Gotta licence to eat cake…

OK ok, last running update before the race. I made my 13 miles in my last training run. Just. I am feeling positive again. And also a bit elated it is almost over…

Thanks to everyone who has donated. We’ve now raised a smashing £686 for The Transparency Project, which is a tidy sum.

Anyone who hasn’t donated and wishes to do so – there is still time : here is my justgiving page.

You may now enjoy pictures of me looking sweaty, with celebratory ice lolly (followed by a shower, a massage and then cake…a LOT of cake). Don’t get over excited now…run1 run2

 

Hear the angsty screams of the family lawyers…

i sort of feel obligated to vent on behalf of the family law community about The Archers – after all, the criminal bar have had their turn and have pointed out that it is now ours (see Matthew Scott in the Telegraph here and another piece here in the Guardian). Not that it stopped us pitching in whilst their field of work was chopped up and stuck back together to form some Frankenstein version of criminal process. But now we’re back in the Family Court and it’s not got any better…I’ve been masochistically listening to the podcasts this week, trying to find the time and the will to draw together this post.

So. Here goes. We’ll all feel better once I’ve got this out of our system….

The criminal trial finished last week. Handily, this has dovetailed with a completely free week in the family court where (also handily – or entirely inappropriately depending on whether you have two brain cells to rub together) the same judge is also knocking about with nowt in his list and has thought he might have a bash at the family matter and is sitting in the handily empty court room that is available this week. Another happy coincidence is the availability of the social worker to come and give evidence, who evidently didn’t have a dangerous caseload or an EPO or a risk averse manager breathing down her neck and so could pop to court at short notice to give the evidence that will clinche victory for the righteous Helen. Or maybe the judge in the family court thought it was a good idea to block out a whole week of family court time and block up counsel’s diary in the certain knowledge that the criminal trial would finish exactly on time and it would all seague seamlessly from one forum to the next with not so much as a broken video link to hold things up. Maybe…

Anyway, happily (everyone is VERY happy in The Archers at the moment, apart from Rob who is very not happy), as the same judge is dealing with it the need to obtain transcripts of the evidence for the benefit of the family court is completely done away with. Because it’s really absolutely fine for the criminal judge to just rely on his memory of the evidence heard in a different court for an entirely different purpose, where the father was not even represented (he was a witness) and where the witnesses and the questions were directed to entirely different things. And probably things like statements of evidence and schedules of allegations are an unecessary distraction since #webelieve Helen already.

Also fortunate is the fact that the social worker was able to give direct evidence of the father’s abusive behaviour sufficiently cogent for the judge to find the allegations proved on the basis of her evidence. Yay! I’m really very impressed with this social worker. Not only has she been entirely invisible up until now, but she has also apparently been hiding behind the arras the whole time, and witnessed these things happening. Which is handy, and avoids the court actually hearing direct evidence from the parties about these things, which would be very tiresome for the audience who already #webelieve Helen, who is righteous and should regain custardy of the children.

To be fair, we did hear a bit of evidence from Helen earlier in the week, just to give the script writers an opportunity to show Rob Titchener’s barrister having to pursue an excruciatingly crap line of cross examination that attempted to imply it was neglect for a mother to leave her child with his grandparents whilst she pops for a haircut…I mean, this is the stuff of which middle class thresholds are made isn’t it? Not his best point. Or possibly it was…

Fortunately everyone seemed to forget to ask any questions about anything actually important or helpful, like ooh, you know rape and hitting – because that would have been boring. And *yawn* we’ve heard that before. And like, a not guilty verdict on an attempted murder charge is like basically the same as innocent and is like totes the same as a finding of rape, okay? And this is the family court so we can just ignore the outrageous leading questions that gave rise to the allegation…or the timing of the allegation…Can someone remind me why we’re having this hearing at all? Oh yes, narrative arc. Sorry, forgot myself.

