BAD TIMING

This blog is not just about family law. As is required pursuant to the law of sod I am too darn busy to post anything much about the biggest family law news for some time, the publication of the Family Justice Review. And since this is not my day job it’s the blog that has to give. Too many plates spinning, balls in the air and fingers in pies. I’ve dropped the ball in my pie and I’ve got no crockery to serve it on. What a dog’s dinner of a metaphor.

Anyway, the Family Justice Review. It’s been published. And as far as I can tell it says mainly what those of us who read the interim report thought it would, but in considerably more detail than the interim report. I read a reasonable chunk of it on my iphone whilst waiting at court on Friday for a no-show client. It kept us entertained for a good hour on our 2 1/2 year long care case. Which, as it happened, resulted in an SGO rather than an adoption order only by dint of delay. We particularly liked the part about 6 month targets for care cases. Oh how we laughed.

Anyway, the Family Justice Review. Gosh, I am distractible. You can read it here. I will make some meaningful comment on it when I have actually read it properly. When I say meaningful I mean slightly more thoughtful than the superficial carping above, and slightly more accurate than anything reported by the press on Thursday about “custody” and the “rejection of equal rights for parents” (er, we haven’t had custody for 20 years but parents already do have equal rights, albeit that the outcomes are not equivalent when broken down by gender, for reasons entirely unconnected with their rights). Even the Today programme asked shockingly idiotic questions of David Norgrove. They obviously read their brief on the way to court.

What seems pretty clear to everyone however, is the real tension between LASPO and the review proposals. Norgrove is clear that the whole thing will be a shambles if LASPO goes through. He is clear about the vital role lawyers perform. Of course if the Government were to implement the proposals in the FJR report such as the proposal to conclude proceedings more swiftly, there would be significant costs savings on lawyers and experts fees even if they left private family proceedings in scope and didn’t cut our fees by a further 10%. But somehow I don’t think that will be the way that the Government see things. Because it’s not really about savings. As you can see from this classy quote from Ken Clarke (as quoted by The Gazette):

‘I am a lawyer, and I have the highest respect for lawyers and no intention of offending the legal profession, but in the lobbying of this house and the upper house we have had an army of lawyers advancing behind a front row of women and children – vulnerable claimants who say they would not be represented if they are not paid as much as they are now. I am afraid I do not believe that.’

Lawyers really are shameless, aren’t we?

FLBA Resolutions

The following resolutions were unanimously approved at the national meeting of the Family Law Bar Association on 17th September 2011. They have been sent to the Government :

  1. The FLBA calls on the Government to include in the Legal Aid Sentencing and Punishment of Offenders Bill (“the Bill”) a specific provision requiring the Lord Chancellor, in the exercise of his powers to ensure practical and effective access to justice.
  2. The FLBA proposes that the Bill be amended to require the Lord Chancellor, when making relevant regulations, to have regard (as at present) to the need to secure the provision of services by a sufficient number of competent persons and bodies.
  3. The FLBA invites the Government to extend the provision of legal aid in exceptional cases to all cases where there is an actual or threatened injustice (Clause 9), and to consult interested parties on the relevant guidance as to the exercise of the Director’s discretion in this regard.
  4. The FLBA invites the Government to amend the Bill to ensure that public funds are made available (subject to eligibility) for legal advice and representation for all parties in all cases where:
  • The child has been joined as a party (whether under Rule 16 or otherwise);
  • The court is considering making findings of harm/abuse (whether to adult or child).
  • The court is considering making a section 37 direction (investigation of child’s circumstances by a Local Authority) or a section 38 order (interim removal into care, even in private law proceedings).
  1. The FLBA invites the Government to extend the definition of domestic abuse (Schedule 1) to include “any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)”.
  2. The FLBA invites the Government to accept as evidence of domestic abuse for the purposes of entitlement to public funds not only that he/she has obtained an injunction inFLA 1996 proceedings, or there is a finding of fact of abuse in previous proceedings, but alternatively that

–                      “the individual has been admitted to a refuge for persons suffering from domestic abuse; OR

–                      the individual has obtained medical or other professional services relating to the consequences of domestic abuse; OR

–                      the individual has made a complaint to the police of an offence of domestic abuse which is being investigated;

–                      a competent mediator is satisfied that mediation is not suitable on consideration of previous instance(s) of domestic abuse or other power imbalance”.

  1. The FLBA requires the Ministry of Justice to state openly and urgently what plans it has made for ensuring that those who need acute crisis advice will receive such advice.
  2. The FLBA invites the Government to announce what steps it proposes to take to support the Judiciary, and Her Majesty’s Courts & Tribunals Service, in managing the predicted higher number of litigants in person appearing in the family courts in private law cases.

LiP Service

Litigants in Person are in the news. The penny seems to be dropping that they are becoming the norm rather than the exception. The Gazette carries a piece on the soaring numbers of LiPs, based upon a recent and stark increase in demand upon the services offered by the PSU at the RCJ, in particular in family cases (19%).

Notably lacking from public debate at present is any reliable data as to the numbers of litigants in person and the fluctuations over time in those numbers. My own FOI request to the MoJ / HMCTS are presently due for response by 28 October. I am sanguine about the prospects of them producing any substantive response or any hard data upon which we can base reasonable debate. The Government itself has acknowledged the pathetic state of its management data in the justice system, in response to raised eyebrows about the same from the Justice Committee and the Norgrove Review Panel. It acknowledged the absence of proper data or research about LiPs in its response to the consultation that preceded LASPO. There simply isn’t any reliable statistical information, which makes all the more shocking the fact that the Government is knowingly and openly implementing plans which will significantly worsen the problems associated with LiPs through legal aid “reform”. Anecdotally of course we see with our own eyes every day that there are more and more LiPs, and that there is more and more delay. You don’t need statistics to work out that to add to that the inevitable impact of LASPO will equal a pile up, with queues for miles. And no exit in sight.

