Conflicts of interest. The who, the where and what to do?

Digital record keeping has removed the possibility of turning up at court only to find that you have previously cross-examined your client. These days, family law practitioners have the words ‘watch out for conflicts of interest’ printed into their DNA.

However, in this blog, I wish to examine another, rarely addressed conflict; one apparently under-researched, often overlooked and when perceived, dismissed as an unavoidable aspect of our family court system.

The British Association of Social Workers ‘Code of Ethics’ first mentions the words ‘conflict of interest’ in the penultimate line of code 2.3(4). Yet to its credit, at code 2.2(4) we find the words,

Challenging unjust policies and practices. Social workers have a duty to bring to the attention of their employers, policy makers, politicians and the general public situations where resources are inadequate or where distribution of resources, policies and practice are oppressive, unfair, harmful or illegal“.

In times of financial constraints, local authority social service directors find themselves with ever-diminishing budgets to service ever-increasing workloads. But how do they balance the potential conflicts of interest?

In 2017, the number of care applications reached record levels, and children looked after in the care system was at its highest since 1989. Currently there are about 73,000 children in the care system, up from 60,000 in 2007. Local authorities are simply struggling to keep pace financially.

According to the Care Crisis review, “Many professionals described the frustration they feel at working in a sector that is overstretched and overwhelmed and in which, too often, children and families do not get the direct help they need early enough to prevent difficulties escalating.”.“There was a palpable sense of unease about how lack of resources, poverty and deprivation are making it harder for families and the system to cope.”

Sir Andrew McFarlane, President of the Family Division added in July 2018, “It may properly be said that we have reached a stage where the threshold for obtaining a public law court order is noticeably low, whereas, no doubt as a result of the current financial climate, the threshold for a family being able to access specialist support services in the community is conversely, very high.”

My recent experience suggests that social services managers are determining choices on the basis of cost – rather than need. This may be inevitable with a finite budget, but does it not call into question whether those with financial interests should be calling the shots?

In a previous blog, I have discussed the idea of removing applicant-status from local authorities to a conceptual ‘Office of the Children’s Guardian’ (OCG). Under that proposal, where social service departments considered a need for public law intervention, they would refer the matter to the independent OCG, which would review the case and where appropriate, take and fund action.

It would follow, instead of disparate local authorities setting different standards of intervention, that public law decisions would be taken (and funded) on a national basis according to national guidelines. Local officers would still bear responsibility for delivery and implementation, but the conflict of cash v action would be removed from their local shoulders.

At times, described by Sir Andrew McFarlane as “untenable”, radical action is needed. Perhaps here is a kernel of a radical answer?


Online digital case management templates

In a previous blog ‘The Almost Digital Barrister’, the assiduous reader will recall that I considered the concept of online digital bundles and templates as a mechanism to reform case management.

Since then, the suggestion has been passed from circuit to the High Court judges, and a number of fellow professionals have asked me about the concept; so now seems the right moment to discuss it in more detail.

My practice these days centres on family law – including public, private and financial matters. This blog will therefore focus on this area, although with flexibility, the ideas should be transferable.

Public law cases

For the uninitiated, ‘public law family cases’ are where local authorities having responsibility to ensure the safety and protection of children, become involved with families in their catchment area. They usually start with a ‘referral’ relating to safety or welfare issues, with the expectation that social services will become involved to support, assist and if necessary intervene in the family.

When intervention is required (often where the local authority is seeking to exercise parental responsibility for a child) an application is issued in the family court and a judge becomes involved. Most cases then enter a 26 week completion window which can be extended if the judge decides this is necessary.

Once an application is issued, the court will convene several essential ‘hearings’ within the 26 week period, designed to case manage the issues through to a final adjudication should it be required.

The process involves a little medieval language. The local authority becomes ‘the applicant’ and the parents and children are ‘respondents’. Where grandparents or other family members are involved, they frequently also become ‘parties’. As often as not, a children’s guardian is appointed to separately represent the interests of the child or children. The ship has been launched.

After this, a host of professionals enter the process with their oars. For the applicant local authority there are the social workers, their managers, contact workers, family support workers, health professionals, school or nursery teachers and sometimes experts such as doctors, consultants, psychologists or substance abuse analysts. Whenever an expert is sought, the court must give its prior approval through a formal application process involving a hearing.

