The Caucus Race

It’s been a bit “Alice in Wonderland” around here lately. I last posted on 22 February and it was like the moment when Alice ate the cake. Quite apart from my sudden and unexpected monstering for succombing to temptation, I feel as if I have been caught in an interminable caucus race ever since. I could indulge in some extended metaphorical comparison between Alice’s incomprehensible experiences in Wonderland, with impenetrable rules, bizarre notions of justice and undeserving authority figures and the experiences of the litigant in the family justice system – but I fear I might never emerge from the rabbit hole.

So back to the caucus race. Debate continues to rage, or at least continues intermittently, on the seemingly interminable and rather circuitious comment thread on the 22 Feb post. I appear to have delighted and outraged in equal measure (although the outraged have been both more persistent and more vocal). I confess that I am considering closing comments on the post, not to shut down discussion but to move it on. It’s been interesting (in places) and it will result in further posts on the several topics that it has generated, but comments are a pain to follow and not a great format for articulating considered views (particularly since my blog theme doesn’t nest comment threads). There are some things that have given me pause for thought and I shall go away, cogitate (as work commitments, the demands of small children and energy levels permit) and write. But not in haste.

But I’m also thinking I need to draw this chapter to a close because I want my life back now please. I’ve spent 2 weeks diligently moderating comments, editing where necessary for legal reasons, and responding to most of those comments. It’s been quite wearing to be the focus of so many people’s loathing of lawyers in general and family lawyers in particular, to be the cipher for their anger – those who have commented in support have generally done so from a position outside family law or anonymously, which I think says a lot about the way in which widespread hostility to legal professionals has stymied necessary and healthy public debate about family justice, debate that needs to involve both users and professionals. Anyway, I hope I have taken it all with reasonably good grace. I wish others would join me in trying to participate in debate (by which I really do mean debate not proselytising) but this last two weeks has worn me out and I’ve had enough of Wonderland for now. It’s no wonder others in my profession avoid such engagement – we get enough conflict already.


‘Let the jury consider their verdict,’ the King said, for about the twentieth time that day.

‘No, no!’ said the Queen. ‘Sentence first—verdict afterwards.’

‘Stuff and nonsense!’ said Alice loudly. ‘The idea of having the sentence first!’

‘Hold your tongue!’ said the Queen, turning purple.

‘I won’t!’ said Alice.

Off with her head!’ the Queen shouted at the top of her voice. Nobody moved.

‘Who cares for you?’ said Alice, (she had grown to her full size by this time.) ‘You’re nothing but a pack of cards!’

At this the whole pack rose up into the air, and came flying down upon her: she gave a little scream, half of fright and half of anger, and tried to beat them off, and found herself lying on the bank, with her head in the lap of her sister, who was gently brushing away some dead leaves that had fluttered down from the trees upon her face.

51 thoughts on “The Caucus Race

  1. It’s a shame the comments have been locked on the last blog but understandable perhaps. Thanks for hosting it over the past couple of weeks.

    To be fair I think you should highlight that your good self and the family legal profession have not been the only ones subject to robust discussion.

    1 or 2 of the lawyers have preferred at times to just have a dig at contributors rather than debate the issues as the last post shows again.

    I’ve certainly found some points raised rather interesting and I’ll be considering them further.

  2. We reap what we sow in life Lucy.

  3. I’d welcome a post in due course on the proposition that litigants in person save court time and money. In 11 years of sitting (Crime and Civil) I’ve only ever observed the exact opposite. I tried a civil last year which would lasted perhaps 3/4 day with lawyers. I had 2 litigants in person. Both were articulate and willing to try and engage with the evidence (and pleasant). The case lasted 3 days.

    • Ooohhh…I could write a book about it…Oh wait. I already did. 😉 But actually that is quite a good idea for a post. I’ll add it to the list.

  4. I’m tired of lawyer-bashing!

    It’s putting me off reading legal blogs.

  5. Don’t stop!

  6. Good for you; that’s the spirit!

    You don’t see other professions tip-toeing around. No profession is perfect and they all have their bad apples, but I think that we should be proud of what we do; and I’m NOT going to apologise for it! We take too much cr*p and are, for some strange reason, reluctant to challenge bad behaviour and negative comments! No more!

