Goodbye Sir Henry

There has been an outpouring of affection from the legal and legal blogging community following the recent death of Sir Henry Brooke. Apart from a number of lovely obituaries in the national press (see for example this one in the Guardian), there have been a number of tribute posts from legal bloggers. Because although Sir Henry was not the first of us, he epitomised what many of us wanted to achieve, and shared many of our motivations.

He hadn't been blogging and tweeting all that long, but Henry Brooke had managed to find a human and accessible way of communicating and of making use of social media that attracted readers to his posts. And he did all that without dumbing down.

In April last year, having been at it for two years, Sir Henry wrote a blog post reflecting on his motivations and the degree of success he had achieved.

One commenter from Hong Kong had written in praise of Sir Henry's blog that

The writing of legal history/legal anecdotes through the internet will make them more accessible to the public.  Picking up and buying a book written by a judge may be a difficult thing for most people/lawyers, but reading articles online for free is a completely different story.  People may be researching some legal terms or background of certain legal icons by Google and they can read online articles with ease. 

Sir Henry was pleased with that, because his driving force was

to demystify the practice of the law; and

to show that although some things undoubtedly change, at the heart of our legal and judicial system there have always been (and I hope always will be) many, many men and women who have been doing their honest and honourable best to provide a system of justice that meets people’s everyday needs;

and to try to show that although the practice of the law will always be hard work, and although we are in a certain sense facing unprecedented obstacles and difficulties today in the absolutely vital corner of the market that is dependent on public funding, it can and also should be fun.

Sir Henry may not have realised it, but to read this, and to see it played out across blog after blog by a hugely respected former senior judge, is such an encouragement to those of us who are plugging away at our own little corner of legal blogging, chuntering away hoping that somehow we will demystify the practice of law and bring a smile occasionally too. When I first started blogging lawyers looked askance, or would say mockingly 'Oh, you write that blog don't you?'. When I first wrote a book for litigants in person it was seen by some colleagues as a sort of treachery. But if engaging with ordinary mortals in ordinary language about law, through blogs and social media is good enough for Sir Henry Brooke, then it's good enough for me. When Sir Henry Brooke took up blogging, legal blogging came of age.

Of course, even before he took it up himself, Sir Henry had an impact on legal blogging through his support of BAILII, a resource upon which we all depend and draw - and which I hope the legal blogging community add value to.

That first commenter also said this :

most legal biographies/autobiographies in book form may be forgotten and hidden in the bookshelves of a law library.  Your articles will always exist on the internet and accessible to all.  Your articles will be “immortal”. Thank you for this, Sir Henry.

Now that Sir Henry himself is no longer with us we must make sure that his blogs really are immortal, and I hope that in the coming months a plan will emerge to ensure that the site remains accessible for many years to come.



PS I hope nobody will mind me using Sir Henry's picture from his twitter account. It is such a striking and lovely picture.

‘Transparency in the Family Courts: Publicity and Privacy in Practice’

...Is the title of a new book, forthcoming from Bloomsbury very very soon.

Sadly I shall not be reviewing this excellent sounding new book for Pink Tape. 'Cos I wrote it. Which would probably make me a tiny bit biased.

In fact, I co-wrote it with the most excellent Julie Doughty and Paul Magrath. This means there is a 2/3 chance it will be pretty good. Or 100% chance that 2/3 of it will be pretty good. But I'm not gonna tell you which 2/3s.... Makes it more interesting that way.

Anyway, here is a link to the page for the book, to prove it's a real thing. Sadly, no snazzy cover picture yet, possibly because we three amigos are procrastinating about images...

Bloomsbury are also holding a rather bodacious sounding conference in London on 16 May, where I think i'm the warm up act for the real lawyers to follow on from. I will be talking about transparency (why it matters - what it means).

This real-books-for-other-lawyers thing is all scarily grown up and I confess to being slightly petrified. Massive case of imposter syndrome here (Can you tell?)...The Bill & Ted's quotes seem a strangely apt nervous tic...(even though it is the most stupid film since forever)...

Anyway, I shall no doubt spend the entirety of 15 May repeating 'We're in danger of flunking most heinously tomorrow, Ted'.

Until then, party on transparency dudes!


Little things sometimes matter (yes I’m a pedant)

Of course I am a pedant. All lawyers are pedants. The trick is to judge which of the little things you really should sweat.

Here's a little thing that I think does matter, or might in some cases. The C1A.

