Category Archives: rants

This is your pilot speaking…brace for impact

There is a new pilot scheme running, which allows parents in certain court areas (including my own) to submit their applications for a Child Arrangements Order (form C100) in an online format. It is only open to parent who are in dispute about child arrangements where they are in person, so this pilot site is one which litigants are expected to navigate on their own.

Given that approaching 40% of children cases now involve no lawyers (and another 40% only one), and given the onerous nature of the 20+ page paper C100, this is a sensible step and has real potential to make the system more manageable for litigants and court staff alike.

You can find the link to the pilot scheme here.

Be warned though, this is an 'Alpha' site - and some users will be asked questions that in my view are inappropriate and unnecessary. I discovered them a couple of nights ago rooting around the pilot site to see how it worked, and immediately emailed the team responsible for it to raise my concern.

Although many of the questions will be familiar to those who have completed or read a C100 form, many of them are not - and I was surprised to see such invasive and detailed questioning in such a lengthy sequence. I had expected a process designed for litigants in person to be more simplified and streamlined, not even more involved than the paper version. As best I can guess, the process through which prospective applicants are taken is in part aimed at replacing safeguarding telephone interviews, in that questions drill down to the detail of concerns or allegations in a way which is far more involved than even the accompanying C1A form, and about the sort of personal detail that would ordinarily only be probed for by a professional once the process has been started. Because of the linear nature of the process, it is impossible to progress to the next question without completing a box that requires an answer.

The only way to progress past a question that the applicant is unwilling or unable to answer is for the applicant to type some gobbledigook in the blank box and click next. Of course not all users will work this out.

This might not matter, but there are several questions in this sequence which are likely to distress some parents, and which I think may cause them to abandon their applications. Where a parent indicates that they have some concern about theirs or their childrens' safety or welfare, they are told that they must answer some further questions to help the court 'consider any risks'.

They are told that the questions might be difficult or upsetting but that they should do their best to answer. Amongst the questions that follow are some slightly odd questions about whether the children have been financially abused, and then - more concerningly - very direct questions about sexual abuse perpetrated against the person completing the form.

The initial question is inexplicably broad 'have you ever been sexually abused?', and once the answer 'yes' is selected the user is presented with a demand to 'provide details of the sexual abuse', and if it has stopped the date it stopped. There is no option 'I prefer not to say' option and you cannot simply leave the boxes blank or it returns an error message.

Elsewhere, many screens before, there is some small text below a general question 'Have you ever suffered or are you at risk of suffering domestic violence or abuse'? that reads 'only include abuse by the people in this application or someone connected to them'. There is no such caveat or clarification with the sexual abuse question.

It seems inexplicable to me that a person should be asked to disclose details of sexual abuse that may bear no relevance to the application in hand, that may have been perpetrated years ago by an unconnected person, that may have no bearing upon current wellbeing or parenting capacity. It is utterly insensitive to present this demand in this way without caveat.

Beneath the question about sexual abuse there is a small clickable link to more information about 'Why do we need to ask this?' that explains (if noticed and if clicked) that it is for safeguarding purposes and will be used by CAFCASS to advise the court. Although there is a general question elsewhere about privacy of contact details, there is no clear explanation as to who will see the substantive responses to the questions posed in the online process. From the review page at the end of the process it appears as if the whole set of extended questions is treated as if it were part of the C100 i.e. for service on the respondent(s), I do not think that this process is sufficiently transparent in terms of making clear who will see the sensitive personal data being collected and what it will be used for.

This is, I hope, all an unintentional mistake that will be swiftly remedied - it is a pilot after all. But it is a serious problem. I am worried about it because a respected legal academic who was consulted about this proposed pilot has publicly stated that this sort of question was inappropriate and unnecessary - and the MOJ appear to have gone ahead with it anyway. It looks as if this may not simply be about converting the existing form to an online one, but also about changing the way in which information is gathered and processed for safeguarding purposes (to include gathering MORE data) - and in particular to assist with early identification of families who may be potential child protection cases. IF the question about sexual abuse is an intentionally broad one, as opposed to hamfisted drafting, it suggests that there is some sort of underlying assumption about the statistical risk associated with parents who are victims of abuse. I would like to see the evidence / research base for any such assumption - I do not think it is at all obvious that one can use data about whether a person has been a victim of a particular type of abuse to predict risk to their children. IF this project is about anything more than transitioning from snail mail and paper to digital then there should be a consultation and far more transparency of purpose - and frankly it should have happened before launch of the pilot.

