Darn. I had not intended to write any more blog posts today. But I need to #sumptionsplain something.
I was part of some twitter banter on Thursday night about Lord Sumption’s speech to the At a Glance Conference the day before. Whilst this serious-yet-silly exchange serendipitously led to the coining of the phrase “ovaries of steel”, and thus has some long term value that will undoubtedly be remembered in years to come – it was on reflection a rather insular and ever-so-slightly-chippy response from a lawyer who has been conditioned over many years to expect men from other areas of law to think it quite acceptable to talk of “proper law” as something quite distinct from family “law”. In those all too familiar conversations (usually with someone wearing pinstripes) the use of the term “discretionary” is used in a pejorative way.
Anyway, I’ve now read the speech rather more thoroughly and I actually think its rather good. I don’t actually think the family bar IS insular – but Sumption makes some good points about how there have been a number of notable boo boos where the family bar and judiciary seem to have behaved as if they operate in some slightly different dimension where general legal principles can be distorted or ignored. Damn him, he’s right.
Good family lawyers don’t fall into such traps, or at any rate don’t do so with any greater frequency than practitioners in any other specialism (I am given to understand that these creatures also suffer from human fallibiilty), and I have found that twitter is a great trigger and tool for the sort of cross fertilisation and cross checking that Sumption is quite properly encouraging. Many are the times when a lawyer from another discipline has asked me a question via twitter, or I of them – some genuinely interesting insights and conversations have ensued, often serendipitously, but sometimes deliberately. I actively use contacts in other fields to “check out” issues that I think might have parallels in other areas – both via twitter and in real life.
Of course, the reality is that there is plenty of “proper law” in the field of family, its just that some lawyers break out into a cold sweat at the idea of the uncertainty that comes with a significantly “discretionary” jurisdiction. That’s their problem, not ours. And the other reality is that as well as all that law, a family lawyer needs to have not just be a brain on a stick, but also a human being with some pretty nifty practical skills. I doubt that there is really any area of law where you don’t need a smidgeon of people skills and an ability to think practically (I’m with Sumption – patents might be an exception, sorry patent lawyers), but I reckon a fair few of our most brainy lawyers would have a panic attack and run away if you sent them to the local magistrates court for a day of private law work with the great unwashed.
However, whilst I’m sure his Lordship is utterly infallible, I am not. I admitted my hastiness had led me into error on twitter earlier (below). Whilst there is a whiff of “not proper law” about this speech, which has rather triggered me in the same way that a flash of unexpected red sock might do, I ought not to have let that distract me from the good sense he speaks (on this occasion).
But now, to my horror, I see that #sumptionsplaining has made Legal Cheek, complete with screenshots of yours truly (of COURSE it has : It’s a hashtag involving a Law Lord and David Allen Green AND it contains screenshots of me saying something I wish on reflection I had not. It was inevitable therefore that it would be covered). So I fear my little #ovariesofsteel tweet is insufficient penance…Hence this post.
Ah well. I’m a big girl. My ovaries of steel will not be dented by this moment of rare humility – it seems that I have learnt just a little from his Lordship’s #sumptionsplanation after all – you see, we aren’t that insular.
I have to say that regrettably I frequently encounter lawyers, not necessarily barristers mind, in family law who emphasise the family and neglect the law bit. Especially around the issue of enforcement, I may say.
Regrettable but true. I’d say regularly – not sure about frequently – but definitely too often.
I’m a punter, but as someone who has had dealings with both public and private Family Law proceedings as a former Foster Carer and enthusiastic divorcee, there does seem to be an element of “making it up as we go along” amongst some Family Law solicitors, which quite surprised me.
Recently confronted ahead of a Dispute Resolution Appointment by my ex’s solicitor, she informed me that she intended to bring an unrelated matter regarding one of my stepchildren to the Judge’s attention. I politely pointed out to her, [edited] that the matter was unrelated to these proceedings and, therefore, irrelevant.