  7. There was some lawyer bashing but the main point of the detractors is that the family law system is not fit for P.

    Lawyers who don’t defend a clearly failing system get little or no grief.

    Lawyers who defend publicly what to many users is ramshackle discriminatory family law system that is harming children and families, I’m afraid are probably going to be asked to explain their views and should expect a robust debate.

    • Chambers, there is a difference between defending the individuals who work within the system and defending the failures of the system. Just as there is a difference between attacking the system and an individual.

  8. A Discombobulated Lawyer

    Just because we work in a system which isn’t perfect doesn’t mean we’re necessarily responsible for it. The NHS is failing in parts but Drs and nurses aren’t berated like lawyers are.

    It isn’t perfect but there’s so much hammering of the messenger.

    Some judges are out of touch and some new ones are still learning, but a lot are trying to work within a difficult situation, with difficult circumstances and with difficult people. And to be fair, a lot of parents don’t help themselves! They blame everyone other than themselves. Some of them use the system to and kids to get at one another! The system can’t be held accountable for parental failings! The kids come first and if that upsets the adults – tough!

    I’d like to see some of the whingers doing a better job!

    Those who do legal aid work, work very hard with little thanks sometimes. We do it because we care, it’s not for the money.

    I know some readers will hammer me – but I’m not bothered.

  9. A recent piece on the BBC website about the enduring legacy of Charles Dickens included ‘our’ hatred of lawyers! So it’s all the fault of Bleak House really 🙂
    Pink Tape is one of a number of very helpful blogs which I think the silent majority out here greatly appreciate.

  10. familoo,
    if you are an individual who defends a discriminatory failing system publicly then of course your views will be challenged.

    The Police went through the PACE reforms in the early 80s to try and eradicate systematic discrimination within its ranks. The family justice system needs similar.

    There are many working within the family law system who do not even understand they are practising discrimination on a daily basis because it has become normal for them, institutional discrimination.

    Generally they will promote mothers as the primary carers. They promote mothers as the victims of DV. They will remove children from the presence of a father who has had allegations made against him from mother but will seldom if ever do the similar if there are allegations from the father. They promote the mother care/father pay model. They promote alternate weekends as the ‘norm’ for separated parents. They promote contact centres for fathers on the basis of a mother requiring it. The list goes on….

    Discombobulated Lawyer,
    you really sum up why you and many other lawyers simply do not get it.

    To compare yourself to a nurse/doctor, when you as a lawyer take on cases where your instruction are to remove or minimise the other parents relationship with a child, would be funny if it were not so serious.

    Lawyers are hired guns who don’t care who pays them and the cab rule ensures they take on work where they are clearly working against the child’s interests many times. Doctors/nurses do not do this.

    Adversarial law, cab rank rule has no place in any child focussed family law system as it merely causes delay, increases costs and is wholly detrimental to child welfare.

    Last week I was assisting in 4 different cases:

    3 were LIPs on both sides; the result being that the judges congratulated all the parties after frank but positive discussions in Court and outside on their behaviour and the manner in which they had moved forward.

    These were cases where nonsense and exaggerated allegations of all kinds had been made but the Judges/Cafcass were able to speak plainly to the parties without the interference of a lawyer. Orders By Consent were obtained that satisfied all parties (2 were final Orders).

    The 4th case was where the mother was represented by a Legal Aid lawyer and the result being more time in Court with little or no progress, more delay and more cost to the taxpayer. The issues were not dissimilar to the other 3 cases but because the mother was protected behind her representative who came up with all sorts of ridiculous excuses the Judge (one from another case that week) simply put matters off and had it relisted.

    It is this kind of waste of Legal Aid monies and more importantly the ratcheting up of hostilities by a parties Legal Aid represention that causes much of the delay and problems in the family courts.

    If there were a panel consisting of a family judge (only family), psychologist, cafcass or similar make up then most cases involving children would be dealt with far more amicably and productively than having lawyers simply champion their clients cause whatever the consequences to children.

    Of course this would need the backing of a presumption of shared parenting in legislation to make it work far better for more children.

    • @ Chambers – sorry for delay responding.

