Category Archives: public funding

The Structural Problems in Private Law

Been thinking since I wrote those posts about the harms report, about the many ways in which private law is structurally flawed. Consider this a follow on…it just covers two things that are on my mind right now.

Adversarial

The first is this : lots is often made of the ‘adversarial’ nature of proceedings, and whilst this may well be typified by cross examination of witnesses, unfortunately discussion of the ‘problem’ doesn’t generally go much beyond this  : eliding cross examination (by lawyers) with proceedings that are adversarial in nature – and often by extension categorising the involvement of those who do the cross examination, the lawyers, as adversarial in all they do. It’s laughable to any lawyer who does this work to think about themselves as entirely adversarial, but when a litigant approaches you in the expectation you are their ‘adversary’ perhaps it is a self-fulfilling prophecy.

The problem with focusing the criticism on lawyers and their cross examination is not just that such cross examination is sometimes necessary (where disputed facts need to be determined there is no better way, however much people understandably complain about how unpleasant an experience it is), but that it misses the broader picture.

Lawyers will of course also point out that proceedings are in many respects NOT adversarial – in that judges in the family court are by power and culture active case managers and quasi-inquisitorial. And those who are not lawyers complain again that lawyers just crank it up, bat it back, raise the temperature, fuel the fire.

BUT. Most proceedings don’t involve lawyers. And do you know what? Hearings in those cases often involve their fair share of ‘adversarial’ behaviour, in the sense of argumentative, competitive, bullying mud-slinging argy bargy, and point scoring to and fro behaviour.

Is that coming from the process, or the people, or just from their wider situation?

There is obviously no single, simple answer to that question. But isn’t it worth asking? What drives that behaviour? Because whilst so much of the system’s energy is directed towards promoting settlement or at least achieving safe resolution through a fair and safe process, there is I think something about the process that drives the very behaviour that makes that settlement difficult, and which outside of the court building makes co-parenting so much more stressful and recovery from abusive or unhappy relationships much more difficult.

I’ve written before about the ways in which, to my mind, the combination of the ending of a relationship and finding oneself thrust into a litigation process means that litigants are often experiencing a profound sense of losing control over their lives, which in turn can lead to particular presentation or patterns of behaviour in the context of the court process, as they struggle to regain some sense of control – whether that is a parent who suddenly finds himself out of the family home, struggling financially and stopped from seeing his child, or a parent recovering from abuse, coming to terms with those experiences and trying to restore a sense of agency.

But the longer I do the job, and the more different angles I see, the more I think there is more to it than that those who come to family court are at a bad point in their lives. I think there is something about the process – not the specific detail of the process in the sense of The Child Arrangements Programme (though there may be things wrong with that, that is a different issue)…and nor either is it about the way we do things in family court particularly. What I’m driving at is something about court process generally – that provokes certain responses and patterns of behaviour (its seen in small claims too). The magic rules participants are supposed to abide by but which nobody has ever told them, the ‘sides’ and ‘cases’ and stages – and the function of the judge to be in charge and to make decisions – about whatever the dispute is about and about how to get to that decision and what is fair. All of it – regardless of whether a courtroom is populated by pompous lawyers behaving in a stereotypically ‘adversarial’ way, and regardless of how friendly the judge is or how hard they try to avoid jargon – all of it is taking away control, and exerting authority and pushing psychological buttons that are bound to very often provoke similar emotional and psychological responses by family court litigants as a cohort. Even without a psychology degree I can see there are patterns, I can see that some of the structures perpetuate and drive familiar responses that lawyers and judges wearily observe time and time again from one case to the next – powerless to stop them recurring.

If we are thinking about reforming the family court system I would like to make a hypothetical Part 25 application for an assessment by a behavioural psychologist of the systemic structures and how they drive and affect litigant behaviour. I’ve read enough psychological reports to know this stuff is going on, and enough to know that any attempt by me to cut and paste the phrases I’ve become familiar with into some pseudo analysis would be a fool’s errand – I think the system needs an expert assessment, to give us a psychological formulation and the language to help explain our patterns of behaviour, to give us a prognosis and a way of naming and talking about them, and of recognising and learning about them – and to tell us what we might to to break our unhelpful patterns of learnt behaviour and to relearn more functional ways of managing disputes. We may not be able to change human nature but if we understood these processes better we might be able to tweak or reform the structure so that the behavioural responses of the participants were altered too. Could we by doing family courts differently change the way litigants behave and in doing so make the system work better for everyone?