The other really amazing thing, and I guess this is probably down to the amazing modern technology that is so very very real in each of our courts – is that counsel for Mr Titchener, even though he wasn’t at court during the criminal trial, has all the papers already (by magic e-bundle or something – who needs disclosure processes?) and is able to be up to speed and ready to crack on first thing on Monday morning, and ready to drop massive clangers before the first wee break (mixing up the burden and standard of proof? Has anyone checked he made it to call?). But seriously, it’s very impressive of him to be able to conduct a defence of his client without knowing either exactly what the witnesses said last week or which particular bits the judge’s mind. Come to think of it maybe he doesn’t have the papers from the criminal trial – in which case he is even more of an impressive and fearless advocate. Hopefully with adequate BMIF cover in place. But I guess it probably wouldn’t be proportionate to adjourn for petty things like a fair trial so he might as well crack on…After all, WE all know his client is a basket.

So far so realistic…

What about the judgment though? Well, fortunately the judge does not repeat the error of counsel for Mr Titchener, about the burden and standard of proof. For judge Loomis is now in the family court and need not trouble himself with such points of detail…He bases his findings of fact squarely on the evidence of the social worker, who we all thought hadn’t met the mother until AFTER everything happened but presumably had a time machine, he moves straight from findings to welfare with not so much as the blink of an eye, and basically decides the case on the basis that “Rob is an unspeakable sh*t”. I mean, in such circumstances who needs actual reasons for disregarding the evidence of one party in favour of that of another (albeit one with magical time travelling fly on the wall powers)…I’m *pretty* sure the Court of Appeal would agree.

I’m sure that off-mic, in between all the hysterical snuffling and wailing (everyone is VERY happy in the Archers, apart from Rob who is very very unhappy, but also everyone is still a bit tired and emotional in the Archers too), the superlative Anna Tregorran reminded the judge he had forgotten to deal with Rob’s step-parent PR and that he expanded on his reasons for immediately terminating the relationship of a small boy with the person who has been caring for him for many months…

After the very realistic trial, the entirely brilliant Anna Tregorran tells her client that “You’ve won – you’re properly free”. I must have missed something because I’m pretty sure that the judge just ordered a psychological assessment in order to inform future decisions about contact with the baby, and that therefore the family are consigned to at least another four months of proceedings and ooh, about another 17 years of co-parenting. Plenty of opportunity to continue being an utter sh*t.

Also, I imagine that Helen and Rob will be superbly pleased to find out that that psychologist is going to cost them another five grand or so…On top of their already whopping legal fees. I hope that organic jam or whatever it is that they make is a real money spinner.

And by the way Anna, we NEVER tell our clients they win. Nobody wins. Anybody would think you weren’t a REAL family barrister! I bet she isn’t even in the Legal 500…

Jackson’s Thriller

Mr Justice Peter Jackson has broken twitter. Not with his bootlylicious bottom, but with his judgment in the case of Lancashire County Council v M & Ors [2016] EWFC 9 (04 February 2016), just published.

It begins by massively understating its brilliance and its near uniqueness :

This judgment is as short as possible so that the mother and the older children can follow it.

In fact, it isn’t short at all (although undoubtedly it could have been much longer if the judge had not been so disciplined and economical). But it is written for the benefit of the family – particularly the older children, but also the mother, who it appears remains vulnerable and implicity has some learning difficulties* – and no doubt the younger children in due course. It is beautifully, simply, and elegantly constructed – using normal everyday words to describe complicated legal concepts. 

So…. :

On threshold and the basis of state interference with family life :

Unfortunately, there have been some serious problems, ending up with the children being taken away and Mr A being arrested and kept in prison.

Children can’t be taken away from their parents unless social services prove to a judge that it would be harmful for them to live at home. If children are taken away, judges will always try to return them if that is safe.

Another thing is that children are not taken away from their parents simply because the parents have lied about something. Even if they do tell lies they can still be good enough parents.

People can tell lies about some things and still tell the truth about other things.

Also, children are not taken away because parents are rude or difficult or because they have strange views, even if those views offend people. The only reason to take children away is because they need protecting from harm.

