2018 off to a great start then

First day back at court today. It has not gone well so far...

Your correspondent is in the robing room quietly stewing, having arrived at nine o'clock for a ten o'clock hearing (halo in hand) that isn't in fact until noon. Courtserve : We Heart You. Hashtag NOT.

In truth it began to unravel long before then as I lay in bed shivering at midnight realising the radiators weren't working because they haven't been bled, and listening to the wind tear bits off my house like a child demolishing a lego build (house still standing this morning but it didn't sound like that at the time - there is a large tree-bush affair next to the garage that thumps loudly on it whenever its windy. It's right next to my window...)

And then even the emergency suit turned out to be too small. Can't imagine how that happened *cough*. I blame Cadbury's Roses.

So all in all my arrival here by 9 o'clock, with papers and wearing a suit that still buttons up was a pretty epic achievement. Needless to say I am overjoyed to find it a wasted journey.

As I sat down in the robing room to get some work done (hurrah for PCU Wifi which is now working in our court building), having carefully stretched my laptop charger across the floor from the in-floor plug bar to the not very close to it desk (especially positioned to create a trip hazard it seems - yes I have left my comment in the comments box pointing this out) an email pinged into my inbox. A DFJ is finding that the LAA are refusing to meet the costs of parents attending hearings unless there is an order directing their attendance. Yes, that is refusing to enable parents (who often have no income because they can't work and their benefits have been stopped when their kids were taken) to get to hearings at which their childrens' whole future is to be decided. Doesn't it make you just furious? Anyway, the solution to this is apparently to include a standard direction in CMOs now saying that parents must attend. This makes me even more grumpy than I ever so slightly was before receiving the email. FPR 27.3 provides that :

Unless the court directs otherwise a party shall attend a hearing or directions appointment of which that party has been given notice.

What is so difficult to understand there? Parents need to be at hearings about their children. They'd need to be there even if FPR 27.3 didn't exist and even if a kindly DFJ didn't try to help out by repeating the rule in all their orders (The LAA's own guidance acknowledges that travel expenses ought to be met by them and not the client - even where the client is a bit hopeless and loses their travel tickets). And that the LAA refuse to acknowledge this (they must know its true really - surely?) is a symptom of how our system has lost sight of the need to do real justice rather than just box tick or offer a ritual daily saving at the altar of proportionality.

Personally, I don't think we should pander to this computer says no mentality. We should challenge this nonsense and say THERE DOESN'T NEED TO BE AN ORDER YOU MUPPETS. Again and again until they get it.

Plus, if the LAA doesn't pay their travel expenses how will they ever get to stroke the stress-dog before their children are adopted?

2018, you suck so far.

Right, grump over. I'm off to write a book...


The Civil Finance Electronic Handbook that I linked to above says this at page 72 (I hadn't spotted it before - I was looking at page 58) :

The rules for payment of funded client travel expenses differ depending on the situation.

  • Attendance at court: The funded clients travel expenses will be paid where it is reasonable for the client to attend court. The guidance states this is as a witness of fact and we would expect to see justification as to why this is considered reasonable. These same principles apply for third parties who are required to attend court as a witness of fact.
  • Travel to attend experts: These are paid where it was necessary for client to attend the expert and where the client cannot afford to pay for visiting the expert (the client is impecunious). When considering whether the costs should be allowed we would need to consider the cost of the travel, distance to the expert and the method of travel.

Where travel costs are payable we should consider the most reasonable form of travel, this is usually public transport. Any travel by taxi will require justification. [my emphasis]

The Costs Guidance referred to is here and that says that the costs of travel to court other than as a witness of fact will be assessed at the end of the case (page 7-8, 26-28). Although in places it appears to suggest that travel expenses other than as a wtiness of fact will never be payable, it does say this :

  1. The usual principles as to reasonableness and proportionality apply. If it was unreasonable for the client to attend the hearing in furtherance of his or her case, for example because the hearing was an interim hearing where the client’s presence was not strictly necessary, then the disbursements would not normally be allowed.

