The Dogtanian Rules of Communication (One for all and all for one)

Readers of a certain age will remember this :

You’re welcome for the earworm.

There is a serious point here. The Family Procedure Rules are about to be amended (as of 6 April July). One of the amendments is one that Litigants in Person really need to be aware of – it’s about communication with the court. Really the rule change I’m referring to is just formally confirming what SHOULD have been happening in any case, but the fact that the rules have been changed to spell it out is an indicator that there has been a problem that the powers that be are trying to alleviate. And that in future courts may be less tolerant of litigants in person sending things to the court without copying in the other people in the case.

When cases are run by lawyers, the lawyers know that (with very limited exceptions) anything that goes to the court or is seen by the judge has to be sent to everyone in the case. Copying in the other lawyers or parties is routine when corresponding with the court. The Family Court (as with other courts) works on a ‘cards face up’ basis. You don’t have secret communication with the judge, and you don’t get to ambush people when they only find out about some document or evidence you’ve sent to the court when the judge mentions it in passing (or if you do you run the risk of the whole hearing being put off because the other side needs time to read and think about it before its fair to go ahead).

Litigants in person don’t always appreciate this. They very often send things to the court without sending them to the other party. Either because they mistakenly think that the court will keep it private on request, because they assume that the court will send it on their behalf to the other person (wrong!), or because they haven’t thought about it at all. It has to be said that some litigants in person seem to persist in doing this even when they have been told – and it is hard not to draw the conclusion that they are doing this to try and disadvantage the other party by not giving them notice of their position or evidence. This can result in unfairness, chaos, adjournments and wasted costs when hearings aren’t effective.

I’ve been banging on for years about the need to make sure that anything you send to the court or give to the judge is also provided to the other party or their lawyer – that’s where the one for all comes in. Always take three copies. One for you, one for the judge, one for the other party : one for all.

So, that new rule :

Communications with the court

5.7.(1) Any communication between a party to proceedings and the court must be disclosed to, and if in writing (whether in paper or electronic format) copied to, the other party or parties or their representatives.

(2) Paragraph (1) applies to any communication in which any representation is made to the court on a matter of substance or procedure but does not apply to communications that are purely routine, uncontentious and administrative.

(3) A party is not required under paragraph (1) to disclose or copy a communication if there is a compelling reason for not doing so, and provided that any reason is clearly stated in the communication.

(4) A written communication required under paragraph (1) to be copied to the other party or parties, or their representatives, must state on its face that it is being copied to that person or those persons, stating their identity and capacity.

(5) Unless the court directs otherwise, a written communication which does not comply with paragraph (4) will be returned to the sender without being considered by the court, with a brief explanation of why it is being returned.

(6) In addition to returning a communication under paragraph (5), where a party fails to comply with paragraph (1) the court may, subject to hearing the parties, exercise its case management powers under Part 4.

(7) Paragraph (1) does not apply to communications authorised by a rule or practice direction to be sent to the court without at the same time being provided to the other party or parties or their representatives. 

[my emphasis]

 

I’m confident that by this point some of my non-lawyer readers will be wailing at the screen – but lawyers are sly. They do things behind our back…They trick us…

There is a flip side to this rule, too. No doubt it isn’t just intended to regulate the behaviour of litigants in person. It is also intended to regulate the behaviour of lawyers. Although in my experience lawyers are pretty good at cc’ing all the right people, they do also get it wrong sometimes. Whilst lawyers are usually careful to cc all the other lawyers when communicating with the court they do on occasion (in my experience) forget to cc a litigant in person and they get left out of the loop. This is usually unintentional in my experience but it does matter. This rule will impact on that too.

There are occasions where a judge will ask a lawyer to e-file an order and will permit it to be sent directly for checking by the judge without prior liaison with a litigant in person, and personally I often make a point of requesting this on the basis that it is very difficult to manage expectations or avoid additional extra workload if a lawyer drafting an order is expected to get it agreed before sending it in – it is almost NEVER agreed because litigants always want to have a second go at arguing their points through email, and the judge has to check and correct the order anyway to make sure it reflects their order so its just pointless duplication of work. That is just my view however, and under this new rule it will be even more important to specifically seek permission to do it that way.

Practically speaking there are problems in a case where the court expects a lawyer to be responsible for orders but where a particular judge takes exception to a litigant in person having their email address, as lawyers are sometimes expected to email the judge separately, and then strip out the judges email address before forwarding a copy to the litigant in person, making things very cumbersome if there are further exchanges – not to mention creating an impression of privileged access to the judge. The reason that some judges don’t like their email addresses being given out though is that litigants in person then often repeatedly use the direct email address to communicate with the judge, seek advice, complain about issues etc etc between hearings – all bypassing the court office and other parties risking things getting lost. And so we’ve come full circle and we are back to the need for the rule – anything that goes to the judge must go to the other parties.

