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.
No. I won't be sending you a stupid GDPR email even though you have not heard from me for over a decade and are pretty sure you never bought anything from me in the first place.
No. I won't be sending you several reminders to check if you're really sure about the withdrawal of consent I've just pointlessly procured from you.
No. I won't be doing any of that (You're welcome).
I have (finally) added a damned cookie thing on the blog, but I hope that's a minor irritation amidst a sea of GDPR lemmingitis. I'm not completely convinced it is really necessary, but hey. Click it and it will go away for ever, I promise.
In fact I've been told off this week for NOT sending out my Monday morning emails. So Rebecca, this is your fault.
In other 'what is the world coming to' news, HMCTS security continues to delight and entertain us with it's popular confiscation roulette. Confiscation of ipad stands is last week's special - this week's was the confiscation of an advocate's high heels (and somewhat more unsually a septagenarian's cake slice). Back in the West Country however, my opponent trotted back from the coffee run in high heels with a massive borrowed metal roasting tin full of half a dozen lattes, unhindered by security staff. Neither the heels, nor the tin were confiscated as potential weapons, and nor was she required to sip or prod the froth on any of those coffees. For lawyers, who value consistency and predictability above much else, this is a cruel and unusual punishment indeed. We wince when our shoes are confiscated. We wince when they are not. These small daily trials of pointless arbitrariness and caprice have us lovers of logic and rules unhelpfully tense and ruffled before we've even crossed the threshold. The CEO of HMCTS is still gamely promising ID cards for us.
It doesn't get any better once you're in. The MoJ has put together some excellent public information materials for the unsuspecting litigant in person (pics thanks to @itsdavegreen). Of course, when I say excellent I mean utterly daft. And just plain wrong. Who knew that barristers give evidence on behalf of their clients? And who recognises the depiction of a courtroom populated with barristers AND solicitors and entirely devoid of mckenzie friends or litigants in person... Admittedly everyone is slightly green looking, but I don't think that is meant to be a visual pun...
Other obvious flaws in the poster (apart from the fact it clearly doesn't describe the shape of many family court hearings where there are more than two parties and a bench) are :
the fact that anyone is physically in a courtroom at all - wot no video links?
litigants in person will be unable to identify from the poster which of the lawyers are barefoot
although the posters probably meant to show equality of arms in action, there is a notable absence of any limbs at all. An armless omission perhaps...
I'm hoping that the fact there seems to be single advocate for both parties is not portentous...
I wonder how many green lawyers at how many hearings the money spent on those posters could have paid for?
Anyway, in acknowledgment of the fact that this is a somewhat lacklustre blog post, do feel free to click unsubscribe if on its arrival in your bank holiday inbox you feel the need to cut me out of your life... *sniffs*
And if you have just arrived her under your own steam and think 'Meh' - well, you know... Maybe don't subscribe to my Monday mailshot.
Last week District Judge Read (no relation) published a shocking judgment. I have been thinking about it a lot, waiting for enough quiet time to write down my thoughts about it. I am very bothered by it.
In the meantime a number of others have written their own posts on the judgment, and I link to some of those at the end of this post. The case has also, belatedly, made the BBC news.
District Judge Read was tasked with conducting a fact finding hearing in relation to allegations of domestic abuse including rape, made by a mother against a father. He had to make findings one way or another as a basis from which safe decisions about contact could be made. Neither parent was represented (they were not eligible for legal aid), and so the judge undertook questioning himself, working from pre-prepared questions submitted by the parties. Or he would have done, but for the fact that the mother was too stressed out to prepare any questions for the father, and left the witness box half way through questioning and would not be persuaded to return.
The upshot was that the judge felt unable to make all of the findings as some of the evidence had not been tested. He said this :
I am in little doubt that had one or both of these parents been represented, the fact finding process and probably the outcome would have been very different...
the lack of legal representation gravely affected the fairness and efficiency of the process of questioning both parents. So far as my role in this was concerned, although I did my best to abide by the guidance in PD12J at paragraph 28, I was hesitant about participating in this way, being reluctant to be seen to step into the arena myself. Ours is an adversarial (i.e., led by opposing parties) not an inquisitorial or judge-led legal system: judges have neither the training, tradition nor natural inclination to subject witnesses to detailed questioning...
No English or Welsh criminal court would proceed as this court had to, in the absence of representation for parties dealing with such grave allegations...
I therefore think there is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented.
He also said that there was no bundle, police disclosure was a mess and the mother had been unable to prepare questions without the help of a lawyer.
The judge did make some findings of domestic abuse, and based on those he said that :
There is always the fear in the mind of the Court that the questioning of an alleged victim about their abuse merely prolongs that abuse by other means. Given my findings in this case, limited though they are to only the first few allegations, I think that fear is borne out here.
Basically, the judge is saying that the cross examination (even through the judge) was abusive.
