The Structural Problems in Private Law

Been thinking since I wrote those posts about the harms report, about the many ways in which private law is structurally flawed. Consider this a follow on…it just covers two things that are on my mind right now.

Adversarial

The first is this : lots is often made of the ‘adversarial’ nature of proceedings, and whilst this may well be typified by cross examination of witnesses, unfortunately discussion of the ‘problem’ doesn’t generally go much beyond this  : eliding cross examination (by lawyers) with proceedings that are adversarial in nature – and often by extension categorising the involvement of those who do the cross examination, the lawyers, as adversarial in all they do. It’s laughable to any lawyer who does this work to think about themselves as entirely adversarial, but when a litigant approaches you in the expectation you are their ‘adversary’ perhaps it is a self-fulfilling prophecy.

The problem with focusing the criticism on lawyers and their cross examination is not just that such cross examination is sometimes necessary (where disputed facts need to be determined there is no better way, however much people understandably complain about how unpleasant an experience it is), but that it misses the broader picture.

Lawyers will of course also point out that proceedings are in many respects NOT adversarial – in that judges in the family court are by power and culture active case managers and quasi-inquisitorial. And those who are not lawyers complain again that lawyers just crank it up, bat it back, raise the temperature, fuel the fire.

BUT. Most proceedings don’t involve lawyers. And do you know what? Hearings in those cases often involve their fair share of ‘adversarial’ behaviour, in the sense of argumentative, competitive, bullying mud-slinging argy bargy, and point scoring to and fro behaviour.

Is that coming from the process, or the people, or just from their wider situation?

There is obviously no single, simple answer to that question. But isn’t it worth asking? What drives that behaviour? Because whilst so much of the system’s energy is directed towards promoting settlement or at least achieving safe resolution through a fair and safe process, there is I think something about the process that drives the very behaviour that makes that settlement difficult, and which outside of the court building makes co-parenting so much more stressful and recovery from abusive or unhappy relationships much more difficult.

I’ve written before about the ways in which, to my mind, the combination of the ending of a relationship and finding oneself thrust into a litigation process means that litigants are often experiencing a profound sense of losing control over their lives, which in turn can lead to particular presentation or patterns of behaviour in the context of the court process, as they struggle to regain some sense of control – whether that is a parent who suddenly finds himself out of the family home, struggling financially and stopped from seeing his child, or a parent recovering from abuse, coming to terms with those experiences and trying to restore a sense of agency.

But the longer I do the job, and the more different angles I see, the more I think there is more to it than that those who come to family court are at a bad point in their lives. I think there is something about the process – not the specific detail of the process in the sense of The Child Arrangements Programme (though there may be things wrong with that, that is a different issue)…and nor either is it about the way we do things in family court particularly. What I’m driving at is something about court process generally – that provokes certain responses and patterns of behaviour (its seen in small claims too). The magic rules participants are supposed to abide by but which nobody has ever told them, the ‘sides’ and ‘cases’ and stages – and the function of the judge to be in charge and to make decisions – about whatever the dispute is about and about how to get to that decision and what is fair. All of it – regardless of whether a courtroom is populated by pompous lawyers behaving in a stereotypically ‘adversarial’ way, and regardless of how friendly the judge is or how hard they try to avoid jargon – all of it is taking away control, and exerting authority and pushing psychological buttons that are bound to very often provoke similar emotional and psychological responses by family court litigants as a cohort. Even without a psychology degree I can see there are patterns, I can see that some of the structures perpetuate and drive familiar responses that lawyers and judges wearily observe time and time again from one case to the next – powerless to stop them recurring.