Any psychologist who wants to have a bash in a guest blog post – send me an email!

Representation

So, moving on to my second issue. It is unsurprisingly linked to the prevalence of litigants in person and the difficulties of dealing fairly with allegations of domestic abuse. I have dealt in recent years with a number of such cases where I have been instructed to represent the child in the case, but where both parents are in person. Of course there are far more cases where identical issues arise but the child is not a party and so there are no lawyers at all – but here I just want to make some observations about those cases where the court has decided things have got tricky enough to make the child a party, because such cases illustrate the breadth and depth of the difficulties wherever the parents are in person.

Inevitably where the child is a party, the legal representatives of the child are expected to pick up the slack and their duty under the overriding objective to assist the court is doing a lot of heavy lifting.

Firstly, the funding arrangements for lawyers acting for children in private law were not designed for the sort of work that is now expected. Advocates undertaking such cases are not even paid under the FAS scheme, so they receive no payment at all until the end of the case (and many of them are apparently interminable). These cases benefit from continuity of counsel, but when we take them on we effectively work for free for an indefinite period, in the knowledge that when we do get paid it will not be a fantastic fee anyway, and will be markedly less than we would be paid in care work, where sometimes (but not always) the burden on counsel for the child is comparatively lighter.

More importantly perhaps, the solicitors for the child are now often expected to collate documents, corral police disclosure, prepare bundles, organise expert instructions and generally sort out everything, engaging all the while in communication with and between assorted litigants in person who often do not understand or do not comply with orders, and who often do not understand the limitations on what assistance the solicitor for the child can give. Their fees are capped too, notwithstanding the significant headache such cases can involve. They are under pressure to take on risks in respect of the costs of experts that the LAA may later quibble with paying.

But my particular issue du jour is the fact finding scenario. When LASPO first happened counsel for the child would often tell the court it was not their role to conduct questioning on behalf of another party, and where counsel had expressed such discomfort the court would accept that. Now, half a dozen years later that is in the distant past. Nobody else is going to do it, the lists being what they are, the judge more often than not will have been unable to get to grips with the dense bundle in order to be in a position to properly assess the appropriateness of questions on the hoof or to ask them herself – and several judges have been successfully appealed and criticised for doing their (inevitably inadequate) best to conduct questioning themselves. Frankly, if the judge is to properly concentrate on and absorb the evidence, whilst case managing the hearing, they need not to be also worrying about carrying out questioning themselves. When I am representing the child my job is to make sure that the evidence is properly and fairly tested and the judge comes to a decision on the facts which is sound and that does not necessitate an appeal. If that means I have to roll up my sleeves and assist by asking questions on behalf of one party or the other that is what I will do. But I don’t like it.

It is a tricky, uncomfortable and exhausting task. Particularly where, as I recently was, counsel for the child is tasked with asking questions sequentially on behalf of both parties of the other, as well as (eventually) her own. The burden on an advocate of asking questions from three metaphorical vantage points in turn is significant.

  • proposed questions (inevitably received on the day) need to be studied and potentially inappropriate questions need to be flagged for a decision by the judge,
  • clumsily expressed questions need to be adjusted to make sense – to do this the underlying purpose of the question needs to be understood,
  • ‘live’ decisions need to be made about follow up questions – for me I think this necessarily means asking questions which obviously advance the underlying point behind the original question, whilst taking care not to follow up a party’s question with one I’d quite like to ask but which might undermine their line of questioning (and that also means making a note for my own use so I can ask that question later when it’s my turn) – to me it seems important not to mix up the questions on behalf of the other party with my own cross examination,
  • a process needs to be devised to allow the questioning party to pass supplemental questions arising from the cross examination and those then need to be asked,
  • embarking on asking your own questions following straight on from the task of asking questions on behalf of the other party can be tricky, because you have had no time to adjust your own notes of what you want to ask in light of the round of questions just asked on behalf of the other party, and your brain has been focused on the task of asking questions rather than reformulating your own – so a brief pause is often required. For me this task is one I usually carry out by fiddling with my notes as the preceding advocate / party is asking their questions. I have found that whilst the court is happy to permit a short break between rounds, this can mean that counsel for the child is effectively working through without a break and under some pressure for a very long session. Given that the questioning of counsel for the child can come at the end of such a long sting this does have potential to disadvantage those representing the child, so it’s really important to ensure that any break to undertake this work is not superimposed on a ‘proper’ break (particularly where remote when short leg stretching breaks are so essential to proper concentration).

