Pink Tape - A Blog from the Family bar..+Add.Feed Info1000FOLLOWERS
Pink Tape is written by Lucy Reed, a family law barrister *waves*. On this blog you will see me identified as ‘Familoo’ I have been at the family bar for over a decade and am still amazed at how little most people understand about the work that I do and what goes on inside the Family Courts.
It's an old chestnut, the idea that a social worker is there for the child and NOT the parents. Social Work Tutor was peddling it before Christmas :
However, it is clearly not just SWT who holds this wrong headed idea about the role of a childrens' social worker either, as the recent Adoption Enquiry confirmed:
Social workers frequently construct themselves in pre-court proceedings as the social worker for the child rather than the family. A further level of fragmentation can get layered on later on with the social worker for the child seeking to communicate and work with a social worker who may see herself as the social worker for the adoptive parents...
The definition of the social worker role as being ‘the social worker for the child’ was a source of concern, as it often led to a lack of support for birth parents:
‘Children are part of families – a social worker cannot only be the child’s social worker.’ (birth mother)
So, it feels like this chestnut really does need roasting on an open fire until it is very very dead.
Now I'm a lawyer not a social worker, so I'm going to tackle this from a legal perspective. But that doesn't mean I'm writing in some abstract way which is not relevant to social work practice. Although some resist the notion, the truth is that law is fundamental to the practice of social work. Where state agents are intervening in the lives of the vulnerable it is law that gives them a framework to protect against oppression.
So, looking at it from that legal perspective : is it right for a social worker to say that they are there for the child not the parents (as they undoubtedly often do, to the faces of anxious and needy parents)? TLDR answer : Nope. It is wrong (Also, holding up a card or saying words like those on the card to parents is just going to make your job a whole lot harder because an 'I owe you NOTHING' introduction is not the best way to build a mutually cooperative trusting relationship).
Longer explanation of why this is a wrong message now follows...
Let's begin with the Human Rights Act 1998 (HRA) and the European Convention on Human Rights (ECHR) which the HRA brings into our law. It is an overarching piece of law which governs everything that a local authority does, including the social workers. Much of what Childrens' Services social workers do on a day to day basis is intervening in the private and family lives of families - not just the children they are trying to protect, but their parents, siblings, extended family : by physically crossing their threshold, asking questions and delving into their past, their household goings on, their relationships, their interaction with other agencies, their past criminal conduct, their future hopes and fears... By assessing and reporting and sharing information. And of course in some cases by removing their children. Sometimes forever.
All of those actions are governed by the HRA because they are an interference with private and family life. If the state wants to stick it's nose into the lives of families (as it undoubtedly must do sometimes), it must stick that nose in only as far as is necessary and proportionate, and only where authorised by law (usually but not always it is the Children Act 1989 which gives that authorisation in this field). If the local authority oversteps the mark a human right may have been infringed.
The ECHR / HRA allows for the fact that sometimes it is necessary to step on one person's rights in order to protect another's, and that particularly applies in relation to children. But it doesn't mean that the rights of parents can be ignored. Social workers have clear legal duties under Article 6 (the right to a fair trial) and Article 8 ECHR (the right to respect for private and family life) to the whole family - to deal with them properly and fairly and to try where possible not to interfere with a family's privacy and family life, either by sticking in that big old corporate nose, or by separating children from their families (and parents from their children) - unless all less harsh alternatives have been properly explored and ruled out. The balancing exercise between competing human rights and the need to protect is a useful way of looking at things for a social worker - can I keep this child safe somehow without breaking up this family? It's what underpins the Re B-S balancing document that we now routinely see in social workers' final statements. But rather than a generic tick box exercise this should be a proper analysis, rooted in what is possible and what might work for this child, in the context of this family and the services the state could provide to avoid separation. Human rights should be a tool that underpins social work rather than an inconvenience to be gotten around, as I sometimes sense (and have been told) that it is.
Quite apart from the ECHR and HRA, the UK is a signatory to the UN Convention on the Rights of the Child (UNCRC), which should be taken as an aid to interpretation of the ECHR. The Preamble to the UNCRC states
the family, as the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.
Several Articles in the UNCRC also spell out that the rights of the child and of their parents are interwoven. Article 3 requires taking account of the rights and duties of parents when intervening to protect a child. Article 18 affirms the primary role of parents to bring up children, and the obligation on a State to assist parents to do so. Article 27 affirms the primary role of parents to make adequate provision for their children, and the obligation on a State to assist parents in making adequate provision for their children.
So, childrens' rights are significantly embedded in the family and difficult to separate from them (See The Christian Institute & Ors v The Lord Advocate (Scotland)  UKSC 51 (28 July 2016) for an example of this in action, which Allan Norman wrote about on Pink Tape here). Although the purpose of assessments and social work is to protect and enhance the welfare of the child, the HRA means that state interference is limited to that which is either consensual or necessary, and a social worker exercising the powers and responsibilities of the local authority owes a clear legal duty to each of the parents and each of the siblings within a family unit.
But of course these international provisions and the HRA deals with broad principles and rights. As well as being necessary and proportionate state intervention has to be authorised by law. There are more specific pieces of law which describe and constrain how social workers operate and what they do. This is where the Children Act 1989 (CA) comes in. The CA gives local authorities various powers (you can) and duties (you must) to protect and promote the welfare of children. Those duties and powers are given to the local authority (the state) not the social worker, and the social worker is the agent of the state.
The CA is of course about children (the clue's in the title). But, there is nothing in the CA which entitles a child to 'their own' allocated social worker. This is a practice developed by local authorities in carrying out their functions under the CA and other Acts, where a family often becomes 'open' to social services because of a CA duty to assess the needs of individual children. As we shall see, it isn't quite as straightforward as saying 'My job is to assess the child / his needs, so I'm the child's social worker'.
