Transparency in the Family Courts – Publicity and Privacy in Practice

I’m please to say that the Second Edition of our book Transparency in the Family Court – Publicity and Privacy in Practice is now available for pre-order from Bloomsbury Professional Press for £85. This time around it comes in a fetching shade of pond green.

As you may imagine, there has been quite a lot to update since 2018, including the Transparency Review and its sequelae and various case law developments. It’s a fast moving field at the moment (good news) but Julie, Paul and I have made it as up to date as we could at the cut off date for going to print! The only things it doesn’t capture are two things which happened after the guillotine, are the announcement of exactly which new courts were joining the reporting pilot from Jan 24, and a case called Wong which references (we think) the first example of a prosecution under s97 Children Act 1989 – though even that was discontinued when the Attorney General decided contempt was a better way to proceed.

Order your copy here.

 

In defence of tit for tat

I’ve been blessed with some lovely cooperative and charming opponents recently. And few who have been grouchy, rude and irrational. I’m a firm believer that being that person doesn’t pay off: it isn’t an effective strategy that assists clients. It signals a loss of objectivity or a lack of confidence, it shuts down the opportunities to reach compromise, it provokes retaliatory responses and escalation and it irritates judges.

I don’t pretend I am the perfect opponent. We can all have our off days. But I try not to be that person. And over 20 years of testing, I’m confident that this approach is best for my clients as well as being best for my wellbeing. I feel sorry for the opponents I occasionally encounter who are habitually unpleasant or difficult, and who don’t do dialogue. This job is stressful enough without expending additional energy projecting some hard (wo)man persona day in day out. It makes me tired just watching it being performed and I have to struggle not to disengage.

That’s not to say I’m a pushover. Sometimes one needs to be firm. And sometimes one needs to say ‘that’s unacceptable’. The corollary of that is when I don’t think I can be polite any more I walk away and take a moment, and when I occasionally snap at someone I apologise.

This morning my son was enthusing about a maths based youtube channel. Maths is not my natural forte and the first video made my head hurt (something to do with circumferences and rotations and pi). But then the algorithm showed me another video from the same channel and now I need all my colleagues and my clients to watch it. It’s about game theory and its fascinating and I love it because it vindicates my entire professional approach.

It’s called ‘What the prisoner’s dilemma reveals about life, the universe and everything’ and you can watch it here:

The Prisoner’s dilemma was an experiment which looked at the success of different strategies to a game, when the players had to decided on each consecutive move whether to cooperate or to defect. If both cooperated they got 5 points each. If both defected they got 1 each. If one defects and the other cooperates the defector gets 5 points, the other nothing. Clearly as each round unfolds players will have to decided how they should respond bearing in mind the history of their opponents moves so far. The experiment was run as a competition which invited people to submit computer programmes which encoded a particular strategy. The game was run and re-run with all the different strategies competing.

I’m sure those of you who studied politics know all about game theory and that I am way behind and simply showcasing the gaps in my education, but this really is fascinating. I like to think that for good family lawyers its conclusions are not surprising, and that they reflect what most of us instinctively know and do. But thinking about the principles that game theory draws out is a useful exercise that should I think give us nice guys greater confidence that our approach is valid.

The programs submitted to the competition were either nice (cooperative) or nasty (defect). Some of them bore grudges – i.e. once there had been a non-cooperative response from the other player they switched to defect mode themselves, and stuck with that. Others would respond to a nasty move by retaliating, but they didn’t hold a grudge. And some were really complex and difficult to predict or understand, or even random.

The nice programs came out on top. Not only that, other principles emerged too. You might not think that the label ‘tit for tat’ is an encouraging model for cooperative behaviour, but the approach labelled ‘tit for tat’ in the prisoner dilemma was based upon was characterised by four things:

  • Nice (cooperative)
  • Forgiving (not holding grudges)
  • Retaliatory (not a pushover when someone is ‘nasty’)
  • Clear (consistent / predictable)

And it was this ‘tit for tat’ approach which consistently came out on top. ‘Nasty’ tactics may work in the short term but overall they consistently produce worse results for everyone, including the nasty player. For our clients that means that if the culture of family law is ‘nasty’ everybody loses (think about those cases where parties spend all the money they are arguing over on the argument itself).

I reckon those four points are the recipe for the sort of lawyer you want representing you, and for a perfect opponent. There are some lessons here for both lay and professional clients and for advocates:

We need to constantly bring our lay clients back to the bigger picture – of the financial and emotional costs of the process and of the contribution that their choices make to those costs. We need to find ways of reminding them that attacking the other side does not necessarily produce a ‘win’ for them, though it is tempting to think that.

Particularly thinking about the role of lawyers in conflict resolution, it’s worth noting the conclusion in the linked video that individuals who operate on a ‘tit for tat’ basis in line with these four principles can, over time, change the environment – that is to say nice is catching, because it becomes clear its to everyone’s mutual advantage to work in this way. Resolution’s code of conduct has for many years now sought to promote just the sort of behaviour and environment that is to everyone’s mutual advantage, but we all know of lawyers who don’t adhere to this and who simply channel their client’s instinctive wish to go in hard and to attack at every opportunity. Where we encounter that we need to be consistent in modelling good behaviour and to correct where necessary, but then draw a line and move on.