If we are thinking about reforming the family court system I would like to make a hypothetical Part 25 application for an assessment by a behavioural psychologist of the systemic structures and how they drive and affect litigant behaviour. I’ve read enough psychological reports to know this stuff is going on, and enough to know that any attempt by me to cut and paste the phrases I’ve become familiar with into some pseudo analysis would be a fool’s errand – I think the system needs an expert assessment, to give us a psychological formulation and the language to help explain our patterns of behaviour, to give us a prognosis and a way of naming and talking about them, and of recognising and learning about them – and to tell us what we might to to break our unhelpful patterns of learnt behaviour and to relearn more functional ways of managing disputes. We may not be able to change human nature but if we understood these processes better we might be able to tweak or reform the structure so that the behavioural responses of the participants were altered too. Could we by doing family courts differently change the way litigants behave and in doing so make the system work better for everyone?

Any psychologist who wants to have a bash in a guest blog post – send me an email!

Representation

So, moving on to my second issue. It is unsurprisingly linked to the prevalence of litigants in person and the difficulties of dealing fairly with allegations of domestic abuse. I have dealt in recent years with a number of such cases where I have been instructed to represent the child in the case, but where both parents are in person. Of course there are far more cases where identical issues arise but the child is not a party and so there are no lawyers at all – but here I just want to make some observations about those cases where the court has decided things have got tricky enough to make the child a party, because such cases illustrate the breadth and depth of the difficulties wherever the parents are in person.

Inevitably where the child is a party, the legal representatives of the child are expected to pick up the slack and their duty under the overriding objective to assist the court is doing a lot of heavy lifting.

Firstly, the funding arrangements for lawyers acting for children in private law were not designed for the sort of work that is now expected. Advocates undertaking such cases are not even paid under the FAS scheme, so they receive no payment at all until the end of the case (and many of them are apparently interminable). These cases benefit from continuity of counsel, but when we take them on we effectively work for free for an indefinite period, in the knowledge that when we do get paid it will not be a fantastic fee anyway, and will be markedly less than we would be paid in care work, where sometimes (but not always) the burden on counsel for the child is comparatively lighter.

More importantly perhaps, the solicitors for the child are now often expected to collate documents, corral police disclosure, prepare bundles, organise expert instructions and generally sort out everything, engaging all the while in communication with and between assorted litigants in person who often do not understand or do not comply with orders, and who often do not understand the limitations on what assistance the solicitor for the child can give. Their fees are capped too, notwithstanding the significant headache such cases can involve. They are under pressure to take on risks in respect of the costs of experts that the LAA may later quibble with paying.

But my particular issue du jour is the fact finding scenario. When LASPO first happened counsel for the child would often tell the court it was not their role to conduct questioning on behalf of another party, and where counsel had expressed such discomfort the court would accept that. Now, half a dozen years later that is in the distant past. Nobody else is going to do it, the lists being what they are, the judge more often than not will have been unable to get to grips with the dense bundle in order to be in a position to properly assess the appropriateness of questions on the hoof or to ask them herself – and several judges have been successfully appealed and criticised for doing their (inevitably inadequate) best to conduct questioning themselves. Frankly, if the judge is to properly concentrate on and absorb the evidence, whilst case managing the hearing, they need not to be also worrying about carrying out questioning themselves. When I am representing the child my job is to make sure that the evidence is properly and fairly tested and the judge comes to a decision on the facts which is sound and that does not necessitate an appeal. If that means I have to roll up my sleeves and assist by asking questions on behalf of one party or the other that is what I will do. But I don’t like it.

It is a tricky, uncomfortable and exhausting task. Particularly where, as I recently was, counsel for the child is tasked with asking questions sequentially on behalf of both parties of the other, as well as (eventually) her own. The burden on an advocate of asking questions from three metaphorical vantage points in turn is significant.

