Category Archives: rants

Terrorism : all the fault of divorcees (apparently)

I read the headline in The Brief this morning as I got in the car to drive to chambers:

Family breakdown causes terrorism, says former judge 

I didn’t get much past the headline before I threw the phone on the passenger seat and decided to ignore it. And promptly spent the entire drive to Bristol seething. No prizes for guessing which controversial former judge is pontificating about family breakdown.

I sat in the car park and read the rest of the article, in the hope it was just an outrageously pimped headline. This is what I got :

Family breakdown in the UK has reached epidemic levels and is spawning crime and even terrorism, a former High Court judge has warned…there was a clear link between family instability and terrorism which ministers were failing to tackle through legislative measures. “Terrorists are all from appalling family backgrounds – Donald Trump was right: they tend to be losers with no ties and so they find their identity in groups of like-minded people; or suffer mental breakdown.”

Similarly, many people in prison came from broken homes, he said. “Family instability is at epidemic levels and the UK is at the top of the family instability league compared with other developed nations,” he said.

Children, he added in an exclusive interview with The Times, were those most severely affected by the epidemic, in which, he said, the collapse of families was at record levels. “Nearly half of all teenagers are not living with both their natural parents,” he said. “Teenage mental health issues, child abuse, domestic violence and abuse, the social care crisis, the housing crisis – every one is either primarily caused by or massively exacerbated by the scale of family breakdown.”….

This did not improve my mood. But I had to go and do some actual work so, having parked the car, I parked my reaction to this too…

The headline to the linked article is : Sir Paul Coleridge: If I had stayed as a family High Court judge I would have had to keep quiet.

In that article Sir Paul is quoted as saying “If we don’t address the root causes [of family breakdown], we can throw money at family breakdown until the cows come home, but it would be like trying to deal with typhoid and not sorting out the dirty water.”

Now you can call me a snowflake if you like, but it’s really really offensive to see the people I work with, not to mention my friends, my family – all described as diseased, as being responsible for making their children into criminals and terrorists by virtue of the simple fact that their relationship has not stood the test of time. The headline may belong to the newspaper, but the words in quotation marks all belong to Coleridge. For a former High Court Judge he is remarkably cavalier with words. The language of disease, the rangy generalisations : terrorists are ALL from appalling family backgrounds? REALLY? I’m pretty sure there is absolutely no evidence base for such a sweeping assertion. This is blatant reverse engineering for the purposes of spin, on a grand and revolting scale.

On this leaping logic we should lock up (quarantine?) all the children of separated parents and all the separated parents themselves. Because they are responsible for all the social ills that beset us.

Ironic then that this former High Court Judge should place reliance upon the opinion of Donald Trump, a man who is thrice married with five children, some of whom hold positions of influence and responsibility in the Whitehouse. Goodness only knows what terrible things these children of a twice divorced man might be capable if we were to accept Coleridge’s judgment.

 

The theatre of legalese? Oh, please…

If you’re anything like me this headline got your hackles right up :

‘Is the theatre of the family courts – where legalese often takes over – really helpful?’

No, thunk I. It’s not helpful. But it’s also fictional. Who is this “young social worker” said to be “reflect[ing] on their first experiences in the courtroom”? I had my special patronising eye rolls at the ready.

But then I read it. And he has a point. Because, hackneyed and stereotyped as the headline may be, this young social worker was not speculating, but describing his actual experience (yes, yes the clue was in the strapline I quoted above).

He describes lawyers asking “multi-layered questions peppered with jargon”, wondering if there is a better way. Cringe. Yes, there is a better way – and most decent advocates know it. This should not be how it is in court.

None of us are perfect of course, though I have to observe that the social work profession may need to look at its own use of jargon sometimes too…it is quite difficult not to use jargon when asking questions about the jargon laden reports we are challenging.

Our young social worker goes on, with more descriptions straight from the Dummies Guide to Bad Advocacy :

Often under this questioning it feels that legalese takes over and facts and truth are distorted. Questions such as ‘It is right isn’t it that if we consider X, then Y must be true’ and ‘It is not the case is it, that this actually happened, and your version of said events was in fact false, yes?’.

Oh dear. We aren’t covering ourselves in glory here, are we? At least nobody said “I poot it too yoo…”. If this is an accurate account of the sort of questioning that is happening, we really need to give ourselves a detention.

