Now ‘not so anonymous provincial barrister’

You will recall that Lucy Reed, award winning writer of ‘Pink Tape: a blog for the family bar‘ sought Family Justice Narratives from those working in the field of family law. The contributions to the narrative are illuminating. Visit her blog to read more about them. Here is one contribution that you may recognise.

Narrative No 3:  Now ‘not so anonymous provincial barrister’

Tell us where you fit in (solicitor, barrister, social worker, guardian, judge, researcher, court staff, something else)

I’m a Barrister. It’s a job I have been doing now for over 30 years. I am in independent practice, but work with others in a busy set of provincial chambers.

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?)

Like the ‘Anonymous Social Worker’, I too never have a typical week. A lot of my work is in family courts, undertaking cases involving children – public law disputes concerning care proceedings and private law conflicts about residence and contact – and of course money (called financial remedies).  Here, over 60% of my colleagues are women, many of whom are young. It is fun interfacing with bright, intelligent, innovative younger people. I cover two other specialist fields which have nothing to do with family law, so I do get a break from the emotional side of practice. As well as acting as advisor and advocate in cases, I also have a mediation practice. This is the most enjoyable part of my work. Mediation is quite transformational, turning bitter conflict into workable solutions.

Tell us about the highs and lows and the reasons you do the job

You have to be passionate to be a barrister. After all, the main part of the job is taking on issues (some of which are very challenging) and fighting the case for your client. The ‘highs’ come from the sense of a job well done, although being competitive, I have to admit that ‘winning’ gives me a particular buzz. Getting to the end of a case and hearing those immortal words from your client “You were wonderful” is the best reason for being a barrister. The lows arise when you have a particularly challenging client, opponent or judge. The client who thinks that they know best, or the opponent who will not work flexibly, are my two biggest bug-bears. Judges are quite another thing, but these days if they get awkward, I just tell them to behave, or appeal their decisions. The job of barrister does require a lot of work out of hours, and this can be a drain on personal energy. Fortunately, being older, I get fewer last minute instructions, and when I do, I generally know from experience how to handle things. Then, there is the paperwork…..don’t get me started on that!

 

Tell us about what works well in the system and tell us about what does not work at all

Some say that our system of law is the best that can be devised. I disagree. In the area of family law, I think that the adversarial approach is out of date, and should be scrapped. It used to work when judges just had to listen and decide on what they heard. These days, judges are more proactive and investigatory – and this sits badly with an adversarial approach by advocates. I would like to see this change in family proceedings. Judges who want to inquire…let them inquire. Where advocates are needed, let them assist with this process. Currently, we have an uncomfortable balance between the one and the other.

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

The family justice system pretends that it is ‘child focussed’ but I am not too sure that this is strictly true. Frequently the voice of the child, or children, is drowned out by the battle between parents – or parents and local authorities. It is rare to come across a case where relationships between the adult players are functional. I often feel that they get in the way of proper, child focussed solutions.  Rather radically, I question whether parents in care proceedings, or private law proceedings, really need ‘party status’? Generally, parents want to tell a judge how they feel and what they want. They do not really want to run cases. They are certainly not good at it. On the other hand, the job of case management cannot simply be handed over to local authorities.  Why not give that job of case management to a properly resourced Children’s Guardian? The parents could then say what they wanted as compellable witnesses, each proofed by the Guardian’s solicitor. It would mean lean time for lawyers, but would simplify and speed up what is currently a protracted and expensive process.

 

Tell us about how you combine your family with your work and how your experiences impact on your relationships and your parenting

Being a barrister requires discipline, and part of this is ‘knowing when to stop work’ – for the day, the week, or the season. I learned from a colleague’s experience. One weekend, as usual he was reading a brief when a little note appeared under his study door, “daddy, are you coming out to help celebrate my birthday?” When my son was young I always took two months off work in the summer so that I could enjoy summer holidays with the family. Yes, its two months without an income, but then you simply budget for this, if you have the right practice. Normally, I will avoid any mid-week commitments, as almost certainly, a late brief will come in on the night you have arranged to go out or entertain friends.

Tell us – would you choose this job in your next life? and will you be doing it in ten years time?

In ten years time I will be well past working age, but if I wasn’t I probably would still be working as a barrister. I much prefer the collaborative approach of problem solving, so would hope to develop my mediation practice. What about my next life? As a barrister?…most certainly not! I want to come back as a creative artist – art, music, dance: everything that is the opposite of what I do now.

And tell us your bright ideas for change and for dialogue

First, move family law from the adversarial process. Introduce more collaborative working practices. Use some of the money that is spent on ‘fighting cases’ to bring about change – in parenting practices, local authority resources, representation of children. Next, save the judges for the final stage of cases, where options are balanced and tested, and decisions need to be made. The ‘case managers’ need only go before a judge if they cannot agree what is needed. Most advocates (especially some of the younger ones) are very good case managers. Why should they, their clients and other professionals spend a morning, or worse – a whole day at court to deal with administrative decisions which they could fix by email or over the phone? Finally, keep politics out of family proceedings. Ken, I think you know what I mean….