There is of course always the concern that one or other (or both) parties (or the judge) will complain that somewhere along the line you’ve done something wrong – missed a question, asked it wrong, not asked a follow up question, asked a follow up question you shouldn’t have….or indeed that the burden of all this extra leg work will distract you from the task at hand of focusing on your own questions. This is all on top of the general subtlety and precariousness of counsel for the child at a fact finding hearing – often left to get on with it with no specific instructions other than ‘test the evidence’ or ‘assist the court’ or ‘tell me what the outcome is’, and effectively expected to use her own inevitably subjective judgment as to what aspects of the evidence warrant a bit of probing, need further exploration or even outright challenge – all whilst maintaining some sort of ‘neutrality’ (I prefer ‘proactive impartiality’), and left in the sometimes vulnerable position of having to make these judgment calls without the protection of specific instructions.

The pressure in many different ways and on many levels, can fall disproportionately on those who represent the child in such proceedings. If the future is that this is to be our more standard role (and it is undoubtedly the case that one possible way to alleviate the difficulties that arise where both parents are in person is to increase the number of of cases in which children are made parties) then I think that some thought will need to be given to the following four things:

  • there needs to be proper ethical guidance as to how counsel is expected to balance her duties to the clients and the court, and how in practical terms the task of assisting with questioning is to be carried out;
  • there probably needs to be specific training developed;
  • the rules / PDs may need to be adjusted to reflect what is and is not expected;
  • there needs to be a look at the funding system. This is complex and taxing work and private law is very poorly remunerated compared to public law, the problem being compounded by the delays in payment. It is essential that sufficiently experienced counsel are willing to undertake this work and the current funding structure is a massive disincentive both for solicitors and counsel.

 

So, those are my twin rambles about just two of the structural issues in private law. Will we ever sort it out I wonder? Or just create more working groups and guidance and tinkering around the edges?

A bundle of laughs

It seems like a lifetime ago that someone tweeted Sedley’s law of Documents at me, suggesting they needed re-writing for the age of the e-bundle. Oh how we laughed. In fact, that was only 5 days ago and I have mentally rewritten it with ink made of my own tears many times over.

Last weekend was a weekend of bundle hell. One dodgy bundle is usually manageable, but when they come at you like evil flocks of buses it becomes overwhelming pretty quickly. Last weekend was a bit of a perfect storm – a lot of late-ish briefs replacing a longstanding trial commitment that had come out, delivered in a variety of sub-optimal formats – and provided a useful reminder of just how much of a problem bad bundles can become. The impact of my weekend bundle-mare has spilled into this week. It has depleted my resilience and left me a wreck to the point where people are sending me ‘you alright hun?’ sort of DMs. I am now, but I wasn’t.

So, rather than whinge about it pointlessly, I’ve decided to try and explain why it matters, what the knock on effect can be for individuals and systemically, and how we might begin to tackle this problem for our collective benefit.

But I’ve got to do it quickly because all the bundle wrangling and general life events this week have left me on 5% battery (my brain, not my laptop).

Why do you put up with it?

When I grumbled on twitter about it some said ‘Well why don’t you just return the bundle and tell them to send you a proper one’? There are a number of reasons why that is neither an effective nor a helpful response to the problem.

But let me first identify the problem, at least as it appears in family law – from my perspective a children law practitioner (I don’t do financial remedy, where I suspect things may be somewhat different).

The problems in public law and private law are distinct, but overlapping.

Public law

Mostly this is not a problem – local authorities are the applicant and the majority of them do pretty good bundles these days – I’ve not really had a huge issue with care bundles for the whole of the summer – but it couldn’t last. Public law work was already moving in the direction of paperless before lockdown, so remote hearings have not required a significant change on the bundle front for those LAs who were already using document management systems to prepare e-bundles. Almost all of my care work since lockdown happens to have involved an applicant LA who were pretty good at bundling. So, bundle would arrive – often coming directly by safedrop from the LA legal department, with searchable pagination, and the electronic index already in place meaning you can navigate around it as soon as it arrives. It might not be fully OCR, but significant chunks of it will be because it is populated with documents that were digitally created in the first instance – and not every bundle / hearing / case will require full OCR functionality. There are problems with re-issued updated versions and having to make decisions about whether to stitch new documents into your existing marked up bundle or to ditch the marked up one and start again on the fresh one, but these are comparatively minor issues and not a problem with the bundle per se. These are workflow issues that I suspect we will get better at dealing with over time.