Why does it matter?

Obviously it matters because this is a clumsy attempt at gathering very sensitive personal data that might well be traumatising, or at the least upsetting for some parents, and I just don't see it as necessary.

But even putting questions of trigger warnings to one side, it matters because parents are vulnerable. And because parents are fearful. And suspicious. And easily confused. I don't think that a bland warning that some of the questions might be upsetting is good enough if the questions asked are drawn like sledgehammers. It needs to be absolutely crystal clear what HMCTS will do with this information - not least because it appears that the consequence of answering the sexual abuse questions might be identify a person entitled to lifetime anonymity to a third party (the respondent), without any consideration of what risks that might give rise to.

It matters because the perceptions of and reactions this sort of thing may be as damaging as the reality.

Parents may form the impression that this data will be passed to their ex, their abuser, to social services - that it may be used against them in some way. As currently drafted it would not be unreasonable for a parent to be worried that if they disclose sexual abuse this information might be passed seamlessly to social services and used against them 'for future risk of emotional harm' (as one parent suggested to me today on twitter). If a process designed for vulnerable litigants in person is capable of cultivating this fear and worry, it is the death knell of parental engagement and of trust and confidence.

Parents may fail to complete the process (there is a warning at the end of the form that making a false statement may lead to prosecution which would never have applied to a parent who didn't fill in a C1A but now appears to expand to a failure to be frank about any sexual abuse ever experienced).

Parents who do complete may have given inaccurate information that needs later to be corrected, with obvious ramifications for their credibility.

Respondent parents could conceivably use the information to harass or manipulate the applicant parent once served. Where this information is gathered via CAFCASS safeguarding interview it is at least possible for CAFCASS to request to withold their safeguarding letter (not that they would be likely to ask such a broad, blunt, brutal question in the first place), but here the incorporation of the information in the actual application means that the Respondent is ENTITLED to see it.

I emailed when I spotted these issues to the email address at the top of the alpha site. I will update this post when I've heard back from the team responsible for the site. So far I've heard nothing, but the HMCTS twitter account have responded to tell me my message has been passed on.

 

The team are asking participants to consent to being emailed for feedback on the process, and I hope that feedback will be thoroughly evaluated prior to rollout. I would guess, that quite apart from the specific issues I have raised, this process is probably too lengthy to be manageable for many litigants, although fortunately the language seems much less technical than that on the reissued paper C100 this week. I tend to think that even once wrinkles are ironed out it will not be a process that all litigants will manage, and there will need to be some sort of paper process retained for those with literacy, language or technological barriers to access.

Zoe’s cross examination of the secret barrister…

Zoe Saunders (@zasaunders) kindly reviewed the Secret Barrister's book for Pink Tape recently. Now she's only gone and managed to get an interview with SB him/herself. Before you all rush to press Zoe for the name and gender of SB, I am reliably informed that Zoe hasn't *met* SB, but s/he has provided answers by email. Some of you may be suspicious that this inteview is in fact all a cunning ruse to distract us from the real truth, namely that Zoe is in fact the Secret Barrister (@barristersecret). But I'm pretty sure you'd be wrong....

The highlight of this interview, is the bit about the Daily Mail review of the book - I'm most tickled by the idea that the next reprint might have this on the dust jacket :

"...of some brilliance, clearly explained, cogently argued...Its main distinguishing quality, though, is its absolute reasonableness..."

THE DAILY MAIL

Anyway, thanks to Zoe and to SB, whoever you are... Without more ado here is the interview.

Disclaimer : it isn't really *cross* examination, but then all the best cross examination avoids crossness....and I needed an interesting title...