  • proposed questions (inevitably received on the day) need to be studied and potentially inappropriate questions need to be flagged for a decision by the judge,
  • clumsily expressed questions need to be adjusted to make sense – to do this the underlying purpose of the question needs to be understood,
  • ‘live’ decisions need to be made about follow up questions – for me I think this necessarily means asking questions which obviously advance the underlying point behind the original question, whilst taking care not to follow up a party’s question with one I’d quite like to ask but which might undermine their line of questioning (and that also means making a note for my own use so I can ask that question later when it’s my turn) – to me it seems important not to mix up the questions on behalf of the other party with my own cross examination,
  • a process needs to be devised to allow the questioning party to pass supplemental questions arising from the cross examination and those then need to be asked,
  • embarking on asking your own questions following straight on from the task of asking questions on behalf of the other party can be tricky, because you have had no time to adjust your own notes of what you want to ask in light of the round of questions just asked on behalf of the other party, and your brain has been focused on the task of asking questions rather than reformulating your own – so a brief pause is often required. For me this task is one I usually carry out by fiddling with my notes as the preceding advocate / party is asking their questions. I have found that whilst the court is happy to permit a short break between rounds, this can mean that counsel for the child is effectively working through without a break and under some pressure for a very long session. Given that the questioning of counsel for the child can come at the end of such a long sting this does have potential to disadvantage those representing the child, so it’s really important to ensure that any break to undertake this work is not superimposed on a ‘proper’ break (particularly where remote when short leg stretching breaks are so essential to proper concentration).

There is of course always the concern that one or other (or both) parties (or the judge) will complain that somewhere along the line you’ve done something wrong – missed a question, asked it wrong, not asked a follow up question, asked a follow up question you shouldn’t have….or indeed that the burden of all this extra leg work will distract you from the task at hand of focusing on your own questions. This is all on top of the general subtlety and precariousness of counsel for the child at a fact finding hearing – often left to get on with it with no specific instructions other than ‘test the evidence’ or ‘assist the court’ or ‘tell me what the outcome is’, and effectively expected to use her own inevitably subjective judgment as to what aspects of the evidence warrant a bit of probing, need further exploration or even outright challenge – all whilst maintaining some sort of ‘neutrality’ (I prefer ‘proactive impartiality’), and left in the sometimes vulnerable position of having to make these judgment calls without the protection of specific instructions.

The pressure in many different ways and on many levels, can fall disproportionately on those who represent the child in such proceedings. If the future is that this is to be our more standard role (and it is undoubtedly the case that one possible way to alleviate the difficulties that arise where both parents are in person is to increase the number of of cases in which children are made parties) then I think that some thought will need to be given to the following four things:

  • there needs to be proper ethical guidance as to how counsel is expected to balance her duties to the clients and the court, and how in practical terms the task of assisting with questioning is to be carried out;
  • there probably needs to be specific training developed;
  • the rules / PDs may need to be adjusted to reflect what is and is not expected;
  • there needs to be a look at the funding system. This is complex and taxing work and private law is very poorly remunerated compared to public law, the problem being compounded by the delays in payment. It is essential that sufficiently experienced counsel are willing to undertake this work and the current funding structure is a massive disincentive both for solicitors and counsel.

 

So, those are my twin rambles about just two of the structural issues in private law. Will we ever sort it out I wonder? Or just create more working groups and guidance and tinkering around the edges?

4 thoughts on “The Structural Problems in Private Law

  1. From the child’s side.

    A tale for adults

    The Boy and his bear.

    The Boy had a Bear. Not just any bear, but a much loved bear. So loved was this bear that he had even attained the very rare and much coveted status of ‘Beloved Bear’. And with that position came special priviledges. It meant you got to go everywhere with your owner so it made for a very happy bear. But this bear had an enemy – The Enemy – and so couldn’t go everywhere with His Boy. Sadly, this meant Bear wasn’t always such a happy bear.

    Bear did in fact have a name, and a most suitable name it was. His name was Scruffy Bear. There are scruffy bears and then there are really scruffy bears. Scruffy was in a category of his own, for he was a really, REALLY scruffy bear. He couldn’t help being scruffy, it was his lifestyle. And that was out of his own control.

    Except when Boy was at school, Scruffy lived under Boy’s arm, for he was only a little bear. A diddy bear really. Sometimes under the right arm, sometimes under the left one, and often anchored firmly in an armpit for security reasons. This gave Scruffy his very individual and distinctive smell. But it was a comfort smell for Boy, so Bear didn’t mind that he never got washed, or got to go and play in the bath with Boy.

