A view from the coalface

Daniel Mennerich on Flickr - creative commons - thanks

I’ve been getting blank faces whenever I’ve asked colleagues what they think of the latest ‘President’s View’ (the first from this reincarnation of the President, Lord Justice Macfarlane). Turns out that was because nobody has had time to read Family Law journal and it hadn’t made it’s way into the wider world. Eventually I emailed the President’s office to see if the publication of the View only behind a paywall was intentional. 24 hours later its all over the place, so I guess it wasn’t (if you want to read it in full it is here).

I’ve re-read it now, and see there is more in it than the middle chunk entitled ‘Well-being: dealing with the current pressure’, which had me tossing the journal across the desk in despair the first time around. But that middle chunk is still bothering me. I’ll precis it for those who CBA to read it or who have worked out for themselves that they will have to cut out non-essentials like keeping up to speed in order to keep heads above water :

  • the President is concerned for the wellbeing of all of us
  • he cant do anything about workloads
  • it isn’t business as usual – it’s ok to cut some corners (which ones? does that apply to us?) and exceed time limits (when?) otherwise we risk burn out (please could someone tell this to the judges?)
  • the President is ‘encouraging local dialogue’ between us and our respective DFJs so that parameters may be agreed as to what is sensible and acceptable working practices – he gives examples of what might be discussed and agreed :
    • the earliest and latest time of day when the court can reasonably be expected to sit
    • the latest time in the evening / earliest time in the morning when it is acceptable to send an email to another lawyer in a case or to the court
    • reducing a position statement to one side of A4 bullet points on the basis that fuller oral submissions may be made at court
    • relaxation of the requirements to lodge preliminary docs by 11.00am the day before a hearing.
  • However, the President says it is a given we will continue to ‘go the extra mile’ when needed (but it’s ALWAYS NEEDED!)
  • The President is giving us psychological ‘permission’ to talk about these things together and with local judges.

I’m pausing to push my despair back down to its safe hiding place as I type. I like the President very much but this is impossible. We have duties to clients – I can’t do a half arsed position statement and hope that the judge who is at breaking point and doesn’t have time in his list will let me waffle on to make it right the next day. I can’t  not respond to an email late at night if the hearing is tomorrow and there is a risk I might get bawled out for not being ready when I rock up at court. I can’t know what local practice has resulted from ‘local dialogue’ in a neighbouring court, and how not lodging a preliminary document by 11.00am will go down (in some courts I’ve appeared in, filing a document at 11.01 unequivocally results in a refusal even to acknowledge the existence of the document, even if one was briefed at 10.59 and the document is genuinely important).

We don’t need psychological permission to go and have a nice cosy chat with our DFJ in the way that children need permission from one parent to go to the other. We need leaders to say we don’t have to do this, we must not do this.

Not only will ‘local dialogue’ result in a complete postcode lottery depending on how cuddly the DFJ in a particular area is (and I can tell you some are decidedly more cuddly than others), it will result in confusion where advocates are briefed across DFJ borders (this already happens but it will get worse). For example, some judges consider it the norm (so I understand) to sit up to and even after 6pm and advocates are simply expected to have childcare in place. And some judges demand full written openings and detailed agreed advocate’s chronologies for every care final hearing (a rarity where we are). And more importantly, in some DFJ areas (not mine, for what its worth) it would be utterly impossible for a productive dialogue to take place because the environment is such that professionals are in a state of perpetual anxiety waiting for the next b*locking. There have already been some localised flare ups in a couple of areas in response to unhelpful missives and local guidance about the prompt e-filing of orders and compliance courts which do not make for a great starting point for dialogue. It is really hard even with a cuddly DFJ to broach these issues. It is impossible in courts where the judiciary are overly fond of enforcement, shouting and threats of wasted costs.

This is all interconnected with the rising awareness of judicial bullying. Firstly let me reiterate that most judges are not bullies. And occasionally a judge who bullies does so just because that is how they are. I happen to think though that most of the judicial bullying that takes place is unintentional and where a judge’s ‘robust case management’ tips into inappropriate and bullying behaviour, in part because of the pressures the judges themselves are under, and their loss of perspective as to what the pressures are for the bar and solicitors (and social workers). The pressures are far more intense than when most judges were in practice and I don’t think they are comparing like for like when thinking back to what we have to contend with and trying to set realistic tasks and deadlines. The fact of the matter is, whatever the President says about how it cannot be right that we go the extra mile as a matter of routine, advocates in some areas ARE expected to go the extra mile ALL THE TIME. And roundly criticised when they can’t keep it up.

Andrew Macfarlane is eminently approachable, and this is obviously a genuine attempt to help, but not all judges are approachable. And, as I was reminded by someone who had listened to the Word of Mouth radio programme I took part in recently, the law is astonishingly hierarchical. Challenging a judge in an individual case because it is your job to be a fearless advocate, or irritating the judge in the individual case because your client’s instructions are frankly batty, is one thing – but asking a judge known to be fierce and rigid about time limits and procedure to ‘cut corners’ so you can get a bit more sleep is quite another, even if prefaced with ‘the big P has told me to ask you’. In fact, starting such a dialogue with any judge is really difficult for the advocates that appear before him or her. I am anxious about publishing this blog post even though I have been very careful to talk in general terms and not identify any particular judge or area. I speak based on my own direct knowledge of appearing in courts all over the jurisdiction and from what many have shared with me (in part because I have written about judicial bullying before). Writing this blog in general terms is one limited way I can support colleagues at the bar and in other professions who frankly have it worse than I do. You know who you are.