“Well I’m going to bring it to his attention anyway.”, she snapped, rather discourteously, I thought.
“Okay. Good luck with that”, I replied.
As soon as she attempted to raise the matter, the Judge, as I’d expected, asked if it was related to the proceedings in hand.
“No it’s not, Sir.” I interjected, “It’s got absolutely nothing to do with them.”
“Well I’m not interested then”. And that was that.
You should have seen the look she gave me! Later in the Hearing she shouted out some of the contents of the email as quickly as she could in an attempt to “win” the point. I again pointed out that it was irrelevant and the Judge just acted as if nothing had happened and completely ignored her.
Is this normal? As an interloper, I was quite shocked. It struck me as being highly inappropriate. The email she wished to discuss wasn’t even in the bundle!
There also appears to be an element of throwing their weight around when dealing with LiPs but then relying on the Get Out of Jail Free card when you catch them out making mistakes or contradicting themselves. At that point they hide behind the “instructions” catch all. Ask an awkward question or two and you’re met with, “We are not instructed to correspond further on this matter.” Er? So you’re just going to sit in the corner of the room with your fingers in your ears, singing an inane, made up tune? Or did a big boy do it and run away? Or worse, you get no response at all. I received a “without prejudice” letter which was so fantastical, Tolkien would have been proud of it. I wrote back saying that I was as keen to resolve the issue as they were but couldn’t do so until the other side provided various documents, which I listed. Part of the letter included a claim that I’d fraudulently [edited]! Amongst the documents I asked for were the [edited] upon which I am supposed to have forged her signature. Two months and 3 letters later and I’ve still had no response!
You’re an odd lot. Some of it I get. It’s a game. The “without prejudice” notice gives them an opportunity to say ridiculous things without a Judge scrutinising it, but this is the bit I don’t get; that’s a VERY serious allegation. If you were a lawyer acting on their behalf wouldn’t you want to see proof before you became ensconced in such an accusation? Yes, the accusation was made by the client, but there was a threat in there too which was entirely the Solicitor’s doing. And this is the point, it would have potentially been a good threat to make – were the client’s accusation true! But the solicitor clearly didn’t even attempt to verify the claim. Can lawyers just say that they were acting in good faith? At what point will a court expect a lawyer to scrutinise a client’s claims? Never? How can lawyers offer ‘good’ legal advice if they’re not aware of the facts? Can lawyers just sit back and state that they were only acting on their client’s instructions?
What puzzles me, and my case will prove to be a very good example, is that clients will undoubtedly make the same claim, that they were merely acting on their lawyer’s “instructions”. And knowing my wife as I do, if she doesn’t get exactly what she wants and expects from our divorce, she will waste absolutely no time blaming her solicitor.
My lawyer friends seem a little mystified (none of them work in Family Law) although they admit, obviously, that litigation is a game of argy-bargy. It’s like being at school again. And of course pedantry dictates that lawyers don’t give “instructions”, merely advice.
[edited]
I’ve edited your name and some of the details of your comment to prevent identification.
You correctly identify that lawyers receive instructions but give advice. Clients are not instructed by their lawyers – they may get very firm advice but the decision is that of the client. If they have had BAD advice they may legitimately complain, but the acceptance of GOOD advice that they later come to regret is NOT a valid cause for complaint. The distinction between instructions and advice isn’t pedantry – its the entire basis upon which lawyers operate. Without instructions a lawyer in in standby mode. It is professional misconduct to act without or against instructions.
On the fraud point – there are rules about this. I haven’t recently looked at the solicitors code of conduct but the Bar’s rules have always been very clear that it is professional misconduct to make an allegation of fraud without some evidence. I believe the solicitors code to be similar. I can’t comment on your cases, but as a general proposition I would not expect to see an allegation of fraud in correspondence or documents before the court without some evidence, but at the end of the day it is a matter for an individual lawyer what constitutes a sufficient basis. If it is a question of a forged signature / document it is likely to be one person’s word against another and there will be little concrete evidence to be had. I would certainly expect a lawyer to take careful instructions as to what a client says about an alleged fraud, about the surrounding circumstances and about what might be available to support the claim – before making that allegation.
