“Seen but now heard”

How could anyone make Re W (Children) 2010 UKSC 12 and the 2011 ‘Guidelines in relation to children giving evidence in family proceedings‘ -interesting?

Well, tonight in Middlesbrough in her fascinating lecture opening the Dere Street Barristers Lecture Season, Gillian Irving QC did exactly that.

For decades we have shied away from the prospect of children being called to give evidence in family proceedings. We have fallen behind the criminal bar, where wigs have been removed and video examination skills have been honed. Gillian’s presentation updated the approach of family courts, from LM (A Child, by her Guardian) v Medway Council & RM & YM (2007) EWCA Civ 9, through to RE X (a child) (2011) EWHC 3401.

The topic raised by Gillian Irving raises a number of controversial questions.

First, the real effect on the child of giving evidence in family proceedings. This appears to be a significantly under-researched issue. Where courts are under  a duty to balance justice, fairness and the protection of child witnesses, it would seem that this particular topic should be properly evaluated. The blogger is not aware of more than anecdotal evidence on the question, answers to which are clearly required. Can any readers point to recent research where the issue has been considered?

The second is the role of the ‘intermediary’, and the ‘communication specialist’. The blogger has some experience of these roles in the disability setting, where especially the ‘profoundly deaf’ will be afforded special assistance and access to the court process through communication specialists and relay interpreters. The use of intermediaries and communication specialists in family cases may open trapdoors to whirlpools.

Finally and critically, paragraph 21 of the Guidelines appears to shift some of the burden of ‘fairness’ from the court – to the advocates: “All advocates have a responsibility to manage the questioning of a child witness fairly”. Whilst this will be the guiding principle for most family law advocates, inevitably there will be conflicts of duty to advance the client’s case at some risk to a child witness. How is this duty to be balanced professionally by counsel, and how will the duty be interpreted by the court? Is this not another example of the inherent conflict in dealing with sensitive family issues within an essentially adversarial system of law? Perhaps this should be added to the catalogue of reasons that call into question our current approach to family conflicts?

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Family Justice Narratives

The blogger thanks Lucy Reed of ‘Pink Tape: a blog for the family Bar‘ for agreeing to post her fascinating idea for Family Justice Narratives here.

To reply, follow the link to Lucy’s blog, or email Lucy at  familoo@pinktape.co.uk.

Family Justice Narratives   –   Lucy Reed

I like the sound of my own keyboard, but recently I invited you all to share your perspective on things, to tell a story other than mine (original post here). And quite a few of you replied saying you’d like to take part. So here is how I’d like to do this. I’ve drawn up a list of questions – not to constrain but to guide. I’m hoping they will form a loose sort of structure and that participants will answer those where they think they can say something interesting, ignoring those that don’t grab them or which aren’t relevant to them. You don’t need to take them in order.

The questions:

  • Tell us where you fit in (solicitor, barrister, social worker, guardian, judge, researcher, court staff, something else)
  • Tell us about your typical week
  • Tell us about where you’re at this week (bad week, good week, rewarding week, soul destroying *headdesk* kind of week?)
  • Tell us about the highs and lows and the reasons you do the job
  • Tell us about what works well in the system and tell us about what does not work at all
  • Tell us about how you see the family justice system and how you think others see you and the system you work in
  • Tell us about an important influence on your work
  • Tell us about how you combine your family with your work and how your experiences impact on your relationships and your parenting
  • Tell us – would you choose this job in your next life? and will you be doing it in ten years time?
  • And tell us your bright ideas for change and for dialogue.

The rules:

  • Anonymous is ok.
  • Don’t give details of the contents of documents or of what has been said in court in individual cases, don’t breach client confidentiality (remembering that you can be in breach if your client can identify their anonymous self).
  • Don’t be abusive or defamatory.
  • Expect others to disagree with your views – check back for comments and engage with them.