So there we are. Please don’t leave it to those of us at the coalface to sort out amongst ourselves by asking the impossible of those higher up the chain who hold far greater power than we. Please don’t leave it to DFJs to sort out this impossible task – its like feeding the five thousand. Please don’t allow a situation to develop where professionals in one area feel unable to speak up and burnout or leave as a result. By all means listen to us, but do not place upon us the responsibility to tell our superiors what to do. Sometimes the adults have to take charge.


Feature pic : Daniel Mennerich on Flickr – creative commons – thanks

8 thoughts on “A view from the coalface

  1. “the President is concerned for the wellbeing of all of us” – Really, all of us? I read it and thought he’s very concerned for the welfare of judges and advocates as they heroically create the problem they complain about! Only at the end does he mention the children who are caught up in this appalling system.

    I have come to the conclusion that the scale of human misery inflicted by the Family Courts on children and some of their parents (usually at the whim of the other parent) is only matched by the breathtaking indifference shown by those who run the system.

    • I believe this is known as whataboutery. The whole purpose of the system is to protect and promote the welfare of children. If the system and the people who run it are conking out left right and centre they can’t do that. If we were indifferent to the human misery we would not be working the hours we are trying to prop up the system, and we wouldn’t be raising these issues – we’d just leave and do something else. You might not agree that the family court is achieving its aim of promoting the welfare of children but it is quite something else to question the motivation of those working in it is anything other than to achieve that aim. A strange career to choose if you hate children so much.

      • I should also say that even whilst I disagree with the President about how he is going about trying to ensure the system and its personnel can keep carrying on and doing what it needs to do, I don’t for one moment doubt his motivation. We all have the same aims.

    • What is equally infuriating is courts and judges imposing unrealistic deadlines for submission of documents, then same judges failing to produce their judgment for months on end.

  2. That’s why Cafcass don’t commission DAPP courses for mothers despite commissioning courses for fathers from the same providers, they are so concerned with the welfare of the child they leave them with abusive mothers.
    Why don’t you tell that to the father I met the other day who was assaulted by his ex throwing something at him which then injured their child. After he’d taken the child to the hospital and got them fixed up, the mother got a non-molestation order against him. Of the father who’s partner and children were moved to the other end of the country by Social Services, applied for a CAO, was given a date 3 months away, when the mother gets notice she applies for NMO and PSO and gets both heard within a week. Having no money and not driving he can’t attend the hearings and he can’t get legal aid. He hasn’t seen his children since before Christmas, what shall we tell him, the judges are trying very hard and they’re ever so tired?
    Doesn’t matter how overworked the barristers and solicitors are, he can’t afford one and he won’t be given one.

    • Here’s a comment from a little report I’ve been reading from April 2000 entitled A REPORT TO THE LORD CHANCELLOR ON THE QUESTION OF PARENTAL CONTACT IN CASES WHERE THERE IS DOMESTIC VIOLENCE:
      “3.13.19 Funding is crucial here. Judge Peter de Mille made the point that most county courts are under-staffed and that the court service appears to depend on a residue of good will that is slowly evaporating as over work and stress take their toll. He opposed any suggestion which would increase the workload of the already over-burdened court staff.”

      Apart from the familiar complaint of overworked staff, lots of interesting stuff like:
      “We acknowledge that the Guidelines involve a departure from the court’s understandable wish to avoid recrimination and to assist the parties move forward. We understand the argument that the guidelines will encourage false or exaggerated allegations as a means of reducing or denying contact.”

      Surely not, that could never happen, could it? The guidelines eventually became PD12J.

  3. Although there may have been other good ones (http://www.pinktape.co.uk/equality/party-animals/), ‘View from the Coal Face’ is a well considered blog from Lucy Reed. The pressures on family advocates are indeed considerable, not eased by long sittings and filing pressures; yet not necessarily remedied by the President’s prospect of local arrangements. On the North Eastern Circuit we are fairly lucky with our DFJ’s and their insistences (and even luckier with our recent crop of patient, empathetic DJ’s). Judges should use judicial skill, rather than critical comment to achieve their management objectives. These days I am deemed too old and fragile to be bullied, but I recently had to advise a DFJ not to be angry about process, so I do have concerns in that area.

    Which brings me to my point. The fundamental flaw in managing public law family cases is that the few case management ‘hearings’ are inadequate for proper, modern case management. The landscape at an issues resolution hearing is sometimes unrecognisable from that at the outset of a case, and in the meantime judges have not been in a good position to call in the case to rectify the deficiency. This puts inevitable pressures on advocates to submit position statements before hearings – and to face the task of firefighting problems after them.

    In my recently ‘ignored’ commentary, I questioned why public law family cases were not managed, at least in part, by an online template? We have the technology, we just don’t seem to have the will or imagination to use it. Rather than the sticking plaster of user-friendly hearings that don’t start too early, go on too late, or require twelfth hour documentation, why not switch to a digital process where everything that is necessary for case management enters an accountable digital management template from which judges can familiarise themselves with the progress of the case and manage it with less stress?

  4. Whinge, whinge & whinge

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