Some of the duties under the CA are targeted at children and their families, notably children in need and their families. Take section 17, Provision of services for children in need, their families and others :
(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.... [my emphasis]
This creates a duty towards children in need AND their families, and a power to provide services to a specific child or any member of his family. It doesn't mention the allocation of social workers. In fact the only situation where the CA requires a local authority to appoint an individual worker to a particular child is in respect of former looked after children who qualify for a Personal Adviser (usually a social worker) under s 23D CA. Elsewhere, s25A does require a local authority to appoint an Independent Reviewing Officer to monitor the performance of the local authority in its duties towards the child. But no social worker. Further, in care proceedings, the court appointed guardian is a social worker appointed specifically for the child, albeit that their function is confined within proceedings (s41).
The 'paramountcy principle' contained in section 1 of the CA doesn't help either, not least because it applies only to the court (and only then when it's powers are invoked). However, the paramountcy principle and expanded welfare checklist in the Adoption and Children Act 2002 (ACA) do apply to the local authority as adoption agency when it is coming to a decision about adoption - and in those cases therefore the social worker carrying out the functions of the local authority must consider 'the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person', and 'the relationship which the child has with relatives ... and with any other person in relation to whom the court or agency considers the relationship to be relevant, including the likelihood of any such relationship continuing and the value to the child of its doing so, the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs, and the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.' (ss 1(4)(c) and (f) ACA). That is a clear reminder that in the work carried out by a social worker the broader family relationships should be squarely in mind, but it is addressed to the local authority as a corporate entity, and doesn't specify anything about the role of the social worker.
One view is that the reason that the paramountcy principle is not applied to the work of local authorities outside of proceedings is because the CA envisaged social workers working consensually with families, supporting parents to exercise their exclusive parental responsibility in ways that could be assumed to be in their best interests without reference to a court. The paramountcy principle is a guiding principle to assist with non-consensual decision making. As article 18(1) UNCRC tells us :
...Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. (Emphasis supplied)
Where a local authority becomes involved because its duty under s47 CA has been triggered, that duty is to investigate the child's circumstances to see if any steps need to be taken to protect him. Where consent is not forthcoming ton enable an assessment to be carried out the CA provides various non-consensual powers to ensure the situation can be properly assessed. But of course even then, although the assessment is of the child, his circumstances include his family and his needs include his need for a relationship with them.
The social worker is the local authority's agent in respect of all its duties to children and their families. It may well be that childrens services 'allocate' a named social worker 'to' a particular child for all sorts of very sensible operational reasons. However those operational reasons cannot override the broader legal, and moral duties owed to families. Local Authorities must organise themselves in such a way as to fulfil their statutory and legal obligations to all those they serve.
If social workers operate under the mistaken belief (or policy) that legally they are the child's social worker, there is a risk that they will feel legally empowered or even obliged to adopt a 'child rescue' rather than 'family support' approach to their work that can skew outcomes.
The 'social worker for the child' approach is, in my experience, often used to justify the cutting off of support to a parent following the removal of a child or the end of proceedings (bar that nebulous thing 'post adoption support'). Once the particular child is 'sorted' (removed) the duty to the bereaved parents is seen (and often said) to end. They are left homeless or over-housed with insufficient income to meet their rent, distressed and often unable to function and to pick themselves up after the trauma of removal (often not for the first time). Such parents, in despair, often relapse to drug or alcohol use, or fall pregnant through chaotic lifestyles or intentionally in a desperate bid to ease the pain. They have nothing else left.
It is only in recent years, through projects like FDAC and PAUSE that some are beginning to grapple with the consequences of that - parents left in pain and without support and involved in a succession of repeat care proceedings as they are condemned for repeating the same mistakes rather than helped to find a different way. See various judgments of HHJ WIldblood QC for an expression of judicial frustration at the futility of obtaining psychological reports in care proceedings that tell the court a parent needs treatment which is too time consuming for the subject child to wait for, and which has almost inevitably not been provided before the next child comes along, because in between children social services see themselves as having no duty (though HHJ Wildblood's judgment in Gloucestershire County Council v M & Ors  EWFC B177 (5 November 2015) provides a rare example where a LA did agree to fund therapy post-removal). In fact local authorities DO have just such a duty under s17 CA combined with Schedule 2 (7) :
Provision to reduce need for care proceedings etc
Every local authority shall take reasonable steps designed—
(a) to reduce the need to bring—
(i) proceedings for care or supervision orders with respect to children within their area;(ii) criminal proceedings against such children;(iii) any family or other proceedings with respect to such children which might lead to them being placed in the authority's care; or(iv) proceedings under the inherent jurisdiction of the High Court with respect to children;
It isn't a specific duty to provide therapy, but clearly the provision of therapy for parents who are likely to parent again, or the setting up of projects to help those likely to struggle with parenting are vires services for local authorities. Projects like PAUSE and FDAC are beginning to demonstrate that this sort of project may in any event be fiscally responsible because they will reduce the financial burden on the local authority in the long run.
Perhaps the most important provisions of the Children Act are the ones most easy to overlook : parental responsibility (sections 2-4). A social worker owes a duty to the parents of a child with whom she is working, or who she is assessing - because whilst the child is unable to deal with own affairs the parent is their proxy decision maker - they hold parental responsibility, and with that hold the rights to make decisions for the child unless the law or a court restricts that right (for example through the exercise of police powers in an emergency or through an EPO, ICO or other order). Even if a care order is in place parents retain their parental responsibility and the local authority may only 'trump' the parents' PR where it is necessary. So again, on that basis the local authority owes a duty to the parents.
