open justice

The Guardian reports that a newspaper is appealing a decision to allow the identity of a man convicted of child pornography offences to remain anonymous in order to protect his daughters from possible bullying. The Court of Appeal will consider this matter, unusually with a five Judge panel – no doubt because of the public interest in the case and the difficult and competing human rights points which arise (right to privacy v right to free speech). In family cases the need to protect the children involved is one of the primary reasons for the cases not being made public. No doubt similar concerns swayed the Judge in this case, albeit in a very different context. The children in this criminal case are neither the victims of the offence nor the subjects of the case. I can see the arguments for protecting these children from a risk of harm but I’m not sure that it outweighs the need to do justice in public, particularly where the offence involves actual and serious harm to other children. What would be the distinction between this and the need to protect an offender’s vulnerable elderly mother (or even his not-so-vulnerable partner) from the stigma of being associated in her community with an offender of this type? The families of offenders have to deal with this all the time – it must be extremely difficult -I think this case sets a dangerous precedent. There is a risk of eroding the principle of open justice to the point of meaninglessness.

i’m going to eat worms

Call me naive but I hadn’t appreciated just how many people hate lawyers. more specifically barristers. More specifically family barristers. I mean I knew we weren’t all that popular (not helped by stupid headlines about ‘fat cat legal aid lawyers’ etc). And I knew a lot of people (most of my friends included) are pretty clueless about what we do (my friends imagine me peppering every sentence with M’Lud and being involved in all sorts of high drama in the courtroom, producing last minute killer evidence from a secret compartment in my bra and asking brilliant questions that instantaneously cause the baddy (only baddies) to break down in a pool of tears and confess all). There are few who understand us, and that was part of the reason for starting this blog.

As far as I can tell most of my clients think I’m alright. They are often frustrated with the system and some expect miracles (which I’m not always able to perform), but I don’t leave court every day thinking the world hates me. I leave court most days thinking I’ve done the best I could do, and on a really good day I leave court thinking I’ve really made a difference.

But I’m surprised at how much the responses to some of the posts on this blog unsettle me. If the people who have posted comments on this blog are representative then the bar has a serious image problem. And the family bar has a catastrophe on its hands. How can the public perception of us be so very different from the world I inhabit every day, where people try really hard to patch up other people’s often unfixable problems and to get families working again? Where has it gone wrong?

I think its quite likely that the posts I’ve got are not truly representative of the public’s view of us. That is to say, those with strong negative views are far more likely to be bothered to comment on a blog like this than those who have no axe to grind. The unhappiest are often the loudest. But I can’t ignore the fact that there are enough of ’em out there who feel strongly enough to pebble dash this blog with invective to warrant some serious thought.

I’ve never thought the family justice system was perfect. But the problems it has to deal with have no easy solutions. And if there is a bias against fathers inherent in the system then soundbites about every father’s inalienable right to contact don’t solve that problem like a magic spell. Because families are complex and every parent and every child is different. There is no formulaic answer. Fathers are not always let down, Mothers do not always get away with ‘it’. But it does happen. But is that because of bias against fathers / men? My view is that its usually not, that there are all sorts of factors which come together to make it practically difficult for non-resident parents (usually fathers) to obtain speedy results through the courts. And it does produce unsatisfactory results. Its a constant battle for judges and lawyers to continually reassess a case to work out what is best or (more often) the least worst solution when there are limited resources and when time is ticking by.

And of course one of the criticisms of the family justice system is its ‘secrecy’. One man’s secrecy is another child’s privacy, and I do think there is an important reason why proceedings involving children are private. I also agree with the increasingly popular view that we need to work out how to let the public see more of what goes on in family courts, so people can understand the system instead of having to rely on partial or incomplete information. Just as campaigning groups for fathers are unable to publish the full details of the cases they say are examples of miscarriages of justice, it is also difficult for me to back up my assertions about the family justice system or the conduct of the bar because of the privacy rules. Additionally of course, I have ongoing duties of confidentiality to clients. So its hard to give examples of cases that are a paradigm of fairness, where Judges see through attempts to frustrate contact for reasons nothing to do with the child’s welfare, where Judges refuse to permit a case to be eternally delayed and cases where a Judge will try anything and everything to get contact going, and of course the rarer cases where contact is refused because it would genuinely be detrimental to the child. I see these cases all the time, sometimes from the perspective of the Mother, sometimes from the Father’s perspective (I represent roughly equal proportions of mothers and fathers).

