Tip of the iceberg? You don’t say… the McKenzie Friend research

NOAAS National Ocean Service on Flickr

The research commissioned by the Bar Council in to fee paid McKenzie friends has been published today. In truth it contains few surprises, notwithstanding the Bar Council’s faintly bemused tone at the discovery that McKenzie Friends are McKenzie-ing mainly outside of courtrooms, where they are unregulated and unscrutinised and free to compete without the watchful eyes of a judge or disapproving lawyer upon them. Of course they are!

To those of us who pay attention to social media and what our clients and opponents tell us or let slip, the biggest “issue” with McKenzie Friends, is what goes on outside court. 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. And because such advice will often include cautions against trusting, believing or engaging with lawyers. Litigants come primed with suspicion.

There is plenty in the legal press already about this research report. You can read The Law Society Gazette here, or Barrister Magazine here. The former is said to be inaccurate by the lead researcher, the latter is not criticised by her – I agree that the Barrister Magazine piece is a useful potted summary of the research and its conclusions. In this post, rather than rehearsing all that, I want to offer some comments that have not been mentioned already and might otherwise not be aired.

Like the researchers, i would not want to condemn all McKenzie friends, some of whom are in fact an invaluable support to those who have nobody else to help them (whatever we think of the principle), and some of whom are indeed very experienced. But I have always been frank about my concerns as regards the absence of regulation of the activities of McKenzie Friends, because of the risk in any individual case that the McKenzie Friend selected will not turn out to be on of those invaluable ones, but will turn out to be positively dangerous or incompetent. This research doesn’t really allay those concerns any, not least because I don’t think it was focussing on areas where I see most risk for litigants.

The research is independent, but the reality is that the Bar Council will have commissioned it out of a concern that there were both access to justice issues AND issues for the profession. And it is to those twin purposes that will have shaped the framing of the brief.

It’s a shame in a way that the study was limited in the way it was, as a result I suspect of the Bar Council being (understandably) focussed on its own sphere of existence – the resulting study is open in saying that it was looking primariiy at on the role played by paid McKenzies in court, and in private law cases. Any fule could have told them that they were looking in the wrong place, just as we all said in response to the Judicial consultation that they were trying to regulate something that was mainly being done outside the Judges’ jurisdiction – and which was perfectly permissible in law as it was not a reserved legal activity – legal advice. Coming to court and sitting quietly in the open where we can spot someone being a bit of a pain or a wally – not our biggest problem. Not the biggest problem for anyone frankly. Sometimes very helpful.

There is in the response of the bar council a sort of weird slippage between McKenzie Friends doing McKenzie-ing (quiet support etc) and McKenzie friends exercising rights of audience. RoA is a whole different task which brings with it a whole different set of issues. There seems to be a prior assumption (not borne out by the research) that fee paid McKenzies would want to and were exercising RoA regularly, in some sort of project creep. In my experience it is often an exasperated judge who will grant RoA to a helpful McKenzie in order to achieve some semblance of clarity / progress – and not the other way around. The research bears this out – again no big surprise.

But it is not the bar’s advocacy toes that are at risk of being trodden on here – even those McKenzie friends are in court (paid or unpaid) rarely exercise rights of audience – and where they do this is usually because a court has decided it is likely to assist rather than hinder the individual case. No, it is our advisory toes that are being trodden on day in day out. But we haven’t noticed because we’ve got our bloody big clod hoppers on and are stamping around like the big beasts of the courtroom.

Litigants these days do their own legal research. They research the law, they research McKenzie Friends and yes, my friend, they research you and I. They choose in significant numbers to take advice from McKenzie Friends – sometimes paid, sometimes not. Litigants are most vulnerable to exploitation and bad advice long before they come into a court room. If this research is a good indicator many of them are more satisfied with their experience of McKenzie Friends than lawyers. We should reflect on that. And we should have enough humility to recognise that there may be some things McKenzies are doing as well as us or (gasp) that from the perspective of what some clients want and need, some may offer something we can’t (or won’t).

