason. But an appeal or missing recording is not a frequent occurrence – it is the exception not the rule. This judgment isn’t about the exceptional cases, it’s about the generality (the majority).

In most adoption cases the advocates will (bar the LA) be on graduated fees. It cannot be right that now in almost all such cases an additional burden is placed upon them to agree a note of what can often be a really lengthy judgment. In fact in my experience a judge will often explicitly say ‘oh you don’t need to take a note, i will order a transcript’. And I love those judges a lot (though still find myself compulsively typing ‘just in case’).

More to the point, the logistics of getting four (plus) advocates to agree a note of judgment in multiple cases across their caseload doesn’t bear thinking about. It’s bad enough getting replies about the order. I just don’t see it working. We manage to sort notes of judgment occasionally, but not routinely. Consider (I wince) what happens when a judge requests help with anonymising a judgment. Yeah, big fat tumbleweeds. Not happening.

But I am not even sure one needs to revert to logistics to ‘win’ this argument (should one ever need to have it). The legal aid agency won’t pay for a share of the costs of a transcript without cutting up rough, and solicitors just want to get their cases closed and billed once judgment is delivered (and if the LAA were suddenly expected to contribute to many hundreds more transcripts each year I expect they’d sit up straight and start actively refusing). The advocates should not be expected to pick up the ‘cost’ by doing this work for free.

But the answer is in Peter Jackson’s judgment (it always is #amirite?): the purpose of preserving the written record is to facilitate the care plan and to benefit the child. Even in the absence of any application for leave to oppose, a purpose of general application across all adoption cases will be that the child will need this key document on their file. It is a document that the local authority needs in order to fulfil its obligations to the child. Much as a LA pays when it commissions an ISW to fulfil its statutory obligations to assess, here it must stump up to ensure it has a clear record of the decision which underpins its work going forwards. ‘Elementary’, (says) my dear Jackson.

So: The Local Authority should pay. Legal aid lawyers should resist their client’s certificate bearing a portion of the cost burden on this basis, and local authority lawyers should advise accordingly.

Ensuring there is a record of the decision and its reasons is primarily a matter for the Applicant and / or the court (though I don’t rate the argument that the costs of such a judgment should be at public expense because if that were so it could be argued in almost every single case regardless of the ability of the parties to pay – and in general terms the court discharges its duty to record decisions by recording the hearing and making it available for the purposes of a transcript on request). As the need to ensure there is a written record is a general requirement across all cases in this category, I don’t think its for the individual advocates in individual cases to pick up the tab as a matter of course here. And from a practical point of view this is in fact a substantial extra burden on overworked advocates that will simply result in delay in finalising judgments – and probably delay in other cases. Because advocates’ working week just can’t absorb this. As my anonymous mate says ‘it’ll be like herding cats’. Yeah, like herding slightly wild eyed over tired cats.

A subsidiary point is this (sorry, I just can’t help but notice)… if there are going to be lots more judgments in written form then we might reasonably hope that there would also be a few more judgments from these cases published. I won’t hold my breath on that one, because again the process of anonymisation (certainly if it is not built in to a judgment when delivered, or is not set out in instructions tot he transcriber at the start of the recording) can add a substantial time cost. One hopes that the mythical Anonymisation Unit will be sighted emerging from the lake soon.

There may be trouble ahead…

You might think that no news is good news. And that since the Qualified Legal Representatives (‘QLR’) scheme has been in force for 8 months, the comparative invisibility of it must mean its all bedding in nicely. Actually, it’s just bedding in verrrrrry slowly.

I am signed up to be a QLR, albeit for only a few courts local to me (more on why anon), because I think that its important that the scheme works, even if it is an inelegant solution to the problem at hand. But yesterday was the first time I’ve been asked if I could do a QLR case. Oddly, it wasn’t for a court I’d signed up for and rather than being directed to me personally, it was clearly sent to a number of people (bcc’d). And I wasn’t alone in receiving an email when I hadn’t signed up to that court. This suggests that HMCTS are having to abandon their rota system and cast the net far and wide to find a QLR for their case. Uh ohs.

The case was a two day Private Law Fact Finding in Truro with a 30 min PTR a month before. Judicial tier and bundle information were not provided, so it’s impossible to know exactly how much one would get paid for this work, but the email did tell me that both hearings are attended. Even though Cornwall in the summer is lovely, I’m pretty sure HMCTS are going to find this a tough one to get covered. The email tells me sternly not to reply unless I can help. Which I can’t. But I can explain why this case should forewarn us of far more abundant problems ahead.

Because the QLR scheme was only introduced for cases issued after 21 July 2022, and because court listing is backed right up, very few of eligible cases have reached fact finding stage so far. But they are distant specks rolling over the horizon now in great hordes, on the they will be on our doorstep pretty soon. This one is just the outrider. Imagine it replicated by the thousand up and down the country, like a swarm of orcs (apologies for the Lord of the Rings imagery, it’s on permanent loop in our house).