BUT. There are two problems, fortunately I think relatively rare these days :

Firstly, local authorities who prepare an e-bundle for the court, and for their own advocate, but who for some reason refuse to send it to the other advocates, requiring individual solicitors to construct a bundle (for themselves and / or counsel) themselves OR, more often, leaving them to just send everything on piecemeal to counsel and letting them sort it out.

I am very sympathetic to the pressures upon LA legal departments and the admin staff. BUT. Most LAs manage this and if your LA can’t work out how, ask your neighbouring LA. Hearings run better when all advocates have the papers and the same pagination. You are the Applicant and it’s your responsibility to make that happen. The cost is minimal if your admin is set up properly, the benefits in terms of the efficient administration of your case are significant. Hearings get adjourned and decisions get delayed when bundles are a disaster zone.

Secondly, there are it appears still a few Local Authority’s who just don’t prepare proper e-bundles even for the judge and their advocate. An e-bundle is NOT JUST A PAPER BUNDLE STUCK ON THE SCANNER AND MADE INTO A SINGLE PDF.

The last week has involved two bundles of over 700 pages each which are just a single pdf, with incomplete or partially handwritten numbering, and no electronic index. One of them was significantly out of date and was accompanied by a raft of individual documents that were missing from the main pdf. Reading an assortment of files in no particular order, not being able to easily navigate backwards and forwards from one part of the bundle to another to cross check something – significantly compromises an advocates’ ability to prepare, to get a sense of the shape of the case – and leads to a need to re-read documents which didn’t make sense the first time around because they were approached without vital contextual knowledge. It is an inefficient and ineffective way of prepping. It adds hours and hours to the task.

This is not me just being lazy. I do plan ahead. On Friday I anticipated spending maybe one of my two weekend days working, in order to be ready for the first couple of days of hearings this week, to be on top of all the case outlines and position statements I needed to have drafted, and all the advocates meetings I needed to attend. I was lucky that I started on Saturday with a view to having Sunday off : The combined effect of the bundle hell that was unleashed on me this weekend was that I needed BOTH Saturday and Sunday. I was left exhausted and still feeling I wasn’t on top of any of my cases in the way I would have liked.

When I wrote the first draft of this post on Sunday night I predicted that ‘By the end of this week I will be completely shattered because I’ve had no breather. I will be tending towards grumpy, I will be less creative, I might be less effective for my clients, though of course I hope not. In at least one of the cases I have been working on problems with identifying all documents and working out which way is up have made it extremely difficult to draft a document in time for a deadline – a document I need to produce for the benefit of the client and for the assistance of the judge.’

In fact, by only Tuesday (today) I was in a bit of a state of meltdown. And the reason I was in this state is because the pandemic, remote working, the general stress of not knowing whether the world will still be functioning at all by 2021 have all taken more out of us than perhaps we had at first realised. I took 3 weeks off in August, felt smug because I had learnt the lockdown lesson and had been looking after my wellbeing – but here I am a mere 6 weeks later and a bundle disaster has just done me in.

TMI you may think. But I don’t think so. If I am unexpectedly finding myself in this state as a result of such frustrating but familiar challenges, then so are others. Every added pressure uses up a little bit more of the resilience that was already at such unhealthily low levels before lockdown. Today it was me. But it isn’t just me, is it? I am you, if you are really honest. Tomorrow it might be your opponent. Hell, it might even be the judge.

Bundle nonsense is grinding – there is a special feeling in the pit of your stomach when you open a dropbox folder to see what that new brief looks like and see 99 soldiers in a row instead of a single neat bundle. The enforced time wasted on sorting it out creates ill feeling and resentment. It saps the kindness and resilience out of the people and the system. And in every care case where there is one lawyer doing this there are probably 2, 3 more doing the same, tearing their hair out in their home office on a Sunday, trying to get through the mountain of digital paper in time. This is time we don’t get back. It is time we don’t get paid for spending. We can’t take the vicarious trauma out of the job, but we can cut the bundle crap. So much of it is completely unnecessary.