I’m less sympathetic with the complaint that barristers were “targeting [his] relative lack of experience in years practising to discredit and unsettle” him. Whilst one shouldn’t do it just for laughs, it IS a legitimate line of questioning – and one which I have used on occasion to devastating effect – most often when a young social worker is dumped with something way beyond their competence. This is sometimes necessary. And it isn’t done just for theatre or for kicks. I can quite understand though, that the experience described of a barrister “wrongly surmising in her submission that [the social worker] was both younger than the parents and would in effect struggle to understand parenting” would leave the social worker feeling insulted.

Where I part company with the author of this piece is his criticism here :

I’ve also seen barristers chat and laugh about their private and social lives in the courtroom while families look on, unsure about whether this is correct or not. I felt it was a little farcical.

I’ve seen some insensitive lawyers, some insensitive judges and some insensitive social workers in my time. There is a need to have your antenna up. But I think that the idea that we should pretend we don’t have lives or children, and must completely compartmentalise our lives is naive and misplaced. Firstly, from a selfish point of view this is our workplace, day in and day out. And yes, in the moments between evidence we do sometimes exchange chit chat about the stuff that happens when we are not in court. The job we do is not often fun, and it’s important to retain some semblance of a normal life when possible. But more importantly, it’s also important to allow clients to see that those involved in the system that is scrutinising their lives are human too. And patronising to think they should be shielded by us being barred from normal social interactions. There is a limit of course – some things shared would be upsetting, some are just private and none of anybody’s business. So it’s important not to overshare, and to be alert to inappropriate hilarity or unprofessional remarks. But clients often want to know and are reassured by knowing that I have a normal life too, that I’ve got kids at home, that I understand its tough being a parent because I have my own home crises too. And a little light relief in a trial situation can often make the unbearable just about bearable – can soften the edges of the formal, adversarial court process that the social worker is complaining of. Clients often appreciate a bad joke or some banal chat about whats on the news or some trivial matter. The social worker says that in the court environment “you can share little, or no, communication often because of the context”. Yes the context is different, but the need to communicate as humans remains, and the court process doesn’t prevent that. Whilst clients may think it odd if opposing lawyers are too pally, it is not necessary to behave like sworn enemies throughout the proceedings. It isn’t a theatre, and we don’t have to stay “in character”.

Finally, he muses about the impact of the court process on the ability to work collaboratively with families :

In social work it is important to be collaborative and work in partnership with families. Is court a place where this could ever happen? How could one work towards the removal of a child, yet work in collaboration if it is done against the parents’ wishes?

And here I think he is muddling up two things : it is not the court environment which makes it a hard task for a social worker to achieve a collaborative relationship with parents : It is a feature of the coercive role a child protection social worker is required to play. I hope it isn’t too patronising to say to this young social worker : that’s life in child protection social work – it is very difficult to be their chum when you are asking to take away their kids. That is a hard burden to carry when you are young, passionate and idealistic and your motivation is to help families and children – but it isn’t the fault of the court or the lawyers.

For all that though, this article is a reminder that we could all do better to make the court experience less jarring, less discombobulating – more humane – for all those participating in it. Whether the participants are frightened and hostile parents, inexperienced social workers or anyone else. And from what this young man is describing we lawyers could usefully reflect on our own language and behaviour, and continue to work on it. It may not be a theatre, but there are always others watching our performance.

Cowboys of the wild west?

Pic by Christopher Dombres on Flickr (creative commons) - thanks!

Some context on the influence of fee-charging McKenzie Friends in family law

[Ed : This is a guest post from Leanne Smith (@leanneslaw) and Emma Hitchings. I am very grateful to them for taking the time to respond to my blog post about their research. They are of course, absolutely right in everything they say. If it were not sufficiently clear from my original post : my suggestion that the research dealt only with the tip of the McKenzie iceberg (which the authors accept as factually correct) was not intended as a criticism, merely an observation about the scope of the question asked – the research was only looking at the tip of the iceberg. I was pleased to see that research had flagged the existence of what is often forgotten – the stuff below the water line. Leanne and Emma are right to broaden the issue further beyond the “McKenzie” label (which I had perhaps overstretched in a search for shorthand) and to explicitly encompass all sorts of online information and advice.]