 

ZS : How difficult is it proving to remain anonymous?

 

SB : So far, so good. I live day-to-day with the constant low-level anxiety that I'm a minute away from my senior clerk calling to ask me if this rumour they've heard is true, but as yet I've remained untroubled. While there's understandable curiosity, I think - or at least hope - that people have accepted that there's really nothing to be gained from knowing who I am. I'm genuinely not anybody interesting, and all that revealing my identity would lead to is a raised eyebrow and an anticlimactic "Oh." Like finding out how a magic trick is done. But less interesting.

 

ZS : Are you not tempted to reveal your identity?

 

SB : Absolutely not! At present I have the privilege to do my day job, which I love, and my writing/blogging, which I also quite like, but I don't think they could coexist if my identity were known. Anonymity buys the freedom to be candid and to write independently, without one eye trained on the implications for my practice or my instructions. Realistically, if my identity became known, I think I would have to give up either the writing or my practice, neither of which I'm inclined to do at present.

 

ZS : Has anyone recommended your own book to you yet?

 

SB : One or two people. I nearly received a review from my opponent in a recent trial, who asked if I'd read the book, and, when I mumbled something about having heard of it, turned to me conspiratorially and said, "Well, I'll tell you this. It's not very..." At that point, the judge walked in, we snapped to attention and the moment was lost. I spent the rest of the trial wondering what adjective would have completed the sentence.

 

ZS : How does it feel to have had your book sent to every MP?

 

SB : A little mind-blowing. I'm stunned by the generosity of all of those people - not just lawyers but concerned members of the public - who supported the book and contributed to the Crowdfunder to buy a book for every MP. The Solicitor General said at the Young Bar conference last week that all the legal officers in government have now read it, which is fantastic (if terrifying), and a number of MPs have tweeted to say that they have read or are reading it.

 

ZS : Do you think that things are likely to improve at the criminal bar?

 

SB : In the short-term, no. But the next 12 months will I think be critical. We have strong leadership at the CBA, and we are assured that the MoJ is constructively engaging for the first time in recent history. We have been burned many times before, so I am counting no chickens. But if things go well, we could lay the groundwork for medium-to-long-term improvement. The level of fees, and the recruitment and succession crisis, is an obvious problem. But the broader issue of the funding of the Criminal Justice System across the board is something which the MoJ now know we will not let lie, as this not only leads to the diminution of justice, but exacerbates the other, less tolerable aspects of criminal practice; the hours, the treatment of professionals by courts and (some) judges and the stress of doing your job with both hands tied behind your back.

 

Next year's spending review will be an important litmus - will the MoJ, for the first time in a decade, fight for increased spending on the courts, Crown Prosecution Service and legal aid? Or will it meekly accept its place as poor relation of the welfare state and offer up the justice system for further cuts?

 

ZS : Any advice for someone considering becoming a criminal barrister?

 

SB : The advice you will hear from most, which I heard a decade ago coming to the Bar, is "don't do crime". But I wouldn't echo that. Crime needs good people. And, for all its horrors, there is a reason many of us are still plugging away. It's fascinating and rewarding and all the other cliches you trot out at pupillage interviews. So I would say do it, but go into practice with your eyes open to the realities. You will not earn very much money (and at the start will be paying to work). Your social life will be a distant memory. But no working day will ever be dull.

 

ZS : Have you had any abuse as a result of your tweeting and blogging and if so how do you handle it?

 

SB : Oh, lots. It's the inevitability of expressing opinions on the internet. There's a hardcore loyalist "legal aid fat cat" brigade, who refuse to accept that the thousand pounds their mate paid to a commercial barrister does not represent the hourly income of a criminal legal aid lawyer. There are your garden variety racists and misogynists offering their own inimitable analysis on any legal cases in which they perceive the race or gender of the defendant/victim to be relevant. Right now, one of my weekly chores is weeding my blog of comments by Tommy Robinson fans who, outraged at my blogpost criticising their cause, and even angrier at the fact that comments are disabled on that particular post on my blog, have taken to spamming every other (unrelated) blogpost with their worldly views on Muslims, paedophilia and "abuse-enablers" like me and my legal ilk.