What can we do about this?

Very little in the individual case. I can’t return the papers and say ‘It just won’t do!’ – firstly, because in my view I have a duty to my client to get on with it and do my best in the limited time between receipt of brief and hearing – there is insufficient time to be engaged in a standoff or negotiation without compromising the client’s interests. Secondly, what is my solicitor going to do about it? Most legal aid firms are barely keeping above water – their margins are barely there, their staff were overworked before lockdown and are even more so now, and many of them have furloughed or laid off admin staff. It isn’t their responsibility to sort out a proper bundle in a care case (or it shouldn’t be). It is ridiculous to expect three firms of solicitors to manually prepare a bundle when the LA is already tasked with doing so because it has to prepare the bundle for the judge. And funnily enough I don’t feel massively inclined to sabotage my income stream by venting at my solicitor when it’s not really a problem of their making and its not something they can do much about.

I acknowledge that LAs too are under huge pressure – both financially and in terms of the lawyers and admin staff who work for them. I know that the burden of being responsible for multiple bundles in care cases is not insignficant, that it is on a scale greater than in private law, and that it requires a more sophisticated set up and some investment – but doing it well makes so much difference. And we know it can be done because see it done by many. ‘Not our problem’ really won’t do. It has to be done, because bad bundles have ripple effects.

BUT. There is a way forward. And in fact it comes as a direct result of lockdown. Remember that guidance we all moaned about?

This is what The Protocol Protocol For Remote Hearings in the Family Court and Family Division of the High Court requires (see The Remote Access Family Court V5) says about e-bundles.

20. The parties must agree, and the lead party must prepare and send to the court an electronic bundle of documents (and if appropriate an agreed electronic bundle of authorities) for each remote hearing complying with paragraph 18 of the President’s Guidance entitled COVID 19: National Guidance for the Family Court. The electronic bundle must be prepared with care by somebody with adequate knowledge of the case and the following requirements must be followed:

(a) PDF format is to be used;

(b) All documents are to be contained, if possible, within one single PDF file;

(c) The PDF file must be searchable. Hyperlinked indices should be avoided in favour of bookmarks;

(d) Pagination must be computer generated within the PDF, not hand-written:

(i) Original pagination must be by section and page number i.e. A1, A2, A3…. B1, B2, B3 etc;

(ii) Insertions, after compilation of the original bundles, should be using ‘legal’ numbering (e.g. B13.1, B13.2, B 13.3 to be inserted between B13 and B14);

(e) Each section of the bundle, and each individual document referenced in the index, should be separately bookmarked;

(f) Electronic bundles should contain only documents and authorities that are essential to the remote hearing.

21. The electronic bundle must be filed with the court on CE-file (if available) or sent to the court via a cloud-based link (e.g. ShareFile, iCloud, OneDrive, Dropbox or Google Drive) rather than in a series of emails. Delivery by USB stick should be avoided due to the risk of creating a pathway of infection and to protect the integrity of the court IT systems. The electronic bundle should be provided to all other representatives and parties within the timescales provided by the relevant Practice Direction.

22. Nothing in this Protocol limits the parties from agreeing, with the consent of the court, to use an e-bundle service from a commercial provider.

[bold my emphasis]

 

This is guidance gold. Use it. Put it in the draft order for the next hearing. Refer the LA to it. Draw the court’s attention to any non-compliance with it. Wave it around at the next tedious ‘breakfast club’ you go to (I am allergic to breakfast clubs). In particular, remember that little sentence at the end of para 21.

Might not help you on a Sunday night when you are banging your head on the desk, but we are turning a big ship here.

 

Also, what about private law?

The problems here are different and yet the same. Here though, individual firms are responsible for bundles dependent on who is the Applicant or first represented party.

In cases in their early stages or where there is limited complexity a rubbish bundle is not the end of the world – a ‘bundle’ for a FHDRA is little more than a 20 page application form (19 pages of which are entirely pointless), and a notice of hearing. Many hearings can be satisfactorily conducted without a proper bundle at all – there are but a few documents, and they can be opened in separate tabs and switched between as required.

In a case with a small bundle it is easy to knock up a quick index as you read. I do this regularly, and it isn’t a problem.

But in a chunky private law case – where there are multiple statements and replies to statements, and schedules and replies to schedules and counter schedules…and police disclosure, position statements, rafts of orders, social services case notes and s7 reports – well then it starts getting a bit hairy.