There are of course points in any litigation or negotiation where it is not possible to agree or concede, and one has to simply say ‘no, I don’t agree’. But that does not undermine the general principle that cooperation where possible is mutually advantageous. I reckon that if it’s a good enough approach to apply to international politics and nuclear conflict, then it’s good enough to apply to the politics of family separation, which can be every bit as complex.

And with that profound YouTube inspired ramble I wish you a good weekend. I now have some actual work to do and I’ve run out of excuses for doing it.

The Beacon

The light over the front door flickers at The Beacon. There is a bit of damp creeping up the plaster and into the wiring. My dad would have fixed it, but he hasn’t been there for a year. There is a ‘sold’ sign at the top of the drive and my heart is breaking. The contract for sale sat on my kitchen table and watched me, taunting me to sign it for days until I gave in. Signing away our family home of 49 years, my memory bank, the place which connects us and where so many important things happened (so many small things, big things, small-big-important things), the walls where I was loved and comforted (and sometimes scolded), cooked for and spoilt (just a bit). The place my brother and I have always run for shelter when life gets difficult.

The house is mostly empty now. It smells wrong, and everything looks slightly burnt out. But every time I go back to gather more things the memories jump out of the walls at me like fragments of a life that was once mine but is slipping away. When I am on my own at the house, sorting through my father’s paperwork (so much paperwork), my chest tightens in fear that when we hand the keys back I might fade away like Michael J Fox in that photo in Back to the Future. I am desperately saving everything I can. Because every tiny object has the spirit of a memory in it. Back at our house, I’ve sat with my mother in recent weeks, trying to distract her from her own health worries by encouraging her to put names to the faces peering seriously out of a thousand battered, tiny black and white photos that she keeps in an assortment of carrier bags for now defunct department stores. But it’s my dad’s paperwork which has really got to me. A life in legal and contractual documents, marking job offers, pay rises, house purchases, mortgages, redundancies and pensions, formally recording births, deaths, marriages and the distributions of wills. The smaller things that trigger a recollection to float up off the page, stiffly formal letters to and from builders and an assortment of tradesmen, to make or fit or repair some item that is now attached to the walls that have kept our family safe for half a century. Boilers, roof repairs, fireplaces, insurance claims, rugs. Ledger after ledger of my dad’s spidery writing, as he plotted and planned investments he had built from nothing but determination and patience, and through which he managed his cashflow as the needs of his family evolved (the fingers crossed approach that other members of the bar will be all too familiar with always filled him with horror), and later, as he managed his health anxiety by taking daily blood pressure readings and logging them instead. It is only now that I realise it has been probably fifteen or more years since the meticulous filing system and record keeping began to descend into the chaos we found after the stroke.

I have come to realise this year that there is a whole population of us, in our forties, fifties, sixties perhaps – watching as our children become more and more independent at an alarming rate, at the very same moment as our parents’ health and independence slips away, sometimes gradually, sometimes overnight. When it all coincides, it’s a lot (for many of us not greatly assisted by the joys of the menopause). We move zombie like through the year, trying to focus on the here and now and to do right by everyone who needs us, as time moves inexorably onwards. The turmoil beneath the surface is something I was stupidly insensitive to before experiencing it myself – but of course I now see that even those who are grown up and weather worn on the outside, are just frightened children still on the inside. I see people like me everywhere now. I hadn’t noticed before. I wasn’t ready for it. Am still not ready for this phase of life.

Some of the stuff I have found in my mum’s plastic bags full of photos and my dad’s archive is fascinating – probably mainly to our family, but also more broadly. But When I say ‘archive’, that makes it sound grander than it is – there is no system that I can fathom. Just boxes that look organised but aren’t. Tax returns from 30 years ago nestle happily up against water bills from 2020, and P60s from 1964 jostle for space beside passports from 1969 and 1972 (god, my mother was beautiful in her passport photos)… scaffolder’s invoices from 1985 (the year we knocked down the asbestos garage and built an extension) next to a pile of online purchase delivery slips. The handwritten notes for the (terrible) speech dad made at our wedding resting on top of a council tax bill two decades later. Quite how documents of such disparate dates and types became bedfellows is baffling, but that is the blessing that has forced me to go through each page, where I have found gems that I might otherwise not have appreciated. I have tried to write about what is in this treasure trove, what I’ve found out, what I’ve remembered, what it means – just to give the tiniest hint of what’s in it – but every time I do the post runs wildly out of control. So I’ve re-written it and re-written it and culled the detail, accepting finally that I will have to leave this task until it’s the right time.