With these professionals come a coterie of solicitors and barristers for most if not all of the parties. In the more complex cases the advocates row in court bristles with lawyers.

The judge that is allocated to manage and resolve the case uses a process that was invented in medieval royal courts. Those that are involved in the case are required to attend before the judge. Legal discussion takes place beforehand – either by advocates conference or in the hour before a hearing. As much information as is then available (and remembered) is shared. The judge gives directions. The parties and their lawyers leave, with the expectation that they will do what they were told, and things will go well.

But, with dysfunctional families, things do not habitually go well. Some engage and succeed, others disengage and fail. Crises arise. Expectations change. Relationships break down. Communication falters and stops.

In the meantime, whilst attention is elsewhere, things get missed, and deadlines not met. On occasions, the whole expectation of weeks previous is lost. When the next ‘hearing’ comes round, the judge is in for a surprise…perhaps a number of the intended objectives have not been realised, and the judge has to re-timetable the case.

Call me simplistic, but as a simple person looking in, it seems to me that the problem is not cured by ‘tweaking’ case management, but needs root-and-branch reform. What is the purpose of bringing together in a court room a bunch of high paid professionals to discuss a case, often in a way that is incomprehensible to the family members involved? And why should these cases remain invisible to judicial scrutiny between the hearings?

The idea of an online digital case management template would go a long way to cure the problems that arise from traditional hearings. It could guide, remind and flag essential matters as they arise, rather than leaving them to a crisis point.

To start with, by using an online process, all of the professionals that need to know about a case would have access to and be guided by the same material in the template. It would be updated with each new event (under the present system often a secret before the hearing). The template can contain automatic digital triggers that require the parties to address and share issues, make decisions, disclose information and problem-solve. At the same time, the judge will be in a position to review the progress of each case at any stage with totally up-to-date information, and to give further directions on the template as to what to do. If a party has a problem with a direction, they could notify this within the template, and the judge could review their concerns. Most importantly, where directions given by the judge have not been actioned, the failure can be flagged.

Rather than pouring vast funds into traditional, and sometimes pointless hearings, why not use public funds more wisely to support the families in need? Yes, any new system will require funding, judges and lawyers will continue to be paid, but substantial savings could result.

On a related topic, the other day I read about a Ministry of Justice pilot of identity cards for lawyers. The idea is that they produce their card from their wallet or handbag and it is scanned by a security officer, allowing them entry to the court building. Contrast this with the average provincial health club where members simply enter automatically with their fingermark.

The Ministry of Justice should recognise that we already have the technology to support reform. Digital templates simply require existing software written for other purposes. It is out there: we just need the will and imagination to use it!

The ‘Almost Digital Barrister’

In September 2011, I published an outline for barristers concerning the development of paper-free practices.

Eight years on it seems we have made significant progress. Most barristers now use laptops or tablets in court. We send and receive material as email attachments. We are more comfortable with PDFs. In public family law cases local authorities prepare digital bundles, which on occasions thankfully are even digitally indexed.

But are we are still simply giving lip service to digital document management?

Let me illustrate my concern. In a recent public law family case I received a PDF bundle by email. Due to size constraints it had been scanned into volumes, none of which was indexed – nor coincided with the bundle sections, resulting in reports straddling volumes.

Digging deeper into the volumes, I realised that each ‘document’ had been prepared using a stand-alone ‘paper mentality’. Authors had never envisaged that their contribution might form part of an integrated bundle, so despite case number identification, the ‘documents’ were formatted with full headings, laboriously listing the parties and repeating unnecessary information.

What lay behind this became clear when I opened my email box. There, to my horror, bunched in no particular order, was a mass of missives with additional documents attached. Each purported to tell its own individual story; none integrated with each other – or with the bundle.

That got me thinking. Why do we send documents attached to messages? What is the point of ‘circulating’ emails, at times to previous advocates, and occasionally to be missed in the sheer weight of emails?

Surely the purpose of a ‘digital bundle’ is to bring all of the case information together in one place – to which the advocates and the judges have access. It should be capable of being digitally updated. It should be continuously definitive and authoritative, managed in accordance with the judge’s orders. It should tell the whole story that is needed to resolve the case.

Were such a ‘digital bundle’ to be teamed with a shared digital case management template (providing the advocates and judge with a running record of key issues and actions required) the working lives of advocates would become so much easier, and everyone’s decision making more reliable.