For me the most striking passage is this one :
I therefore think there is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented. [underlining my emphasis]
I have struggled to read this in any other way than as an acknowledgment that the judge believed (at least some of) the further (more serious) allegations, but didn't feel that he could legally 'find' those allegations proved because of the limitations of the process.
I am surprised that the judge did not give both parents permission to appeal.
When I read this judgment I immediately thought of a case last year called A (A Minor : Fact Finding; Unrepresented Party)  EWHC 1195 (Fam), in which Mr Justice Hayden (a more senior judge than Read) was faced with a similar situation : a father accused of domestic abuse who appeared in person, but there he permitted the father to ask questions directly (the judgment doesn't show any consideration of questions being put by the judge himself so we don't know if that was considered and rejected or if it was just not raised). At the end of the trial Hayden said :
It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.
The predicament in District Judge Read's case was even more complicated, because the issue was not just about the father asking her questions (which Read attempted to solve by asking questions himself), but the mother's lack of legal support exacerbated matters and prevented her from running a positive case and left her struggling to deal with the pressures of cross examination.
I think it was absolutely right, and fearless of both judges to publish their judgments in the way they have. But whilst it is all very well for a High Court Judge like Hayden to stamp his feet and say "I won't do it!", that is much harder for a District Judge. Refusing to hear the case was not an option, and I can't think of much else that District Judge Read could have done to magically make this process more satisfactory - but I am deeply deeply troubled by the fact that the judge conducted the trial, made findings (including as a matter of law that some of the mother's allegations didn't happen because they weren't proved) and then published a judgment telling the world that those conclusions were probably wrong.
How is that justice to either party? And what is the point of a fact finding hearing if the court itself has to acknowledge that it is probably not an accurate reflection of the facts and the risks? How is that keeping children safe?
There is no news of a replacement for the lost Bill that fell when the General Election was called last year, which would have at least dealt with the direct cross examination point. Even if those provisions do re-emerge in a new Bill, they will not cure the difficulty faced by DJ Read - that the mother was debilitated by a lack of her own legal representation - because she did not meet the eligibility criteria for legal aid (presumably because of enhanced benefit income or the amount of capital in her property).
There has to be a better way than this. Even ignoring legal fees, vast amounts of public money are spent on fact finding hearings like this in terms of court time and judicial salaries, and on the work by other agencies that follows and is based upon the findings. It is money down the drain if the findings are as unreliable as this judgment candidly accepts they are.
[update 2 mins later : oh rats I forgot to add links to other posts...
Today seems like a good day to give you a little preview of my forthcoming book, written with Julie Doughty and Paul Magrath - the rather lovely Foreword written by Sir Andrew McFarlane, soon to be President of the Family Division (congratulations!). Here is what he has to say. Further details on the book can be found here.
Foreword to Transparency in the Family Courts: Publicity and Privacy in Practice
Just 25 years ago, when the Children Act 1989 was coming into force, I doubt that many, if any, family lawyers would have acknowledged the relevance of the term ‘transparency’ to the work of the family courts. Events have moved swiftly and there can now be no family lawyer or judge who is unaware of the justified impetus towards greater transparency in family cases or of the importance of the need for a clear understanding of just where the line is drawn between what can or cannot be disclosed to those outside the court about what has gone on within it.
Affording due transparency to family proceedings has turned out to be, as Sherlock Holmes might say, ‘a two-pipe problem’ which has, at its core, two entirely conflicting policy drivers: the need for the public to know what goes on in their name in the Family Court and, conversely, the need to protect the privacy of individuals at the centre of any particular case. Whilst it may not have delivered a solution, the title of the 2006 Government consultation paper issued by Lord Falconer, who was then Lord Chancellor, was spot on target – ‘Confidence and Confidentiality’ – in highlighting the conflicting needs of public confidence and private confidentiality.
Over the years, the understanding of what transparency may require has developed. Initially, many of us will have held an unduly simplistic view that the issue was to be resolved in a binary manner by either letting the press and the public in to the Family Court, or keeping them out. Thanks to the ground-breaking and inspired work of The Transparency Project, and now this book, transparency is to be seen as a much more subtle, sophisticated and flexible concept. There is much that can be achieved to ‘open up’ the Family Court in terms of describing and explaining its workings and decisions which falls short of allowing unrestricted access to all and sundry.
The publication of this excellent book is extremely welcome. It is a work written by those who have been on the front-foot on the issue of transparency throughout and who understand the subtleties both of the law and of the policy debate that lies behind it. There is real value in having a detailed and neutral account of the route that has been travelled thus far set out, as here, with clarity and in one place. Above all, this is a practically based text written by practitioners for practitioners, giving a thorough account of the relevant statutory law, case law and procedure. With the publication of this work, there will be no need to look elsewhere for an account of the law relating to transparency in family proceedings and this will rapidly become the ‘go-to’ book on the subject, not just because it is the only one but because of the comprehensive, clear and insightful nature of its coverage.