 

Last week the report of our Bar Council commissioned research on fee-charging McKenzie Friends in private family law cases was published (the full report can be accessed here and an executive summary here). One of the report’s key messages is that we found little evidence of McKenzie Friends seeking to exercise rights of audience on a regular basis and plenty of evidence that the bulk of the work done by McKenzie Friends is done outside of court. The work McKenzie Friends do in court, we said, is ‘the tip of the iceberg’. This was the finding that last week’s Pink Tape blog outlining Lucy Reed’s perspective on the research focused on, indicating that it was not at all surprising. We hope we can be forgiven here for indulging in a few words in defence of the utility of the research. We readily accept that many in the legal professions have been aware for some time that paid McKenzie Friends operate predominantly outside court, but research has an important role to play in interrogating anecdotal evidence and providing more systematically derived evidence in order to validate or debunk it.  This is no less true because perceived experience is validated by a set of results. In this instance, our hope is that the findings of the research will function as a turning point for discussion on the subject of fee-charging McKenzie Friends in a way that the observations of some professionals who encounter them has not. In addition there are, of course, some more granular observations that we consider important buried in our report, though we will resist spoilers for those who haven’t yet finished reading it…

 

In her post, Lucy expressed some disappointment that the remit of the research was limited in such a way that it failed to get to what she perceptively identified as the ‘real meat’. That is:

The “advice” before the hearing that colours the behaviour and responses of a litigant in sometimes imperceptible and sometimes oh so obvious ways – but always in ways which are difficult to deal with, because the whisperer is unseen and his advice can only be guessed at.

 

As far as researching transformations in the provision and consumption of legal advice goes, we share the view that there are deeper revelations to be had by exploring what is largely new and unseen (and paid McKenzie Friends are neither of those things). Our research project was indeed designed with a view to exploring what McKenzie Friends do in court. It seems likely that the Bar Council commissioned it with as much concern for the consequences that incursion of McKenzie Friends into the realms of advocacy might have for barristers as for the broader consequences for access to justice. Understandable as that may be, this is an area in which the legal professions, we feel, have refused to see the wood out of jealous regard for the trees. To worry over the way in which courts deal with paid Mckenzie Friends, and vice versa, is to miss the important point that, as Lucy notes, ‘litigants are most vulnerable to exploitation and bad advice long before they come into a court room’. This observation taps into, but does not fully capture, a broader problem related to how individuals access and use advice about private family disputes in a world that is a) post-LASPO, and b) characterised by online exchanges of information and experience. One of us has previously written of how this convergence of trends has created a sort of Wild West, in which potential litigants, either unable to afford professional legal advice or unable to discern their need for it, might roam the internet and happen upon all sorts of information of doubtful pedigree and utility. The consequences are potentially far reaching, and likely to manifest in both the solutions to family problems that are constructed by those who never approach the courts and in the perceptions of family law and family justice that those who do use lawyers and the courts bring with them.

 

So where do paid McKenzie Friends fit into this landscape? They are in a sense emblematic of the Wild West, or at least the thrust of discussion among legal professionals and researchers to date has often cast them as such. Suggestions that their work ought to be curtailed have been made by the Civil Justice Council (which concluded that courts should be reluctant to extend rights of audience to them, see p 54 here), in the Lord Chief Justice’s consultation on Reforming the courts’ approach to McKenzie Friends (which proposed that they be precluded from recovering fees for in-court work), and in the conclusion that the Chairman of the Bar drew from our research (i.e. that their work ‘can and should be nipped in the bud’). All this generates a sense that McKenzie Friends are the maverick outlaws of legal advice and support provision –  the cowboys of the Wild West.

 

The concerns are not entirely unjustified, of course. As our research notes, certain aspects of the work and practices of fee-charging McKenzie Friends are problematic. Even some good McKenzie Friends would do well to sharpen their business practices to serve the interests of their clients. Lucy noted the challenges posed by McKenzie Friends who ‘caution against trusting, believing or engaging with lawyers’, so that litigants are ‘primed with suspicion’. Although we saw little evidence of such behaviour in our study, we know that it exists. Recent research by Angela Melville (accessible here – subscription required) has identified problems with the combative and inflammatory tone struck by some McKenzie Friends on social media platforms, and we ourselves have seen social media accounts in which individual McKenzie Friends repeatedly denigrate the family justice system. Such approaches are profoundly unhelpful, potentially harming litigants’ prospects of successful conflict resolution and also doing reputational damage to McKenzie Friends as a group. Those McKenzie Friends who are keen to see the development of cohesive and respectable standards of practice would do well to consider measures that might position McKenzie Friends more clearly as useful contributors to the family justice system, rather than enemies of it, and marginalise the behaviour of some of their less constructive peers.