      Your comment repeats an earlier mistake – I am not defending the system but I will defend the goodwill of the people working in it. I don’t think the system is directly discriminatory, but it may be indirectly so (using the legal meaning of direct and indirect discrimination).

      You say “Generally they will promote mothers as the primary carers. They promote mothers as the victims of DV. They will remove children from the presence of a father who has had allegations made against him from mother but will seldom if ever do the similar if there are allegations from the father. They promote the mother care/father pay model. They promote alternate weekends as the ‘norm’ for separated parents. They promote contact centres for fathers on the basis of a mother requiring it. The list goes on….”

      I don’t accept this. The court will often stick with the status quo on residence because that provides stability, and most often the established position is that a child (even before separation) has primarily been raised by the Mother. Where this is not the pattern the outcome is often different. When you say that those within the system “promote mothers as the victims of DV” you imply that DV against women is not a reality. It is. Allegations may be fabricated or exaggerated in some cases but there is a big problem with domestic violence and abuse in families. I am aware that there is a tendency in society at large to assume that all d.v. is perpetrated by men on women and I happen to think that abusive relationships are more complex than that, with women sometimes being perpetrators, and in some cases with violence being mutual. But I don’t think there is any assumption that allegations of d.v. are true – they are rigorously tested. And it is right that pending that testing process through trial the court acts protectively – but that is not equivalent to an assumption of guilt, although it may feel like it to a parent whose contact is withheld in the interim. And I can think of several cases I’ve dealt with where there is an acknowledged or proven history of domestic violence by dad against mum but it is dad who ends up with care of the children (notwithstanding the Sturges and Glaser report).

      Your anecdotes are interesting but only take us so far. You complain that a mother was “protected” by her lawyer. I don’t know what the details of the cases in question were (and I’m not asking you to submit them in a further comment because I won’t be able to publish them) but the protection of a client is part of our job, whether that be protection from false allegations or protection from intimidation. Again, your comments suggest that you are operating on the presumption that allegations made by mothers are false – if that is unfair please say so, but it is the impression I get from your comment.

  11. ‘Nice one Julie!

  12. A slightly less discombobulated Lawyer

    I did the one last night on my Smartphone and I’m a bit cr*p with the little buttons, hence some errors. Sorry all.

  13. I was pondering a comment on my way home from work but see that Mr or Ms Discombobulated beat me too it. None of us went into family law for the money and almost all of us are doing as much as we can to remedy the defects in the system about which we can all agree – terrible delays, shoddy CAFCASS work, the inability of PIPS and PAPs and contact activities to bring about real change in the attitude of parents who as hostile to contact. I agree too with the many posters who said that outcomes can be hard to predict and too dependent on judicial attitudes (and prejudices) especially when any degree of shared care is contemplated.

    It seems such a shame that so much of what could have been an interesting debate was obscured by offensive and insulting comments. I was heartened to see that one of those commenters was asked to be quiet…but I do wish, I really do, that the lawyer-bashers would park that particular hobby horse so we can all talk about the important stuff. frankly, a blog written by a lawyer is never going to be a forum in which you are going to convince the author or regular readers that family lawyers are greedy and corrupt – so why not focus on areas of common interest?

    There is a lot to be said about e.g. transparency and media access – and about the impact of CAFCASS new working methods on the proper investigation of contact disputes. I was interested in what dadzarmy said about pre-action protocols but it was hard to pull out the constructive posts in amongst all the mudslinging.

    I for one find Lucy’s blog a fantastically helpful way of staying up to date not only with major developments but also the family law zeitgeist, if there is such a thing. To be honest, not many family lawyers would have started such a debate. And having read the abuse to which she was subjected, I doubt that anyone would now.

    I am glad it hasn’t put you off blogging, Lucy. Keep up the good work.

    • A Discombobulated Lawyer


      You sum it up brilliantly; better than I did. I was just so fed up I hammered something out but you did it better!

      Like you said, it detracts from a good discussion.

      Great blog Lucy – a credit to you and great for us. Few lawyers would do this so thank you.

  14. familoo,
    not sure why my post is still on moderation when other peoples posts are coming through.

