As we move into June I am reminded of a letter I wrote to Jonathan Djanogly on 8 June last year, which has so far gone unacknowledged. It read:
Dear Mr Djanogly,
Family Courts without a Lawyer – A Handbook for Litigants in Person
I am pleased to enclose with this letter a copy of my recently published book, the subject matter of which I hope you will find of interest.
I am a family barrister, working daily with families experiencing relationship breakdown and working through its consequences. As such, I am aware of the practical, legal and emotional complexities that such cases can often involve.
You will see from my book that I am supportive of attempts to divert separated couples from the court arena, but I know from experience that mediation and other forms of ADR will not work in a core of cases. Those that cannot be successfully resolved by mediation or agreement will, by their very nature, be more likely to be precisely the kind of disputes that would be most efficiently and most fairly dealt with through the support and guidance of competent legal specialists.
A high proportion of my clients have within their own personal history or within their immediate family a background of alcohol or substance abuse, domestic abuse or dysfunctional family relationships, learning disabilities or mental health problems or neglectful or abusive childhood experiences that have affected their adult functioning. I am very concerned about the prospect of many individuals like those I represent having to deal with their family difficulties in future without the benefit of skilled legal advice and representation.
I have been so concerned about the potential injustices that may be caused to parents and to their children in the absence of competent legal advice and representation for family cases that I have written this book. A miscarriage of justice for a parent may have a lifelong impact on the children, indeed it may have intergenerational consequences (with all the associated cost to the public purse).
Whilst I hope that my book will ameliorate some of the difficulties faced by Litigants in Person, and that it will help to reduce the disadvantages faced by them, I do not think that it is an adequate substitute for legal advice and representation, nor do I think that in itself tools such as my book can be a proxy for the Government fulfilling its duty to provide access to justice. Many of my clients have very low levels of educational attainment, struggle with literacy or language and may struggle to cope because of poor mental health or stress. My book would not help them. It will help a limited number of reasonably educated, emotionally stable individuals to lessen (but not remove) the obstacles they face in the event that they find themselves with no alternative but to ask the court for help.
I hope that you and colleagues at the Ministry of Justice will reflect upon the contents of my book and the quantity of information contained in it: it merely skims the surface of family law and the operation of the family courts. Bearing in mind the sheer scale of the task faced by Litigants in Person in trying to grapple with these issues whilst in the midst of the most traumatic time of their lives, do you really believe that access to justice can be preserved in the event that the Government implements the proposals contained in the Legal Aid Green Paper?
I should be happy to hear any feedback on the publication or in respect of my comments.
Yours etc.
Now I know that Mr Djanogly thinks that 52 weeks is an unacceptably long delay, because he is always telling us so. I am therefore confident that by close of business on Friday his response will be with me (along with his bulk order).
ROFL, as they say.
Lucy,
Don’t hold your breath for a response. The solutions to the issues raised require investment, not cuts.
And that isn’t going to happen.
Good to see you trying to highlight important issues for the judiciary here, and I am generally in agreement that legal aid should be made available to fathers and mothers alike, without gender discrimination, and regardless of financial situation.
If legislation creates a problem (i.e., incompetence in the family courts as a result of shared parenting not being the default, and false allegations being encouraged and unpunished), then indeed the taxpayer ought to foot the bill. (But Britain would seem to regard military expenditures above investment in its children – that is another story though).
However, without the urgent reform of the way solicitors and barristers practice in this country, I don’t think that asking for more investment in legal aid is very reasonable.
In the majority of cases, as you know, not only is legal aid denied to fathers and given to mothers, but also gives mothers further support and ammunition with which to bully fathers out of the lives of their children. F4J rightfully points out that hiring lawyers is like adding fuel to a house on fire.
When we begin to see lawyers behaving in the best interests of the children, rather than their abusive clients, then you can reasonably expect the public to back investment and oppose cuts. But that is not going to happen, is it, because of the perverse manner in which a lawyer’s allegiance is to his/her client, regardless of the welfare and safety issues.
Just a question Guy – if lawyers didn’t act in the best interests of their clients why would anyone hire them?
What exactly are the “best interests” of the personality disordered individuals who end up dragging their custody battles into the Court room?
Yes, precisely. I find it hard to go on seeing a productive and moral place for lawyers in private law.
The best interests of the client usually mean the selfish, possessive, pathological interests of the client, and are clearly not the best interests of child. What kind of satisfaction is to be gained from fighting for the best interests of the client? Sounds like a formula for clinical depression.
In all too many cases, children are treated as objects to be brokered. We like to go on kidding ourselves that child welfare is paramount; maintaining the lie makes us feel better than looking at the truth.
I’d rather public money be spent on lawyers who have the spine to fight social injustice, rather than funding a broken family justice system that compromises the welfare and safety of children by placing their lives in limbo for years, wasting billions of pounds in the process, only to end up with the formulaic solution of placing children with alienating mothers and bullying dads into their twice-monthly visiting privileges.
As a publicly funded family lawyer, how could I agree with Guy Tearful? Well, Guy T, I do. It doesn’t take my 33 years in practice at the Bar to realise that the current, conflict ridden way of dealing with private law family disputes is flawed. Add to this a couple of lawyers fueled by a jerry can of public money, and you have the perfect setting to further conflagrate already torched lives. In my blog http://stephentwist.wordpress.com/2012/02/20/parents-in-care-proceedings-parties-or-witnesses/ I went further than Guy Tearful. I raised the spectre of removing party status from the protagonist parents, and removing the whole process from the adversarial setting. Is it that the idea is barmy that it has been studiously ignored, or just that I am an unread fringe blogger? To my mind there is a very real debate needed on this precise subject.
I was one of those who read Stephen’s blog post and I found it fascinating and thought-provoking. I discussed the idea of removing party status from parents with a number of colleagues in the support community and they considered it a constructive and intelligent idea. Some McKenzies I know have already had considerable success restricting the role of parents as parties and securing independent representation for the children. I believe Stephen’s idea deserves further consideration and publicity.
I agree any and all alternatives to the adversarial system should be entertained. I find it very hard to believe that this system could ever have been designed with children in mind.
But what does representation for the children mean? Does that not place a burden on the children? That, I imagine, would be the criticism.
I think the answer is evident: 50/50 shared care presumption, unless mom or dad is proven beyond a doubt to be a rotten role model. Of course, this is likely to turn unhappy would-be resident parents into parents bent on alienating the other parent, so there would need to be harsher punitive measures for that toward the beginning, while this family justice system adjustment is normalized.
At the risk of hijacking Lucy’s superb thread concerning her ‘Handbook for Litigants’, but in response to Nick Langford’s comment, I have elaborated my ideas concerning ‘party status’ in my latest blog. My fear is that as an unknown, fringe blogger, the topic might just disappear without discussion. Perhaps, Lucy, with your energy you might run with the topic?
Hi Stephen,
I will email you…
Lucy
I take it you haven’t heard anything?!
I like your letter!
don’t be daft. not a dickie bird. or djanogly…er…bird.