Advocacy – a low in Family Courts, or a sign of the times?

bald faced

With thanks to Mark Anderson for use of his cartoon

After 37 years of practice at the Bar – out of touch? I hope not as much as you would expect. Moved with the times? Now, here you can judge.

Today’s blog concerns family court advocacy.

I have not always been a family practitioner. There was a time – up to 1997 – when my practice involved largely criminal defence and regulatory work. After a diet of inner and outer London Crown Courts, and of course, the Central Criminal Court, I moved to the North Eastern Circuit to spend my time in the Crown Courts of Yorkshire. It follows that my advocacy skills were seated in the demands and honed by the constraints of plain speaking criminal advocacy.

The process was simple. Examination involved asking questions. Non-leading questions. The simpler, the better. Each question could, and frequently was prefaced with the words “who, what, where, when, how, why”. The aim of the question was to elicit a reply, and the reply was the evidence. Oral evidence was the currency of the court.

Cross examination permitted leading questions – where a direction or suggested answer occurs naturally within the question. Previous inconsistent statements could be put to a witness and tested by questioning – “here, you said ‘a’; now you say ‘b’; why the difference?”

Beyond those simple rules, we did not stray. To do so would result in the judge stopping line of questioning and the defective question prevented. Save for older silks, most complied, and we got along fine.

Whilst the admissibility of affidavits and statutory declarations has always been permitted, there came a time when pre-prepared statements were encouraged, and later required. In civil proceedings, the statements were to stand as the witness’ evidence, and it would be on their written statement that they would be tested in cross examination.

As a process, this lasted ‘but five judicial minutes in a long legal landscape’. Advocates used the statements to prepare the ground, rather than setting it. So it is rare today that witnesses are called and tendered on the basis of their written statement. Instead, advocates track through already deposed facts and recollections, and judges sit silently permitting this to happen, as if they hear the revelation for the first time.

But the main current transgression in advocacy skills, is the use by advocates of ‘comment’ dressed elaborately as a question. We all know that there is a massive difference between questions, assertions and comments. The first is designed to elicit evidence, and the others are an argumentative measure of the questioner’s opinion.

Habitually in family courts, lines of questioning are loaded with comment, or flung at witnessed as assertions. Some practitioners may say this is simply to ‘set the scene’ for a question. Mostly, the scene does not need to be set, and the assertive comment from an advocate is entirely out of place where the judge has read the evidence bundle. Maybe this is the problem – maybe the judges haven’t and the advocates are seeking to describe the case to the judge, rather than question the witness on their evidence?

The more judges permit it to occur, the more it happens, to the point of normalising the ‘assertive-comment question’. The clarity of the process is not the only casualty; another is a diminution of the skill of the advocate. As opinion and evidence blur, so does the original integrity of the purpose and function of questioning witnesses. Witnesses are not simply confronted – which is good; but bullied, confused and invited to argument – which is cruel, unnecessary and to my view, unprofessional.

The flaw now appears ubiquitous in family courts, as family judges sit back and listen to comment-laden questions fired repetitively, to the point that when it comes to closing submissions (or comment) there is not a fresh comment to make.

Some suggest that the family courts have ‘floated away from the mainstream civil legal process’, with altered rules of evidence and procedure. Yes, family courts have a special, human job to do -one that frequently requires a more informal approach -but the casualties of free-for-all questioning are extensive, not least the skill and ability of advocates to question without comment.



Its my money. Trust me!


Over the final half of my 37 years as a barrister in private practice, I have been arguing over money.

Not mine, I hasten to add, but other people’s. In particular, divorcing spouses or cohabitees. There comes a time after almost every separation when two people who have lived together and loved, start to argue about the spoils. Those that can afford it rush to a solicitor or direct access barrister and commence battle. Those that cannot pay may chose to go it alone.

Either way, they have embarked on a battle from which there is little respite – until they run out of money, of energy, or are crushed at court in a final hearing.

But the purpose of this blog is not to bemoan honest,hard-working people spending inordinate amounts of their money on lawyers and in courts. It is to examine the fundamental flaws of financial remedy proceedings (as the financial arrangements are called in court).