    It seems when there are informed posts by those who work in the family court system who disagree with your views such as Karen Woodall, they are held up or not allowed to air on your blog. I am hoping I am wrong.

    • Chambers – Yours is on hold because I wanted to respond to it and haven’t had time. Am in court today. Stop being paranoid – It’s not a conspiracy. I like to respond at the time I moderate or I forget. Got to go…

  15. Fair enough.

  16. familoo,

    It does seem you are defending the system if you just want to throw more resources at it without changing the fundamental issues with the system, which includes a presumption of shared parenting as a starting point.

    By saying the Court accepts the ‘status quo’ on residence you are generally talking about a status quo formed from separation, not the status quo during the relationship. So the system rewards those parents who on separation remove a child from the other parent (usually mother) and minimises or excludes the child from the father.

    When parents are together the majority of parents share the care of the children – As just as many mothers as fathers are working and earning more or less the same. The reality is that children’s care during the relationship is many times equally or near shared.

    On separation the Courts and the benefits system then reward the parent financially who they deem to be the primary carer (between separation and getting to Court). The other parent who will many times would like to be an equal carer or have a shared parenting role is in the family law system up against it immediately. They will struggle or find it impossible if the mother decides otherwise.

    This system discriminates directly and indirectly against fathers because it assumes generally that mothers are primary carers before the end of relationship and will then reinforce that discrimination if the children are kept by that mother.

    If a father is a house husband then ‘maybe’ the outcome will be different but when both parents are working the outcome is invariably the mother ending up being seeing by the courts as the primary carer.

    It is without doubt the case that allegations of DV are generally only taken seriously if they are made by mothers in the family law system. Fathers complaints are generally dismissed and the family law system as the Police and CPS treat male victims poorly.

    When allegations against fathers are taken more seriously and treated differently from allegations against mothers it simply makes it very difficult for a father to stay in contact with their children. It also means that mothers who maybe/are perpetrators of DV are still involved with their children when a father who maybe/are a perpetrator would not be similarly involved.

    I accept fully that DV occurs and victims may be women and men. 40% + of victims are men, in the tiny number of extreme cases 1 man a week dies because of DV (2 women a week).

    However, in the family courts we are talking about generally allegations from both parties many times and usually these are made simply to gain advantage in family law cases.

    You say that women are “sometimes” perpetrators, that would imply you do not accept the government statistics that men are just as likely to be victims of DV.

    If fathers are removed from their children because of allegations of DV by the other parent awaiting the rigorous testing you mention. Why are mothers (who hold the children) not removed similarly as a cautionary principle, if allegations against them are made by a father. Why is the system only set up to safeguard children from alleged perpetrators who are not the primary carers (usually fathers). It is because it is a fundamentally discriminatory system which removes fathers on the basis of allegations (with little or no evidence) on the mere say so of a mother.

    Leaving children with an alleged perpetrator of DV is either ok or it is not ok. It should not matter whether that parent is a so called primary carer or nrp. It should not matter if it is the mother who is the alleged perpetrator or the father. Both should be treated similarly and children protected in a consistent manner.

    [edited – see comment that follows]

    Whereas the Judges/Cafcass in the wholly LIP cases were also able to indicate where these matters were heading and speak frankly to both parents and come to an agreement between them. Lawyers would have scuppered any progress because Judges feel more restricted and matters are drawn out for the benefit of lawyers fees rather than children.

    In the family law system the vast majority of allegations of domestic violence by mothers and fathers are generally shown later to be either false, exaggerated and/or not pertinent to children’s relationships with both parents when they are separated.

    However, simply because allegations are made by mothers (seldom the same when made by fathers) then children’s welfare is affected because a parent (generally fathers) is removed from their lives, plenty never ever being able to re-establish that relationship with a child because of the delay and difficulties of sticking with a Court process that costs so much in time, money and emotion.

    Criminal Court convictions are a different matter.

    • @chambers. damn, just lost part completed response to this. I do want to respond, but don’t have time now. You make some important points, particularly about the inflexibility of the benefits system, with which I agree. You also make some valid points about the differential treatment of male versus female perpetrators (or alleged perpetrators of dv), although I don’t agree with everything you say. I don’t make any assertion about proportions of male / female dv victims. I think the stats are probably reasonably unreliable. I tend to the view female on male dv is probably quite common, although the majority is probably male on female (also there is same sex dv). I think the reasons and dynamics of dv may be different depending on gender.