What I would like to know is whether I am alone with my suffering in this digital wilderness? Is there anyone out there that shares my concerns? If so, I would love to hear from you.

To blog or not to blog: that is the question?


Blog entry 3 March 2012

“This blog started life on 1 January 2012 as ‘Dere Street Barristers blog’  – to metamorphosize on 3 March 2012 into its current form as the mouthpiece of Dere Street Barristers’ sole blogger”.

‘Dere Street Barristers sole blogger’ – you have got to be joking? Isn’t Dere Street Barristers a set of chambers of about 100 members, many of whom are of a digital generation? Don’t they have thoughts and ideas about the processes of justice; legal aid; how their profession presently meets (or fails to meet) the needs of clients, and can do better; about the future of their profession?

Well, it seems not; or none that they wish to speak about publicly in a blog. Their secrets are shared only with their bank managers; and maybe on a good day, their clerks.

They are, of course, out of step with their Lord Chief Justice, Lord Burnett of Maldon, who recently spoke of the public need to better understand the process of family justice, and the judges’ role.

“All professions develop their own languages which can become impenetrable to outsiders. Lawyers are no different”. “We cannot complain that the public does not understand what we do, and its importance, if we do not take steps to lift the veil a little and explain what we do.”

“We should seek to reinvigorate public accessibility, subject to any necessary restrictions where openness would itself undermine the administration of justice”.

The Transparency Project headed by chair, Lucy Reed, Julie Doughty & Paul Magrath was set up to provide public insight into family law, to facilitate discussion about its administration, and to highlight access to justice.

With the help of Sir James Munby, the former President of the Family Division, the project secured a pilot starting on 1 October 2018, giving permission for legal bloggers to attend family court hearings, recognising the lawyer’s role as a communicator.

The Transparency Project signals an important understanding: that the role of lawyers does not start with legally protected instructions and finish with an endorsement on a brief. As lawyers we are not part of a immutable legal process to be preserved for posterity, but one which is alive, changing and evolving in a digital age. We are not here to acquiesce; we are here to challenge and discuss options for a better future.

Legal blogging provides the opportunity both to inform and to challenge. As with other media, it creates and services communities of insiders and outsiders. For six years, Dere Street Barristers has forfeited such opportunities – the publication of CPD rewarded presentations, pivital case commentaries, news of developments, information of opportunities. Solicitors and others, who would have been delighted to guest blog, have been sent off to find other outlets.

Back in 2012 I wrote of this blog,  “A number of visionaries supported this project. I trust that, in time, those sceptics within our profession will come to see its merits and possibilities”.

Perhaps, with the digital alliance of our new President Sir Andrew McFarlane and Lord Chief Justice, Lord Burnett, we have reached that moment – a time to think, opine, share and write?


With thanks for the image to 

Legislation concerning repeat fire weapons


This blog is about repeat-fire weapons: whether they have any reasonable use or function in civilian hands in a civilised society. It is, of course, prompted by the Florida shooting alleged to be perpetrated by Nikolas Cruz, but not defined by or dependant on this event.

The 2nd Amendment to the United States of America Bill of Rights is well known, yet little understood. Each commentator (and many individual citizens) have their own understanding of the words contained in it. I sense that few have taken time to read the interpretive decision of the Supreme Court in District of Columbia v Heller (June 26 2008), in particular Justice Scalia’s reasoning on behalf of five Justices, and of course the dissenting judgments of four Justices delivered by Justice Stevens and Justice Breyer.

One reason that the decision may be rarely read is that it is interpretive of the ‘apparent historical intention’ of the lawmakers when the Amendment was passed on December 15 1791, making it a challenging read. Justice Scalia was at pains to address its moment of conception, quoting from Robertson v. Baldwin, 165 U. S. 275, 281 (1897):

“…the Second Amendment was not intended to lay down a “novel principle” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897) – referring to the English Bill of Rights 1689.

Interestingly, with the strictly interpretive approach it is quite irrelevant that the ‘inherited right’ from English law no longer stands to be interpreted in the same way by those from whom the right was inherited. Normalised by former Master of the Rolls, Judge Tom Denning, in contrast to the US Supreme Court, English courts would consider the arguments wisely within an unlimited time-frame, with regard to what Justice Breyer raised as interest-based considerations.