This is a project which is intended to inform and to provoke constructive and respectful if robust debate. I am not inviting parents to contribute for reasons which I’ve already set out in the original post, but which are probably worth repeating here. In a nutshell two main reasons: 1 Publication of information about individual cases is prohibited. 2 There is already a wealth of information concerning parental experiences of the justice system out there, I’m trying to address the imbalance in the publicly available information about the family justice system so that voices from a range of different perspectives can make themselves heard.

Submissions can be sent to familoo@pinktape.co.uk. I will publish them under a #narratives tag.

Lucy

Fake barrister

Today’s Guardian reminds us to watch our wigs and get our submissions right.

Photograph: Ben Birchall/PA

Mrs Justice Laura Cox, sitting at Bristol Crown Court has sentenced David Evans to 18 months imprisonment for impersonating a barrister. Here was a man with a “grandiose sense of self-importance” who posed as a barrister to represent a friend.

David Evans chatted in the advocates’ dressing room and even got into the cells to visit his “client”, cannabis farmer Terry Moss.

H H Judge Stephen Wildblood, presiding in the confiscation hearing noticed that Evans wore a solicitor’s gown and a barrister’s wig.  To compound his mistake, his legal submissions were “hopelessly wrong”. When the judge questioned Evans about his legal qualifications, he admitted he had none.

Mrs Justice Laura Cox told Evans, “the planning of this enterprise was entirely yours, it was your decision to style yourself as a senior advocate. You are a complex and clearly intelligent man … you have a grandiose sense of self-importance.”

Evans told the court he was a “senior advocate” at a London law firm. H H Judge Stephen Wildblood, became suspicious, and noted, ”although there may be circumstances in which a solicitor may wear a wig, it struck me immediately as strange. I was surprised to see the confusion of court attire.”

Evans was arrested and charged with “carrying out reserved legal activities when not entitled to” and “wilfully pretending to be a person with the right of audience”. He had denied both charges, yet a Bristol jury took 30 minutes to convict.

The blogger wonders how Evans would have fared against the Quality Assurance Scheme for advocates? Perhaps level 2?

Mediation Bill – Ireland

Image by Stephen Twist

Did you know that on 1 March 2012 the Irish Department of Justice published its draft general scheme for a Mediation Bill?

Under the Bill, mediation would be facilitated and encouraged in civil, commercial and family disputes – replacing litigation wherever appropriate. Yes, the Law Reform Commission’s recommendations in their ‘Report on Alternative Dispute Resolution – Mediation and Conciliation‘ have been taken and acted upon.

The draft Bill proposes:

  • A new statutory duty on solicitors and barristers to inform their clients about mediation as an alternative means of resolving disputes before issuing a claim – and to certify that they have done so;
  • Confidentiality of all communications between parties in the course of mediation;
  • Empowering the parties to engage in mediation and deciding their mediated outcomes – but providing for binding agreements unless specified otherwise;
  • Giving the courts statutory powers to ‘invite’ parties to consider mediation, enabling adjournments for this purpose, and power to award costs to those unreasonably refusing to engage;
  • Placing  an obligation on mediators to inform the parties of their qualifications/training, and to report back to the court on outcomes.

The Minister is to forward the draft Bill to the Joint Oireachtas Committee for Justice, Defence and Equality prior to publication. The Committee has until 1 June 2012 to report back to the Minister.

(With thanks to Jarleth Heneghan & Cassandra Byrne).

China – new legislation on police detention

With thanks to the Guardian 8 March 2012
Photograph: David Gray/Reuters
Earlier this month, China unveiled legislation allowing police to hold those suspected of ‘state crimes’ at unknown and unnamed locations, but after much controversy, has removed a secrecy clause permitting police to hold some suspects for up to six months without informing their families.

State security crimes include subversion and other vaguely-worded charges often used against dissidents.

Having spent 11 months of the last five years in Buenos Aires I became familiar with the stories of ‘los desaparecidos’ of Argentina – up to 30,000 dissidents that in the late 1970’s were spirited away at nightfall, some to be dropped from aircraft into the Atlantic, many never to be seen again. Now, each Thursday, the female relatives and supporters of the disappeared silently circle Plaza de Mayo (between  the Presidential Palace Casa Rosada and the Parliament Congreso) – in memory and in protest.