My first observation is prosaically procedural. How is it that going to court to argue financial splitting of assets can remotely be justified? The cost of this process starts at £12,000 for the couple, and soars to a dizzy £100-120,000 in more complex cases. In J v J the parties managed to rack up £920,000 in costs between them, much to the judicial amazement and displeasure of Mr Justice Mostyn. Do they get a return on their investment? J v J didn’t; and generally, the chances are – not.

Readers of my earlier blogs will recall my commentary on the alternatives of mediation and arbitration, which I will not repeat here. Guidance by a single expert makes sense, assuming the expert knows what a judge would do, and that both parties agree to be bound by the outcome. There is, of course, the other ‘questionable’ alternative of splitting at the outset by way of pre or post-nuptual agreement.

My main concern here is to do with the philosophy of division where children are involved. In fact, my problem goes further – to question of ‘ownership’ and ‘responsibility’.

The financial wars that I have witnessed rarely focus on the children. Yes, this may be the court’s first consideration when it comes to making an order, but the children seem to remain ‘bit players’ in the battles, unless they are to be used as weapons to secure a greater share of the booty for one of the parents.

So, what would happen if we changed the rules?

Imagine this. When two people decide that they are to have children, they would do so in the knowledge that they forfeit ownership of property to them? How would that be?

Simple. The law would deem that all matrimonial property vested immediately in trust for the children, and that each parent became a trustee for the child. Rather than children being ‘the first consideration’ for a court, a child or children would be deemed to be the beneficial owners of all of the property. There would no longer be the ‘divvy up’ entitlement of assets to to each parent; there would be an appropriate of provision for the parents’ immediate needs and no more. The rest would be managed exclusively to provide everything that their child would need through to the age of 21.

What a glorious world that would be – children placed, where they deserve and need to be – at the centre of decision making as the beneficiary and responsibility of their parents’ endeavours.

But will such ever come to pass? Of course not. We have neither the imagination to prioritise children over parental greed, nor the legal system to oversee it.

Instead, we will continue to subsidise the lifestyle of lawyers (of which I am one). But, long may it continue – for after all, what value the future of our children?

Circling restorative justice – are we missing a trick?


If it is a distinction to have been part of the exponential development of mediation in the late 1990’s – then I suppose I have that distinction. It was an exciting time – when Harry Woolf made his transition from Master of the Rolls to Lord Chief Justice of England, and with his elevation, the insertion of alternative dispute resolution into the Civil Procedure Rules of England[1].

They were interesting times too. We felt we had invented mediation – it seems forgetting the Conciliation Act of 1896, and the earlier peace circles of ancient civilisations. But commercial mediation spread like a shoal, spawning a vast fry of ADR, arbitration, med-arb, conciliation and early neutral evaluation.

Whilst professionals and others found ways to make money from the dispute resolution industry, restorative justice crept up on the nets with relative invisibility – or was it simply that we commercial mediators were not looking?  It seems that we in England had totally missed the pioneering efforts in 1992 of Canadian judge Stuart J in R v Moses. But following the success of initiatives in Northern Ireland, the restorative approach went on to capture both hearts and imaginations across the UK, and since then, whether by democratic socialism, or the post-Thatcherite hashtag ‘Big Society’, restorative justice has become well and truly embedded in post-sentence youth justice.

The Northern Irish experience showed that outside service providers – public authorities, police or private institutions – were unable to penetrate tight-knit, segregated communities. When it came, change resulted not from managed community initiatives, but from the vision and application of individuals – from people. They were the visionaries that recruited others not by salary, but by conscience –  involving ordinary, local people meeting other people with problems of conflict – to listen, to help, to suggest and to empower, with a belief that change is possible.

The concept of the restorative circle is integral to the community restorative process, although I have to admit that when I first encountered circles at the European Forum for RJ conference ‘Beyond Crime – pathways to desistance, social justice and peacebuilding’ in 2014 with Professor Dr Evelyn Zellerer, I was skeptical. The idea seemed a little too ‘touchy-feely’ for my commercial mediation tastes. It was only after participating in a circle, that I became hooked. Since then I have introduced circles into my model of dispute resolution and participated in countless circles with other practitioners.

But, what of its use within criminal justice as part of the sentencing process?