So on that basis the costs of attendance at a hearing other than a final hearing / to give evidence ARE claimable, but they have to be reasonable. There will of course be cases where it really isn't necessary for a client to attend a hearing, but they will be in my view pretty few and far between - which is no doubt why the FPR have, since the year dot, set out a default position that they should come to court.

If this really is a growing problem (and according to the grapevine I know it is) then I would like to think that someone will do something about it and challenge the LAA on their guidance. It's tough for solicitors if they are continually shelling out and then not being paid, but even tougher for clients whose solicitors say they can't afford to take the risk (I've met some of each, I don't criticise either). Perhaps one of the representative bodies can take this up with the LAA?

Right. Now it's time for my hearing.

Oh and by the way, the General Election has messed up Family Court reform…

Have been meaning to write a short post observing that the Prison & Courts Bill, which contained draft proposals to deal with the vexed issue of direct cross examination of alleged victims of d.v. by their alleged perpetrators and enabling provisions to allow the online court reform programme to move forward, has been ditched in light of the election.

That is to say, it is no longer going to be considered in this Parliament, and we will have to wait and see whether the new Government (either a "stronger and stablerer" May Government or some other sort of Government) has the time or inclination to put this back on the table. Once can foresee that other priorities such as the "Great Repeal Bill" might take priority (much like disguised compliance which means the exact opposite of what it says, this would be a Bill that would repeal one thing and enact a million others into our law, but hey), but it's difficult to tell what sort of space in the timetable will be left for other ongoing work. Other factors which increase the uncertainty are the increasingly frequent news articles speculating that our Lord Chancellor Liz Truss, who is of course responsible for this legislation, is not going to last much longer in that post.

So we will have to wait and see. But at best this means some delay in getting these reforms through. At worst it means they disappear into the long grass of Brexit.

For those who enjoy an exercise in futility you can read what I said about the Prison & Courts Bill when it was still a thing here, and what David Burrows said about it in a guest post here.

Prison & Courts Bill – banning cross examination of victims?

I'd intended to post a speedy, pithy summary of what the new Bill says about the "prohibition on cross examination of victims in family courts", as it has been described. As it happens however, actual cross examination of actual complainants, alleged perpetrators and third party witnesses has got in the way of that somewhat, and this post is therefore less immediate than I had hoped it would be.

But I still think it is a valuable exercise to summarise what the new Prison & Courts Bill actually proposes. It may not be the cure-all that one might suppose from the ministerial speeches and headlines. I'm not going to do a dry technical analysis, but I'm going to look at the shape of the proposals and their potential impact on real life proceedings and real life participants. I'll skip over some points of detail.

Section 47 will work by making amendments to the Matrimonial and Family Proceedings Act 1984 (MFPA). The MFPA basically creates the Family Court and defines its powers. The proposed scheme is clearly modelled on equivalent rules in the criminal courts, but for reasons I will address, family court proceedings are a very very different scenario.

The Bill will introduce a ban on cross examination of a victim or alleged victim by the perpetrator in the following circumstances :

  • where the person to be cross examined is the (alleged) victim of an offence where there is either a conviction or outstanding charge (The offence in question has to be a specified offence (essentially most sorts of violent or child abuse offences)). OR
  • where the person to be cross examined is protected by an on notice injunction against the person who would be cross examining (for our purposes the definition of on-notice is wide enough not to be an issue by the time any cross examination happens)
  • (in these cases the (alleged) victim is also not permitted to cross examine directly

It will be immediately obvious that this is NOT a complete ban or even close. Those who work in the Family Court know that very often there is no charge or conviction, either because the victim has been too frightened to pursue a prosecution (it is often the alleged perpetrator who brings the matter to the family court, whilst the victim has been avoiding contact to keep themselves and child safe, because there is insufficient evidence to bring a charge, or because the police have not yet made a charging decision. There will also often be no protective injunction in place : again this might be because the victim is trying to keep safe by changing address and avoiding the perpetrator rather than upping the ante with an injunction, and is then located and brought to court, or because the violence is not current (though the fear may be) - many victims consider themselves sensibly to be safer if they let sleeping dogs lie. In cases where a charging decision is still awaited a catch 22 may arise, because the presence of bail conditions means the Legal Aid Agency may take the view that there is no basis for funding an application for an injunction (bail conditions = job done). These victims will not automatically be protected from cross examination.