This research acknowledges frankly that it is likely to have produced a skewed and overly positive sample of McKenzies and their clients. The research makes the point that there are some good McKenzies out there. And it makes the point that in court things are perhaps not as bad as the hype. Most of the McKenzie clients reported satisfaction with the service and support provided – and in particular McKenzies come out well for client care. Legal professionals could, if they were wise, consider what lessons we might take from the fact that many (if not all) of those who have chosen this path, are happy with the outcome. That ought to tell us something about our client care as a profession (I say this whilst acknowledging of course that some of the more chummy approaches taken by McKenzies would not be compatible with appropriate professional boundaries / distance, and our duties to the court. I think that we can and should invest more energy into explaining better why a lawyer can’t be a “friend”, and help clients to understand our professional distance is a positive benefit, and not evidence that we don’t care or are simply money grabbing).

But what the report doesn’t (and doesn’t try to) convey, is the risk and prevalence of actual bad experiences that are likely to be befalling litigants outside court. That is a whole other research study. And it is for me where the real meat of it is (in saying this I’m not denying those who provide good help outside court.). For me, it ISN’T just about fee paid McKenzies – many of the good samaritan rogue / family justice crusader type McKenzies are (in my experience) NOT fee paid (or charge inflated “expenses” that they maintain are not fees at all). And they don’t operate just in private law field where there is no legal aid (the research only looked at private law). They operate too in the public law field where parents are entitled to legal aid. And they hold influence even over parents who are represented through social media and the internet and through networks of parents turned advisor/ campaigner (these McKenzies don’t have their own websites, they aren’t members of nascent “professional” bodies, and they operate through closed Facebook groups and private communication / word of mouth). I am unashamedly adopting a broad and unconventional definition of McKenzie Friends (Which technically is a term that only applies in court). Again, the numbers may not be great (although frankly it’s difficult to say – I could make a pretty long list of names myself), but that the problem exists is clear to those who care to look or listen to what parents are saying. Many of those parents however, do not view the McKenzies as the problem, but instead see it in the lawyers, the social workers, the system. And any negative outcome they have experienced is most likely to be interpreted as the inevitable result of the corrupt system than the result of acting on the advice received. Those cases make me very sad. They are lost opportunities – lost children – emblematic of the failure of the legal profession to make our case to the people we can help most.

And here’s the thing : in both fields (public and private law), a McKenzie Friend may be offering entirely lawful – but bad and unhelpful -“legal advice” alongside or instead of the instruction of a lawyer – suspected but unseen, and corroding the working relationship between a litigant and their own lawyer, let alone the other lawyers or professionals in the case. Difficult to deal with in individual cases, difficult to evidence, difficult to research. These are never going to pop up in a self-selecting sample.

Next time The Bar Council has a chunk of money burning a hole in their pocket I’d like to see them spend it on a research project about this issue (not holding my breath). And not one which self-selected the good guys*. But one which roots out the ones who are lurking in the shadows and messing up people’s cases. There may not be many, and they may not represent the typical – but they are there and they are dangerous,  And they are right under our noses if only we would bother to look. I foresee considerable methodological challenges with capturing this information and in finding a solution, but fortunately I am merely a lowly blogger and do not have the unenviable task of devising such a research project.

I hope I’ve accurately summarised the scope of this study, having put this post together after a long day at court and a long train journey with a patchy wifi signal. My area of interest really is in the stuff that hasn’t yet been looked at – I think the study is really valuable and hopefully will get the bar thinking about its “offer” (yucky jargon) – but I also think that it is not the whole picture. The study says the picture is mixed : indeed. But my own experience suggests that it is more complex and more varied than is represented in the sample that came forward for scrutiny. So we have a way to go before we really understand the risks and the benefits.

In the meantime the legal profession could focus on getting our message across more clearly, and on listening to what clients actually want from us. Our strength may be in our difference from the great unregulated – but that doesn’t mean we have nothing to learn.

 

*here again, I acknowledge the good guys but do not need to spend much time writing about them. I acknowledge also that the researchers tried to get a representative sample – but this was practically unachievable.

 

Feature Pic : NOAAS National Ocean Service on Flickr (creative commons licence – thanks!)

New CAFCASS Guidance

The Chief Execs of CAFCASS and CAFCASS CYMRU have issued the snappily titled : GUIDANCE FROM THE CHIEF EXECUTIVES OF CAFCASS AND CAFCASS CYMRU ABOUT CHANGES IN USE OF CAFCASS PROFESSIONAL TIME TO BRING MOST BENEFIT TO CHILDREN WITHIN THE RESOURCES AVAILABLE (AKA We’re doing our best, alright?*)

*I added that bit.