The C1A is the supplemental information form that Applicants and Respondents in cases involving child arrangements are supposed to complete where they are saying there are issues of domestic or other abuse. In the context of Practice Direction 12J and the Child Arrangements Programme, where the ethos is on early safeguarding, and on triaging cases so that they are safely conducted and so that the need for protective measures or fact finding exercises is identified early, these little forms really matter. Or they have potential to. But for some reason they are usually just ignored, especially the Respondent's C1A, which comes along later when the safeguarding train has already chugged off from the platform. That gets forgotten, like the middle sibling who nobody notices.

Take a recent example. Applicant father issues with a C100. Mother responds with a C1A. Cafcass carry out safeguarding checks (in which M raises domestic abuse but in a fairly non specific way) but don't recommend a fact finding hearing. The safeguarding letter is produced at the FHDRA, but it does not mention the C1A. Lo and behold, when checked CAFCASS confirm they don't have the C1A and haven't therefore taken it into account. They conduct a review and change their recommendation to one for a Fact Finding. What if I hadn't spotted it? A LiP wouldn't know to do this, and I almost missed it myself. The facts of the case don't matter here, its the process I'm interested in.

I've seen this sort of thing quite often. In another case of mine the C1A kept getting left out of the bundle. Applicants often don't seem to receive them (I think this is because it is unclear who is supposed to serve them - the rules say the court serves the C100 but don't specify with the C1A, and the form itself doesn't really help as it only talks about sending it to the court).

So anyway, because I am a saddo I checked the rules. Part 12 is useless. PD12C doesn't help. PD12B (Child Arrangements Programme says that the court will send CAFCASS the C1A if supplied no later than 2 working days after the date of issue (pa 8.9), but of course this is the APPLICANT'S C1A, by this stage the Respondent won't have even got the application probably. It goes on to say that 'The court shall not send Cafcass any other application...unless the court has made a specific direction...therefore, any application which is not in Form C100... will be returned to the court at which the application has been issued'. This just means, I think, that Cafcass don't want all the crud people tend to attach to their applications. But it isn't really about the C1A, which is not an 'application'. There is NO mention of a Respondent's C1A so it just isn't properly woven into the safeguarding process.

The C1A is mentioned in the bit about the Gatekeeping stage, but again the only C1A they will have at that early juncture is the applicant's C1A. It is usually the Respondent who fills in a C1A, because the preponderance of applications are by parents wanting contact when the other says it isn't safe. In the section heading Safeguarding - not a whisper about the C1A.

This is where it gets weird.

The C7 acknowledgment form says this. It firstly tells Respondents that if they tick yes to the various harm questions on C7 they must fill in a C1A. And then it says :

...When you have answered the questions make copies of both sides of this form. You will need a copy for the applicant, and each party named in the application for an order (form C1, C100, C78 or C79).

Post, or hand, a copy to the applicant and to each party. Then post, or take, this form, and the Statement of Means and Supplemental Information Form if you have filled one in, to the court at the address below. You must do this within 14 days of the date when you were given the Notice of Proceedings, or of the postmark on the envelope if the Notice of Proceedings was posted to you.

Now this seems to suggest that you are supposed to serve the C7 but just file the C1A.

AND it also seems to be the case that you have 14 days to do this. This is going to be quite close to the 17 working days Cafcass have to do their checks, although in practice Cafcass are I think sometimes given / take a little longer.

Now I would certainly not want to suggest that the safeguarding checks should take any longer than they already do - the wait for the court to actually DO SOMETHING when you are desperate to see your child is quite awful enough. But if the C1A is to have any purpose shouldn't it be properly fed into the pre FHDRA safeguarding process? Shouldn't the court be obligated to send it on to Cafcass, or shouldn't the Respondent be obligated to send it to them directly? Or perhaps even Cafcass should check with the court for a C1A as a part of their other safeguarding checks? They certainly don't seem to be picking up the existence of these forms from their safeguarding telephone calls and I guess many litigants would not know what a 'C1A' is if asked about it on the phone (even if they've completed it not long before).

One day, particularly where Respondents are in person and without legal aid, are frightened and inarticulate, a C1A might save someone's life. One day the neglect of what a C1A says might leave a child or adult exposed to harm. In most cases it doesn't matter, and it gets picked up at one point or another, and in many cases the allegations in a C1A are neither her nor there - but the point of these checks is to help the court distinguish which is which. So we really ought to do it properly.