Those of us who take great care to cc everyone into EVERY email we send to the judge might dare to hope that this rule will prompt some judicial training in the use of the ‘reply all’ button, to which most judges appear to be allergic – it is a source of low level irritation when attempts to communicate transparently lead to repeatedly having to relocate and punch in everyone’s email address in order to forward the judge’s reply to your copy all email, in order that nobody thinks you are having secret discussions with HHJ. Not holding my breath on that one though.

So. If you are a litigant in person here is the deal :

  • Anything you send to the court or ask the judge to read must go to the other parties in the case at the same time (or their lawyer if they have one)
  • UNLESS for example you are unable to serve them directly because their address is confidential and they don’t have a lawyer – then the court will have to send it on. BUT YOU WILL NEED TO CLEARLY ASK THE COURT TO DO SO AND SAY WHY OR IT WILL GET LOST.
  • If there is something that you think the court needs to know but the other party shouldn’t see the court can permit that, but there will need to be a VERY good reason and YOU WILL NEED TO CLEARLY SAY THIS IS YOUR REQUEST AND WHY. It isn’t automatic – the judge might not agree. The sorts of things that a court might agree shouldn’t be sent to the other party probably include things like particularly sensitive medical information about why you can’t come to a hearing, or a situation where there is important information that the court needs to know about but where there would be a risk to someone’s life or safety if the other party found out (honour violence type of situations for example). They also include situations that are already allowed to be sent without telling the other party, such as ‘without notice’ injunction applications. ‘It’s a bit embarrassing’ or ‘it’s personal’ are probably not going to cut it here.
  • If you don’t explicitly say that you are copying in the other parties (or their lawyers) the court may return your material unread. Don’t rely on the fact that the email cc box will show who the email has been sent to because the rule requires you to say WHO it’s been sent to (sometimes it is not possible to work out from a non-business email who it is that is actually cc’d because some personal email addresses don’t reference the person’s name) AND their CAPACITY e.g. the First Respondent, the Applicant’s lawyer.
  • You should expect to be cc’d into any communication the other party or their lawyer sends to the court, with very limited exceptions. Sometimes judges do ask lawyers to draw up and send in orders directly to them, but the lawyer’s job is to draw up an order that reflects what the judge has said and the judge should check that they’ve done so accurately before issuing the order.

 

Don’t call me commentator!

I’ve been miffy since seeing myself described as a ‘legal commentator’ earlier this week. It’s almost as bad as being called a pundit.

I don’t aspire to be a ‘legal commentator’. I aspire to be a sh*t hot lawyer and a good person. In truth, I’m just a girl who knows law, and who has some opinions. And I write them down. Sometimes they are quite sensible, other times not so much. I’m just someone who thinks its quite important to talk about and reflect on a job that has a big impact on other people, and who thinks we can all learn from talking to one another.

Every so often a colleague will make some snarky comment about me being a ‘celebrity’ after I’ve been on the radio or been mentioned in a newspaper – occasionally its been as direct as calling me a media whore or (faux joking – har flippin har.). Of course it’s exciting occasionally to go on the telly or be interviewed live, but frankly I could do without the pant wetting experience of maybe saying something stupid to a massive audience for no pay. I do it because I sort of feel that it’s quite important that people who know their stuff can help explain things in an accurate and balanced way (which I hope I do) to the public.

Others take the view it’s safer or easier not to have a public opinion, and that’s fine. I feel my responsibility differently. But never think I’m in it for the likes, the follows or the fame (though of course those likes and RTs can be intoxicating if you don’t watch it). In fact I’ve noticed recently that I must have hit some tipping point on twitter where I post some mundane drivel about my day and find that the volume of retweets or comments is increasingly uncomfortable (don’t get me wrong I’m not exactly the Donald Trump of legal twitter, I’ve got just shy of 13,000 followers so not even Z list celebrity – but I have noticed a shift). Why do all these people care what the heck I say? I like the camaraderie and sociability of twitter (when it’s not being toxic). I learn and I laugh. But sometimes its hard to be myself when I feel that large audience scrutinising every fart and trip. I could, of course, give less of myself on social media, but that would take away the joy and I’ve resolved for now to just do it the way I’ve always done it.