In R v Moses, Barry Stuart observed, “Many might debate the extent any decision-making process shapes the result, but indisputably process can be as determinative as content. In sentencing, process profoundly influences the result. The process influences, not just what, and how matters are addressed, but who participates and what impact each person has in shaping the final decision”.

“Currently the search for improving sentencing process champions a greater role for victims of crime, reconciliation, restraint in the use of incarceration, and a broadening of sentencing alternatives that involves less government expenditure and more community participation. As many studies expose the imprudence of excessive reliance upon punishment as the central objective in sentencing, rehabilitation and reconciliation are properly accorded greater emphasis. All these changes call upon communities to become more actively involved and to assume more responsibility for resolving conflict. To engage meaningful community participation, the sentence decision-making process must be altered to share power with the community, and where appropriate, communities must be empowered to resolve many conflicts now processed through criminal courts”.

What was achieved here was revolutionary at the time, and transformative in its effect. The role of professionals in court was changed, a wider array of interested parties (including family) were included, more and better information was received, and a bigger range of options created. Here was a sharing of responsibility involving both offender and victim – to a higher and more constructive degree than in the conventional sentencing process – using community resources and strengths to give greater reach.

What has happened since? Restorative circles remain a central and most effective way to produce acknowledgment of harm and changes in recidivism. Youth offenders will frequently find themselves involved in restorative circles with their victims and justice professionals. Yet English courts have not seized this opportunity fully, especially with regard to the sentencing process itself.

Will restorative justice languish as yet another service level industry, managed on the periphery by ‘providers’, delivered by paid practitioners, and destined to join the fads of failed initiatives?

Restoration cannot be ‘delivered’ as if from Amazon, dropped off by Parcel Force to be signed for by the customer. It is not a commodity. It is not a service. It involves a change in the way we relate to offenders. And it should start with the courts themselves when considering sentence, rather than an afterthought as an adjunct to punishment.


[1] CPR 1(4)e

Let’s leave the party….

child protection


Back in February 2014, I raised a question about ‘party status‘ in relation to private law proceedings concerning children – cases where parents disagree about the care and upbringing of their children. To save the reader returning to it, I was simply querying whether giving parents in conflict, the right to manage proceedings in relation to their children was right or appropriate for the twenty first century?

Since then, I have had a number of discussions with other lawyers about public law cases, and their responses have been surprising.

For the uninitiated, public law proceedings concerning children relate to situations where local authority children’s social services feel the need to be involved with families to protect children from harm. The harm may come from poor or inappropriate parenting, downright dangerous lack of care, or even an outside threat from extended family or friends.

As a civilised society, we need local authorities to be proactive in this role, as much as we may instinctively hate the idea of children being removed from their parents -and the only home they have known.

Under a regime introduced by the President of the Family Court, local authorities may have involvement with families for a substantial period of time before proceedings are issued in court. By seeking to work with parents, social workers may be able to achieve sufficient improvement in care that parents may provide good enough parenting and matters need not go to court.

As lawyers for parents and children, we become involved when all attempts to provide a safe home and upbringing appears to have failed. Then the local authority will issue an application in a family court for a public law order – maybe a care, supervision, or even a placement for adoption order. Only now is a guardian for the child or children appointed, and even here their active role is limited.

However, public resources are provided for the parents or carers of the child. Parents become ‘respondents’ to the application brought by the local authority, and have a right to publicly funded representation. The court then wrestles with the dichotomy between the rights of the parents to their family life, and the rights of the child to protection.

So, what is my concern?

Well, it is simple. At a time of limited resources and huge pressures on public funding, why are the parents appointed (and funded) to be drivers of the case? Why do we insist on an adversarial approach in every case involving local authority intervention? Why are parents pitted against social workers backed up by social services lawyers? With legislation that is supposed to be ‘child centred’, why is not the voice of the child – or the independent professional charged with representing the child – not calling the shots?

It would take a significant change in the intellectual/social/legal approach to child care cases to implement a new, totally child-focused system. We would need to go back and re-write the Children Act 1989. But how would it be if, in every case where a child was considered to be at significant risk, a properly trained, properly paid, experienced professional guardian was appointed to oversee conflict between the local authority and the parents from the point of view of the child or children?