The social work regulator, the HCPC talks in terms of duties to 'service users', which is a more constructive way of approaching the task at hand : a local authority owes duties to provide a whole host of services to everyone living within its area, not just to children. We are all 'service users', whether of s17 type services or otherwise (and the HCPC define a service user as anyone who uses or is affected by the services). As residents in a local authority area the local authority is democratically accountable for the services it provides, and the Children Act 2004 requires each local authority to appoint a Director of Childrens' Services and a lead member for Childrens' Services to ensure that voters (including the parents of children in receipt of services) can ensure accountability in this area of work. So, from individual social worker, right up to the senior management or elected representatives, the duties owed encompass not just those owed to a child, but those owed to all the family.
Alright. That's enough law. Let's have some home truths : in my opinion as a human rather than lawyer, and regardless of the strict legal position, an assertion by a social worker that they are NOT there for the parent discloses a pretty poor level of insight into family functioning and into childrens' needs (and rights) to family life. The focus must always be on the needs of the child, but tunnel vision is unlikely to enable a social worker to meet those needs in the fullest way - either for that child or any siblings who may follow in the future. Good social workers offer a hand of support not a hand that dismisses a parent as an irrelevance.
Thanks to Allan Norman @celticknottweet for his input into this piece (ideas his, mistakes mine).
Feature pic : Yes I Have Tried Talking To The Hand By Spooky Dad On Flickr (creative commons - thanks)
I've been meaning to write for a number of months about how I have been getting on with life without paper bundles. But I've had a minor setback in that pretty much ever since investing in a super shiny device on which to display all singing all dancing electronic bundles I have been delivered of nothing but pages and pages of documents in broken lever arch files which are fifth generation copies (and as such all the text is slightly fuzzy and sliding off the page into oblivion). I am beginning to wonder if the wheeled suitcase industry mafia are not putting the thumb screws on all the solicitors instructing me, to ensure that I continue to prop up their revenues as I have done for the last fifteen years. Maybe they have got wind of my attempt to remove suitcases and large handbags from my life by transferring to a backpack (thanks to a niggling suitcase/bundle induced shoulder complaint), and are wreaking their revenge.
It's ironic really - I've spent years grumbling about bundles delivered only electronically (usually because they arrive, russian doll like, in a million separate pdfs nested in several tiers of several threaded emails), which then have to be printed off in no particular order at the eleventh hour. But now I want one, I can't get an electronic bundle for love nor money.
Before the e-drought, I did a few hearings / trials using pdf Expert on my laptop before taking the plunge and investing in an ipad pro - it worked reasonably well. On the first attempt I had my bundle in hard copy in a suitcase at the back of court as a comfort blanket, but I didn't need to open it once. Somewhat ridiculously, with only one device, I had to resort to keeping my notes in a blue book, whereas I would ordinarily have typed them - you really do need two screens to really go paperless : one for the bundle and one for your xx notes / running log of the hearing. I was somewhat deflated to find that, having ditched paper, I kept being handed more and more late documents in hard copy as the hearing progressed, so that by the end of the week I had a whole file full of assorted badly photocopied and unpaginated documents that I had to keep switching to and from. But in the grand scheme of things, a ring binder's worth of irritation is nothing compared to a mighty suitcase full of back ache.
I've conducted a few trials / hearings where I've brought the core papers in hard copy but have been able to leave behind the stuff I'm 99% certain I won't need to refer to on my laptop, thus enabling me to travel with my cabin sized wheelie rather than my corpse sized one. This in itself is a super bonus.
So yes, I'm a bit frustrated that, after a promising start, I have had a limited opportunity to get to grips with e-bundles. I had hoped by now to have mastered the techniques for navigating large bundles so that I would feel confident enough to go paperless in a larger trial. Hey ho. I'll get there eventually. And in the meantime other colleagues not so jinxed as I are popping up all the time to rave about how a bit of practice with an ipad pro has revolutionised how they work. So I think the momentum is picking up, and we are beginning to reach the tipping point where all of a sudden one day ebundles will be the norm, and we will all be expected to be competent with them. I'm certainly not going to be the one left on the shore when that happens.
For what it's worth, I reckon that this is actually not as daunting a self-education project as I thought at first it might be. Granted, the cost of an ipad pro is pretty eye watering, but the software costs are minimal (pdf Expert seems to be used by most) and the navigation is a lot easier than I had thought it might be - as long as you have a properly indexed bundle where the majority of documents are in native pdf format (jargon alert - this means that the computer reads the file as a text document rather than an image, so it can find words in a text search and you can highlight particular lines of text). Bookmarking and highlighting features are reasonably easy once you've got to grips. The most irritating part of this new tech is the hardware itself. As someone who has avoided an ipad for years, I find its way of storing documents and really hard to get my head around. And of course, now I have a touch screen I keep pawing my laptop and wondering why it won't work. Or staring at the screen trying to remember how to make it scroll without touching it... But this too shall pass...
Ebundles really are becoming a thing in public law proceedings, and although some local authorities produce more user friendly bundles than others, this is the area in which ebundles are gaining most traction (no doubt because of the applicant is always a corporate party which is represented rather than a privately paying individual or litigant in person). My recent run of paper bundles has coincided with a run of private law cases, where ebundles seem to be somewhat more of a rarity. See recent HMCTS blog here for news on the public law front.
Apologies for the not very exciting reading. Whilst I acknowledge that an absence of me spitting feathers about idiotic, awful, impossible technology makes for rubbish blog posts, the truth is that nobody wants to see me when I'm in full Technology Rage mode. Even virtually. So far I have not had one single tantrum. Hurrah!
There has been an outpouring of affection from the legal and legal blogging community following the recent death of Sir Henry Brooke. Apart from a number of lovely obituaries in the national press (see for example this one in the Guardian), there have been a number of tribute posts from legal bloggers. Because although Sir Henry was not the first of us, he epitomised what many of us wanted to achieve, and shared many of our motivations.