Anyway, let me explain why I’m worried.

Expenses

You can’t get to Truro by train on the day for a 10am start. It takes between 3 1/4 and 4 ½ hours to do the journey. So a hotel is required. (I concede, a more energetic early riser than I could probably drive it – but its a 3 hour drive without stops and without traffic, and its about 340 miles – it’s not going to be any cheaper to drive and you’d have to leave at the crack of a sparrow’s fart to be sure of arriving on time).

It costs £94.20 (off peak return) to get from Bristol to Truro by train (I’m going to assume if the court are emailing counsel in Bristol they don’t have anyone closer. I had to check for midweek dates towards the end of May, which is when the train timetables run up to).

The Truro Premier Inn is showing a cost of £144 for 2 nights (for the May dates I checked). It’s a bit cheaper if you book an un-refundable room and pay in advance, but might as well burn your money as pay in advance for a hotel booking, because that increases the chances of HMCTS not being able to find a judge and notifying you of this at 3.55pm the day before the hearing (or of the case being pulled for some other reason) to approximately 98%. Obviously, other hotels are available and I’m sure Truro has some lovely B&Bs from the basic to the boutique, but B&Bs don’t always offer cancellable options and are a bit of a lottery. If one left the booking of a hotel until the last minute (which is what I’d do) I think it’s quite likely that availability/choice would be very limited and the cost materially higher.

So. The costs of travel and accommodation to these two hearings would be something like £166.20 (PTR) and £238.20 (FF) = total cost £404.40. If you assume there is no need to buy caffeine, water, breakfast, lunch and dinner whilst away. And if you ignore the cost of a taxi between hotel to court (Premier Inn is nowhere near the court).

But what might a QLR get paid for this tricky and important work, I hear you ask? I will walk you through the fee structure and the reality of what it looks like to a self-employed barrister.

Doing my back-of-an-envelope-best on limited information, here is my estimate of fees and likely real profit.

PTR

PTR fee for a hearing up to one hour = £68.94. No bundle uplift is payable. This hearing will earn an advocate a grand total of -£97.26 once travel and accommodation are deducted. And that’s if the hearing is before a District or Circuit Judge. If its before the magistrates (which many 2 day fact findings will be) the fee will be the even less grand £62.69 and the amount earned after travel and accommodation the even less attractive -£103.51. IF the hearing runs on for more than an hour the advocate will earn a bit more, but not a lot. So. This hearing will make a loss.

If the hearing were cancelled for a not-entirely hypothetical reason such as lack of a judge, lack of an interpreter or a failure in police disclosure, the advocate will be paid the fee (of £68.94/£62.69) if they have done more than 30 minutes of work. They will not be reimbursed their travel or hotel expenses whether or not the hearing goes ahead. Typically, cancellations for lack of a judge will be late in the afternoon the day before the hearing – usually too late to cancel a hotel.

An advocate who agrees to attend this hearing will be expected to:

  • read the bundle before the PTR (we don’t know how big it will be) for no fee,
  • meet the prohibited person (NOT a client) to establish what the key elements of their case are (NOT taking instructions),
  • prepare a document for the PTR (containing the not-instructions from the not-client),
  • prepare cross examination,
  • hope that the hearing runs on longer than an hour,
  • hope that the hearing goes ahead,
  • book out their diary for the 2 day FF hearing,
  • spend 3 nights away from home and approximately 14 hours on trains,
  • accept that if the main hearing doesn’t go ahead (or is postponed to a day they can’t do) they will make a loss not a profit.

Sounds great, dunnit?

Fact Finding Hearing

The fees are a bit better for the main hearing, but your hotel and travel costs will still not be reimbursed (this is why I didn’t sign up to do QLR work at Truro).

Day 1 will pay £545.91 (£496.30 if Magistrates). Day 2 will pay £436.73 (£397.04 if Magistrates). Grand total of fees for this two day hearing would be £982.64 (£893.34 if Magistrates).

IF the bundle is more than 350 pages, a bundle uplift of £159.30 will be payable, but this is unlikely for a 2 day hearing and given the guidance on what documents QLRs should be sent (not much). In common with legal aid work, no fee is payable for watching police video interviews, which can take several hours. In cases involving large volumes of disclosure (typically if there are phone downloads) an additional bundle uplift might be payable (based on page count of over 1400) but this is capped at a one of payment of £318.60. Again, this is unlikely to apply to a 2 day fact finding hearing.

If the hearing is cancelled for any reason, a fee is still payable BUT here its half of one day’s fee i.e £272.95 (£248.15 if mags). So if you’ve paid for a hotel and train ticket already you are going to be a bit stuffed. Soz.