There are in my experience few problems in cases where the party responsible for the bundle is privately paying and has instructed a reasonably large firm who only does private client work. They are set up to sort bundles and they come in the correct format and on time.

But generally* smaller firms, even bigger firms who do legal aid work sometimes – just are either too overwhelmed to sort bundles or don’t seem to have the know how or resources to sort them. I think it is improving, but we’ve been doing enforced paperless working for over 6 months now and it is surprising how many bundles in private law cases are delivered chopped into four or five separate pdfs based on email max file size because the firm haven’t set up a safedrop type service, or which consists entirely of wonkily scanned in non OCR documents with no index (or quite often an automatically generated index which enumerates every page without identifying it and serves no purposes at all).

*(yes, it is a generalisation – sorry to those it doesn’t apply to, we love you muchly)

Of course its worth remembering that judge are dealing with many of these cases not only without lawyers to help, but also without bundles too. So perhaps we shouldn’t complain too much. On the other hand the last thing a judge who has wrestled with three LiP cases and no bundle really wants is to then be confronted with a pair of lawyers referring to a crappy bundle they can’t navigate. In my experience so far judges have been surprisingly obliging about such rank non-compliance – I suspect because they do not want to be seen as piling more pressure upon those who are already overworked. I am beginning to think however that this judicial magnanimity is shortsighted and overall is placing more pressure on more individuals and wasting more time than is justifiable.

It does matter. Private law work, particularly legal aid work – typically representing those complaining of domestic abuse or children – can be complex and time consuming to prepare, to cross reference. A proper bundle is really crucial. This work is also especially badly paid, so it is even more galling to have to waste hours and hours trying to navigate around documents that are in no apparent order and have no useful filename to help you. It is essential to the judge, and it is an essential tool for the lawyer who is trying to help the judge.

 

But again, what can we do?

For all the same reasons as with public law, there is little point in throwing a wobbly. If the person who sent you the brief had the capacity (whether that be the software, the know how or the time) do send you a shiny bundle they would have done it. There will inevitably not be time to send it back. That solicitor will be drowning every bit as much as you are – just as in care they have probably briefed you in the first place at least partly because they are drowning.

So again, I think we have to be as supportive as possible, but we can’t say nothing. We have to explain why this stuff matters, whilst somehow being constructive.

I am not always sure that solicitors appreciate how much harder our job is when the bundle is a mess, or how much that might impact on the client – counsel will be naturally disinclined to tell a solicitor such things. But the truth is that if I have spent two hours of the time I allocated to preparing my case for tomorrow rejigging pdfs and building an index and swearing at the screen – that is two hours less I have had to read in, digest the brief and papers, spot the things that nobody has yet identified, prepare my case outline – or maybe two hours less sleep – either way it doesn’t leave me in the best position possible to do a super job the next day. Bundle crap is a distraction. It stops the advocate a solicitor has chosen from being their best for the lay client. It might one day lead to a situation where the advocate misses something, where an adjournment is precipitated…

One thing I have done recently is to fix or add an index to a smallish bundle (I have to do it for myself anyway) and to send it back to my solicitor for service on the judge or other side, accompanied by a ‘no problem its really quick and easy to do’ sort of message. I hope this might be leading the way by example and a bit helpful too. I will happily talk any solicitor through how to do this basic stuff if it helps them – many of them are just feeling out of their depth and struggling for the time and space to teach themselves or find help.

I think I will probably also start gently reminding solicitors about para 20 of the protocol when I send in my attendance note, just so that they know that it might be a good idea to think about a compliant bundle next time around – or, if the other side is preparing the dodgy bundle, so that my solicitor can wave it (constructively ;-)) at their opposing solicitor.

What we need to be communicating to the partners or bigwigs in firms who control the purse string and sort the training is this :

  • Proper e-bundles are mandatory. At some point adverse costs orders will be made against firms (or solicitors will have to swallow the costs of adjournments, or of client complaints)
  • basic pdf software to prepare an indexed paginated OCR bundle is less than 20 quid a month. It is easy to use and training materials are available online (eg FLBA)
  • a proper file transfer service is essential and also financially accessible
  • doing it properly is not time consuming – it is probably less time consuming than preparing a brief which enumerates all the individual documents being attached to the brief and then sending multiple emails with attachments – I will eat my wig if there is not a net cost benefit to the firm of doing this – more to the point setting up systems (or even just providing software and training to individual solicitors in small firms) will save them time
  • it’s just good basic client service – and judges do notice a crap bundle…

 

Are you done yet?

