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.

 

Media Access & Reporting

Thanks to Adam Wagner at UKHR Blog for alerting me to today's* publication of "A joint publication of The President of the Family Division, the Judicial College and the Society of Editors" entitled "Media Access & Reporting", which comes just as I was about to put finger to keyboard and begin to type a blog post containing a proposal in respect of that very topic...Of which more momentarily...

Apparently the document arises from "a group of lawyers and journalists, including representatives from both the print and broadcast media, [who] got together to talk to each other". Whatever that means this is not, I think, a piece of work that the family bar were particularly aware was underway.

Regardless of that, it's a pleasant surprise, because this is a really useful document for lawyer practitioners and for judges, albeit probably a bit inaccessible for non-legal interested minds. It is a job and a half gathering together all the source material whenever a reporting issue comes up, and this is a really comprehensive analysis of what rules apply in what cases, including in the Court of Protection. It is far more comprehensive and accurate in its points of detail than my previous blog posts and I will use it as a reference tool when such issues arise in my cases. It is also worth noting that there are some interesting, albeit rather esoteric, questions raised about a number of potential points of law, which do rather invite the attention of mischievous lawyers with too much time on their hands.

You can read the guidance on the Judiciary website here.

So, to the main point:

There is much concern at the LASPO proposals on legal aid. There are many individuals and organisations doing their best to bring to the attention of the public and parliament the reality of what these cuts will mean for ordinary people. Sound off for Justice produced an excellent video campaign featuring a hypothetical private law family dispute (a father seeking contact), but otherwise there is little concrete information out there to counter suggestions that public funds are being frittered away on legal aid for undeserving or trivial cases. Individuals involved in private law family cases are likely to be particularly hard hit by the proposed cuts, and whilst those involved in the field of family law are able to articulate the myriad reasons why the cuts would be catastrophic for access to justice somehow the message is not getting across as effectively in family law. I am concerned that family law will end up bearing the brunt, where concessions are made in other areas, because I think it is in many ways the easiest target. I have been pondering whether this difficulty is in large part because the impact of legal aid on people's lives is not made real in family cases in the way that it is in other types of work. Unlike housing or PI, where vulnerable people who have been helped by legal aid are able to tell their story, there are no real case studies of family cases - because they cannot be reported.

I began to think a few weeks ago whether or not it would be appropriate in the court of my work to make an application for permission to report limited categories of information about cases in which I was involved, for the purposes of case studies. I have had several recent cases in which, if they were to take place after implementation of the proposed cuts, would result in chaos and catastrophe. I concluded that this would raise a number of practical difficulties, such as the obtaining of consent from both (all) parties and their lawyers, the drafting of the information proposed to be released, the mechanism by which such an application would be dealt with and the costs of the same. In the context of already packed lists, overworked lawyers and anxious parties this all seems a bit difficult.

But what if there were a recognised scheme for the reporting of information for the purposes of case study? It could look something like this:

  • There would need to be a short information sheet for provision to parties, opposing lawyers and judges
  • Applications could be dealt with on paper if agreed or at the conclusion of an already listed hearing if not
  • Lawyers would need to agree to make such applications pro bono as they would not be covered by public funding - there would be costs implications if a hearing had to be convened simply for the purpose of dealing with the application, and there would be difficulties if an opposing lawyer sought their costs. This does mean I think that most if not all applications could only proceed if by consent
  • There would need to be a pro forma / template setting out the categories of information which it is proposed should be disclosed, any categories or specific pieces of information which should NOT be disclosed, and in some cases it may be preferable for there to be an agreed statement of facts to be prepared for the purposes of disclosure
  • A pro forma draft order would need to be prepared
  • They types of information that might be covered could be:
    • type of case - contact, residence, etc
    • description of the central factual and legal issues,
    • summary of litigation history,
    • duration of hearings past and listed, who has or is likely to be cross examined and by whom and broadly on what topics,
    • if the case has or will involve allegations of d.v., non accidental injury, emotional or sexual abuse
    • whether there are any third parties involved and what their relation to the child and role in the case is
    • if there is a 9.5 / 16.4 guardian appointed or any experts
    • whether or not either party does or has qualified for legal aid, whether or not they are or have been represented and whether or not they would qualify under the new scheme (and if not why not).
    • any point of law or legal difficulty / novelty.
  • There would be no need to lift the usual anonymity provisions - any drafted case summary could identify the pseudonyms by which the parties / children should be referred in any publication
  • There would need to be consideration given to the mechanism for any press interviews that might be undertaken in respect of the case - and indeed if such an interview were to be permitted at all. This is potentially far more problematic, as there is potential for inappropriate material to slip out.
  • Scheme information could be circulated (and endorsed) via professional and representative bodies (FLBA, Law Soc, Resolution, Judiciary?)
I don't know how many cases would ultimately be suitable, but it is frustrating to face daily examples of scenarios where the ability for at least one of the parties to be advised, represented and to deal with the litigation process is essential to the smooth operation of the case, the list and the court. Maudlin conversations between opposing lawyers at the court coffee machine pondering the unimaginable chaos that would ensue if both parties were litigants in person are replicated across the HMCTS estate with frightening regularity. We know what's happening and what will happen, but are unable to advocate for legal aid because we are bound by confidentiality. The irony.
Am I mad? Could this be beaten into workable shape or is it a hair-brained scheme that would end up being a whole lot of pointless effort?
*no longer today - post got paused, midway...