Inevitably, given the topic, this First Edition of ‘Transparency in the Family Courts’ can only tell the story so far. As the section on ‘Looking Ahead’ records, the book goes to press at a time when thought is being given to what, if any, further steps towards greater transparency may be taken. Given the impossibility of totally squaring the ‘Confidence and Confidentiality’ circle, any development will involve an element of compromise and sacrifice of one or both of these competing principles. Whatever the future may hold, it will, however, be a ‘must’ for all those involved in charting and implementing its course to have read and understood the contents of this important book.
The Rt. Hon. Sir Andrew McFarlane
Lord Justice of Appeal
Maundy Thursday 2018
I had to do the 'it's not my job to believe you' talk to a client recently. I thought it might be a useful topic to discuss on the blog, because it is so often a source of worry and confusion for people unfamiliar with taking advice from a barrister.
Q : 'You do believe me don't you?'
A : 'It's not my job to believe you'.
I get a lot of enquiries from potential clients who want to instruct me because something they have seen makes them think I will see their case as they do, that I will have sympathy for it and understand where they are coming from. That may be so - a good lawyer tries to see their case from the client's perspective and to understand their actions and objectives in order to do their best for that client. And of course will protect that client's interests. But a really good lawyer knows that protecting the clients interests requires them to also try and see the case from other angles too. And to do that properly you need to steer clear of believing your client.
If I say I'm not here to be your friend it may make me sound like a cold fish. But it really is critical that a lawyer maintains a certain professional distance. Not only for her own sake (the job would be emotionally too hard if you got too close to every case), but for the sake of the client.
Any client wants a lawyer who will fight hard for them. And understandably they often think that requires the lawyer to believe their story. It really doesn't. Believing doesn't make weak evidence stronger. And believing can make it harder to do that rounded job I've begun to describe above.
A lawyer who believes 'butters no parsnips' (as they say) - what you need is a jury or a judge who believe you. The lawyer's job is to get the jury or judge to believe you (if such a thing is possible - lawyers are not magicians).
Think of your case like one of those sets for a cowboy film. From the front the Saloon looks convincing and sturdy. From the rear it's just a facade and it's easy to see that a good nudge will topple it right over leaving nothing but dust. Cue tumbleweeds and scuttling lizards...
A client will typically tell their lawyer all about the front of the building, about how fine and grand it is. They won't mention it's made of plywood and can't withstand a gust of wind. Usually that's not because they are intentionally misleading - they just haven't noticed. Sometimes a client will emphasise certain points and finesse away others because the they think they need to persuade the lawyer - but to get the most out of a lawyer you need to equip them with information so they can advise you and persuade someone else. You don't need to persuade your lawyer. If you don't tell your lawyer the less good bits of your case you are giving them a pistol but blindfolding them before they've worked out where the sheriff's men are hiding.
Now a lawyer would listen to your tale of the mighty fine building, take your dollars and say 'Yessir that sure is a mighty fine saloon' would truly be a 'cowboy' in the pejorative sense. A lawyer should say 'Would you mind if I take a look inside your saloon?' and when they step across the threshold into burning hot desert rather than the expected dark room full of liquor bottles, they should politely point this out to the client and advise that there is a problem.
You don't want the sort of lawyer who accepts your blind spots and who doesn't even peek inside the swing doors.
Heck, I wish I hadn't started this darned metaphor now...
As a rule of thumb your lawyer should be challenging you and asking irksome, irritating, mildly offensive questions. Because if they don't ask them the other side's lawyer will sure as hell ask 'em at trial.
There are two kinds of lawyers who don't ask questions : the lazy kind who can't be bothered to find out, and the kind who are easily drawn in and believe too easily. Actually there is a third - the lawyer who has too much on to have time to probe.
Let's begin at the beginning.
Sometimes when I'm giving some tough advice a client will question whether I'm on their side or ask 'You are my lawyer, right?' as if I perhaps they have accidentally walked into the wrong conference room. That's a sign I haven't explained my role well enough : When I'm giving you advice it's private - privileged. What goes on in conference stays in conference (except that one time when a client threatened to shoot someone but that's another story). What I say to you in conference is not what I will say to the judge. Lawyers can't mislead the court - if you tell me the building is made of plywood I can't then say it's made of brick. But if your case is the house is in fact made of brick and it's just an optical illusion, or that it is in fact made of super strong plywood that is as good as brick - that is the case I will argue. Even if in the privacy of our conference room I have told you that this is a position that is frankly never gonna fly. I operate on the basis that if your case is pants you would prefer to know that before i go in and crash and burn on your behalf. I advise. You decide.
