Category Archives: rants

Joining the dots…

Feature Pic courtesy of by Salim Virji on flickr - thanks!

Last week the Public Accounts Committee published a damning report telling us that family justice was failing families, that delay was an endemic problem, and that the system was fragmented, rubbish with data, lacked transparency and accountability, and as a result was inefficient. No surprises there. None of it is new. People have been shouting it into the void for years.

The report drew particular attention to a shortage of District Judges and social workers, and to the failure to get on with implementing Pathfinder nationally.

Whilst there isn’t much to quibble about in the conclusions reached, notably missing is any focus on the resource issues that are a key part of the context to those delays and failures. If you don’t fund a thing properly it ain’t gonna work properly.

The Family Law Bar Association provided evidence to the Committee which has been published as part of the report here.  Whilst welcoming the points and recommendations that were made, they also say

It is unfortunate that some of the points we made in our written evidence (such as lack of investment in the FJS / legal aid, lack of accountability for family justice, reduction in sitting days and the absence of specialist knowledge and understanding in the MOJ / DFE) were not highlighted in the report or recommendations.

Indeed.

As it happens, this week Nuffield have produced a striking graph showing that now 80% of private law cases involve litigants in person. Do we think those statistics might be one part of that important context? 80% of tens of thousands of cases (the majority of which will involve some sort of allegations of domestic abuse) require consideration of fact finding hearings, fact finding hearings, special measures, QLRs – and in almost half of those cases (39%) there are NO lawyers at all to help the judge (meaning two QLRs and many more false starts and ineffective hearings).

There aren’t enough judges (not just DJs – all tiers), and aren’t enough sitting days for fact finding hearings – hell, sometimes there aren’t enough screens in the court building to implement special measures properly. And there most certainly still are not enough QLRs. And as we all know, there aren’t enough lawyers (thank you LASPO 2012). So yes, that body of cases takes up time and resource that we simply don’t have. And yes, many of those families are failed. That also has a knock on effect on care proceedings, since both types of case are sharing the same ever diminishing resources pool.

Add to that the fact that for almost six months family barristers and solicitors have been expected to largely work without payment due to the hack on the LAA’s systems (a hack which no doubt is at least partly down to under-resourcing). Fortunately there is now light at the end of the tunnel as far as the LAA systems coming back online is concerned, but the ramifications of the temporary contingency scheme and the additional cashflow pressures on individual lawyers, firms and chambers, will have a long tail indeed. And even once payments resume they will be at a rate fixed many many moons ago (family legal aid has not had even an inflationary rise for the entirety of my career), and which in some areas is woefully below a reasonable fee for the amount of work done and the level of responsibility and vicarious trauma that lawyers are expected to carry.

But anyway, we have a report from a committee, so I’m sure that it will all be sorted out in a few weeks and family justice will be the land of milk and honey…. won’t it?

Of course I am cynical. Many of the points made in this report were made by David Norgrove in 2011. And yet still the dots are not joined and we have a disjointed FJS with too much delay. So I won’t be holding my breath.

I very much hope that this does not simply produce yet more muscular ‘robust’ case management. Piling pressure on the lawyers to make cases smaller is not the answer to this complex problem, and in fact is likely to exacerbate the difficulties. The answer lies in proper resourcing and in respect for the skills and efforts of all the professionals doing their best in sub-optimal circumstances.

Colleagues, we have a problem

Harriet Harman KC’s report is out. It brings with it a complicated mix of depression and optimism: depression (but not surprise) at how bad things are, and optimism because this report was commissioned by the Bar Council on our behalf and is now being embraced by it. They do so buoyed by a groundswell of support for action and change. We hope that other bodies who also are required to do their part will step up to the plate. The BSB for one – I haven’t seen any immediate response from them (though their home page does link to a ‘new’ page on bullying and harassment.

There was one section of the report which left me feeling more pessimistic than anticipated, and that was the section about the judges (Chapter 10). I didn’t feel optimistic about that. Joshua Rozenberg has done a summary of the report here, so rather than repeat that I thought I’d focus on Chapter 10, which Joshua doesn’t deal with in any detail.

This is what Harriet Harman says about the judicial response:

There is, pre-existing this Review, a body of compelling evidence indicating a substantial problem of judges bullying barristers. …During the course of the Review I received abundant, disturbing and compelling accounts of judicial bullying….

In their [the judicial] response the veracity of evidence of bullying and harassing behaviour by the judiciary was challenged…

The judiciary has not, to date, expressly acknowledged that there is in fact a problem of judicial bullying of members of the Bar. However, I recognise that steps have been taken in recognition of their concerns, such as commissioning independent research in 2021 to gain a better understanding of inclusion, bullying, harassment and discrimination issues; the Statement of Expected Behaviour in 2023 (which covered treatment towards all court users and encouraging openness to feedback); the LCJ’s statement of 1 May 2025 to the whole of the judiciary; and ongoing leadership and inclusion training. In order to effect change, a problem first needs to be acknowledged. 297. In any event, in my view, any apparent scepticism as to the credibility of the accounts of bullying simply cannot stand in the face of the discrete accounts of judicial bullying behaviour given to this Review by a large number of individual members of the Bar practising in different jurisdictions and geographical areas on different occasions. The nature and extent of the concerns raised and the similarity of the allegations being made cannot sensibly be rejected as of no forensic evidence.