Each piece of paper holds the spirit of a memory in it, an echo of some moment in someone’s life. You can hear them when you unfold the pages of official papers. The crinkle of desicated, brittle brown sellotape that holds together old, soft deeds. Conveyances, mortgages, insurance policies…through which you can trace the occupants of our house (and at one stage a full inventory of the fancy sounding contents for the purposes of probate) back and back and back to 1867. You can hear the memories in the flutter of impossibly thin, translucent typing paper, weighed down with clonky typed and overly formal verbiage. There are letters of complaint, objections to planning or licensing applications, birth certificates, old passports with the corners cut off, marriage banns, wedding certificates, death certificates, a decree absolute from the fifties. Petrol ration vouchers, WWII discharge papers, tiny driving licence booklets, the accounts of the estate of the long lost half-sister of my dead grandfather nobody knew existed until she died intestate. Passport photos, school photos, old IDs. School reports, exam certificates, professional qualifications, job offers and promotions, voluntary redundancy papers. Minutes and ledgers for various charities and clubs dad was treasurer for. A red post it note on which my dad has written out his mother’s full name and date of birth.

My mum is the keeper of most of the photos, for both sides of the family. There are fewer of dad’s side. His was a smaller family (apart from the branch who left on a boat for a better life in Australia in the 50s and bred impressively), and poorer. The pictures of dad show him mostly outside, on scrubland or allotments, trowel or watering can in hand, washing line or prefab in the background. He is sometimes on a bike or trike, and usually has terrible knitwear and even more terrible haircuts. The adults are always shown with sleeves rolled up and pinnies on. My mother has ringlets, delicate features and party dresses. The pictures of her parents are posed and they are always smartly dressed. There are few of her with both parents, because her father wasn’t around after she turned 10. But her mother was from a large family and there are a multitude of pictures of  the Jenkins family, going back to my great great grandparents. And of course there are many colour pictures of me and my brother, blonde and smiling (sometimes scowling), at birthday parties and on beaches, in the garden or around the be-tinselled Christmas tree at The Beacon, surrounded by adults with fantastically awful 70s clothes, decor, haircuts and beards. Four generations of our family have lived in that house at one time or another.

I know only too well from my work, that not everyone has parents they can depend upon as their safety net through childhood and adulthood, as we have done. The switching of responsibility from them to us has been both unexpected and disconcerting and our equilibrium has been unsettled. But I am lucky that most of my memories are happy ones, and I’m blessed to have had a single home throughout that I have been able through my whole life to come back to, to reconnect to and to ground myself. I know that there are far more important things than bricks and mortar. Packing it up and sorting it into piles (keep, shred, sell, charity) is horrible nonetheless.

But I wanted at least to explain at least how all this *stuff* that has been going on at home – that is still going on at home – has contributed to the near silence on Pink Tape in 2023. All this has occupied so much of my headspace that I have been unable to think what to write that isn’t somehow about it. So I’ve scarcely written much of anything. It’s been hard to find a way of writing anything about this, and I have been paralysed with the fear that if I start I might just never stop spilling it all out. Whilst this has long been a place of catharsis there is a limit. And frankly, with work and home life evolving at an alarming pace throughout the year (great year to take silk, Lucy – genius), it has been enough to just survive. So I have put off and put off writing.

As the year draws to a close, I felt again that I had to find a way write something, even though I scarcely understand the drivers behind that need. As predicted, it’s been hard to contain and to organise in my mind or on the page.

I have an overwhelming urge to record, to capture each memory that rises up from each picture, and each page that I turn, every object I’ve unearthed in the back of a cupboard. I feel as if these memories will blow away and be lost if I don’t capture them on the page. There is so much nostalgia to contend with at every turn that it makes every day exhausting. And at the same time so much real life stuff to attend to – work, GCSEs, endless medical appointments and things to sort for mum or dad, as I switch from carer to attorney to daughter and back. So this is not the time or the place for trying to achieve the futile task of cataloguing and taming all the data and debris of the history of our family. And at present I’m clearly capable only of self-indulgent rambling.

However, I’ve spent too much of December going through the last of the boxes of papers in a bid to clear the house by the new year and it made me turn inwards. After a lot of weeping amidst piles of scatter papers, boxes and bin liners, I have now ‘filed’ the bits that I want or need to keep. And even though I’ve deleted most of it before posting, it has helped to convert some of my confused emotions into words. I can put it down for now and refocus. I’m in good health and have my family around me including my parents. It’s my turn to worry about them, as they wrestle with enforced separation and a multitude of health complaints.

So I’ve put the archives away for another day, in the spot where the Christmas presents were stashed, still in their Amazon packing. This morning I started wrapping pressies and facing forwards to make the best of Christmas with my family, and to make a few more memories for my own kids to treasure in years to come, but most of all just to be present in the moment, and to ready myself for 2024.

I suppose I should conclude with some sort of wise and witty festive message. Leave you on an upbeat note and all that… So, to all those of you who have endured a crappy year or who recognise some of what I’m wittering on about here – hang in there – they can’t all be annus horribilises (horribilisi?), to those who are feeling baffled or relieved they have a while yet before they have to worry about such things – make the most of each year you have together, and to everyone – for god’s sake make an LPA (and no, I haven’t done mine yet, but do as I say not as I do).

And don’t forget to get your turkey out of the freezer (ordering an eye wateringly expensive fresh turkey from the nice butchers was frankly one task too many this year).

I won’t promise at the close of this year to blog more in the next (as I often do). The truth is blogging may is unlikely to be my priority in 2024. We will have to see what the year brings.