He hadn't been blogging and tweeting all that long, but Henry Brooke had managed to find a human and accessible way of communicating and of making use of social media that attracted readers to his posts. And he did all that without dumbing down.
In April last year, having been at it for two years, Sir Henry wrote a blog post reflecting on his motivations and the degree of success he had achieved.
One commenter from Hong Kong had written in praise of Sir Henry's blog that
The writing of legal history/legal anecdotes through the internet will make them more accessible to the public. Picking up and buying a book written by a judge may be a difficult thing for most people/lawyers, but reading articles online for free is a completely different story. People may be researching some legal terms or background of certain legal icons by Google and they can read online articles with ease.
Sir Henry was pleased with that, because his driving force was
to demystify the practice of the law; and
to show that although some things undoubtedly change, at the heart of our legal and judicial system there have always been (and I hope always will be) many, many men and women who have been doing their honest and honourable best to provide a system of justice that meets people’s everyday needs;
and to try to show that although the practice of the law will always be hard work, and although we are in a certain sense facing unprecedented obstacles and difficulties today in the absolutely vital corner of the market that is dependent on public funding, it can and also should be fun.
Sir Henry may not have realised it, but to read this, and to see it played out across blog after blog by a hugely respected former senior judge, is such an encouragement to those of us who are plugging away at our own little corner of legal blogging, chuntering away hoping that somehow we will demystify the practice of law and bring a smile occasionally too. When I first started blogging lawyers looked askance, or would say mockingly 'Oh, you write that blog don't you?'. When I first wrote a book for litigants in person it was seen by some colleagues as a sort of treachery. But if engaging with ordinary mortals in ordinary language about law, through blogs and social media is good enough for Sir Henry Brooke, then it's good enough for me. When Sir Henry Brooke took up blogging, legal blogging came of age.
Of course, even before he took it up himself, Sir Henry had an impact on legal blogging through his support of BAILII, a resource upon which we all depend and draw - and which I hope the legal blogging community add value to.
That first commenter also said this :
most legal biographies/autobiographies in book form may be forgotten and hidden in the bookshelves of a law library. Your articles will always exist on the internet and accessible to all. Your articles will be “immortal”. Thank you for this, Sir Henry.
Now that Sir Henry himself is no longer with us we must make sure that his blogs really are immortal, and I hope that in the coming months a plan will emerge to ensure that the site remains accessible for many years to come.
PS I hope nobody will mind me using Sir Henry's picture from his twitter account. It is such a striking and lovely picture.
...Is the title of a new book, forthcoming from Bloomsbury very very soon.
Sadly I shall not be reviewing this excellent sounding new book for Pink Tape. 'Cos I wrote it. Which would probably make me a tiny bit biased.
In fact, I co-wrote it with the most excellent Julie Doughty and Paul Magrath. This means there is a 2/3 chance it will be pretty good. Or 100% chance that 2/3 of it will be pretty good. But I'm not gonna tell you which 2/3s.... Makes it more interesting that way.
Bloomsbury are also holding a rather bodacious sounding conference in London on 16 May, where I think i'm the warm up act for the real lawyers to follow on from. I will be talking about transparency (why it matters - what it means).
This real-books-for-other-lawyers thing is all scarily grown up and I confess to being slightly petrified. Massive case of imposter syndrome here (Can you tell?)...The Bill & Ted's quotes seem a strangely apt nervous tic...(even though it is the most stupid film since forever)...
Anyway, I shall no doubt spend the entirety of 15 May repeating 'We're in danger of flunking most heinously tomorrow, Ted'.
Of course I am a pedant. All lawyers are pedants. The trick is to judge which of the little things you really should sweat.
Here's a little thing that I think does matter, or might in some cases. The C1A.
The C1A is the supplemental information form that Applicants and Respondents in cases involving child arrangements are supposed to complete where they are saying there are issues of domestic or other abuse. In the context of Practice Direction 12J and the Child Arrangements Programme, where the ethos is on early safeguarding, and on triaging cases so that they are safely conducted and so that the need for protective measures or fact finding exercises is identified early, these little forms really matter. Or they have potential to. But for some reason they are usually just ignored, especially the Respondent's C1A, which comes along later when the safeguarding train has already chugged off from the platform. That gets forgotten, like the middle sibling who nobody notices.
Take a recent example. Applicant father issues with a C100. Mother responds with a C1A. Cafcass carry out safeguarding checks (in which M raises domestic abuse but in a fairly non specific way) but don't recommend a fact finding hearing. The safeguarding letter is produced at the FHDRA, but it does not mention the C1A. Lo and behold, when checked CAFCASS confirm they don't have the C1A and haven't therefore taken it into account. They conduct a review and change their recommendation to one for a Fact Finding. What if I hadn't spotted it? A LiP wouldn't know to do this, and I almost missed it myself. The facts of the case don't matter here, its the process I'm interested in.
I've seen this sort of thing quite often. In another case of mine the C1A kept getting left out of the bundle. Applicants often don't seem to receive them (I think this is because it is unclear who is supposed to serve them - the rules say the court serves the C100 but don't specify with the C1A, and the form itself doesn't really help as it only talks about sending it to the court).
So anyway, because I am a saddo I checked the rules. Part 12 is useless. PD12C doesn't help. PD12B (Child Arrangements Programme says that the court will send CAFCASS the C1A if supplied no later than 2 working days after the date of issue (pa 8.9), but of course this is the APPLICANT'S C1A, by this stage the Respondent won't have even got the application probably. It goes on to say that 'The court shall not send Cafcass any other application...unless the court has made a specific direction...therefore, any application which is not in Form C100... will be returned to the court at which the application has been issued'. This just means, I think, that Cafcass don't want all the crud people tend to attach to their applications. But it isn't really about the C1A, which is not an 'application'. There is NO mention of a Respondent's C1A so it just isn't properly woven into the safeguarding process.