So it seems that the 2nd Amendment is to guarantee an individual ‘right’ to possess and carry weapons in case of confrontation, with some qualification, according to Justice Scalia:

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms”.

The type of weapon is only to be questioned if it falls outside the concept of those available to the founding fathers, so as to be hugely and historically disproportionate to the right – the “dangerous and unusual weapon”. Thus, complex military weapons involving advanced technology would not be permissible. However, repeating and quick-fire weapons are preserved, in that they are deemed to protect ‘an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home’.

Currently, a plethora of commentators around the world are opining on the topic of gun controls and USA politics and policy. And so do I.

It is said that the state of US gun legislation has little to do with the 2nd Amendment, nor DC v Heller. In part it is the consequence of seeking, in one time frame, to define rights for all time. But it is mainly to do with the will of a legislature, the successors in title to those that passed the 2nd Amendment.

And it is to do with money and culture.

Mandatory Credit: Photo by RMV/Shutterstock (9387190an)
The FBI and police agencies from surrounding counties responded to a mass shooting at Marjory Stoneman Douglas High in Parkland, Florida. Police set up a family staging area for parents to meet their children at the Fort Lauderdale Marriott Coral Springs Hotel to pick up their children
Shooting at Stoneman Douglas High School, Parkland, USA – 14 Feb 2018

Reading social media comments from young Americans who knew the Florida killings perpetrator or victims, or who simply identify with the victims’ plight, I have been amazed at the frequency of comment from those that consider the answer to gun violence – is guns. In particular, automatic repeat-fire weapons.

‘Slippery slope’ arguments jostle with ‘arm the teachers’. Both in my view are fundamentally flawed. What is a ‘slippery slope’ for one commentator is heuristic progress of common sense to another. What is an ‘armed teacher’ for one, is to another, a shot-dead teacher.

Change never happens overnight, but I sense that the tragic events of 14 February 2018 could instigate change of some kind.

What is needed is a ‘sweet spot’ of compromise – presumably where neither proponent gets what they seek, but with which both can live, without the fear of being gunned down by one of their own community. To achieve this, someone has to resolve that automatic and quick fire weapons have no place in normal times, in public places, in civilised countries in the hands of civilians.

Barrister in Buenos Aires



Regular readers will know of my grand escapes. Most years in the past ten, I leave the Bar behind to travel, and those who have made Google searches will know of my travel blogs here and here. You may also have found my Ageing Effortlessly blog in which I have written about ‘preparing for life after work’, which includes the value of foreign travel.

For many, travel is simply taking holidays of three, or at most four weeks. Yes – it is travel after a fashion, but its nature and duration do not allow for significant change in life and outlook. This actually constitutes a failure of living, in which we end up with unfulfilled aspirations that become impossibilities.

I am here in Buenos Aires, ostensibly to meet fellow lawyers, talk mediation and dance Argentine tango. It involves a sideways step from everyday realities of English legal practice into the shadows of another world. My break is of four months, giving time to review life, assess change and experiment with new experience and ideas.

Some readers have a problem with this – the “That may be alright for you, but it wouldn’t work for me” mentality. Their impediments to travel of this kind are usually stated as being:

  • I have school fees to pay, pension to fund and a mortgage to support. I cannot afford to take such a break.
  • My spouse/partner is a governor – I cannot take my children out of school out of term time, and anyway, what about their sats?
  • I have elderly relatives. Who will look after them when I am away.
  • The solicitors that instruct me will find someone else for their work.
  • I cannot imagine what I would do with that all  time.
  • What if I like it too much, then what?

Taking extended breaks does require a degree of preparation, especially financial planning; but not so much as you might think. These days it is possible to take pension and mortgage breaks. Some travellers choose to arrange a home exchange; others pack up their valuables and offer their home on a short let. With the right anticipation and notice, school fees can be avoided – after all, you will be educating your child/ren elsewhere.

Elderly relatives is a trickier emotional problem. Talk with them and ask them what they think about your proposed trip. Most older relatives report their main anxiety as not having someone to call on in the case of emergency. With careful management, this can efficiently be addressed. Sorting out your own trepidation and duty conscience is quite another – you will just have to sit down and give yourself a stern talking-to.