Of course I can refer to published judgments like this one but no doubt the response would be that this is an exception that rarely ever happens. Because the fact of the matter is this: Even if I could tell you about all my cases this would all be anecdotal. Would it change the minds of those people who are posting? I think probably not. Because I think essentially people’s views of what happens in the family justice system are either coloured by their own personal experience or what they’ve been told by a sister or an uncle or a friend. And in the same way that the soundbites of Fathers4Justice about individual cases tell us nothing really about why the court reached a decision (because there is simply not enough information), the necessarily selective information that is passed between family members about what is really being discussed at court is never going to be the full picture. At best it will be one half of the story and at worst a lot less. And of course when you are in court yourself that’s usually because you don’t accept the other half of the story is valid.

And even if we could magically mend the family justice system so that resources were limitless, so that court reports could be written instantaneously and hearings obtained at a moments notice, and even if delay were a thing of the past – wouldn’t people still feel this way? Because at the end of the day, people feel very strongly about their kids, their homes, their families. And more often than not somebody leaves court feeling like they’ve ‘lost’ or been cheated or been treated unfairly -simply by dint of the fact that the Judge has disagreed with them. People might accept a Judge’s view when it comes to a dispute about a debt or a contract, but when its their family people believe unswervingly that they know best. And at the end of the day a Judge usually has to disagree with somebody (although a really good judge will sometimes be able to get parties to agree or will find a ‘third way’ that everyone can live with). So you’ve got to reckon that a decent chunk of people are going to leave the family justice system thinking the whole thing stinks even if it were in perfect working order. It is very hard to accept someone else knows better than you do what is right for your child. But clearly the privacy rules do allow the misinformation (on both sides) to multiply and fester. And it seems to me that everyone has a view about family justice but most people have very little first hand knowledge. 

But I suppose what really irks me is the underlying belief inherent in the comments appearing on this blog that we family barristers are somehow implicated in this charade of justice, that we are agents of discrimination and that we are untrustworthy and unscrupulous sharks who don’t give a shit about the people and the children involved in these cases as long as we get paid. I cannot begin to tell you how wrong that is in this post. I will reserve this for another day. But the short version is if I were in it for the money I wouldn’t be in it at all – I’d be a corporate lawyer or an investment banker or doing some other job where I’d get more money and less crap for my effort. And although I suppose this will cause gasps of outrage, I have to say that I’m not at all surprised that reports of bullying and underhand conduct at court come from litigants in person or representatives of fathers groups, many of whom can be extremely difficult to deal with themselves and who interpret any attempt to speak to them outside the door of the court as bullying or an attempt to trick them into agreeing something they shouldn’t, and most sensible barristers will back off if its clear that their approach is unwelcome. Hostility to barristers from non-lawyers and the unrepresented is a natural reaction to being unfamiliar with the court process and feeling threatened by the unknown, but it doesn’t actually mean that those who report bullying are presenting an accurate reflection of what is happening.

But this is a long and rambling post. And I am still left wondering what we / I can do to rebalance the public perception of us?

I suppose I must just keep plugging away posting entries that inform. I suppose I must just keep plugging away trying to communicate widely about what we do and why we do it. I suppose I must just keep plugging away going to court and doing my best for whichever client instructs me. I suppose I must just keep trying to explain to clients why things are happening in their case and how the system works. And I suppose I must just hope that those clients go back and tell their sisters, their uncles, their friends that they felt they had a fair shot and some good advice. But at the end of the day the biggest success stories are the ones where the lawyers are long forgotten because people are concentrating on more important things, like watching their children grow up. So I won’t be holding my breath for any thanks or praise, I’ll just have to rely on myself for the odd pat on the back. Which was ever the way for us lawyers I’m afraid.

changes to family assistance orders

from oct 1 amendments to s16 of Children Act 1989 (re: Family Assistance Orders) come into force, and the court will be able to make a family assistance order for up to 12 months duration, and the old requirement that there must be exceptional circumstances for such an order to be made is repealed. This is good – these orders were rarely ever made, and if they were they were often of little use as by the time the local authority got off their bottoms the order had expired. I imagine the restricted powers were intended to ensure that local authorities and CAFCASS were not overburdened – but given that the requirement for all parties named to consent to the order remains, I don’t foresee any problems. They can always say no. And no doubt will have no qualms about doing so if they don’t fancy the work.

Also on 1 October (amongst other things) a new s6A Children Act 1989 will be in force providing a requirement for CAFCASS reporters to conduct a risk assessment for submission to the court where they think a child may be at risk of harm.