We all have cases and clients who are more or less persuasive, engaging, sympathetic... Some clients are hard to like and even harder to believe. Some are completely convincing and apparently lovely. It is easy to go with the flow - sometimes very hard to resist the pull of the likeable client or the case where it is 'obvious' whodunnit - but in the course of a career most lawyers will encounter persuasive clients who were absolutely shocking in the witness box and caught out in a lie, of unsympathetic clients who turned out to be innocent, of unwinnable cases surprisingly won, of strong cases destroyed at trial and of cases where the science points to an explanation that is very hard to accept on a human level. The truth is lawyers have no magical ability to divine the judge, any more than judges do. All that lawyers can do is assess the evidence and attempt to predict the outcome. All that judges can do is get as close to truth as possible, knowing sometimes they will get it wrong. There is always an element of unpredictability. So lawyers learn to put their hunches and emerging beliefs to one side, because they are a distraction.
Lawyers should always be acutely aware that however much their client tells them, and however much the client thinks they are providing all relevant information - they don't know what the other side is telling their lawyer. Believing your client instead of challenging, exploring, warning your client means you aren't asking 'What would I do if I was acting for the other side?', 'Where are the weak spots?', 'Why haven't they mentioned this particular thing?'.
A witness statement drawn by a lawyer who has not walked around the back of the building, will describe the facade and will fail to shore up the building. A trial lawyer who has not walked around the back of the building will not spot these weaknesses. I have seen advocates sucked into their client's world view miss critical points. I have been instructed by solicitors whose briefs are all about how lovely the client is and which fail to mention the gaping hole in the evidence, leaving me to explain to an entirely unsuspecting client on first meeting that there is a teensy bit of a problem. It happens to all of us - some cases catch you unawares and you find you are too close. Some clients leave you cold and it is difficult to muster enthusiasm or find a creative way to press the case. But we do the same for all those clients, because what we do believe is that the system itself is the best way at getting close to the truth and to fairness (imperfect though it is). Because we know that until you hear both sides of the argument, and hear both sides being tested and challenged, it is difficult to form an accurate view of where the truth lies.
And so I tell my clients - If I believe you I can't be objective. If I can't be objective I can't give you sound advice - I can't help you make the call to change course before it's too late, and I can't argue your case to it's best if we do get to trial. Of course my advice is not always negative - but I can't confidently tell you your case is likely to be a winner unless I've given it a good old shake first.
Instruct a lawyer who believes you if you like - pay someone to tell you what you want to hear - but far better to have advice from someone who will tell it like it is before you get to the gunfight at the (not) OK Corral and find there are no bullets in your gun.
...I REALLY wish I hadn't started this metaphor...It was the wobbly buildings which attracted me to it not the guns and combat. In case I have inadvertently made lawyers sound like mercenary soldiers enthusiastically invested in some form of warfare, I should point out that part of our function is to try and steer client's away from the 'combat' of trial if that is in their interests. If we have to fight it is our job to do so fearlessly, but often our advice is 'let's find another way to sort this out. Here is what I suggest...'.
Feature pic : tombstone by Johnny Silvercloud on Flickr (creative commons - thanks!)
I am in a podcast on the Free Movement blog. It was actually quite fun to make - and even my husband (who thinks up any number of creative excuses not to read or listen to my stuff) says it was interesting.
One of the reasons Pink Tape has been somewhat neglected of late is that, along with Transparency Project colleagues Julie and Paul, I have been writing a book about Transparency for Bloomsbury (The publish Harry Potter!! I know, right?), which is about to be published :
Below you can see me talking about transparency (with hand gestures but no wand), in response to questions from fellow muggle Paul Magrath.
Transparency in the Family Court with Lucy Reed and Paul Magrath - YouTube
If you are still interested in buying the book after watching me pontificate, you can get a 15% discount using this code : BPTFC15. See how much I love you all?
If you are not yet persuaded, watch out for the stonkingly lovely foreword from Lord Justice McFarlane which I think will probably be posted on the Bloomsbury site in the near future (or maybe here if I'm allowed).
I had an unsolicited email the other week from something called Bark.com. It came to the email address of a website I run. That website doesn't offer legal services. The email was headed 'Family Lawyer Quote' and said that Michelle was looking for legal services in Bristol and it gave the categories 'child custody' and 'domestic violence'. It gave me a single line of further information about Michelle, which I won't publish here but which was not at all informative. It told me that
It’s completely free for you to get in touch with Michelle. We do usually charge a small fee to connect businesses with our clients, but as I’ve approached you there is absolutely nothing to pay at all - we’re just keen to find someone for this client (and for you to try us out).
Hmmmm. Referral fee AND spam alarm bells going off here.
I've realised subsequently that Bark have been spamming me for a little while to another website that I run (that also doesn't provide legal services), because when I searched for 'bark.com' in my inboxes I realised this was the very same company who seem to think that The Transparency Project offers a vehicle window tinting service (The Transparency Project is an educational charity concerned with family law not cars). This suggests that bark.com are spamming websites based on some sort of crude keyword search of the domain or site.