    On very, very rare occasions Boy’s mother decided to brave the subsequent tears and sneak Scruffy into the washing machine. But despite The Mother’s efforts, as fast as he’d been washed and dried, he got his smell back again, and he was way too far gone, to every not look so dreadfully scruffy.

    Scruffy’s Boy had a name of course. But The Boy lived under special restrictive conditions which meant he couldn’t have his name known outside his family, so he was known as The Boy. Once The Boy had been known only as The Little One, but then he kept growing so he wasn’t so little anymore and got renamed The Boy.

    The special condtions meant that, like Scruffy Bear, The Boy’s living conditions made him sad at times. But they were also out of his control too.

    So The Boy and Scruffy Bear had a mutual affinity and bond and deep love for each other based on shared pain. Some adults did not appreciate how deep that love and bond were. Like The Grandma. Who should have known better! Amused by listening to The Boy and The Bear sharing some chatter one time, she thoughtlessly said to The Boy, “he’s not real you know”.

    As the enormity of what she had dared to say showed on his face, The Boy struck back with speed. “I’m not stupid, I know he is not really real, but in MY world he IS real”. Suitably put in her place, The Grandmother wisely changed the topic. But it didn’t end there.

    When she had returned home, The Grandmother took a face to face call from The Mother.
    “You’ve really upset The Boy” she said.
    “Really really upset him”.
    “What on earth possesed you to say Scruffy wasn’t real?!”
    “You know Scruffy means the world to him”.
    “He really doesn’t like you right now”.

    Harmony was only restored by the guilt ridden Grandmother apologising profusely to The Boy, and, to The Bear. Thankfully both Boy and Bear forgave here. But she learned her lesson. Don’t mess with The Bear.

    But The Bear was hated by a dangerous and hardened enemy – the jealous and vengeful Absent Father. The Absent Father had poured scorn on The Boy for having a beloved bear, even a little one, for The Boy wasn’t suppossed to love anyone except him. Bears were for so called ‘Sissies’, according to the Absent Father. Scruffy wasn’t welcome in his house, and he had threatned to perfrom ‘surgery’ on him and remove all his stuffing if The Boy took him there again.

    So, to protect Scruffy, because his love for him was greater than his need to be comforted by him, The Boy stopped taking Scruffy to the Absent Father’s house.

    When it was time to go there, Scruffy was reluctantly tucked up in The Boy’s bed to keep him safe. Where he was loving kissed goodbye and reassured how much he was loved, and that the The Boy would be back very very soon, and that The Mother would look after him till The Boy got back.

    Going, had a routine all of its own. As usual, when putting on his shoes, The Boy said, “I don’t want to go. I have tummy ache.”

    The Mother, once again, kept her despair hidden as she hugged him tight.
    “I know darling, I know”. “I wish you didn’t have to go either….”

    “But it’s the court order…” he finished for her.

    Eventually, one day he said “No, I am not going”. “You said I am older now and my voice matters”.

    “Then I will not make you.” She reassured him.

    “But he will take it back to court, he told me he would.” Anxiety in his voice.

    “Let him. It doesn’t matter anymore. I will make sure your voice is heard.”

    The Boy took his coat off, scooped Scruffy up out of bed and tucked him defiantly back under his arm. The Boy and his bear shared their happiness together as they danced dizzily around the room – as childhood should be – without collateral damage.

    To be continued

  2. Sue Hickman wrote a doctoral thesis ‘SHARED UNDERSTANDINGS? THE
    INTERFACE BETWEEN SYSTEMIC PSYCHOTHERAPISTS AND THE FAMILY
    COURTS’ in 2013. This can be found in the University of East London / Tavistock and Portman NHS Foundation Trust repository. From the abstract: “This qualitative research set out to explore how far understanding is shared between systemic psychotherapists who write expert reports for family courts and the judges who receive them, with particular reference to various concepts involved in the process such as truth, objectivity and expertise itself.”

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