 

Handling it is no doubt far easier for me than for those brave enough to post opinions under their own name. The threats are somewhat denuded when you know that the maniacs have no actual idea who you are. Obviously, I'd rather not have to sift through those sorts of comments, but anonymity at least affords some distance.

 

ZS : Tell us about the best bit of feedback you’ve had? 

 

SB : While lots of people have said lots of (undeserved) lovely things, the feedback that I enjoy the most is from non-lawyers, particularly those who say that they have had their preconceptions changed on an issue by reading my take on it. The crisis in criminal justice stems from the lack of public understanding of where the problems lie; reaching people who either haven't really thought about criminal justice, or have views on the subject informed by tabloid myths, is going to be key to turning the ship around. To that end, while it's difficult to select just one, a standout review for me personally was the Daily Mail's review of the book. To have what is essentially a polemic against the policies that the Mail has championed for the last decade described as "of some brilliance, clearly explained, cogently argued...Its main distinguishing quality, though, is its absolute reasonableness" is something that I had not expected.

 

 

ZS : How did you manage Stoke Newington Festival without being outed? Have you had any near misses? Would it matter if your identity became known?

 

SB : I appeared at Stoke Newington virtually over Twitter, which is how all of my "public" appearances have been conducted. Either my Twitter feed is beamed onto a back wall or I tweet and DM the chair to read out my answers, and all can be done from the comfort of my study. So happily, no near misses. Although, for the reasons above, I would not want my identity to become known.

 

ZS : Where do you see yourself in five years?

SB : In a fantasy world, still writing and practising in tandem. If things go wrong, I'll be that bedraggled figure in the park shouting at fleeing passers-by about how I used to be a barrister and bestselling author.

My work life imbalance and the big gorgeous eyes

Thanks to Katie Crutchley on Flickr

It's ironic that some weeks after the publication of the Bar Council's Working Lives Survey I've only just managed to scrape together enough time to knock up a blog post to say 'Damn Right we're stressed and overworked!'...

I'd have written it last weekend but I was working (same for pretty much every evening last week). I'd have written it on Friday but I didn't get home till after 8pm because I was so shattered that having left chambers I realised I'd left my car keys behind and had to catch a train and then cadge a lift. I'd have written it last night but I conked out fully clothed at 8pm and woke up 12 hours later. Until this evening though, I've enforced a 'no work' rule all weekend - because frankly I'm so cream crackered I can't see straight and my family are showing signs of normalising my increasingly frequent weekend absences. Weekends in our house now begin with 'I know its the weekend mummy, but are you going to be here today?' (delivered with big, gorgeous eyes locked on mine).

So yeah I'm #sorrynotsorry that you've not had this before. Blogging is not top of my priority list. Suck it up lovely bloggees.

So. (I'm rambly when tired...) Here is the Working Lives Survey. 23% of respondents practiced only family law. 48% of respondents (just under 2000 respondents) practised in more than one practice area.

Here are the key points for me :

    • There is a clear difference in views about working lives between practice areas, for example criminal and family practitioners were more negative about their working lives than those in commercial or chancery practice.
    • Workload, stress and work-life balance were worse in 2017, than in 2013.
    • Only 45% of barristers said they could balance their home and working lives satisfactorily, down from 50% who said they could in 2011.
    • Barristers practising in criminal and family law said they were struggling the most with work-life balance - 48% of criminal and 58% of family barristers said they could not balance their home and work lives adequately.
    • Criminal practitioners (50%) and family barristers (62%) are more likely to indicate that they are emotionally drained by their work.
    • In terms of work pressure, 58% of criminal barristers and 66% of family barristers said they felt under too much pressure from work.
    • Across the whole Bar, only 26% of respondents said they were not under too much pressure from work in 2017, compared with 34% in 2011.

So it's all pretty gloomy right. And it's particularly crappy for the criminal and family bar. And it's getting worse. No surprises.