Anyway, having received my 'family lawyer quote' I thought I'd have a look at Bark.com. They seem to be a generic lead generation service, and not specific to legal services (which I'd have realised sooner if I had joined the dots between the window tinting and legal spams). I thought I'd see what happened if I asked bark.com to find me a family lawyer in Bristol, so I input my (private personal) details and submitted my 'bark'. Users have to select a category for their enquiry - categories are typically inappropriate american terminology of 'custody' and 'visitation'. There wasn't really an opportunity to input enough detail to make my enquiry meaningful, but in any event I wanted to see what happened if I just asked for a family lawyer in Bristol.
And whaddya know, but within hours bark.com had spammed my chambers account with this :
Our client Lucy has asked us to find a Family Lawyer in Bristol. We haven’t been able to find anyone yet, so I was wondering if you could help?
If you click the following link we’ll give you their contact details, including phone number, so you can speak to Lucy directly. You can see more about the specific details of their request below.
There's no charge for the introduction to Lucy, and there’s no obligation to continue using our service in future.
I've never registered with bark.com as a lawyer or expressed an interest in it. For all bark.com knows I am a thoroughly unscrupulous incompetent lawyer, although as far as I can tell it makes no promises to find decent lawyers, just any old lawyer who will answer your 'bark'. It's pretty clear to me that bark.com undertakes no quality assurance at all, and more to the point has no established paid up pool of lawyers to draw upon when someone asks for help. And there is no way I would pay a fee to be listed on bark.com as a professional. And nor, I suspect, would any other lawyer with half a business brain (although interestingly this email is worded differently to the one about Michelle and doesn't mention fees at all).
Incidentally, bark.com were already sending me unsolicited emails to my personal email address even before I'd finished creating an account and consented to receiving emails (I paused to go off and make dinner or something), which doesn't say much for their data protection safeguards.
After a week bark emailed me pitifully to say :
We’ve been searching for a suitable Family Lawyer to help you for seven days now. But, unfortunately, none of the professionals we’ve contacted have been able to provide an estimate.
Since putting out my bark I've not had a single response from a local lawyer. Which is encouraging, because any lawyer who is desperate enough to respond to this sort of unsolicited spam is not the sort of lawyer you want to instruct. They asked me for more details, but I didn't think it was fair to waste any lawyer's time with a made up enquiry.
Today Bark emailed me to say :
Your Family Lawyers Bark has now been closed - we’re sorry that we haven’t been able to find you someone for the job.
This can happen occasionally when there are few pros available and when they don’t feel they have enough information to give you an estimate.
We’d love you to try us again and place another Bark, see some services below that we think we could help with:
Having failed to help me find a lawyer, Bark is currently encouraging me by email to use its service to find a house cleaner and decorator. Entertainingly, it is particularly keen for me to search its database for pet cremation services. Since my Bark is apparently an Ex Fido.
I hope that Michelle has found a lawyer. Although Michelle ticked the domestic violence box I doubt Bark.com will have told her that she may be eligible for legal aid to pay for her legal advice or signposted her to legal aid lawyers.
Bark may be an excellent source of party chefs, bouncy castles and beauty treatments but it is not, I would suggest, the optimal way of finding a family lawyer - frankly google would be better. You can also find a lawyer via the Law Society website, the Resolution website, the Bar Council's Direct Access Portal (although I have to say I don't think this is actually fit for purpose either) or Juriosity website (new and pretty untested), and you can find a legal aid lawyer through the gov.uk site. With any lawyer you are thinking of instructing it's a good idea to see if you can find reviews or feedback, and look at their firm or chambers website and CV - and talk to them - before deciding.
[updated with screengrabs - forgot to put them in before!]
Minnie by Darren Bertram on Flickr (creative commons licence - thanks)
As Suesspicious Minds has recently pointed out there is a consultation about NEW, IMPROVED template orders. It's only open until 16 April. So speak now or forever hold your peace, people. The consultation and 'suite' of draft orders is here. Go and take a look.
The first (surmountable) irritation is the use of not only red ink, but also GREEN ink to highlight fields for completion by the draftsperson. The use of red to highlight these will mean of course that we will forever be accidentally typing green, thereby getting all our orders sent straight to the 'special' folder in the court inbox that never gets read. Obviously the answer is to save an amended copy on your hard drive where you have used Ctrl+A and changed all the text colour to black....but I flag this because it feels symptomatic of something that has been put together by someone very diligent but who doesn't have to draft these wretched things day in and day out. It is focussed on the end product not the process of getting to the end product.
Since Andrew at Suesspicious Minds has looked at the CMO for public law cases (and I agree with everything he says there, much of which applies to the orders generally), I thought I would look at the private law children general directions order first (order 7.2). Here goes. I'm not going to go through everything because that would be inhumane, but I'll just draw out some things that jumped out at me as I scrolled the 20 pages of multi-coloured delight.
Fortunately, we are a long way from the early days of templates when some judges insisted that all paragraph numbering must be untampered with and deleted paragraphs should be struck through rather than removed in order to preserve that numbering - so finished orders will not in most cases be anything like 20 pages long, as only relevant paragraphs will be included. But its how you get from 20 encyclopaedic pages to an individualised, finalised order that is the issue.