The actual threshold facts in the case are reduced to four brief lines :

1 Problems at school

2 Mr A’s behaviour and the mother’s weakness

3 Mr A’s extreme views

4 The risk of Mr A taking the children to live outside England

with the relevant date elegantly explained and without all of that harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him” rubbish that is like a school test about double negatives and enough to make anyone’s head explode.

Even the Lucas direction is distilled :

People can tell lies about some things and still tell the truth about other things.

He tells the children that he has listened to everyone’s views. He explains his process and decision :

After thinking carefully about this and listening to everyone, I do not agree with Mr A at all. People are not out to get him. His problems are his own fault. … he is dangerous to the children and their mother because of the way he behaves and because the mother is not able to stop him. There is a good side to Mr A – everyone has a good side – and this makes it hard for H and A and their mother to see what he is really like.

Of the controlling relationship between the mother and Mr A he said this :

One reason why the problems have become so serious is that the mother and Mr A are so different. The mother is a quiet and peaceful person. She would like a happy home and for the children to do well at school. She wants to be loved. She is not interested in politics or religion and does not know much about what goes on in the world. She is not at all curious and often finds things hard to understand. In a day-to-day way she is a good mother and she certainly loves her children very much.

But there is more to being a parent than that. You have to make good plans for your children. You have to know what is right for them and be strong enough to try to make it happen. You have to protect your children from bad influences.

I’m afraid that in that way the mother has not been a good parent. She has been weak and foolish. She has allowed her feelings for Mr A to blind her to what he is really like. Even now, she is struggling to see what everyone else can see. She feels sorry for him and makes excuses for him. That is what Mr A wants her to feel. He has got inside her head and it will take time for her to recover.

Later he says that “She doesn’t seem to think that she had any say in whether he went or not, or how it affected the family. It shows how helpless she is.”

He says that

It is lucky that Mr A was arrested so that he was not able to go on with his plans to take the children out of England. That is why it is not safe for him to be in the children’s lives.

The mother has been very slow to realize this. It is extremely disappointing that she could not see it earlier. Before the trip, Mr A was interfering with her children’s upbringing but she did nothing to stop it. During the trip, she risked the children being kept abroad. After the trip, her lies meant that the children could not return home. By protecting Mr A, she also put them at risk of being smuggled out of the country. I hope that she now realizes how dangerous Mr A is to her and her children and how he has used her. The time for her to say that she does not understand that is over.

The CEO of Womens’ Aid yesterday complained on twitter (on her personal account) that “on the face of it (and I accept I don’t know the case) mother is being blamed for father’s abuse.” She said that “it shows v common blaming of mother and lack of insight into impact on her of fear and control exerted by father.” (Another said that the use of the word “weak” to describe the mother jarred.)

I disagreed at the time and said I would go back and look at the judgment again. I have. I still disagree. I think that “weak” has been used in place of the more difficult concept of “vulnerable”. I think that is a legitimate substitution. And I don’t think that in context the judge is blaming this mother for the conduct of Mr A, who he roundly condemns (there is a lot more severe and brutal criticism of Mr A in the judgment than I have included). What the judge does is to focus (as the law requires) upon the way in which the mother has (or has not) discharged her responsibility towards her children as a parent. When deciding whether the state should interfere with a family the law is interested in whether parents have in fact harmed their children through their parenting – not why. IF they have harmed them (through action or inaction) then the question of why becomes relevant – because IF they can change or be helped to change their parenting to prevent it happening in the future there would be no need to take children away. This judge has said that the mother is weak (vulnerable), she has made bad choices, she still finds good choices hard – but ultimately he did return her children (or allowed her to keep them?). That’s not victim blaming, it’s allowing a survivor her agency, and restoring her responsibility as a parent. Control can endure long after a relationship is over, but to place all responsibility for ever on the controller by insisting on a static binary of passive victim : active perpetrator is to freeze a victim as eternal victim and disempower and demotivate her from becoming a survivor, a decision maker, a person back in control. You cannot have control without responsibility. And ultimately I think that Jackson’s judgment is kind, humane. I reject any suggestion he does not display a good understanding of the dynamics of control. On the contrary I think he understands it very well. And he knows this mother will need reminding of the risks. It is why, in his judgment, he has given her a roadmap.