It was published here on 2 Jun via Family Law (Jordans). Which is odd because it appears to be a consultation, which closed on 1 Jun. Perhaps it has been internally circulated before its public outing on the Jordans website, who knows. I guess external stakeholders views weren’t wanted.

So, what does it say? Well, I confess I don’t understand a word of it. But it makes me a little twitchy. I’ve had to put some soothing flowers at the top of the post to calm me down…

I do get that it is a document prompted by the combination of limited resources and an ever-climbing workload (clue in title). We’ve seen such documents before from CAFCASS. Remember the time when CAFCASS ran out of Guardians, the interim guidance to deal with the temporary crisis in 2011? The menu of options for s7 “lite”? Remember “proportionate working” in the operating framework in 2014? See here for posts on Pink Tape about CAFCASS over the years if that is all a distant hazy memory to you, and this post in particular which links to the interim guidance and the menus.

It is an attempt to answer the question of how CAFCASS can do more with less. I sympathise with them. But this document is really worrying, not least for its complete lack of clarity (is it a draft, a consultation?), and ambiguity of scope (does it apply to pilot areas mentioned or everywhere? when does it come into effect?). And does it supercede the operating framework?

For a document that starts by saying the emphasis on flexibility it is strikingly restrictive in its interpretation of how CAFCASS Resource should be used.

It seems to say that CAFCASS officers should pretty much never be at court unless its a FHDRA or they are required for cross examination. Here is the actual wording :

…we think that social workers should attend court either to give evidence, when their evidence is critical to decision-making, or to hear evidence that is essential for them to hear if they are to be able to carry out their own work and to make effective recommendations to courts.

We do not expect social workers to be sitting through lengthy hearings of any description, unless there are exceptional reasons for so doing. We ask you to pay special attention to this point.

In public law cases, the child’s legal solicitor or barrister will still be able to attend every hearing, having taken instructions from the guardian who will remain accessible by phone to the solicitor or barrister in the usual way.

I’m not sure that this is supportive of guardians being present at all hearings in care cases, which in my view they should be – unless specifically excused. Although pa 6.5 PD16A requires :

The children’s guardian or the solicitor appointed under section 41(3) of the 1989 Act or in accordance with paragraph 6.2(a) must attend all directions hearings unless the court directs otherwise.

it is usual for a guardian to specifically seek permission not to attend even if their solicitor is present. For good reason. It is already a known phenomenon for conscientious guardians to furtively suggest that the court might wish to order them to attend so that they may be present at a hearing or to hear the evidence of the parents where they consider it necessary – in order that they can do so without being reprimanded. This can only get worse.

In private law we are told of the invention of a new form of s7 lite. Although I think 7 Zero would have been a better rebrand, they’ve gone with the rather less obvious “Child Impact Analysis”. This comes with its own template containing 5 generic headings and no reference to the welfare checklist. The irony of course is that if the analysis is not set out with reference to the law, a party is far more likely to require the officer to come to court to give evidence in order to explain their analysis. So possibly not such a genius way to free up the time of a CAFCASS Officer. Unless the success of this wheeze is predicated on the assumption a LiP won’t know to ask for the officer to attend for cross examination.

The guidance says :

The work of Cafcass and Cafcass Cymru after the first hearing [in private law] will be streamlined and re-focussed, so this is the area of work we propose should be subject to most change.

Cafcass and Cafcass Cymru plan to deliver more defined interventions in cases going beyond the first hearing than the traditional section 7 report and they intend to pilot new child impact reports for 3-6 months in Essex, York and North Yorkshire and South West Wales.

The threshold for asking Cafcass/Cafcass Cymru to carry out work beyond the first hearing should be a concern about significant child impact, not the fact that the parental dispute is continuing in court.

Whether this means there will be any change outside of the pilot areas is anyone’s guess. And quite what the last sentence actually MEANS is beyond me. What is a “significant child impact” and exactly which cases don’t involve one?