First up, there are now even more 'who's who' type fields to be completed on the first page - so much so that the penal notice has slipped on to page 2 of the order, which it seems to me is not a fantastic idea from an enforcement point of view.
In addition to the existing stuff in the old CAP 2 form, there is now a whole load of stuff about jurisdiction and participation directions and an expanded section about domestic abuse (plus much, much more further down some of which I've NEVER had to include in an order). Now, in many of these cases there will be at least one litigant in person expected to find and absorb the important decisions, jobs to do and deadlines in the order. If they aren't given clear instructions by page 2 and instead are confronted with some guff about 'Article 20 of Council Regulation (EC) No 2201/2013 (Brussels II Revised) and/or under Article 11 of the Hague Convention on the Protection of Children 1996' or something about how 'the court has decided not to make participation directions because...' they will go off an make a cup of tea and never get to page six where the important deadline is hidden. I promise you they will turn up at the next hearing having failed to do something important, and they will say - with some force - that they didn't know what was expected. Litigants in person (litigants full stop) will nod along and if asked five minutes after the hearing what was just said will look blankly back at you. Clear orders are really critical for people who don't have lawyers to write and remind them of deadlines.
Stuff about jurisdiction, and detailed special case management directions really ought in my view to be either separately recorded in a schedule or ancillary order or left to the end of the document. What litigants in person really need is a document that says :
You must follow the instructions in this order. If you don't the consequences may be... (I'd put in a warning notice / penal notice AND I'd say the hearing may be ineffective and there may be costs consequences)
The next hearing will be on DATE at TIME at LOCATION. You must arrive at court by TIME.
The hearing will be to decide X and will last X hours / days. The court will / won't / may hear evidence.
Before the next hearing you JANE DOE must do the following :
Send a statement to the court and the other party Mr BLOGS by 4pm on DATE
Send a letter from your GP to the court and the other party Mr BLOGS by 4pm on DATE
Before the next hearing you JOHN BLOGS must do the following :
Send a statement to the court and the other party Ms DOE by 4pm on DATE
Prepare written questions for the court to ask JANE DOE on your behalf at the next hearing
Before the next hearing CAFCASS must prepare a report about where the children will live and they must send it to Mr BLOGS and Ms DOE by 4pm on DATE.
If for any reason you can't do what you are required to do in this order or can't attend a hearing you must write to the court and the other parties explaining why, when you will be able to do what is required and providing supporting evidence, for example medical evidence.
And that's IT. Preferably all on one page. Just as the court demands a position statement or a statement of evidence in not more than 2 sides of A4 we should aim to do the same for the parties. A case management order's main function is as a set of instructions to the parties. Recording the parties' concessions or positions is also important - but legal technicalities should not be allowed to distract from the functionality for the parties.
As Suesspicious Minds says there are some really useful chunks of standard wording in the draft orders that will be helpful in cases that involve that particular issue. But those familiar with the process of drawing up an order will be grimacing at a 20 page template, and groaning at the idea that this will be time saving. Especially when the bit you need in EVERY order - a child arrangements order - is at page 8 of 20 and paragraph number 41! WHY? Why is it at paragraph 41? After you've waded through intervenors, guardians, s34 recovery orders, permission to apply, DWP orders.... DELETE scroll DELETE scroll DELETE scroll SWEAR UNDELETE....
Locating the right paragraphs to lift and paste into a fresh document will be as much of a headache as locating the redundant ones to delete them. If the previous templates are anything to go by the moment you try and delete a paragraph or add a paragraph something bonkers happens to the numbering and formatting and half the text shoots off the page as a result of some ginormous unwelcome indent. And every paragraph is numbered 12.
What would be useful is an unnumbered template document without fancy formatting, numbering or multi-coloured 'helpful' text and brackets. With a clickable index on the front page so one can navigate to the paragraph about jurisdiction in a jiffy to grab it and run.
That and a bare bones template order with the top and tail and essential paragraphs only. Names, warnings and penal notices, next hearing etc.
(there, see - I can use coloured text to emphasise something too. Annoying isn't it?)
Back to the order... (I got distracted). Of interest in terms of wording is this :
[Name] must make sure that the child[ren] spend[s] time or otherwise [has] / [have] contact with [name].
Notwithstanding authorities reminding us how useless the favourite wording of 'make available' is, I observe that 'make available' is a hardy little blighter that has so far refused to die a death. We shall see...
There are now some standard provisions for handover, which will be fine and dandy when all handovers are uniform, but possibly a bit irksome when arrangements are more variable / complex. I also don't think I like this paragraph much:
communication between the parties about contact and the presence of parties will not of themselves amount to a breach of the injunction order dated [date] made in case number [case no.] and a copy of this order shall be sent by the court to [Area] Police to note;
Personally, I'm of the view that the place to spell out what is and is not injuncted is in the injunction itself. I don't think it is helpful to spread exceptions across two documents and I can foresee arguments about whether or not a provision like this in a CA order can as a matter of law limit the scope of an injunction that on its face prohibits communication. Messy.