Where proceedings were notified by the local authority, a Public Guardian Service with sufficient resources of lawyers and structures, would take over the proceedings. The parents would become compellable witnesses – having the right for their voices to be heard, thus attending to their Article 8 rights. But the case would be conducted by the Public Guardian’s Office with the needs of the child being central. The guardian’s legal team would received or obtain statements from the parents, and these – together with all the other evidence (including that of the local authority) would be considered by a family judge or tribunal.

Other lawyers will be quick to realise some of the implications of this concept. Yes, along with the loss of ‘party-status’, the parents would lose the right to be legally represented, save in cases where very serious findings against a parent may be made. Parents would become answerable to the court’s assessment of the needs of their children to be protected, rather than remaining as they are now, as central managers of the litigation. And we lawyers, who have made a living out of representing parents, would forfeit that work.

But the idea is not simply to save spending massive resources on providing representation for parents, it is to bring about a change in the culture of public law family proceedings. To get away from the adversarial, combative approach – and to substitute a system where everyone’s focus started and finished on the needs of the child. Competent guardians (supported by a Public Guardian’s Office) would encourage local authorities to engage more, and more positively, with families to secure good-enough parenting. They would determine when the whistle should be blown on parents and carers that had not responded to the chances given.

For the first time in the history of children’s litigation, the child would be centre stage – supported and resourced by those best equipped to see through the eyes of a child.

Invent some futile work


Reproduced with thanks to the Legal Aid Agency

FAS Ex506. It sounds important, doesn’t it?

Writing this blog for a mix of readers, I had better explain. First, what is a FAS Ex506?

Well, it is a ‘form’ that barristers and solicitors are required to fill it in to get paid for publicly funded work. Not, I may add, for ‘fat-cat lawyers’ – those filling in such forms are at the very bottom of the food chain when it comes to remuneration, with rates frequently lower than those for a joiner or plumber.

So, what happens to the ‘form’?

Every ‘form’ that is filled in at court is handed to the judge at the end of the case. It may be a case lasting days – or only minutes. Frequently the judge asks for the forms to be brought up to their chambers by a court official when the case is over. The judge will sit and initial entries, making sure that their signature is appended to every variable on the ‘form’. There could be up to eight signatures needed per form, and there may be up to ten ‘forms’ to be signed. Once signed, the court official carries them back to court and distributes them to each advocate in turn.

Now this is just the beginning of a journey for FAS Ex506. The advocate takes their ‘form’ back to their barrister’s chambers or solicitor’s office. Numerous other documents are added to it, including the advocate’s instructions to undertake the case on that particular day, a copy of the court’s order requiring the advocate to attend at a given time on that day, a copy of that day’s order stating what happened in court, and the advocates hand-written account of the hearing.

We now have a bundle perhaps containing over 20 pages of information – recording in minute detail every aspect of the case: what was expected to happen, what actually happened; why it happened; why what was expected to happen differed from what actually happened; what was going to happen next; what the advocate thought had, might or probably would happen; and if it didn’t happen, why not.

The bundle proceeds to a fees clerk, who checks it in meticulous detail for the slightest error. A missed signature would cause a crisis – any problems detected result in the bundle being returned to be repaired – perhaps by going back to the same judge at the same or different court on another day, for a missing signature to be added.

If approved by the fees clerk, the bundle of papers is sent to the Legal Aid Agency. Here a clerk with a NVQ in paper administration sorts all of the bundles for each case and inspects each page of each bundle for mistakes. Do the legal aid clerks receive bonuses for each bundle they reject?…for the most trivial issue will result in its return to sender. A summary that has been prepared by the fees clerk will be marked for accuracy by the legal aid clerk, and only if it passes with full marks will the request for payment be approved.

So, what is my point?

It is impossible to quantify the amount of time that is spent by the advocate, the judge, the fees clerk and the legal aid clerk simply on administration. In an era when digital data recording is preferred, why is this mountain of documents prepared and transmitted? Why the repetition of the same document frequently submitted by each advocate? Why is a judge expected to certify the information, when much of it is, or could be readily evident from the court order?

The system was introduced with little forethought. The Legal Aid Agency created their own monster, which they now administer at considerable public cost. No single person has put their mind to review or remedy this mindless exercise.