There is talk of “brief interventions” and “brief child-focussed casework“. I think this means CAFCASS will go back to doing some actual hands on social working – not a lot, but a little (as Paul Daniels would have said). The stuff that used to be done by the FSWs that were made redundant some years ago. The stuff that CAFCASS have been telling us isn’t their job for some years now (oh no, we just write reports). I welcome this, if it means what I think it means (working with instead of reporting on families – facilitating reintroductions, life story etc).

There is also mention of “local arrangements” and “hotline arrangements” (which apparently exist in Wales) so that CAFCASS can “[act] in a social work advisor role to court, as the social work equivalent of legal advisors.” Nope, me neither. Does this mean they’ll rock up and make a recommendation on the hoof? By phone? With or without the parties present? With or without them being able to ask questions (on the hoof) (without a lawyer)? *twitch…twitch*

In public law we’re likely it seems to get one rather than two analyses from a guardian. In truth this is beginning to be the norm anyway, but there is a significant benefit in many cases in an early analysis for which a position statement is just not a substitute. Such analyses can materially affect the whole direction of travel of a care case (including whether or not there is an interim removal). Coupled with the fact that a Guardian is now unlikely I think to even be at court at a CMH, this is worrying indeed. So much happens at those early hearings, so much information is elicited whilst at court – a Guardian should be AT court liaising with social workers and asking questions and rolling up their sleeves, not receiving the potted highlights from their solicitor some hours later.

Anyway, there you go. That’s my initial impact analysis – there will be a significant impact, I just don’t know quite what it will be. Things are changing. Or possibly just coming full circle…. *helpful face*

I sympathise with CAFCASS, like any other public service struggling to manage with inadequate funding but I do wish they’d drop the jargon and speak English.

Watch this space.

And send me explanations if it makes sense to you…

A decade in the blink of an eye…

[This post has been amended, to correct embarassing failures in my memory. Changes are marked with [square brackets] and strikethrough]

Recent days have been grimly awful from the events in Manchester to those closer to home. I feel lucky that my own family has not been directly touched by such sadness, and acutely alive to the fact that it is no more than luck that keeps me on the right side of that glass. Looking in, not looking out.

 

It was almost [over] a decade ago, I realized the other day, since I rumbled along the tunnel from Russell Square, dragging my trolley behind me, clambered up onto the platform and emerged blinking and blackened into the ticket hall at Kings Cross – unhurt, shaken and ridiculously thinking that the most important thing to do was to tell the clerks I was going to be late for court. “Court’s been cancelled”, they said. Somehow the message was out that something really big had happened, though I don’t think anybody yet knew what. I’d been on the bloody train and I didn’t have a clue what had happened! I thought it was an engine fire (there had been nothing but a lot of black choking smoke at our end of the train). It was shortly after that when the mobile phone networks went down.

 

Before the signals all jammed, I called my husband with my last 5% of phone battery (it is always on days of immense importance that you forget to bring or charge your phone). And he ran. Across Bloomsbury. Past Gordon Square and Torrington Square and along Euston Road. Moments before the bus went up.

 

I wandered out, past ambulances and people. People going in all directions. Chaos. Nobody batted an eye at a woman in a suit with a black face. I found my husband. It was just then that the cry went up from the police to run. This was the moment that the penny dropped. Mile End, Kings Cross, the bus. The bus that hadn’t killed my husband.

 

The rest of the day was surreal. We sheltered in a café, borrowed a napkin to clean the soot off my face and a phone to call my mum and tell her it was ok, whatever she was watching on the telly we were ok. We went back to chambers. Someone lent me a towel. Someone bought me some clean clothes from round the corner. And the rest of the day was spent in a hotel bar watching news 24 in a daze, waiting for someone to tell us how we could get home. Later, we walked to Islington to stay with a friend. I borrowed a needle to take the hem up on the too-long trousers that someone had bought me so I could change out of my sooty suit. And in the morning we went home on the overland train. I thought to myself “perhaps I should be having a panic attack”. But I didn’t. Because I was the lucky fucker on the right end of the train.