Also, there is now a right to apply (good). But its at page 10 so will likely be forgotten. It should be on page 1 with the penal notices :
Right to apply
If you were not told about the hearing you may ask the court to reconsider this order. You must do that within seven days of receiving this order by writing to the court and asking the court to reconsider. You must tell the person who applied for the order that you are asking the court to reconsider the order.
Next hearing provisions are on page 18! SCROLL DELETE SCROLL DELETE SCROLL SCROLL SCROLL *goes for cup of tea and never comes back*
Oh alright, I've come back. I've realised there is a new draft reporting restriction order too, so I thought I'd take a look at that, and compare it to the existing template attached to the CAFCASS Practice Note.
There are a couple of notable changes :
The new order requires the names and dates of birth of the subject children on the front page. I'm not sure if this is intentional - typically the names of the children aren't on the RRO itself but in a confidential annex. I suppose the reality is however that any person on whom the order is served will know or will need to know the name of the children to ensure that they comply with the order, so it might as well be on the face of the order as anywhere else.
There are some new guidance notes [in green] about adaptations that may be made if, for example, someone acts via a litigation friend. Although the heading, formatting and sequencing are jigged around a bit the substance is largely the same. One update however is in the categories of publication that are prohibited : as well as the familiar 'newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite program service', the new phrase 'social networking website' now makes an appearance. For my part I'm not sure that quite captures what is intended. Social networking websites would be captured by the somewhat tautologous 'internet website' anyway - I think this is intended to capture social networking by application rather than when viewed on a web browser. Again, I think this would already be covered by 'public computer network' although this would perhaps not be immediately understood by many members of the public. I agree it is wise to include 'social networking' in the list for emphasis even if it is technically covered elsewhere, but think a more all encompassing and understandable term would be 'social networking platform'.
Finally, the current order prohibits as standard not only publication of a child's address but also 'any residential home or hospital, or other establishment in which the [Defendant/Child] is residing or being treated (‘an establishment’)' [my emphasis]. The new one just includes residential addresses. I'm not sure why this should change, particularly bearing in mind some hospital cases last year.
I find that I spend an increasing amount of time drafting case management orders and child arrangements orders. They take up time, mental energy and drain goodwill. We do not get paid extra for them. When litigants in person are involved drafting is more likely to become drawn out and contentious. In cases involving lawyers the time it takes to work through a template has almost killed the previous practice of drafting at court - it just takes too long, longer than it used to take us to draft by hand from scratch - so we end up spending hours pinging multiple iterations to one another on email, and there is always one person who can't work / can't see the change tracking and somehow you always end up with multiple conflicted versions as people update the wrong iteration...
The intention of these templates is good. And the wording itself is generally much better and more comprehensive than earlier templates. They have potential to be help us to help the court, but I'm not sure these are going to reach that potential (and I'm not sure how much they are going to help judges when they are left to draft their own orders either).
I've made my plea in pink above. If I were feeling more ambitious I'd like to make a plea for them to be broken down or reordered so that the selection process is more workable and streamlined. I'd like to make a plea for someone to build in autocompleting fields so that once you have told the document that the APPLICANT Is Mrs Jones it will fill it in each time there is a box saying APPLICANT. Better still, I'd like to make a plea for someone to build a macro so that you can punch in the details of the parties and then select by tick box that you want an order with paragraph 1 CAO live with, paragraph 2 Fact find, paragraph 3 Next Hearing and bingo it includes those paras and no others. Maybe I should do it myself and sell it for vast amounts of money before retiring to the Bahamas, but in truth I won't have time because I will be busy doing the SCROLL DELETE SELECT ALL TO BLACK shuffle....
OH. And FINALLY - please can we ditch 'FILE AND SERVE'? At least in private law children orders if not elsewhere? Send to the court and CAFCASS and send to the other parties works just fine and has a chance of being correctly understood.
Feature pic : Vincent Albanese on Flickr (Creative Commons - thanks)
sketch for Xmas issue of Lamp & Owl...caption read '3pm on Christmas Day' ...possibly semi-autobiographical...
So this last week or so has been jam packed with stuff...
Last Tuesday, after a spot of actual paid work, I travelled by train to Birmingham, in fabulous sunshine and through fields full of skipping lambs, to listen to Louise Tickle delivering a powerful (by which I mean full on punch in the face zap! kapow!) speech as her take on the Bridget Lindley Memorial Lecture... Whilst there I delivered high speed gin powered tweet summaries of what was being said (still trying to fathom how a hotel can charge £12.10 for a single gin) ...blushed a little at the President of the Family Division saying he reads Pink Tape and Suesspicious Minds almost daily (along with the Transparency Project Blog) and then rushed back home on a late train just before turning into a pumpkin...