The C1A is mentioned in the bit about the Gatekeeping stage, but again the only C1A they will have at that early juncture is the applicant's C1A. It is usually the Respondent who fills in a C1A, because the preponderance of applications are by parents wanting contact when the other says it isn't safe. In the section heading Safeguarding - not a whisper about the C1A.
This is where it gets weird.
The C7 acknowledgment form says this. It firstly tells Respondents that if they tick yes to the various harm questions on C7 they must fill in a C1A. And then it says :
...When you have answered the questions make copies of both sides of this form. You will need a copy for the applicant, and each party named in the application for an order (form C1, C100, C78 or C79).
Post, or hand, a copy to the applicant and to each party. Then post, or take, this form, and the Statement of Means and Supplemental Information Form if you have filled one in, to the court at the address below. You must do this within 14 days of the date when you were given the Notice of Proceedings, or of the postmark on the envelope if the Notice of Proceedings was posted to you.
Now this seems to suggest that you are supposed to serve the C7 but just file the C1A.
AND it also seems to be the case that you have 14 days to do this. This is going to be quite close to the 17 working days Cafcass have to do their checks, although in practice Cafcass are I think sometimes given / take a little longer.
Now I would certainly not want to suggest that the safeguarding checks should take any longer than they already do - the wait for the court to actually DO SOMETHING when you are desperate to see your child is quite awful enough. But if the C1A is to have any purpose shouldn't it be properly fed into the pre FHDRA safeguarding process? Shouldn't the court be obligated to send it on to Cafcass, or shouldn't the Respondent be obligated to send it to them directly? Or perhaps even Cafcass should check with the court for a C1A as a part of their other safeguarding checks? They certainly don't seem to be picking up the existence of these forms from their safeguarding telephone calls and I guess many litigants would not know what a 'C1A' is if asked about it on the phone (even if they've completed it not long before).
One day, particularly where Respondents are in person and without legal aid, are frightened and inarticulate, a C1A might save someone's life. One day the neglect of what a C1A says might leave a child or adult exposed to harm. In most cases it doesn't matter, and it gets picked up at one point or another, and in many cases the allegations in a C1A are neither her nor there - but the point of these checks is to help the court distinguish which is which. So we really ought to do it properly.
Details of an interesting looking conference in Manchester below - complete with the President of the Supreme Court : All Hale Barbara!! #halestorm
We are pleased to write with details of MMU's 2nd Annual Family Law Conference, on 9 March 2018, 10am-4pm. The conference brings together a mixed audience of academics, practitioners and students to discuss current issues in family law in a relaxed and supportive atmosphere.
We are delighted to have Lady Hale, President of the Supreme Court, as our keynote speaker, with her 'View from the Supreme Court Bench'. Dr Frances Burton from Aston University will be delivering a very timely paper about the future of the Family Court. She has been writing and presenting on this topic for some time now and we are sure her paper will provide a fascinating basis for discussion among academics and practitioners. Nigel Shepherd, chair of Resolution and Head of Family Law at Mills & Reeve Solicitors, will be presenting about his experience of the changing social and political context around no fault divorce. Lucy Crompton from MMU will present a paper seeking to revive 'compensation' for career sacrifice and get it back on the judicial agenda. She will be hoping to muster some enthusiasm for this from, especially, the practitioners in the audience.
Places are limited. You can register at the early bird price of £65 until 26 January, thereafter £85 (£25 for students).
The conference is suitable for CPD for practitioners.
First day back at court today. It has not gone well so far...
Your correspondent is in the robing room quietly stewing, having arrived at nine o'clock for a ten o'clock hearing (halo in hand) that isn't in fact until noon. Courtserve : We Heart You. Hashtag NOT.
In truth it began to unravel long before then as I lay in bed shivering at midnight realising the radiators weren't working because they haven't been bled, and listening to the wind tear bits off my house like a child demolishing a lego build (house still standing this morning but it didn't sound like that at the time - there is a large tree-bush affair next to the garage that thumps loudly on it whenever its windy. It's right next to my window...)
And then even the emergency suit turned out to be too small. Can't imagine how that happened *cough*. I blame Cadbury's Roses.
So all in all my arrival here by 9 o'clock, with papers and wearing a suit that still buttons up was a pretty epic achievement. Needless to say I am overjoyed to find it a wasted journey.
As I sat down in the robing room to get some work done (hurrah for PCU Wifi which is now working in our court building), having carefully stretched my laptop charger across the floor from the in-floor plug bar to the not very close to it desk (especially positioned to create a trip hazard it seems - yes I have left my comment in the comments box pointing this out) an email pinged into my inbox. A DFJ is finding that the LAA are refusing to meet the costs of parents attending hearings unless there is an order directing their attendance. Yes, that is refusing to enable parents (who often have no income because they can't work and their benefits have been stopped when their kids were taken) to get to hearings at which their childrens' whole future is to be decided. Doesn't it make you just furious? Anyway, the solution to this is apparently to include a standard direction in CMOs now saying that parents must attend. This makes me even more grumpy than I ever so slightly was before receiving the email. FPR 27.3 provides that :
Unless the court directs otherwise a party shall attend a hearing or directions appointment of which that party has been given notice.
Personally, I don't think we should pander to this computer says no mentality. We should challenge this nonsense and say THERE DOESN'T NEED TO BE AN ORDER YOU MUPPETS. Again and again until they get it.
Plus, if the LAA doesn't pay their travel expenses how will they ever get to stroke the stress-dog before their children are adopted?