      Anyway, as I said I don’t have time to respond properly now, so I will stop doing a half baked response and come back to it.

      I’ve deleted the bit about individual cases, for reasons which I have rehearsed many times and I had forewarned you I would.

  17. A slightly less discombobulated Lawyer

    Very well put Lucy. I won’t add anything further – you’ve said it all!

  18. Northern Lights


    We are all aware that false allegations are made in family court proceedings but I’m curious as to what evidence, other than your own perception, do you have to support this proposition:

    “In the family law system the vast majority of allegations of domestic violence by mothers and fathers are generally shown later to be either false, exaggerated and/or not pertinent to children’s relationships with both parents when they are separated.”

    As with much of what you say, it is really just supposition, based on your own personal prejudices.
    You mention the cab rank rule again but, as appears to be the case, you are making a living from the system too and your clients will almost certainly come from one demographic. Doesn’t that limit whatever experience you have of contact disputes and give you a limited understanding of wider issues? Correct me if I’m wrong but I would imagine you have little experience of representing or assisting mothers who are victims of genuine DV. I doubt they would approach you for help, even if they were genuine which would suggest that all the talk of putting the interests of children first may sometimes take second place, whether you realise it or not. By contrast, the cab rank rule leads to a wider understanding of the many different factors that contribute to contact disputes.
    Sorry, but I think you damage any worthwhile points you do make when you bury them in rants based on your own prejudices.

  19. familoo,
    having read your blog for a number of years now, so I know in many areas we are not a million miles away from each other.

    Northern Lights,
    It’s not helpful when you post a rant containing personal attacks. It’s clear from reading my posts, I comment in a reasonable manner and although you do not agree with my views, it does not mean you can dismiss them with pejorative terms such as ‘rant’.

    I think by way of the fact that the vast majority of parents are seen as good enough to be residence or direct contact parents; shows that I am right to say that the vast majority of allegations of DV are false, exaggerated and/or not pertinent to children’s relationships with both parents once separated.

    Regarding your query am I “assisting mothers who are the victims of genuine DV”, yes at times, is the answer. Your question implies of course that you do not believe that fathers can be the victims of genuine DV or it is so limited or not worthy enough for you to mention it. Another example of casual discrimination by a lawyer.

    Research is limited in the UK regarding false allegations but this from Professor Parkinson of the University of Sydney shows that Australian lawyers believe it happens often:

    “The view that some family violence order applications are unjustified appears to be
    shared by state magistrates in New South Wales and Queensland. Hickey and Cumines
    in a survey of 68 NSW magistrates concerning apprehended violence orders (AVOs)
    found that 90% agreed that some AVOs were sought as a tactic to aid their case in order
    to deprive a former partner of contact with the children. About a third of those who
    thought AVOs were used tactically indicated that it did not occur ‘often’, but one in six
    believed it occurred ‘all the time’.2 A similar survey of 38 Queensland magistrates
    found that 74% agreed with the proposition that protection orders are used in Family
    Court proceedings as a tactic to aid a parent’s case and to deprive their partner of
    contact with their children.

    In research that our research team recently published on the views of 40 family lawyers
    in NSW, almost all solicitors thought that tactical applications for AVOs occurred, with the majority considering it happened often.”

  20. To clarify:
    ‘I think by way of the vast majority of parents who are the subject of allegations in Private family law at some stage, they are after these allegations have been made seen to be good enough parents by the Court to have residence or direct contact; shows that I am right to say that the vast majority of allegations of DV are false, exaggerated and/or not pertinent to children’s relationships with both parents once separated.’

  21. familoo,
    When I say protection by lawyers of mothers, protection means assisting a mother to evade cooperating and not agreeing (or to a bare minimum only) to a schedule of contact when a Judge/Cafcass has already indicated/Ordered that there should be contact.

    Judges in these hearings give up many times saying they can do nothing without a report etc – After a mothers lawyer makes it clear their client will not shift.

    Lawyers allow their clients to evade responsibility and prolong matters when it is clear from the outset that there should be extended contact. This happens numerous times each day in Courts.