I’m feeling more visible that I would like to be right now, both on twitter and blog. I’m often trying to start a conversation with a particular audience rather than shouting to the whole world, but of course the internet doesn’t know the difference and once it’s out there it’s out of your control. When nobody follows you then you can shout rot into the void in comparative safety. But as my audience has grown (why?) I’ve felt my general caution edging up towards anxiety.

So, as a result it has recently been quite hard to hit publish, because I feel more exposed than I would want to be (objectively I’m not but I am more conscious of it, it seems). I just want to get something off of my chest and get on with my week. But… I still feel driven to say what I think, albeit often after sleeping on it and hopefully in a thought through way. And I don’t plan to change that. I sometimes think if I didn’t shape my thoughts and get them on to the page I’d explode. And I don’t think I’d still be doing this job without that release.

So, when you see my next post (which I promise won’t be about me, me, me!) please give me your constructive feedback, but please don’t call me a legal commentator!

That’s it. Wibble over.

 

System Error

pic courtesy of Flood G. on flickr (creative commons - thanks)

This has not been an easy post to write. I have hesitated over the ‘publish’ button even after sleeping on it.

It has been an uncomfortable week for those who work in the family court and who are proud of what it can be when at its best.

In late November last year the President of the Family Division gave a speech in which he talked about family court handling of domestic abuse and the evolution over recent decades of professional and social understanding of what it was and how it could affect adults and children (see here and Family Law January issue at [2020] Fam Law 19). Having set out the history, Sir Andrew said :

‘I am confident that every  judge and every magistrate undertaking family law proceedings now fully understands that the emotional and psychological harm to be inflicted by one adult in a close relationship upon the other and upon their children can be of far greater significance than any particular physical injury that any of them might sustain on one occasion or another, and that this significant harm can occur even where there has been no incident of violence at all. Living in close family circumstance with an individual who exhibits domineering, coercive or bullying behaviour is a 24/7 experience. Even when things may be relatively quiet within the household, needing to tread on eggshells at every turn and living on tenterhooks lest there may be a further eruption must be and is enormously damaging. Those in such families are ‘groomed’ by the abusive member to keep quiet and endure their behaviour, rather than leave or complain to outsiders. At every turn, what I am describing is a wholly negative and most harmful environment in which to live.’

Later in his speech, the President said he was not complacent. He talked about the campaigns and clamour of concern about these issues of how family courts deal with domestic abuse. He said then we need to know more, and proposed further research (the TP wrote about that here).

Only a couple of weeks later, news emerged of an appeal from His Honour Judge Tolson that Ms Justice Russell had allowed. It sounded dire, but details then were sketchy. Now we have seen her judgment, it is pretty clear that the President’s confidence about ALL his judges was misplaced. This was an example of an experienced senior leadership judge failing to follow clear guidance on the handling of domestic abuse and vulnerable witnesses, failing to understand the basics of consent and coercion and disregarding relevant historic abuse.

Discussion about the outdated attitude and failure to appreciate the insidious nature of domestic abuse (not just the failure to understand the basics of consent) revealed by the judgment has been full of shock, outrage, and concern across both legal circles and in the mainstream media (see here for a sample). Rightly so. It is inexcusable.

Skipping back a little, last May I wrote in The Times that

‘A system that operates in private is also highly vulnerable to a collapse in public trust. That vulnerability exists whether or not campaigns and anecdotal accounts are representative or accurate. A collapse is upon us, and we must do something about it.’

Surely that must be true ten-fold now?

At that time I doubted that the anecdotal reports of things going regularly wrong in family court cases involving domestic abuse were giving us a full or completely accurate picture, and suggested that none of us could see or offer more than a partial view of what was really going on system wide. My own experience suggested that whilst things did go wrong, and there was inconsistency, they were improving and the systemic problems felt overdone, or at any rate jarred with my overall impression from 17 years of doing this work. But of course, as I recognised even then, the cases I see are all ones where my own input is likely (I would hope) to steer the case away from disaster. That’s why I said we needed to find ways of looking at patterns and stop relying on anecdote, whether from professionals or litigants.

All can agree this is an egregious example of one judge getting it wrong in one case. The court in that case has done a poor job of protecting anyone, whether child or adult. That any one judge should get it this badly wrong in any single case is disastrous enough, but is there a bigger issue that goes beyond this single appeal? We’ve seen the full range of views expressed as to whether this is illustrative of a pattern seen in other judges and other cases (or in other cases decided by the same judge), whether it is typical or atypical, whether it proves the prior complaints of systemic failure. Again, anecdotal comparison only takes us so far.