 

It’s not just Manchester that has taken me back to that day in my mind. It’s the approaching decade anniversaries of so many things from around that time in my life – a son who is 9, a near decade since our move from London back to Bristol, a decade of Pink Tape…

 

I had a meeting in London last week. And it was as I strolled – again with my trolley – from the now transformed Kings Cross to the never changing Bloomsbury, that I realized how much time had passed and how much I had forgotten or begun to take for granted since the London part of my life. And as I walked past old haunts and sentimental corners I realized that my narrative of the stages of my life is muddled.

 

In the days following Manchester I remembered how the bombings had been what had galvanized me into starting a family. As I tracked around Bloomsbury I realized this was a fiction. The bombing happened in July 2007 [2005]. Within weeks I must have fallen pregnant with my eldest (he was born in April 2008). Before then I had miscarried twice and had spent much of the months preceding the bombings on autopilot, travelling into central London on the tube and back out again, a daily journey of the same six tracks on an endless loop and silent tears all the way out and back. So no, the London bombings didn’t galvanise me into starting a family.

 

But, I realized [thought] last week – they did happen mere months before I left London. I wonder now how much impact they had on our decision to leave? The account I have always given is of a move for practical and financial reasons – childcare and housing costs, the advantages of having grandparents nearby for support. In my mind there has never been a coincidence of timing or rationale between the events of July 07 [05] and our leaving London. But I do know that being close to family seemed the most important thing at this time. When I left I worried about the impact on my career of a move to “the provinces” (I hoped and was fortunately proved wrong about this) – but I felt I needed to be near my parents, and my brother and his kids. I suppose that this is typical of many young couples who are starting a family. But looking back it seems self evident that the bombings must have influenced our thinking. I know that my mother was desperately worried about my travelling on the tube, particularly when pregnant.

 

It’s a reminder, isn’t it, that our memory is so very fallible and malleable and subjective. We construct and reconstruct it to fit our purposes – and we don’t even realise we are doing so. I suspect that for me, the discovery soon after the bombings that I was pregnant, the initial worry that I would miscarry again and the later realization that this was actually going to happen were sufficient to distract me from those events and disconnect them in my mental chronology from this new phase of life. I guess I chose to look forward, as the preceding year or so had been pretty tough. [And the edits I am now making, the day after publishing emphasise that fallibility in an embarrassing way. I had seven seven going round in my head after Manchester, and thus convinced myself the bombings were in 07, not 05. This has led to a significant part of my confusion, but it demonstrates how fragile our grasp on sequences of events really is – and how important it is to record and write it down to supplement bare memory.]

 

As for Pink Tape, which the archives tell me I first posted on less than two weeks [about two years] after the bombings, I’ve no idea what I was thinking. I’ve often said that I started the blog when I was on maternity leave to keep myself up to date. But this was more likely around the time when I found out I was pregnant. I started it before going on maternity leave. Perhaps I was thinking ahead at this early stage that I would need to find a way to keep my brain active and my knowledge up to date, but again I realise now that my recollection about the nature of my earlier output is not entirely accurate. In my memory it was largely funny legal stories from across the pond, but I find when I look back that I was blogging furiously about life at the bar, the family justice system and transparency from the off – interspersed with some stuff about wacky american court cases along the way. And the utterly insignificant post about Tescos in Slough that made an important someone in my former chambers inexplicably cross at me – I had been blogging for less than a month and yet I told the HoC I had an article 10 right to blog piffle about Tescos if I liked! What a glorious idiot I was…I wasn’t very popular after that. I’m not sure if that was before or after I objected to female members of Management Board being referred to as “girls”, but I was gone by March 2008. I don’t suppose they’ve missed me.).

 

Who knows how all these factors fed into our decision to move – I suspect they all coincided around the time I saw an ad for St John’s. But whatever the “truth”, life now is so very very different : A 9 year old who is almost as tall as me and does a sulk better than I did as a 14 year old girl. A 7 year old who is a fizzing pink ball of enthusiasm and sparkles. Everyone else is older, too. Me, him, my parents…Life is racing, always racing so fast you don’t even feel it moving. Have I paid enough attention? Have I paused for breath?

 

And so to this week, when a friend lost a child unexpectedly. She is hundreds of miles away, and there is nothing I can do other than pathetically say “I’m on the end of the phone”. And honour her loss, and the losses of the Manchester families by appreciating my own good fortune. And by taking mental note of each day and each event and how it felt and why, not discarding each day in the rush for the next.

 

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