Best case scenario

Let’s assume your risk tolerant approach to this brief has paid off, and both hearings go ahead. The overall fees less the overall travel / accommodation outlay will bring us to a total net fee of £655.14 or £551.63 (Mags). For 3 days work, 3 nights away from home and many hours of travel at antisocial hours (realistically if you are in court locally the day before the hearing you are going to take your toothbrush to court with you and hop straight on the train once you are done, arriving around 9pm. 655 quid is better than a slap in the face with a wet fish I suppose, but this figure is NOT the amount of actual profit resulting from this work. Oh no.

Any barrister who is acting as a QLR will also have ongoing business costs / overheads which need to be met out of any fees earnt, such as:

  • insurance (min £260 pa),
  • practising certificate (say up to £1,000),
  • core text book (approx £600),
  • data protection certification (approx £300),
  • annual training via conferences and courses (cost varies),
  • subscriptions,
  • they have to pay for hardware and software every few years,
  • increasingly, costs of supervision.

Even just those things above I’ve put a rough price tag on above come to over £2,000 a year.

In addition, to even be eligible to act as a QLR a barrister has to undertake an arduous vulnerable witness advocacy course. Fortunately that course if free, because it’s provided by the FLBA for its members, but it does still have a cost: together with the preparation it takes about 2 full days of their time when a lawyer can’t be earning.

A barrister also has to pay rent to their chambers. Different barristers chambers have different fee structures but let’s say 15% of income (many will pay more).

By the time you’ve factored in a notional daily figure for the above overheads, your net profit is down to about £520.91 (I’ll spare you the fine detail, I’m not a complete sadist) or £440.89 for magistrates.

I reckon this case is going to involve about 34 hours of your professional time:

6 hours prep (conservative), 1 hour con, 1 hr PTR hearing and 6 hrs each day of the 2 day FF, plus 14 hours on the train (when you can’t realistically do other work due to GDPR). That’s 34 hours.

Converting the figures into a very approximate hourly rate this amounts to £15.32 p/h (12.97 if mags). Minimum wage is £10.42 p/h.

I’ve not costed in the cost of qualifying, subsistence or those other overheads above that don’t have a specific cost estimate, so these figures are likely to make the fee look more generous than they are.

Finally, all these figures are before deduction of Income Tax and National Insurance. Oh, and the self employed bar don’t get sick pay or holiday pay etc.

I’ve focused on barristers partly because the economic issues are ones I understand best, and partly because at present the only qualifying course available for lawyers is run by the FLBA for barristers, meaning that the pool of potential and actual QLRs is predominantly made up of barristers. Solicitors have a different corporate / employment structure, but those individuals / firms will also have similar sorts of overheads. I’d be surprised if this work is any more attractive to solicitors than it is to barristers.

There are lots of variables and guesstimates in the above, but I’ve tried to make reasonable assumptions based on experience. What I think is pretty clear is that this is not a hugely attractive gig (even ignoring the subject matter and particular challenges of the QLR task). Those of us who work in this field don’t do it for the money, but we do have to pay our rent and feed our children and we can’t work at a loss. This is not a complaint about my income by the way, but the reality is that the prohibition is mandatory, and its functioning depends upon a funding system that will incentivise lawyers to make themselves available for this work in large numbers. The cost in human and efficiency terms of not doing so will be huge. The cab rank rule doesn’t apply to this work (which means we don’t have to agree to do it), it’s high risk (professionally, ethically and financially), and even if hearings go ahead as planned, and even if you are much more junior than moi, it’s not very well paid. It’s not a fee which properly reflects the skill and responsibility the job demands.

It is well known that there are not enough lawyers signed up to be QLRs. This means that courts are increasingly going to have to search further afield in order to find a willing advocate. And yet the further afield they go the more unattractive the ‘opportunity’ is, precisely because of the distance. Placing the cost burden and risk of travel and accommodation on the lawyers is a really big disincentive which will make it even harder for courts to find people to do the job. More than that, it’s a slap in the face to suggest we should do this work without the travel expenses that we would normally be paid by the Legal Aid Agency if we were representing a publicly funded client.

This may be less of a problem in courts near big cities with largish legal communities (maybe), but in rural courts or locations which are not well served by a local bar or good transport links this could be a real disaster – we could see the emergence of QLR deserts. It may also be less of a problem in public law cases or cases at cases heard by more senior judges (where fees are a bit higher), but the volume of private law fact finding and welfare hearings being dealt with by lower tiers of judiciary and where the prohibition will apply is going to be huge.

It boils down to this: if there is no QLR the hearing can’t go ahead. That fixture is vacated or adjourned. Another slot and another judge has to be found. More pressure is placed on the system, more delay for the families. The whole machine grinds to a halt. And it could grind to a halt in quite a few cases if my pessimism is not misplaced. Which, sadly, it rarely is. I want the scheme to work but my hobbit sword is glowing bright blue.

For those who want to check for themselves, here is the fees order, and here is the statutory guidance.

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?