I suggest that the Legal Aid Agency gets its house in order and scraps the futile FAS Ex560. If they do not, I propose that the judges should add a further 30 minutes to each timed hearing – to account for judicial time taken in administration on behalf of the Agency. Were they to do this, I bet you can quickly guess how speedy would be the response!

Gun culture and Gangland. Who bears the Risk?

shoot 2


Readers will be aware of this blogger’s preoccupation with guns as instruments of death. Its right to say that, as a former certificate holder, I was never fully comfortable with owning a firearm. As an English barrister dealing with a barrage of firearms cases for several police authorities, I became even more sensitive to the issues of ownership, use and abuse.

Shootings in American schools have resulted in recent impassioned gun pleas from President Obama. I glanced at the Wikipedia entry – yes, it takes some time to scroll down from 1927 to 2015 – to find that the Umpqua Community College shooting, with the loss of 10 lives, 20 casualties, and innumerable families distraught, was not in fact the most recent school shooting in the USA. Since then there have been two further school deaths in the States, and since my Sandy Hook blog, 19 further incidents comprising 38 deaths.

The US gun lobby, in the form of the National Rifle Association, however, maintain their resistance. shoot 1It seems that Americans are unable to release themselves from the belief that guns in the hands of civilian are more protective than offensive.

Restricting the lawful possession of handguns here in the UK after 17 deaths at Dunblane, has been of massive value in saving lives and changing public opinion. The Great British public have little issue with the fact that handguns are no longer permitted outside gun shooting clubs.

It has not, however, shut off the availability of guns. Greater Manchester Police have seized 30 unlicensed weapons this year. Now, in yet a gangland feud, Jayne Hickey, a mother and her 7 year old child have been shot.

I have previously blogged about the question of rights to own firearms here in the UK, and the need for some legislative change.

Whilst unlawful weapons – especially handguns – will be imported from time to time, the gangland weapon of choice is frequently a simple shotgun, the barrel shortened for ease of concealment, and blast effect. There is no need to import these weapons, they are here already.

Whether shotgun or handgun, the most recent shootings beg the question “What is the source of these weapons?” Until we address the manufacture, procurement and recording of weapons internationally, we will face incidents like these.  Perhaps, with regard to the ‘home gun market’, now is the time to insist (in addition to a gun amnesty) that every registered certificate holder has compulsory insurance against all of the implications of their weapon entering the wrong hands?

Liam and Nicole

rex shutterstock

With thanks to REX Shutterstock and the Guardian for the photo

The President told you so…Liam, you should have listened to him! And now you find yourself in a half-built house, with the public looking in through the gaps.

For some reason, I was the last to know that poor Liam and Nicole were having difficulties with their judge. It seems such a short time ago that ‘Oasis’ Liam Gallagher and ‘All Saints’ Nicole Appleton were a happily married couple, and then in April last year in the space of 68 seconds District Judge Anne Aitken granted their divorce. The name of US journalist Liza Ghorbani was also mentioned, but not that of Liam and Liza’s love child, nor the £2m lawsuit that ensued.

Mr Justice Mostyn is the judge that has been given the job of sorting out the money, and last week heard Patrick Chamberlayne QC and Fiona Shacketon argue that the case should be heard in private. His decision is awaited.

Mostyn J has however said, “If you asked someone to design a more crazy system they couldn’t have done it … Sometimes the court has to issue an unanonymised judgment to prevent speculation becoming the new truth.” The government needs to address problems because the existing system is “a half-built house”.

The ‘half-built house’ is the state of affairs where the press are entitled to enter family courts…and, sort of, report bits of what they hear. Here I am confused. but it seems so is Mr Justice Mostyn stating, “The press come in half-blindfolded … The role of the press is more watchdog than as members of the public.”

When, as an advocate, I have raised the prospect of open justice, my judges have simply looked down their spectacles and said, “that is not necessary”, allowing proceedings to continue behind closed doors. Our Family Court President has for a while pressed for family proceedings to be more open – certainly with regard to the reporting of process and decision making.

Of course Liam and Nicole could have opted for a private arbitration. The President is encouraging it – see AI v MT and S v S. So should we. Someone should ring Liam and Nicole and tell them. Or should they? When celebrities marry in the spotlight of public glamour, why hide the aftermath?