It is right that there is not a head on exploration of fear, but at paragraph 25 Jackson J sets out 13 paragraphs of all of the very, very frightening behaviour of Mr A towards professionals and in court. It is under the heading “Mr A’s behaviour and the mother’s weakness”. I think it is pretty clear this judge understands the power this man will have had over the mother, notwithstanding the fact that the mother’s own evidence did not appear to be about fear.

The final order made in this case were care orders, with a plan for the children to live with their mother and grandmother. From this it is apparent that there were probably residual concerns about the mother’s ability to continue making good decisions and to protect the children – but that rather than being blamed or penalised for her enduring vulnerability she is being supported in the exercise of her responsibility in future by her mother and the local authority. Surely this is a recognition of the enduring impact of control and of the mother’s own vulnerabilities?

The tweets I have seen about this judgment have been (apart from those minor cavils) ecstatic – from lawyers (in all fields), academics, judges, social workers, adopters, parents and all sorts of others. It should be used for judicial training, law student essays (write a judgment in the style of Lancashire CC v M), all judgments should be written like this…Heartfelt pleas for this to be standard practice, ponderings on why it isn’t…

Groundbreaking as it is, some reports have got a little over-excited : The Times report that the judge has included “a “smiley face” emoji to explain the evidence.” That in fact is not quite accurate – the judgment does include a smiley, but the smiley face emoji was a part of the evidence, so rather than the judge using an emoji to explain the evidence the judge just described that evidence, which happened to include an emoji (Written on a note by the mother). This is a bit like accusing a judge of swearing when he’s simply quoting a witness. I think we are still some distance from a modern system of binary findings that are described as either 🙂 or 🙁 ….

However, one can see that in this particular case it will potentially be really so important for the family to have this judgment as a core part of their narrative, of the children’s life story – no doubt it will have significant protective power to keep this family on the straight and narrow – to help keep the mother strong. But apart from the specifics of this case, all children, all parents, should have this. And that does not just mean the production of a transcript of a judgment that mechanically trogs through the statute, the evidence heard, a “holistic evaluation” and a decision – a document that will be utterly unpenetrable in years to come to any family member who may read it. This judgment was laboriously written, each word and phrase carefully chosen, so it would be legally correct and meaningful to this family. Each word does a job.

It is very hard and very time consuming to write this way. It is the way I try to write when I write The Family Court without a Lawyer (and yes, before you make any sarcastic comments it is a discipline I usually gleefully abandon when blogging). At the end of each phrase, I ask – is there a cleaner way of saying that? A way that is less likely to inadvertently confuse? There usually is. It is a skill and a discipline that can be learnt and it is not only judges who should practice it, but we lawyers should do so as well – when we speak in court about learning disabled parents who are present, and even when we speak in court about parents with no particular cognitive difficulty – we should speak their language the first time round, rather than translate it hastily after the hearing. I’ve had a few cases where I’ve drafted child friendly orders, or have assisted with the wording of letters to the children, and others where I’ve asked for certain matters to be recorded in judgments for life story purposes. We should do more talking to families on their own terms, recording their lives in ways they can access when they are ready, like a treasured photo album which contains sometimes sad but always important memories.

If only Jackson J could have written the script for The Archers, we could perhaps have had good writing AND legal accuracy. Sadly that seems to have flown out of the window even more as the “custody” battle resumes in the Family Court tonight… Of which more in another post.

 

 

*see judge’s description of her here :

The mother is a quiet and peaceful person. She would like a happy home and for the children to do well at school. She wants to be loved. She is not interested in politics or religion and does not know much about what goes on in the world. She is not at all curious and often finds things hard to understand. In a day-to-day way she is a good mother and she certainly loves her children very much.