The fear of falling behind professionally is a psychological symptom of anxiousness, rather than a measure of any actual reality. If you are under-performing at work, you are likely to face this fate anyway; if you are competent in what you do, there is always an open professional door for those with experience.

“I get bored after a couple of weeks” is the worst comment a potential traveller can make. It says that you should give up the idea of travelling ever, and stay back to polish the car. Travelling creates interest, excitement, new horizons, offers new friendships and relationships. If you are bored by travel, you are simply doing it wrong.

‘What if I like it too much?…”. The honest answer is that you probably will. It may change your ideas about what you want from life – where you wish to live, how you wish to live, and even with whom you wish to live. Given just eighty or so years of life expecation, with a chunk already expended, what is the problem with a shake-up of lifestyle?

After all, travel creates choices, rather than restricts them. And yes, it creates challenges too, which is one of the very best reasons why we choose to do it.

Silver Barrister


Its Monday, and I am returning from two and a half months away from practice as a barrister. The case I am assigned to cover  is listed ‘not-before-11.30’ at Newcastle Family Court before a district judge. A colleague in chambers is for the applicant local authority, so I know it is in good hands.

It feels disconcerting to arrive in chambers after a long break. Annie looks up from reception to buzz me in, and greets me with a smile. “Hello Mr Twist, how was the trip?” “Fine, Annie, but it does seem strange to be back”.

Yes, it does feel very strange. It reminds me of the first day at school after a summer break. The smell of the building – a combination of coffee and hot paper on the scanner; the sounds of articulate voices drifting in corridors; light slanting through the dust.

The problem is that my colleagues have been beavering away during my recess – finding places to park or taking trains to court; bumping their wheeled cases along pavements; emptying their pockets at security; meeting solicitors and clients; and advocating before judges and juries. Whilst that film has been running, I have not been watching, or even present. The world has moved on a little, and I have remained still.

This mood lasts but an hour before momentum drives it to the back of my mind, and I question if I have ever been away. The meeting of advocates sees tight-scripted positions coalesce into agreement; the judge smiles and approves our efforts, signing the order with a few kind words. And the day becomes just another day in the life of a busy barrister.

But, as you would expect with this blog, there is an unresolved issue – not with the case – but with me. Advancing to the end of professional life, I ask myself about me; my longevity at the Bar, and what lies ahead. My colleagues become younger as I age. My conversation is on the differences of the past rather than the opportunities of the future.

Today I rise early to complete my attendance note for yesterday’s hearing. BBC Radio 4 burbles in the background. ‘The Life Scientific’s Adrian Thomas explains to Jim Khalili about ‘silver engineers’. And with those words suddenly all becomes clear.

When it comes to retirement, as a species we waste considerable resources, experience and skills. In another blog I addressed the question of preparing for retirement. Here I propose to extend those ideas into the new concept of the ‘silver barrister’.

Like the ‘silver engineer’, the ‘silver barrister’ is one who for whatever reason has decided to retire from active practice, but who still possesses the energy and capacity to contribute professionally. This contribution may be in relation to mentoring, supportive training, assisting or managing complaints and grievance processes, preparing legal digests, library management, or helping the chambers’ head and executive with a plethora of tasks. The ‘silver barrister’ provides a safe, available and sufficiently independent pair of hands – backed up with a professional lifetime of experience.

As a trained facilitator, I ask myself about the ‘balance of reward’ from such an arrangement? So here I list what I consider to be the essential characteristics of the role:

  • The status and role of ‘silver barrister’ is to be confirmed and defined by the Bar Council.
  • Silver barristers will be invited/elected by their chambers for continued membership for a renewable twelve month term.
  • They will not have rights of audience or independent advisory status as barristers, and so be exempt from professional indemnity insurance requirement, and professional competence regulation. Their chambers will pay a nominal annual Bar registration fee.
  • Their status as non-practicing consultants must be declared clearly on all professional communications.
  • They will not be entitled to remuneration for their role as silver barrister, but may be remunerated by a practicing barrister for advisory/preparatory work undertaken for that barrister.
  • Individual chambers may decide with regard to internal arrangements, such as voting and chambers fees and charges.

As pressures on chambers administration – and the potential contribution from retiring seniors increase, why not look at that symbiosis to match needs and resources? This may be the ideal solution for our profession – for both young and old alike.