You’re right, Lucy, it’s wrong of me to describe it as pedantry. This is an unpleasant side of “the glass” to be on, [edited] and frustrating to boot, although your book has been a life-saver.
After I received this allegation I read the Solicitor’s Code of Conduct and was shocked. It struck me that it was no coincidence that the allegation was made within a “without prejudice” letter as it was such a scurrilous thing to suggest and doing it in these circumstances was, to some extent, an abuse of the anonymity of that process. Would she have done so were I not self-represented? Hmm?
[edited]
Again, I’ve edited out your name (can you stop putting it in?) and heavily chopped your comment as it was mainly about the detail of your specific case. Sorry.
The real issue of secrecy is the gagging of mothers whose babies have been snatched at birth and put into fostercare, preventing them from going public with their grievances and identifying themselves via the media in case they breach the “privacy” of the baby .Free speech goes out of the window on the most ridiculous excuse yet invented by heavily biased lawyers !
You mean mothers like Alessanda Pacchieri who was allowed to identify herself and tell her story? It’s not quite as clear cut as you suggest Ian, and I don’t view the privacy of a baby as a ridiculous excuse. Sometimes it outweighs the adult’s rights, sometimes not – as the P case shows. And it is judges not lawyers who make the decisions. Lawyers act on the instructions of their clients (although I agree some lawyers still do a knee jerk at talk of press involvement / interest in a case about a child).
I don’t think the importance of the anonymity of the child can be underestimated, but my limited experience of Public Family Law, the LA and the biological parents, left me wanting to abandon Fostering.
I cared for a newborn baby under a Section 20, the parents having been ‘told’ it would work to their advantage. Contact was Supervised by me in my home for 2 hours a day, Monday to Friday. Mum and Dad had been told that after 6-8 weeks of Foster Care, they’d be moved as a family to a residential rehabilitation unit for 6 months before walking off into the sunset as a happy family, and I’d been told the same. The problem was, it was a lie.
After two weeks of having to support mum and dad’s vision of the future whilst having to listen to the LA plot the child’s adoption, I put my foot down. Within 3 or 4 hours everything changed (and not particularly for the better).
The baby’s Social Worker, who’d inherited the case a few days before the birth, described the whole affair as “a shambles” and was pretty disgusted with the way the LA had dealt with the case. The 26 week rule had just kicked and it’s unfamiliarity amongst the Social Services was panicking them.
There were MANY aspects of the CA89 that appeared to me to be being overlooked and that’s when I realised that there also seemed to be an option which the LA could choose – the legislation or ‘statutory framework’, the latter apparently allowing an uncomfortable amount of wiggle room, depending on your perspective.
Call me cynical, but in a world of shrinking corporate responsibility in favour of individual responsibility, there were an uncomfortable number of Social Workers with two priorities on their minds – their mortgages and their pensions.
It was during these proceedings that I realised how little Social Workers knew of the law. Yes, that’s why LAs employ lawyers, but if the Social Services are to ‘police’ these laws, surely they should have a comprehensive working knowledge of them? I was constantly fobbed off with “It’s confidential”. As a Foster Carer one of abiding responsibilities is to advocate for the child in the same way you would do were the child biologically yours. I had many, many concerns about the LAs plans for the baby as well as many concerns about their treatment of the parents, but at best I was kept at arms length, at worst, completely ignored!
It struck me that a course had been set by the LA and NOTHING was going to be allowed to interfere with that – questions would go unanswered, objections ignored, challenges excused. A decision had been made in the early stages of the pregnancy and the State was standing by, rubber stamps at the ready, whilst the entire life of another human being was processed.
It was a very ugly thing to have to witness.