So, welcome back to Pink Tape Sir James. Please excuse the fripperies and reveries in this blog post. To anyone looking for serious content - I'm afraid this post is going to disappoint (or will possibly confirm your low expectations) - the transcript and podcast of Louise's talk will be on the FJC website soon we are told - that should do the job this post will not. There is precious little law* or gravitas to be found here today (said every judge I've ever appeared in front of with reference to my skeleton)...
in the meantime and betwixt hearings and criss crossings of the jurisdiction by train, things were moving apace with our grand plans for a house with an actual downstairs loo and enough bedrooms to accommodate all our children...there was an event explosion - the mortgage came through, the builder has a slot, the skip has arrived and the demolition is on Wednesday. What???!! I'm not mentally prepared! We've only been talking about this for ten years for goodness sakes...
And in the frantic chucking of mildewed life detritus we have been hoarding for a decade in the garage I found a box.... A box of drawings and bad poems and journals of roadtrips. Written and drawn by some other me before I had tattoos or wrinkles or children or cellulite or a mortgage....from when I was about 21 up until when I was about 23. A time when I had thought I was a sensible mature grown up. I have clearly been deluding myself.
I spent a good couple of hours on the living room floor with the whole excruciating lot laid out in front of me earlier this week. The journals are infuriating, embarrassing, immature, self absorbed, naive, stupid, illuminating and utterly unpublishable (Let us just say : PARENTS. NEVER let your daughters travel the USA on a greyhound bus with nothing but a credit card, too much confidence and a copy of Paradise Lost). The poems are mostly bad, occasionally terrible.... it was funny and strange and bitter sweet to reconnect with that other me - one thing I had forgotten was that as a teenager and young adult i always thought of myself as destined to become a writer. What a sop. That me thought by now I would be writing novels in a garret like Jo March somewhere... instead I sit hunched on a broken sofa prepping for trials each night waiting for the day i have a garret to call my own... but I guess I did turn out to be a writer of sorts in the end.
The pictures though were a revelation. They aren't particularly good pictures, and I recall vividly that I had to work really hard at some of them to achieve a reasonable standard in the final version - although I went to art college I could never reliably draw freehand. But they reminded me of a creativity that I always felt the need to express, and which I guess I probably now channel into this blog...
The pictures are mostly cartoons or preparatory sketches for cartoons that I drew when I was President of the Birkbeck Students' Union - for posters or for the Lamp & Owl student magazine (for those who don't know Birkbeck is a part time college under the University of London umbrella, where most of the students are mature students and they study for degrees in the evenings). At the time we had one knackered old Mac and no software to create or manipulate images on. If you wanted an image you had to sketch it, glue it to the page with the text on it and photocopy it. It was all very low tech...
Sometimes I've been asked why I took up blogging, and although there are some pragmatic reasons I often give (helping to keep up with CPD), I'd forgotten really how much of a continuum there was from this period when I was publishing through the Lamp & Owl, and then subsequently on my own website (before such things as 'blogs' were thought of) called diddlee.com which I coded in html myself and ran until some point after pupillage. I don't recall much of what was on it other than some very bad animations of London buses and a Bob Dylan song generator using a randomiser code I'd found somewhere...
I'm not going to share the cringing awfulness of my journals with you. That would be truly TMI. But the pictures are (mostly) harmless enough. I would take myself to task for some of them now...I don't know *what* I was thinking...
for some students at Birkbeck juggling the roles of employee, student, parent and superhero were a piece of cake...
Take for an example, this sketch of wonder woman which was intended for the Lamp & Owl - I don't remember if it was ever used. But it was intended to be about the amazing ability of students at Birkbeck (who, by the way weren't all women) to juggle children, career and college. I know now that the baby in the picture would have ended up with bilateral retinal haemorrhages from all that spinning...
This is a poster in the Lamp & Owl encouraging people to vote in the elections. I'd drawn each character, glued them onto the page and photocopied the lot...I'm not sure how I ever got anything important done, really...but one thing that my time at Birkbeck taught me was how elastic time is - it expands to make room for the amount of energy you have. That is the secret that Birkbeck students depend upon and one that I have depended upon too. This was a time when, although I had no babies, I was a little bit of a whirling dervish, working very long hours pouring all my passion into my sabbatical, and a little bit like a coiled spring. I met my husband at this time (he was my Vice President) - he was my rock then and is my rock now (Also, I'm still the Pres to his Vice Pres).
You may see where my fondness for puns comes from...
My favourite batch of sketches though, are these rough doodles of owls (the owl was the Birkbeck mascot).... I guess I shouldn't give up the day job...
caption reads 'the owl was a nocturnal bird of prey
caption reads 'how owls keep themselves amused in the wee small hours'
This was the end result. it went on the front cover of the Lamp & Owl with the headline under the roofline and the contents below.
* no law
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