    Whereas the Judges/Cafcass in wholly LIP cases generally are able to indicate where matters are heading and speak frankly to both parents and come to an agreement between them. Obstinate and unreasonable LIPs are more easily and quickly dealt with by the Courts than obstinate and unreasonable parties who have lawyers.

    Many lawyers simply by being in attendance and following instructions from a recalcitrant client who feels relatively immune from the process by having a representative will scupper any progress because Judges feel more restricted and matters are drawn out.

    The Courts cop out and their general non desire to make Orders without the mothers agreement compounds the problems. Reports, contact centres etc – All delay/stop a return to substantive parenting by both parents who previous to the separation in many cases will have shared the care.

    • The point is Chambers that you think they are obstinate and unreasonable – and you might be right. But nobody really knows until there has been a proper hearing of a case and the evidence properly gathered and tested. Don’t forget that you only have half of the story when you are acting as lawyer or McKenzie. A party is entitled to hold their position in the face of an indication from a judge, although that may be unwise. That a party may be more likely to cave in on a point they consider to be important if they are unrepresented, unadvised and being pressured by CAFCASS, a judge, the other side’s lawyer (or McKenzie) is one of the reasons why justice is vulnerable in the absence of legal advice and representation. There are of course moments where it is entirely right for a judge to make an interim decision and to progress a case, but the court must be careful to do so on a fair basis and after having gathered enough information to ensure the wrong decision isn’t made.

  22. Therein lies the problem. While we await a pretence of justice being seen to be done, children are removed/minimised from a parent for months/years.

    The adversarial system is simply not suited to Private family law cases. Keep the adversarial for tort, contract, criminal etc

    • Chambers, the problem is that at the end of the day if all else fails there is still the small matter of article 6(1) ECHR:

      “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
      and art 8:

      “(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

      You can’t just abolish the court system. You can try and avoid it as much as possible, you can increase the use of an inquisitorial approach (as it happens it is quasi inquisitorial already), but you can’t abolish it.

  23. An Inquisitorial family law system is far more appropriate to look after children’s needs than an adversarial approach and in a far more timely manner.

    Lord Justice Munby’s oft repeated observations in a ancillary relief case are similarly applicable to many children’s cases where ‘any delay in determining the question is likely to prejudice the welfare of the child’ (S1(2)):

    “the reality is that this is and always was a comparatively simple case which has become extended in its scope and protracted in its length almost beyond reason by the forensic enthusiasm with which it has been pursued on both sides.”

    “The skill with which, on both sides, all this effort was deployed was first class; whether the endeavour was really necessary is, perhaps, another matter. But in venturing this observation I emphasise how acutely I am conscious not merely of the priceless advantage of hindsight but also of the forensic experience that the inner realities of a case are often much more apparent to the judge who watches the battle played out before him than to those engaged in the fray – this, after all, is one of the consequences, as also one of the advantages, of the adversarial process.”

  24. Lucy,

    You say ‘The court will often stick with the status quo on residence because that provides stability, and most often the established position is that a child (even before separation) has primarily been raised by the Mother.’

    Funnily enough, if you look at evidence based research by the Equalities Commission in 2008, you find that the level of mother/father child care time in intact families differs on average by only 15 minutes a day.

    It often surprises me that opinions about family life can be so markedly different from the findings of expert, evidence based studies. Still there are often discrepancies between the reality in society, and what a particular segment of society believes to be fact. A causative factor in discriminative thinking? The risks are, when applied by a judge rather than a solicitor, they become prejudicial in reality if not through deliberate intent.

    Ryder J’s an impressive judge. Second youngest High Court judge in history I believe, and his clerk’s a lovely man.

    Michael Robinson

    • Michael,

      I’ve looked on the Equalities Commission website and can’t find the research you are referring to, so I can’t really comment other than to say that the description you give is not necessarily inconsistent with mine (i.e. most often the child has primarily been raised by M). At any rate I don’t know if the demographic of families approaching the family court would match the research sample from the research you cite (apart from the obvious fact that only a proportion of the population of intact families will go on to become a separated family). It is certainly my experience that the majority of cases in the family courts involve a pre-split arrangement with a female primary carer, although I couldn’t put a figure on it.