Well, that really has been a bundle of laughs, hasn’t it….

What I really wanted to say was : I know we are all working hard and doing our best and drowning – but if the people responsible for bundles can develop their systems to produce consistently better bundles we will all be more efficient and happy, and it will oil the wheels of a system under huge pressure. Please help if you can. Not by squashing the little people, but my nudging those in positions of power to support them and to make change happen.

And also, be kind to yourself. And to that other person in your case who might be feeling the way I did this morning.

I’m sorry it’s so long winded, but – as they say – I didn’t have enough energy left to write a short one, even after I’d slept on it twice.

That harms report – Part 3

PART 3

 

This is a three part blog post. Part 1 explains what these posts are about and I invite you to read it first along with Part 2.

 

Part 2 was a bit long and rambly. There is so much to think about in the report that it hard to wrangle into shape. Especially whilst also trying to wrangle individual cases and get good outcomes for clients and children.

 

Here I try and summarise where I’m at, having wrestled with the report as best I can.

 

This report is the product of a huge amount of work, not only from the panel members, but also from those who contributed. It contains a lot to think about and a lot of learning. That doesn’t mean we have to – or that we should – accept everything that it says blindly – or that we no longer need debate in these areas. But there are some very obvious areas for improvement and this report will help us with that. Frankly, that ought to have been obvious before now, but if it wasn’t there is no longer any excuse.

 

The submission that was sent in by the Transparency Project was misreported in the report – it attributed views to us that we hadn’t expressed (see here). I raise that only because there is, I suppose, a risk that in sifting and digesting such a volume of information under pressure of time similar mistakes will have been made in respect of some other submissions. And because of course many of the submissions are grouped or summarised – and even where the panel may have had more contextual information as a base from which to evaluate what is said, we the reader, do not.

 

In Part Two you have seen me struggle with some of the disembodied quotes or summaries of evidence provided in the report and with what to make of them. But even if I hold some scepticism as to whether an account of a professional apparently minimising or misunderstanding domestic abuse is really what it seems, or whether instead it I can instead be explained by a communication breakdown between lawyer and client – that doesn’t stop me thinking about whether I’ve sometimes been guilty of the same errors, or about how I might improve my client communication to make sure that I understand my client and s/he understands what I’m telling her/him and why. How can I reconcile my duties as a lawyer to advise frankly and realistically about the system as it is rather than how it should be and in light of my client’s resilience or vulnerability to cope with what might be thrown at her, with the need to support the client to make sound decisions free from undue influence – whilst at the same time nudging the system towards best practice? In truth it is sometimes almost impossible to square the circle in a difficult case, but that doesn’t mean we shouldn’t try.

 

Quite how and when the recommendations of the report will be implemented given the pandemic is anyone’s guess – we’re told implementation will be delayed, but not much more at present. But that doesn’t stop us thinking and talking about the report in the meantime. I hope that if nothing else my 3 blog posts will remind everyone the report exists and that at some point we need to deal with it.

 

For now, we bob along, and it seems private law cases are being heard – often remotely, often by phone. Many of them are being heard by 2 magistrates or even by a legal adviser sitting alone. The system is under huge pressure, and as I noted earlier, safeguarding checks are now in some areas being conducted by way of a questionnaire sent out to litigants to complete. I have no doubt the authors of the report will consider that to be entirely retrograde. Interestingly there seem to be some advantages of the new ways of working forced upon us by covid in that some (not all) victims of abuse report the experience of attending court and giving evidence remotely to be more manageable (others though find that their ex being able to see their private space intrusive or find that managing hearings whilst children are in the house makes it very difficult to talk – see Transparency Project survey results here and here). Whilst my recent observation of two cases heard by magistrates involving domestic abuse allegations suggested that PD12J was being properly considered and applied broadly as it should be, I have other recent experience which is less reassuring. No doubt things are still patchy, and the pressure that Cafcass, Magistrates and the court system generally are all under will not be assisting with the task of ensuring that victims of abuse are supported and facilitated in bringing forward allegations of abuse, that PD12J is properly adhered to and that the orders that are made are safe and appropriate.