Also of interest today is the Government’s response to the Justice Committee’s report on the Family Justice System. It finally buries the “transparency” provisions in the ill-fated rush job that was Part II of the Children Schools & Families Act 2010 (page 31 and below), but more importantly sets out the Government’s position in respect of the operation of family courts, particularly workload and LiPs.

 

The Government’s response is riddled with tensions and what to my mind are irreconcilable internal contradictions. It is stated many times that it would be wrong to pre-empt the outcome of the Family Justice Review, we will await the report of the Family Justice Review etc. It is stated that the gaps in the evidence base are going to be addressed:

At pa 7 the reponse states that “In addition to improving the administrative data, we have also undertaken bespoke research projects in support of the Family Justice Review, due to be published alongside the [Family Justice] review”. I have no idea what these research projects are, it will be interesting to find out when the report is eventually published in November.

Again, at pa 9 “MoJ has started to develop a Family Justice Evidence and Analysis Strategy, in consultation with DfE, Cafcass and HMCTS, which will further address some of the issues identified by the Committee and Family Justice Review. This will include our approach to improving data availability and quality, as well as the wider research evidence base, and will address some of the weaknesses. A progress report will be included as part of the Government response to the Family Justice Review.”

And yet. LASPO is due for its third reading, rushed into Parliament before the summer recess, so breathless was the Government for speedy reform. It would be crude to describe such an approach as arse over tit. But it seems fittingly crude (Apologies to those dear readers of a delicate disposition. Please address your complaints to the MoJ).

Paragraph 12 is important:

“We accept the Committee’s observations about implementing changes to legal aid alongside those to the family justice system. We will look carefully at the interactions and the combined effects of both sets of reforms when developing implementation plans for the Family Justice Review’s recommendations. It should be noted that some of the Government’s legal aid changes will be introduced in advance of the implementation of the recommendations of the Family Justice Review.”

Read it carefully. LASPO goes ahead regardless. How is that not pre-empting the FJR?

Interestingly, cited as evidence that the courts are being adequately resourced by the MoJ, is the fact that “During 2010–11, the courts disposed of 30% more care proceedings cases than in 2009–10.” That is a massive spike. And I can say from experience the strain is showing. The judges are knackered. The court staff are at their wits end. The phones ring unanswered. Orders are delayed weeks, files lost, private cases (often involving LiPs) are stood out or take all day to come on before the judge. What happens when you add thousands more litigants in person to the mix?

Manifestly inaccurate (unless there has been some radical shift in position that I am unaware of) are assertions that “Legal aid will remain available for cases where there is evidence of domestic violence and cases where a child is at risk of abuse to safeguard vulnerable groups.”(pa 22) and “We are prioritising those family cases where there is the greatest risk of harm: cases involving domestic violence or child abuse” (pa 61). But legal aid will only be available for cases where a child is at risk of abuse where a local authority issues care proceedings, or (for a child only) where coincidentally the child is separately represented. The parents will not be eligible for legal aid in private law dispute regardless of how serious the allegations against them are, although I believe that in some instances the “protective” parent may be eligible for legal aid (from memory – too tired to look it up tonight). Once again there is a failure to distinguish between public law cases, for which there is legal aid, and private law cases which may involve risks of abuse or significant harm, for which in broad terms, there is no legal aid.

Pa 61 acknowledges the possibility of worse outcomes for LiPs.

It goes on to say that “both the civil and family justice systems will need to become simpler to navigate and more responsive to the needs of unrepresented users of the system. This will come about in part through the results of the Family Justice Review. [You hope – but what if not?] The Government also accepts that procedures and guidance will need to be reviewed and improved in advance of the legal aid reforms taking effect. We are starting this work now.” (pa 62)

The response then cites the information on DirectGov as an example of the resources available to LiPs. This is laughable. Thankfully the subsequent paragraph reflects that “We are reviewing this content and are in the process of developing a series of more specific guides for litigants in person that detail court processes. As part of this work we are also considering how best to work with voluntary and other organisations in producing these guides.”

 

Now, I don’t want to blow my own trumpet here, but I can scarcely let that pass without noting that

a) there is a recently published Handbook for Litigants in Person who are using the Family Courts (some of us saw this coming some way back along the road)

b) there is a copy of it in Mr Djanogly’s in tray (or possibly in his waste paper basket)

c) I am still awaiting a response to my letter to him which is now some months old, and in which I suggested that he take a look at the amount of detail in my book, noted that to actually give any meaningful assistance to LiPs was a pretty difficult job, and that even a reasonably substantial book like mine would be B all use to many LiPs who lacked the educational or emotional resources to make use of it

I’m particular perplexed at pa 68 which reads:

“Cross-examination of victims by an unrepresented perpetrator of abuse is an issue that can arise at present. Judges have powers and are trained to manage situations such as this. For example, they can intervene to prevent inappropriate questioning, or have questions relayed to the witness, rather than asked directly. Additionally, where there is evidence of domestic violence, legal aid will continue to be available to the victim to provide funding for a legal representative who could assist in addressing any inappropriate conduct on the abuser’s part.”

Yes. It happens anyway. And it’s a nightmare for all involved. And your point is? Come to court and watch it and tell me it isn’t an abusive experience in itself. No amount of judicial training can magic this problem away. Judges cannot come down from the bench.

So, all in all, not much to inspire hope that there will be a change of course, or even the application of the brakes. We are bearing relentlessly towards the pile up ahead, fingers in ears and oblivious to the satnav’s urgent rebuke “Perform a U turn if possible. Perform a U turn if possible”. Gridlock here we come.