As with the criminal provisions, there is a second, discretionary power to bar cross examination where the court thinks that the quality of the (alleged) victim's evidence is likely to be diminished or where they would be likely to suffer significant distress through the cross examination. In the case of significant distress the court has to consider the wishes of the witness, the behaviour of the (alleged) perpetrator in the proceedings or generally, and any findings in other proceedings  This discretionary category will certainly catch many more cases - but not all of them.

This is most definitely not a ban on all cross examination of (alleged) victims by their (alleged) perpetrators as has been trumpeted.

Where the provisions of s47 apply, the court is required to give the unrepresented person a change to instruct their own lawyer, but if they do not must consider whether it is necessary in the interests of justice to make an order appointing a lawyer to conduct the cross examination on their behalf.

Again, this is not in fact as clear cut as at first appears. The court has first to consider whether it is necessary to appoint a lawyer. Necessary has a clear meaning in other contexts in family law ("necessary means necessary") and the bar is quite high. The court is probably going to have to consider if some other bodge can be found here (A mckenzie friend, a legal adviser, the judge rolling up his or her sleeves) before concluding that it is necessary.

Although s 47 now refers to the appointment of a lawyer who will "represent the interests of the party" through the cross examination, they are not in any meaningful sense to be considered as "represented". The lawyer, if and when appointed, is not answerable to the represented party, but the lawyer must conduct the cross examination in their best interests. The accused is not represented throughout the proceedings, does not receive advice or assistance in knowing what directions to seek to ensure that the advocate, when appointed, will have sufficient materials to hand to make a good fist of it. There is a very big difference.

This matters for both parties. It matters for a litigant in person who is responding to allegations of violence. This is not a cure for the absence of legal aid, although it is probably better than nothing. And it matters for the genuine victim of domestic abuse, who will (I would suggest) not be afforded anything like complete protection against intimidation or abusive behaviour by a perpetrator.

Because unlike criminal proceedings where a victim of abuse is simply a witness, who shows up, gives her evidence and goes - the parties in family proceedings are parties throughout. They are thrown together at court - in queues to go through the security arch, in the lift, in corridors, in the cafe over the road - and in the court room itself. Anyone who has dealt with this work knows that these provisions do not eliminate victim intimidation because victim and perpetrator are likely to be in close physical proximity at hearing after hearing, sometimes for hours at a time. And lawyers who remember the days when each party would often have a lawyer will know that it doesn't take much to give a frightened witness the collywobbles. A look, a stare, a muttered phrase under ones breath when passing, deliberately sitting opposite, bringing the mob to court, a surreptitious throat slitting motion when nobody is looking...It is hard to shield a client when both parties are represented throughout, impossible where one is not. Time spent in cross examination is but a small portion of the time spent at court.

These changes are not unwelcome, but I do not think that they will cure the identified mischief they were intended to, namely the prevention of intimidation of the victims of domestic violence through family court proceedings. Neither do they cure the less well acknowledged but equally significant mischief that arises from the withdrawal of legal aid for those accused of domestic abuse in 2013, although they do place both parties in a marginally better position than they would be without.

There is a further emerging problem in that the MoJ are consulting on the proposed slashing of the rates paid for this work in the criminal courts, no doubt with the intention of reducing them across the board when additional costs begin to be incurred in family cases.

You can read the Bill on the Parliament website here.