Russell J’s judgment confirms that the President of the Family Division has made a formal request to the Judicial College to build consent training into the training of family judges (incidentally, this is a curious loop since the person responsible for family training at the Judicial College is none other than Russell J). That nobody has twigged before that this would have been a good idea is an illustration of how myopic a system that is closed to external feedback can be. It should not have taken such an obviously, offensively, wrong approach to these issues (which sadly are the stock-in-trade for the family judiciary) to realise this was a training gap. The task is now vast : Allegations of sexual assault are not uncommon in family court cases. The number of judges (and magistrates) who deal with fact finding hearings about domestic abuse is vast. Even if a decision is taken to limit the training to a sub-set of lawyers who will then be ‘ticketed’ to handle domestic abuse cases involving sexual assault / consent issues, it will take time to design and roll out this training.

And the truth is the campaigners have been telling us loudly this was a problem for years.

Our response – my response – has to date been ‘not all judges’, ‘not all lawyers’, ‘not all social workers’… Which is true, but which misses the point. It is a sub-conscious defence of our own professional identity and integrity. It doesn’t matter if it’s not all judges if YOUR judge does this, or if your worry this will happen to you means you can’t face pursuing an allegation.

This is not just about one case. As Russell J clearly appreciated, we need to deal with the systemic issue that this one case exposes.

That one family judge of many could think this way cannot, statistically speaking, be a surprise, given how many of them there are. I’ve suspected such attitudes before in a few of my cases, though have never seen them spelt out in this way (the stark, express remarks of the judge made it possible, unusually, for an appeal to be pursued here). And my wider experience has reassured me that most judges do have a better understanding of abuse and consent issues and that these uncomfortable cases have been aberrations – older judges on their way to retirement, for example.

But. That isn’t good enough, is it? As Russell J so witheringly points out, if a senior leadership judge could not only think this way (and be so wrong on the law) but could also articulate it so directly without appreciating its significance and wrongness, then it is really unarguable that there is a wider issue and an urgent training gap. Because the system should not have allowed ANY judge to have approached such a case without someone checking that they understood these issues.

The lack of trust doesn’t just derive from judges getting things wrong sometimes (something no system that relies on human beings can ever entirely eradicate), it’s borne of the increasingly apparent lack of insight that our system has into its own weakness and the way in which we struggle to sift the meritorious complaints from the tendentious discontent that will always surround family courts. Which makes it a very dangerous place for the vulnerable to come to.

One argument is that the way the judicial system learns and self-corrects is through appeals. This is attractive but flawed. That this case has been ‘fixed’ by a successful appeal doesn’t answer these wider problems (I’m damned sure it doesn’t feel fixed by the woman who has to go through it all again and well, we’ll see when the Judicial College manage to roll out the training). Why should it be down to one brave woman to go through this to fix a system that has treated her this way?

In my Times piece I ended by saying :

Privacy is of little use to children if the family court is making orders that do not protect them.

Last week a research study about parental alienation and abuse was published. It relies on a sample of 40 cases drawn from 54 judgments on the topic published since 2000. To contextualise this, there are over 40,000 new ‘private law’ cases every year, of which a significant proportion involve allegations of domestic abuse. That small sample size inevitably limits the utility of any such research, however thoroughly conducted (I haven’t read it yet, the point I make is a point of principle)(Although this new research is unfortunately not open access, the cases up to 2018 were summarised in a Cardiff University report, which is freely accessible).

If judgments from fact finding hearings were routinely and anonymously published as the President’s 2014 Guidance on the publication of judgments instructed they should be, these issues would have potentially been far more visible sooner (notwithstanding that the guidance applies directly only to judges above a certain rank). If ever there were a demonstration of why there is public interest in the publication of the bread-and-butter private law judgments where there is no particular legal novelty, it is this. Let’s see how many judges are out there who struggle with the basics of consent or who do not appreciate the insidious impact of coercive control. If it is few – thank goodness – if a more widespread pattern emerges, well thank goodness we know and can act.

Publication of judgments and media coverage won’t fix these problems, but it seems we need the sharp sting of the disinfectant of sunlight to shock or shame us into action. It’s uncomfortable, but maybe that is how it needs to be. There is much that is strong and true about the family court, and many skilful compassionate judges and professionals who keep it going and who keep families safe – notwithstanding the relentless and sometimes unfair criticism that comes our way – but our pride in what we do should never stop us from hearing and acting on feedback that might reveal real problem and opportunities for improvement.

All that is visible to the public at the moment is the ineptitude of a system which is deaf to the feedback that is so volubly given by the public.

 

Feature pic courtesy of Flood G. on flickr (creative commons – thanks)