With the amendment of the Chinese legislation, legalised disappearances may be avoided in  China, but the overall import of the new procedure is far from clear.

When Pu Zhiqiang, a Beijing lawyer who has taken on sensitive cases such as those involving dissidents, spoke out about the issue of enforcement of the legislation, police attended his offices to prevent him making further comment.

How many lawyers working as we do in democratically accountable systems take for granted some aspects of  important protection offered by our laws against state control? Are we  conditioned in a moderate climate to perceive the excesses of unaccountable detention as a distant and unlikely threat? Now within our global environment, it is not even more important that we are prominent and heard on these issues? Perhaps that is one of the essential justifications for an independent Bar; something worth fighting for.

Paper-free Revisited

For the first time in Care Proceedings, I have been to court without the case papers. Yes, I remembered my flask, but there was not a file to be seen.

At this stage of the proceedings (Interim Care Order) there were only eleven critical documents, all of which were all safely stored and available on my Samsung Galaxy Tablet which nestled in my inside jacket pocket. The documents comprised a mixture of Word, PDF and picture files, received by email attachment and which I had read on screen the night before.

I have to admit that I rather envied the sensible IPad owners who, with that clever little IAnnotate App are able to highlight text and book-mark pages. Whilst the rest  turn pages, the Ipaders simply flick between documents with the dab of a fingerprint.

I found the Galaxy tab near perfect for the job. With RepliGo Reader 3.2 the IAnnote features for PDF’s are available for Androids. Click on this link to watch the video demonstration, although I suspect you will not need the ‘night mode’ unless you find yourself listed N/B 1400 hrs before the Northallerton FPC.

The search facility is of considerable use, allowing you to find the precise point without trailing visually through page after page. Also important is the facility to click to the list of your annotations. From there you have simple and fast access to the individual entries you have made. The digital signature operation is also of great use and will allow you to sign documents under the EU Electronic Signatures Directive and section 7 of the Electronic Communications Act 2000.

If you are contemplating the digital age with relish, my advice would be simply to go for broke and get an IPad 3 with 4G. This way you will have access to everything you want, when you need it. For example, the other day my opponent – a London silk – was able to access each statute and statutory instrument as it was named, although I am not too sure how comfortable he was with the Magistrates’ Courts (Hearsay in Civil Proceedings) Rules 1999!

To undertake, or simply to agree?

Family practitioners take note- Stephen Alderson has delivered another very sensible letter concerning orders in family cases. Knowing you, as only the DS Blogger does, many will simply have clicked on his message and told yourselves that you will read it later. And who can blame you. You are too busy with important matters.

In the spirit of attending to your needs, saving you time, and making things simple, the blogger will tell you what you need to know.

First, Philip Waller, senior DJ at the Family Division Principal Registry has been chatting with his fellow DJ’s around the block. They (including Stephen Alderson) are really concerned about PD 33A. It is to do with ‘undertakings’, and the attachment of a ‘disobedience’ warning.

Now that we barristers have the job of drawing up the orders, we need to get them right. In summary, whenever you thought about including the word ‘undertaking’ in your order, forget it unless you want the offender locked up or flailed. Instead, try the word ‘agreement’ or ‘agree’. It is perfect in a recital,  and carries with it the clear intention of the parties. This way, the judge does not have to threaten imprisonment  for any transgressor. They are happy; and you have shown yourself to be an intelligent drafts-person. DJ Stephen Alderson warns “be prepared to answer the question as to why you need a penal notice”.

Interestingly, the point goes a step further than first appears. Is this another example of the ‘modification’ of family proceedings, away from ‘the order of the court’ to ‘the agreement of the parties’? The blogger thinks it is, and applauds the move. Before too long, court orders will comprise a recital of agreements rather than a record of findings and requirements.

Perhaps another reason to get a mediation qualification?