The judiciary’s submission to the Review casts doubt on the validity of complaints stating: “there can be a difference between an individual’s perception of how they were treated and an objective assessment of that treatment”. It may well be the case that some barristers mistake justifiable demands for high standards and ‘robust case management’ as bullying. But that cannot be a justification for refusing to acknowledge what is widely recognised everywhere, namely that there is a problem of judicial bullying of barristers. The sheer quantity and quality of accounts given to this Review cannot reasonably be categorised as misunderstandings or mistakes of perception….

The LCJ [Lady Chief Justice – ‘top judge’] has been clear in her communications with me that the judiciary has never sought to excuse inappropriate behaviour and that they have always said that inappropriate behaviour is unacceptable. Reasons advanced by the senior judiciary for bullying and harassing behaviour are: that judging is very stressful; that they didn’t mean it; or they didn’t know the rules….

judges are not like other court users. They are in charge of their court. It is stressful for everyone, including barristers, to work in busy and under-resourced courts. But that cannot be used as a justification for unprofessional behaviour. However stressful the circumstances, it is unprofessional for judges to lose control…

….the Lady Chief Justice states, “I firmly believe that Judicial Office holders do not intend to cause offence”. However, the belief amongst many at the Bar, based on the nature of the bullying conduct they have described, is that it cannot plausibly be asserted that when it comes to bullying of barristers that no Judicial Office holders intend to cause offence….

ignorance of the standards expected cannot be an excuse, that is even more the case for judges. Judges have to set the standards of behaviour in their court. They cannot do that if they seek to excuse their misconduct by saying they don’t know what the standards of behaviour are….

I am concerned there is a failure to understand the power dynamics entailed in bullying. In referring to informal routes for a barrister to make a complaint the judiciary says: “The first and most obvious is for the barrister to raise the matter with the Judicial Officer holder directly. This can often be done discreetly and simply after the case or hearing has concluded”. When I tested with barristers in each of the circuits, the judiciary’s proposition of this informal route with barristers in each of the circuits, it was met with a mixture of bewilderment and incredulity.

Above all, there was dismay that the judiciary could make a suggestion which was deemed so implausible and showed no understanding of the power dynamics between the bully and the bullied.

 

I’ve extracted what seem to me to be the key points in this section (marking omitted text with a …). The full report, and the full text of the section on Barristers’ experience of the judiciary can be found here from page 90. It certainly seemed to me that the wholehearted embrace of the need for change that one can see in the Bar Council’s commissioning and preliminary response to the report was less apparent as I read through that chapter, and Harriet Harman’s language is no doubt carefully chosen. But perhaps we will see responses from the BSB and Judiciary in coming days, when they have read the compelling battery of accounts of their experiences at the hands of fellow barristers and judges (and sometimes solicitors and clerks) which are contained in the report. [Update: here is the very positive response from the Lady Chief Justice to the Review, which says all the right things. And here is the BSB responsehttps://www.barstandardsboard.org.uk/resources/press-releases/the-bar-standards-board-welcomes-the-independent-review-of-bullying-harassment-and-sexual-harassment-at-the-bar.html.]

Today seems like a good day to re-up my own post about Judicial Bullying, which I wrote back in 2017. I’ve had a few moments since then when judicial conduct has made it extremely difficult for me or my colleagues to persist in doing our jobs, and although local cultures change as judges retire it seems to me looking back that there is almost always at least one court centre that everyone knows to be wary of. There is some distance to travel for us all, I think. I end by saying what I said at the end of my post in 2017: for anyone experiencing judicial bullying, or bullying or harassment at the bar generally – do please talk to colleagues at the bar for support. The report sets out the current key ways to seek help (which hopefully are to be improved). But if you can’t talk to someone in your chambers talk to someone outside it. My virtual door is always open.

Staying Sane in Family Law

The lovely people at Bath Publishing* are running a series of workshops to launch a new book they are publishing by Anne Marie Carvalho.

The book is called Staying Sane in Family Law – and the name Anne Marie Carvalho is one which often crops up in the context of wellbeing discussions.

For a fee of £150 you get to attend one of the workshops and your own copy of the book.

If I wasn’t in court elsewhere on the day of the one local to me I would be going.

For those interested details are here: https://bathpublishing.com/products/staying-sane-in-family-law-seminars

* Declaration of interest. They are lovely because they publish my book Family Court Without a Lawyer, so obviously have very good taste in authors. I haven’t read the book, but I do know that Anne Marie is highly respected in her field. And anything that can help us stay sane (or regain some sanity) in the crazy world of family law is A. Good. Thing.