  25. Lucy,

    As to article 6(1) of the ECHR, last year I believe the waiting time for a case to be heard by the European Court of Human Rights was 7 years… might have been 2010 I heard this.

    Their delays are even worse than our own.


    • Michael, I think you are missing the point which was about the domestic obligation via the Human Rights Act 1998 to ensure that articles 6 and 8 are complied with through proper access to justice in a domestic justice system.

  26. familoo,
    If LJ Munby can’t case manage in the adversarial system as he should wish to because of the system – then other lesser mortals have little or no chance.

  27. I think you will find that most Courts are entirely uninterested in caring arrangements prior to separation until its too late sadly. The delays and status quo from separation supersede prior arrangements.

    So in many cases it will appear the mother has been the primary career and the Court are more than happy to accept this, makes it simple for them.

    • Discombobulated Lawyer

      I disagree with you there Chambers RE: ‘caring arrangements’, but I do accept more could be done on occasion.

  28. Lucy,

    I think lots of people miss the point about the domestic obligation via the Human Rights Act 1998 to ensure that articles 6 and 8 are complied with through proper access to justice in a domestic justice system.

    I’m a bit confused now as on one hand you say you’re not defending an imperfect system, but on the other, suggest people’s rights to a fair trial and family life are upheld.

    Happy to cite examples if you wish…

    Here’s one, and just on one narrow subject of the experiences of fathers with specific learning difficulties (bear in mind famous dyslexics include Bill Gates and Richard Branson… they’re not dumb or incapable parents… they need specific help to get justice)

    [edited] Sorry Lucy, but my experience of a system which safeguards rights, and affords ‘fair trials’ isn’t the same as yours.

    The guidance and statute may be there, but they’re not routinely applied. As in the example I gave in the previous thread, the system is so complex that even our learned LJ’s of Appeal make howlers, so how can a LiP cope. LTR cases where the circuit judge admits he’s never heard of a s.41 certificate under Brussels II… and it’s only because we’ve precompleted one for the LiP that one got signed!

    Would you believe there are cases where oral witness evidence is heard at final hearings without the witness being sworn in, and without the opportunity for cross-examination? [edited] and both parties represented. Article 6? Ptui.


    • Michael

      You give several examples (which I’ve edited out for legal reasons) which all sound like examples of the system failing.

      I’m not saying there is never a breach of art 6/8, what I AM saying is that without a tribunal of some sort there would be broad non-compliance with those obligations.

      I can’t comment on the oral evidence point, save to say that there may be reasons for the scenario you describe.

  29. Here’s a thought for you Lucy when you’re giving your talk on Litigants in Person.

    If there is no disadvantage to a LIP in not being represented, then there is no need for a solicitor or barrister or their cost.

    If there is disadvantage to a LIP in not having experienced counsel, in our complex world of statute, legal arguments, points of law etc… then our family justice system fails in its Article 6 obligations.

    Many parents can’t afford solicitors… they’ll soon be joined by far more as legal aid is cut further. The adversarial system has to go as the state can’t afford to fund it, and too many parents can’t afford to fund it privately. For Article 6 to be safeguarded, we need an inquisitorial system of law, and when you meet Ryder, you might first read a speech he wrote (I believe in 2007) where his ideas weren’t that different to mine. Now he’s head of judicial modernisation, that may change, but I hope not!


    • Michael of course there is potential disadvantage where one party is represented and the other not, but much can be done by the judge to rebalance that. The lowest common denominator may not be any fairer than striving to deal with equality of arms points.

      Again I’ve not argued against an inquisitorial approach (although I wonder if you appreciate that even in inquisitorial systems there are lawyers involved).

  30. familoo,
    ref your #40
    16 minute difference in child care rates per day between mothers and fathers in 2007.
    European Commission Report, page 23

    “Mothers recorded an average of two hours and 32 minutes per day looking after their own children, compared with two hours and 16 minutes by fathers, a gap of 12%”

  31. […] sitting in draft for a little while. I shelved it, took a few deep breaths and instead published The Caucus Race. I thought it’s moment had passed, but on the other hand perhaps it has some relevance in […]

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