2018, you suck so far.
Right, grump over. I'm off to write a book...
The Civil Finance Electronic Handbook that I linked to above says this at page 72 (I hadn't spotted it before - I was looking at page 58) :
The rules for payment of funded client travel expenses differ depending on the situation.
Attendance at court: The funded clients travel expenses will be paid where it is reasonable for the client to attend court. The guidance states this is as a witness of fact and we would expect to see justification as to why this is considered reasonable. These same principles apply for third parties who are required to attend court as a witness of fact.
Travel to attend experts: These are paid where it was necessary for client to attend the expert and where the client cannot afford to pay for visiting the expert (the client is impecunious). When considering whether the costs should be allowed we would need to consider the cost of the travel, distance to the expert and the method of travel.
Where travel costs are payable we should consider the most reasonable form of travel, this is usually public transport. Any travel by taxi will require justification. [my emphasis]
The Costs Guidance referred to is here and that says that the costs of travel to court other than as a witness of fact will be assessed at the end of the case (page 7-8, 26-28). Although in places it appears to suggest that travel expenses other than as a wtiness of fact will never be payable, it does say this :
The usual principles as to reasonableness and proportionality apply. If it was unreasonable for the client to attend the hearing in furtherance of his or her case, for example because the hearing was an interim hearing where the client’s presence was not strictly necessary, then the disbursements would not normally be allowed.
So on that basis the costs of attendance at a hearing other than a final hearing / to give evidence ARE claimable, but they have to be reasonable. There will of course be cases where it really isn't necessary for a client to attend a hearing, but they will be in my view pretty few and far between - which is no doubt why the FPR have, since the year dot, set out a default position that they should come to court.
If this really is a growing problem (and according to the grapevine I know it is) then I would like to think that someone will do something about it and challenge the LAA on their guidance. It's tough for solicitors if they are continually shelling out and then not being paid, but even tougher for clients whose solicitors say they can't afford to take the risk (I've met some of each, I don't criticise either). Perhaps one of the representative bodies can take this up with the LAA?
Confession: I’ve been paralysed by that tweet that asks people to tweet three of their achievements from 2017. I’ve just buggered along really. Kept on doing the same old stuff, kept my head above water, just.
As the year draws to a close I’ve been thinking about all the things I haven’t quite got around to this year, all the things that are stuck on my to do list that I never get to. And one of those failures is my chronic neglect of poor old pink tape. I was wincing at the thought of writing that bloody awful year in review post. Except I find when I actually look back at the posts I have written in 2017 I was pleasantly surprised. And yes people, I did laugh at my own jokes (well, some of them). There are some good ‘uns after all (so that’s one achievement) …I don’t know how I found the time really. And looking at those post I was reminded me that I did write a book this year (that’s two). And I did survive a pretty shitty time professionally too (and three). So I feel a bit better now. I’ve got my three things. And that’s even before I think about all the amazing achievements of my family that I am totally proud of.
Anyway, now I’ve dealt with my own ridiculous anxieties and self-doubt, here’s my favourite post of each month of 2017… I feel I ought to mark this year somehow – I did forget to wish Pink Tape a happy tenth birthday in July. Bad mummy…
Man Flu : God I was poorly. But this post reminded me of that amazing feeling you get when you realise you are on the mend and are grateful for every little thing in the world.
The backstory : that’s my backstory about how I came to become a barrister. Which was fun to write, seems inexplicably to have been enjoyed by some and has prompted at least one other (Barbara Rich’s fantastic effort is here).
Tough to choose between this : What a load of old Dobbin and a slightly more serious post with a good combination of law and swearing, but I chose this one because it’s a proper old rant and that’s always been the most fun part of Pink Tape. The silly rants are what most annoyed the stripey humbugs at my previous chambers who hated blogs, so I like to do one every now and again for old times’ sake.
The Daily Mail come trotting in with the simply MASSIVE news that 6% of the people instructing one firm of solicitors ‘ave an ‘oss. It’s a shame they fail to capitalise on the pun-potential about how often this phenomenon CROPS up, and how often husbands are SADDLED with the costs of supporting their old NAGS. But HAY….I don’t want to look a gift horse in the mouth, I reckon I can recycle this and make it into a post of my own.
I really can’t tell you how much of a non-thing this piece is. It’s not even a clothes horse.
“Up to one in 15 break-ups among better-off couples involves a dispute over who keeps the mount, an analysis found.”
OOH. An ANALYSIS!!!
The astute amongst you (give yourselves a sugar lump) will have noticed that the firm of solicitors (who happen to be benefitting from a spot of free publicity here) had 300 divorce cases last year, 19 of which involved an argument of some description involving a horse (no doubt amongst a stable of other issues). That’s about one in 15. That isn’t a coincidence – that’s THE analysis. It would be churlish of me to point out there is just a tiny problem with an analysis supporting the proposition that there is an INCREASE in something where it doesn’t analyse change over at least two time points… Hardly thoroughbred research, but if its got four legs and goes neigh who am I to argue?
Let’s just assume that this extrapolates to the wider getting-divorced community (it very well might not). So WHAT? Are we surprised to find that 6% of people with money to burn on divorce lawyers have a pony? No. No folks, we really aren’t.
It isn’t even 19 cases where the argument is about ownership of the hoss. Some of them are about the costs of the hoss. Given that a hoss costs about 3 grand a year to run (thanks to the superb investigative journalism of the Daily Mail we have an actual figure) this is something that any couple who owned a horse would be obliged to disclose as an outgoing, along with the value of the horse. So really this just means 19 of the couples HAD A HORSE. That got mentioned, because it had to be. Even though in most cases where there is a horse the 3 grand a year it costs t keep is frankly a drop in the ocean compared to legal costs or overall assets or outgoings.