There is a lot of focus at present on the situation for the criminal bar given the current refusal to take on post 1 April work, the public attention generated by the Secret Barrister book etc. Rightly so, because things are pretty dire on a number of fronts. So a lot of the coverage I've seen on this survey so far is all about how it confirms how bad things are at the criminal bar.

But as this is a family law focused blog I wanted to draw out the fact that family barristers were even more likely than criminal barristers to say they couldn't balance their work and home lives than the criminal bar. And family barristers were even more likely than criminal ones to report feeling emotionally drained, and under too much pressure from our work.

That is really worrying. It ISN'T simply explained by the fact we deal with horribleness and child abuse - so do most of the criminal bar, and I dare say some of the horribleness that they deal with daily is more traumatising and emotionally taxing than the 'run of the mill' horribleness that will make up most of the family bar's daily fare. We both deal with a mixture of the sad and the bad, with a tendency towards a diet more heavy on the latter as we get more senior. So I wonder where this discrepancy in our responses comes from?

Maybe we're softer. Or maybe we're more 'in touch' with our feelings, our stress, the effects on our family and our relationships of doing a hugely intense job with f*cked up hours, of not being 'emotionally available' for your children - because we see that every day. Maybe. I'm not completely convinced by any of those hypotheses.

Maybe it is just that everyone in the family justice system seems to be under increasing workload with dwindling resources. A couple of days before I saw this report I found myself commiserating with another (female) colleague in chambers one evening when we were still working and we had missed yet another dinner or bedtime, and finding we both felt that we were spinning too many plates and that our usual techniques to manage and predict workloads sensibly were just ineffective. We're all doing too much. The statistics and the Care Crisis review bear out that the workload just keeps going up and up but we've all been busier than ever for months. It's easy to say that we have a responsibility not to take on too much, to say no. That is true, but there is something creeping and insidious about how we are all working at breaking point. Before you have realised it you have more plates than you can manage and whilst your back is turned to deal with one plate someone else starts another plate going.

I've turned work away. i've booked days out to recoup or to prep between trials. I've told the clerks - no more. But the demands associated with each brief, each hearing are so much greater than they once were. They mushroom without warning....The workload between hearings (usually unpaid) when there is a development. The urgent hearings that are scrambled when a wheel falls off a wagon, the late telephone calls squeezed in where there should be a bedtime or a lunch break or a quiet coffee before the day begins. The late or missing papers arriving in dribs and drabs and in one big chunk just before the hearing which everyone knows will have to be read after the kids are in bed and into the wee small hours, when other people are having a life or watching Bakeoff or Coronation Street (or whatever the hell is on the telly on a week night - not a clue). Each extra task, each written document we are expected to prepare to help drowning judges manage their caseloads is a step towards the brink for us. The skeletons, chronologies, case outlines, draft orders, attendance notes, draft LOIs...the incessant email exchanges...they are eating up our lives.

We barristers respond instinctively to an enquiry about how things are with 'busy', because busy means in demand and that means successful. But there is such a thing as too busy and we shouldn't wear it as a badge of honour. My diary is now on lockdown until the autumn. I will manage my current caseload. But then I am going to have to find some new ways to claim back my weekends, my holidays, my life.

Two professionals in cases I have recently worked have ruthlessly implemented a policy of not reading or dealing with emails outside office hours. For a split second with each I was affronted that they hadn't answered my very important email in time for the wagon to run on without stopping. But only for a second. It will be no surprise to hear that these boundaried professionals weren't lawyers.

I'll confess I'm not ready to crusade for an email and telephone curfew, but I sort of wish someone would. What would happen if we all said : 'It's 6pm I'm off duty. I'll deal with it at 9am'. You know and I know what would happen : Everything would grind to a halt. Deadlines would be missed. Cases wouldn't be ready. All hell would break loose if we did this for even a week.

The system is utterly and totally dependent on the near burn out of those who work in it. How should I explain that to my children with their big, gorgeous eyes?

 

Feature pic : Thanks to Katie Crutchley on Flickr