A different view…?

Where oh where have the President’s Views gone? We know he has them, but that particular idiosyncratic literary vehicle once so popular with our dear leader – the “View” – seems to have fallen out of favour, dropped off the radar or down the back of the sofa.

If it seems like forever that we have been waiting longingly for the next installment of “View”, that is because it has been over a year since the last one, which was delivered as summer faded in August 2014, and as the “Next Steps” Consultation emerged. Can it have been so long? I sort of miss them…(I know, some of you are muttering about how you have had enough of the President’s views (with a small v) to last you a lifetime…).

But of course the muse has not deserted Munby LJ, it just finds its voice in different and more traditional form : those who are drawn to the President’s prose (and many who are not) will have found it elsewhere – for the internet is heavy with his words, extracted, quoted and misquoted from judgments, most often these days in his appellate role as Lord Justice of Appeal. There he sits in the Court of Appeal, ponderous, often thunderous and always as industrious as ever. His judgments are, as they always were, replete with law, with classical and very modern wisdom, sometimes (often) with ire and frustration at one sort of dismal delay or disarray or other. The frequent referencing and citation of himself as Mr Munby, Munby J or an earlier instance of Munby P to create an interconnected web of Munbyisms is sometimes mind-bendingly difficult to track (a play within a play – or a Munby J within a Munby LJ?).

No, a Munby judgment does not make for easy reading, even one of the tub-thumping-slightly-cross variety. A quiet corner, a large hot drink and sufficient peace to read and re-read until you understand is essential. But I do look forward to them almost as much as a Mostyn (whose episodic fallings out with judicial neighbours next door and in the flat above are as reliably gripping as an Eastenders Christmas plotline).

A little part of me knows that I like these judgments not for the mental exercise it affords, but because a good rant has therapeutic qualities for both ranter and rantee. I ought to know : this blog is nothing if not a gathering together of rants. “Constructive co-ranting welcome” it says at the side of this post. And so it is.

I have heard some observe that some of the more urgently vociferous passages in judgments of some judges of the High Court and in the Court of Appeal in recent years (whilst quite properly raising issues of rant-worthy importance) have been incorporated into judgments in cases where such passages were not strictly in issue – that in some cases they are not even obiter. See for example, one such criticism in relation to a judgment of Mostyn J, where it is suggested that the “judgment” is no more than a statement of opinion. Sometimes a “ranty bit”* has the feeling of having been pre-prepared and dropped into the first available judgment that is capable of facilitating its delivery. Such judgments tend I think to be the ones with starred status (denoted by their official “cascade” via email before they have reached the law reports). A recent example of this is the judgment in Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, where the President delivers a lengthy judgment dealing in depth with issues arising in connection with adoptions with an international flavour, and latterly misuse of section 20 CA 1989. S20 is mentioned once at pa 49 : Because the parents agreed to both children being accommodated by the local authority in accordance with section 20 of the 1989 Act, no orders were made by the court on the local authority’s application under section 44” (it is subsequently explained that the children remained in foster care for 8 months prior to issue), and then not at all until pa 157 when a section entitled “Other matters: section 20 of the 1989 Act” commences. It is a completely self contained passage of some several pages length, full of stinging criticism of local authorities for misusing this provision, and a thorough gathering together and reiteration of previously issued guidance on the topic. I agree with every word of it (apart from maybe the bits that suggest our clients cannot properly give informed consent within proceedings to s20 in order to obviate the need for a public law order) – it will be very useful in cases I am instructed in. But reading that judgment one has the sense of a man who has been desparately, patiently waiting for an opportunity to get this off his chest – and this case is the one through which he has been able to do it. Such judgments read like a tumultuous unburdening after a build up of pressure in other cases. I don’t mean there is anything inappropriate in this – there plainly had been egregious delay in the specific case, facilitated by s20 – and there is quite obviously a wider problem which needs stamping on (it is a particular bugbear of mine and one of the cases the President refers to is one of mine). But in that passage is not one word specific to the facts of the particular case in question. I have heard similar said of the “this must stop” passages in Re B-S. And, like B-S, it is being said in some quarters that this particular judgment is going to make big ripples for social workers and for statistics. Whilst it is conventional for a judgment to be so structured as to deal separately with facts, law, determination and points of principle, these sorts of passages have the feel of lectures or essays rather than judgments.

It is evident that much of the President’s formidable energy has gone into hearing cases and delivering judgments in recent months – Re N is but one of several in which the President apologises frankly (and without apparent irony) for the delay in delivery of his judgment. It is not just the “Views” which have fallen victim of this superhuman workload – we wait on tenterhooks for a View which will tell us the fate of various consultations and reviews, particularly the mysteriously unresolved Transparency Next Steps consultation (although we read today that wearing his Court of Protection that the President has approved a Transparency pilot without the bother of a consultation). The format of the humble View is a poor mode of delivery for the empassioned lyrical passages which the President clearly enjoys both crafting and delivering. A judgment has clout (quite literally it has Authority), and a Munby judgment has reach – but it is structurally constrained (even if it is capable of absorbing the rant du jour).

Yes dear reader, you have guessed my conceit : The President is a born blogger. Through a blog he could vent his ire, his frustration, his dismay; restore his equilibrium and continue calmly in the day job…He could showcase his legal intellect and expressive linguistic skills… He could harness a platform for engagement with those who are affected by the work of the Family courts – for greater transparency. A pulpit, a soap box, a therapeutic release valve…

It really is a no brainer. The only real question is what should the Presidential twitter handle be? The discipline of 140 characters is an excellent mental discipline for those who, like me, are prone to wordiness and who need to work at pithiness…

*said with respectful affection

Twitter pickings

Have neither time nor inclination to post any detailed or even meaningful commentary – but there has been some interesting stuff that I’ve noted this week :

Amended exceptional case funding guidance

Amended Guidance on exceptional legal aid (s10 LASPO) has been published here.

The revised guidance requires case workers to approach the assessment of each case on an open-minded basis, with no presumption about the proportion of applications that are likely to succeed. The basic test set out by the Court of Appeal in R (Gudanaviciene and others) v Director of Legal casework and the Lord Chancellor [2014] EWCA Civ 1622 features prominently and case workers are reminded at several points that:

“The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness”

Particular factors to be weighed in the balance are:
• How important are the issues at stake?
• How complex are the procedure, the area of law or evidence in question?
• How capable is the applicant of presenting their case effectively?

It will be interesting to see if and when this translates into a shift in the statistics on grants of exceptional case funding in family cases.