Appaz, husband’s often say our four legged friends are luxuries, whilst wives say they are necessities. Yawn. In case you hadn’t picked up that this is all about demanding wives and their fripperies, we are also given some stats showing that most horse riders are women.
At some point the solicitor with vast numbers of horse-ophile clients (who I am guessing represents primarily husbands, and if she didn’t before will from now on) ventures this sweeping generalisation about childless couples : ‘In those cases, horses become a substitute part of their wives’ lifestyles and are almost treated as surrogate children.’
Nosebags for life, ladies. Nosebags for life.
Anyway, back to the race….
The fact that the writers of this piece have to trawl back to 2008 (Wright v Wright), a decade ago, to find a case (purportedly) about a horse, really just goes to show how much this is a stretch. The Mail juxtapose the “man of integrity” Mr Wright against the financially irresponsible, workshy Mrs Wright (I paraphrase but only loosely). This, to be fair, is a pretty accurate summary of the conclusions of the Court of Appeal in the 2014 variation application, but that judgment says NOTHING about horses – although we can see from contemporaneous reports (apparently when permission to appeal was refused by the Court of Appeal the following year) that Mr Wright is a horse surgeon and there are some other horsey related background facts, which were hardly the central issue or cost in this dispute (if it were I’ll hazard a guess we’d have seen it in the judgment) :
Mrs Wright, a former riding instructor and legal secretary who lives with her younger daughter, 10, chose not to work when she and vet Ian Wright divorced in 2008 after 11 years of marriage.
Their £1.3?million seven-bedroom home was ordered to be sold and the proceeds split. Mrs Wright came away with a £450,000 mortgage-free house in Newmarket plus stabling for her horse and her daughters’ ponies…As part of the divorce order, Mrs Wright got £33,200 a year for her personal upkeep. (Evening Standard 23 Feb 15)
Be that as it may, it seems that we are supposed to take horse ownership as some sort of warning beacon or proxy for money grabbing wives. Otherwise, what is the ACTUAL POINT of this article? Apart from to whip me into a frothing, foot stamping MARE…
In the interests of balance I observe that The Mail don’t cite Gray v Work , where the horses get their own heading – however the paragraph beneath is a sentence long because the parties had agreed the ownership of the horses. But anyway, I’ve conducted AN ANALYSIS of that judgment and it seems horses aren’t really that important. So trot on.
Hat tip to @byron_barrister whose much more moderate tweets sent me galloping off to the Daily Mail angry barn.
I could write a long old blog post venting about the daily rigmarole of getting through court security, but it would be all heat and little light (the predominant heat source being my freshly bought reactor core temperature cup of tea which I am sometimes required to ritually scald either my finger or mouth on in order to satisfy security that I am not an evil genius dressed as a lawyer (but seemingly only on days beginning with a T).
But instead, I thought I would write about cameras in court. There are often signs at the entrance to court buildings saying that cameras are not permitted. Of course this is something of a farce, and more honoured in the breach, because practically everyone these days has a device of one sort or another which features a built in camera – and particularly for professionals, such devices are now an integral part of how we work. I reckon that the last time I was asked whether or not I had a camera in my bag was about 2 years ago – until then it was pretty routine (and both parties to this ridiculous ritual knew (and knew that the other knew) that any answer given was meaninglessly arbitrary depending on whether the you interpreted the question as including the camera the security guard already knew was built into your phone or not). Fortunately, somewhere along the line we seem to have given up this pointless caper, and it has been dropped – someone somewhere realised that unless court security were prepared to confiscate a phone from every person on entry to the building, it was a redundant exercise (of course now replaced by other innovatively arbitrary security checks).
The signs on the walls remain however : NO CAMERAS – or in fact in my local court NO MOBILES (which of course are allowed in court, and we are even allowed to use them – as diaries and email devices if not as phones or cameras). Because we still don’t want people taking pictures in court rooms or court buildings that might impede the doing of justice, for example through the taking or publication of photos that might intimidate or deter witnesses.
Although technology has moved on, and the nature of security searches has changed, the law itself has remained essentially the same since 1925. And 1925 was just a few years before the invention of the iphone. Or indeed any kind of vaguely portable camera.
So anyway, I took a picture at court the other day. On my iphone that nobody now bothers to ask much about. A picture of some choice graffitti on counsel’s row in court (above). It is quite a riddle to imagine just how bad a day counsel must have had to have taken the risk of crafting this particular illustrated text, and to imagine that coinciding with a judge being sufficiently inattentive to have failed to notice the desk being painstakingly, delicately tattooed in front of him or her. It will cheer me up every time I go in that court room, and will remind me that however grim my day is, it probably not as bad as the Banksy of the bar’s day was on the day this was doodled…
Actually I joke, but I was quite shocked – had I not seen it I would never have imagined that a member of the bar would deface court property. Perhaps I’m making assumptions – maybe it was a disgruntled litigant in person who had been invited generously to sit along side the pompous ones and who didn’t enjoy it all that much. Who knows? But I thought it was perhaps a sign of the times and rather resonant. I wanted to record it for posterity.
I’ve gone off piste a little.
The taking of a picture in a court building is actually not, in and of itself, an offence (at any rate that’s my view). But the taking of pictures and making of images generally in a court building IS heavily restricted – and if you get it wrong the sanction is a criminal one – although not a terribly hefty one : the £50 fine probably seemed more substantial in 1925, but now it’s less than a parking ticket (It is also potentially a contempt of court, which the judge could punish you for).