 

However, notwithstanding the outliers, as a group, it could be argued that paid McKenzie Friends represent the tamer end of the revolution in legal advice and services. This brings us to the main point of this blog. Even if they are sometimes problematic, McKenzie Friends are categorically not the lone cowboys of the unregulated legal advice arena. As such, we respectfully suggest that even Lucy’s ‘unashamedly… broad and unconventional definition of McKenzie Friends’ cannot explain ‘the risk and prevalence of actual bad experiences that are likely to be befalling litigants outside court’. The creep of unregulated legal advice is far more pervasive and insidious than any definition of McKenzie Friends could be stretched to cover.

 

The most obvious contenders for attention are the handful of for-profit, unregulated online legal series providers that currently deal with some 10-13% of those going through a divorce. (LSB, 2016). These online platforms largely deal with uncontested divorces and handle processes rather than disseminating advice, though there are nonetheless some concerns related to their business practices (see LSB 2016, chapter 4). More importantly, however, they rely on search engines to alert potential clients to their services and what this should alert us to is the high volume of individuals turning to the internet to find information about family disputes.

 

And what type of advice and information might they encounter? Online legal services are likely to represent the thin end of the wedge. Recent years have seen a proliferation of websites carrying information of potential relevance to those embroiled in family disputes. These websites are extremely varied in purpose, content and audience and some early research by Leanne Smith revealed that it is not uncommon for information to be misleading, inaccurate and out of date. Some searchers will happen upon misinformed but dogmatic news reports, or information from another jurisdiction, and only a minority will have the digital or research literacy skills to enable them to make judgements about good and bad sources of advice and information. (Those of us who teach know that even relatively intelligent and educated law students don’t always make the soundest possible judgements about which online sources are reliable and which aren’t). Moreover, some research from technologists and cognitive and behavioural psychologists is exploring whether a sort of ‘machine heuristic’ exists, leading people to attach greater credibility to information gleaned via a machine than to information gleaned elsewhere

 

One of the most commonly used categories of online information and support is likely to be the chat forums hosted by online communities of experience – think Mumsnet, Netmums and their like.  Many use discussion forums to glean information and seek advice and many more are willing to supply this information and advice – with or without the knowledge base to do so. A quick search on any given day will reveal a range of active discussion threads of relevance to a justiciable family problem. The responses range from eminently sensible to inflammatory (‘He is a wanker, end of’), to unrealistic (‘just ring the court and get a letter saying you can take them abroad’) and simply inaccurate. Of course, people have always sourced some advice and information informally from friends, relatives and colleagues with direct or vicarious experience of family breakdown and/or the family courts. In terms of understanding what’s changed we have much to learn about what role, if any, the crowdsourcing of information online plays in influencing perceptions and expectations of the family justice process. But there are reasons to believe that online communities of experience might be particularly influential. One reason is that they have the capacity to generate, rapidly, a mass of responses that lean in a particular direction (and given the shared interests and identities of those engaging, those responses are quite likely to vindicate an original poster’s position). The ‘availability heuristic’, a well-recognised phenomenon in behavioural psychology, would suggest that exposure to a mass of supporting opinions and stories is likely strongly to colour views on what is ‘right’ or ‘normal’. This is something that would merit multi-disciplinary research. There is also further research indicating that group and shared identities can operate in online discussion forums in ways that engender high levels of trust in the information shared within them.

 

Though the potential manifestation of such trends has yet to be explored in the context of online legal advice, it is not unreasonable to hypothesise that online sources might be the murky influence that is discerned lurking in the shadows by some legal professionals. Primed with information gleaned online, it is almost understandable that litigants will mistrust a lawyer who sits in front of them contradicting what they ‘know’.  The point here is that the work of fee-charging McKenzie Friends is the tip of an iceberg in a way that is not identified in our research report. It’s the tip of an ever-growing, ever-elusive iceberg of unregulated, unqualified information and advice consumption on the part of litigants. If the research report, limited in scope and revelation as it is, stimulates discussion and investigation of the full breadth of the challenges posed by the general ‘de-legalisation’ of family law advice, it will have been worthwhile.

 

Feature Pic by Christopher Dombres on Flickr (creative commons licence) – thanks!