Anyhoo, I thought it would be useful to look at what our almost a hundred year old law actually says, because in many ways it is outdated by both technological advances and current practice. There are two examples of the regular taking of photographs in court buildings which have been bugging me in the context of the current law :
CCTV recording in court buildings
the taking of photos of children and their adoptive families and the judge at adoption celebration hearings
(a)take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or
(b)publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof;
and later it tells us that :
a photograph, portrait or sketch shall be deemed to be a photograph, portrait or sketch taken or made in court if it is taken or made in the court–room or in the building or in the precincts of the building in which the court is held, or if it is a photograph, portrait or sketch taken or made of the person while he is entering or leaving the court–room or any such building or precincts as aforesaid.
So. Let’s ignore portraits or sketches. We all know that court artists have to stare and run, before drawing their subjects in a cafe round the corner, which is why they always look so…um…sketchy. It’s photos that are interesting.
Now, I reckon a photograph includes a video, on the basis that a video or film is just a string of still photographs. But my reading is that what is prohibited is not the taking of any photo in a court. What is banned is taking snaps of PEOPLE, and more particularly of people who are involved in the court case – judges, witnesses, parties, jurors (though oddly not the lawyers).
But note this : although the bit about making a sketch or portrait bars only those sketches or portraits made “with a view to publication”, that limitation doesn’t (for some reason) apply to the making of photographs. So even photos of people involved in the case taken for private use seem to be covered.
One one interpretation of s41, depending on how you read the syntax, what is banned is ANY photos taken in court that is prohibited, but when it comes to sketches or drawings the ban extends only to those of people involved in the case AND where the picture is intended for publication – but that just doesn’t make any sense, and the clear thrust of the whole section is to stop people being intimidated by images of them being taken or made. If I’m wrong I will have to pay my £50, eat my wig and repent. But I will take some consolation from the knowledge that if I’m right about the rest of what I say here and below, I won’t be the only one munching horsehair. For example, the photographing of documents and drafts at court using a scanner app on an iphone or ipad is now relatively commonplace in the absence of access to photocopying facilities. So if I’ve made a boo boo it won’t just be me stumping up a Bullseye…
Sound recordings are treated similarly to photos – but not quite the same. Section 9 of the Contempt of Court Act 1981 prohibits the making of sound recordings in court (with limited exceptions such as to allow court staff to record a hearing to draw a transcript from). But section 41 doesn’t have an equivalent built in exception that allows court staff to take photographs.
Section 32 Crime and Courts Act 2013 allows the Lord Chancellor to make exceptions to section 41 CJA and section 9 CCA, thereby permitting filming and taking of photos. This should be the answer! In fact, only two orders have been made setting out exceptions : in connection with the Court of Appeal and sentencing remarks in the Crown Court. As far as I can tell no order has been made permitting the taking of photographs of children (who are parties and in some cases witnesses) at adoption celebrations held in a court room.
Subsection (3) of section 32 CCA does provide a possible route out :
In the case of any particular proceedings of a court or tribunal, the court or tribunal may in the interests of justice or in order that a person is not unduly prejudiced—
(a)direct that a provision disapplied in relation to the proceedings by an order under subsection (1) is, despite the order, to apply in relation to the proceedings, or
(b)direct that a provision disapplied in relation to the proceedings by an order under subsection (1) is, despite the order, disapplied in relation to the proceedings only if conditions specified in the direction are met.
Some years ago we were given permission by HMCTS to make a film in a court building (see here) and although the local judiciary approved the project, on the face of it neither limb of section 32 Crime and Courts Act 2013 applied as no order had been made and we weren’t dealing with “particular proceedings”” (and actually I’m not sure it was in force when we filmed). We operated, as I’m sure did everyone else, on the basis that we could take photographs (including videos) in the court building but we couldn’t take photographs / videos of litigants, witnesses etc. For this reason we filmed on a Saturday when none were around. Films are made from time to time in court buildings and photos taken – with all appropriate permission. Whoever authorises those shoots must be interpreting s41 in the same way that I do, or there is a widespread flouting of the law by the judiciary and court service. Photos are ok IF they aren’t of people involved.
Adoption photos are clearly not made “for publication”, but because they are photos and not sketches the private nature of them doesn’t help. Section 32 could potentially be applied to specific adoption proceedings, but as far as I am aware no direction is ever formally made or recorded. I *think* it’s just routinely fudged. I may be wrong, there may be some standard direction under this provision that is made administratively in adoption cases, or there may be some other piece of legislation I’ve not rooted out that creates an exception to s41 – but I’m pretty sure it’s just an anomaly and represents an entirely unobjectionable practice that s41 never foresaw. s41 makes no provision for judicial permission.
The same issue arises with regard to CCTV cameras in court buildings, which continuously record lawyers, parties, witnesses and jurors as they go about their business in the court building. Again, I can find no provision which creates an exception to the bar in section 41 CJA, and assuming that I am right in interpreting video recording as falling within the definition of “photograph” (as it’s basically a sequence of photographs), section 41 appears to prohibit security CCTV recordings even though they are not “for publication”.
There is nothing problematic about either of these very common practices, which occur daily in court buildings up and down the country. Children who are adopted should have a photographic record of ther important day. And our security is no doubt enhanced by CCTV monitoring and recording. There is no good reason for either to be prohibited. I just can’t at the moment work out how they are compatible with section 41.
Anyone? There must be an answer. We can’t be prosecuting people for taking photos in court if court staff are routinely breaking the same law… I can’t help feeling there is some obscure Statutory Instrument or lost section of some Act somewhere that answers this question, but if there is nobody has ever been able to point me to it…If some clever clogs knows, do please put me out of my misery and pass it on.
Please don’t take this post as legal advice by the way, and go and fill your instagram with pictures of court buildings. I may be a lawyer but lawyers are sometimes wrong and I am riffing here not advising. The safest course of action is not to take any photos in court because there just isn’t any need to do so. Don’t do as I say or as I do. No photo : no problem.
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