Policing Britain

Photograph: Matt Cardy/Getty Images

In the mid 1970’s as part of the national Queen’s Police Gold Medal Essay competition, the blogger (then a youthful Metropolitan Police Officer) submitted a paper on Policing Reform.

The blogger’s  idea was to divide UK policing into three separate functions: the ‘Police Community Service’, the ‘Police Office’, and the ‘Police Agency’ – yes, very radical proposals at that time.

Clearly, the essay hit the establishment like a wet blamange…in fact less than that – it caused no reaction whatsoever, to be hidden away as a losing entry and certainly did not procure the writer a Gold Medal.

But today….hello, South Yorkshire Police? Did someone dig out the blogger’s essay and re-jig it for Chief Constable, David Crompton?

The purpose of my three-way division of policing was to address the problems arising from a single police pyramid – to which recruits arrived, in which they were required to cover disparate and sometimes incompatible functions, and from which (when skilled and experienced) they were to be removed into police administration on promotion.

My proposal envisaged separating functions and responsibilities. It was driven by pragmatic desire for both rationalisation and appropriate career development, rather than cost. Therein may be the distinction from the current South Yorkshire Police pilot.

All police officers would start their careers as Community Service Officers, performing a peace-keeping function in the community, interfacing with other public bodies, such as social services, community mental health, education, probation, housing and the charitable sector. They would be visible and have a limited, but useful range of powers. Their tasks would be much to do with community cohesion as with enforcement. The department would have its own career structure, with the aim of retaining skilled community officers within this special field through to retirement.

Parallel to, and fed from the Community Service Department, would be the Police Office. Officers in this department would have similar powers and functions to those of current police officers, with investigative and enforcement responsibilities, save that they would be relieved of many of the social tasks undertaken by the Community Service teams.

Finally, to be fed from and having responsibility for both the ‘Community Service’ teams and the ‘Police Office’ (with the added option of recruiting outsiders with appropriate skills) would be the ‘Police Agency’. It would have tactical command of both police and community operations and policy.

How has the blogger’s vision stood the test of time? I now see reactive policing, with officers in stab-proof vests, festooned with handcuffs, sprays, and para-military pockets stuffed with kit, arriving in police vehicles long after they are needed. Frequently, their communication skills with the public are lamentable. I see town centres, both during the day and at night, devoid of any element of social management. Reflecting current concerns with the nursing sector, I see a loss of care and empathy in policing. More worrying, I do not sense a proper interface between policing and other social players who have responsibility within the community.

The separation of functions between police officers and those with community responsibility could have a hugely ameliorative impact on this. The Community team would be attentive to social management and support, providing a visible and financially sustainable presence. Likewise, Police Officers, skilled in observation, investigation, detection and restraint techniques – with the risks, responsibilities and pay that go with them – would be released to do precisely that.

In addition to the social benefits, such measures would enhance the career opportunities for many who choose to work in this important public sector. Those who see their future working in the community could develop their skills and further their careers whilst staying there. Those officers who seek specialist policing skills and are prepared to take the responsibilities that come with them, could gravitate to the Police Office. And with a separate Police Agency, streamlined management and public accountability would be a real possibility, rather than, as currently, an uncomfortable compromise between operational independence and political control.

Disclosing interests

Has the Bar fallen behind the rest of society in its duty of disclosure?

For a number of years, the blogger has been involved in pro bono work with a UK charity, interfacing with many public authorities in the north of England. Between them, and the the Bar there seems to be a wide void of practice. In the public/charity sector, key to each appointment, contract and case taken –  is the disclosure of potential conflict of interests.

In a recent trawl of lawyer’s biographies, it is hard to discern what special interests members of the Bar or solicitors may have.  Here, the blogger is clearly not referring to ‘horse riding’, ‘modelling’, ‘fishing’ or event ‘tango dancing’, but to those activities or involvements that could give rise to – or might be perceived to result in a conflict of interest.

From the sample of biographies, it appears that we are good at promulgating our experience, skill sets and capacities; but reluctant to divulge any personal issues, links and in particular, financial interests. No, the Bar Standards Board has not requested publication of such ‘sensitive’ information, but perhaps we are simply ignoring a rising  moral duty to disclose.

How frequently has a barrister accepted instructions in a case that touches on a belief, prejudice, strongly held opinion or personal experience? In such cases, what if anything, has been shared with the professional or lay client? Are we right to separate ‘personal disclosure’ from possible professional conflict?

So often, when asked about personal feelings in taking on a case, I have rejoined “It is the exercise of a professional duty, not the indulgence of a personal belief”? And yet, at the root of all professional activity, we cannot and simply do not escape from our feelings and prejudices.

For most of my professional career, I have felt that this issue is not of importance, compared with the barrister’s duty to fight fearlessly for the client’s cause. The blogger senses that this is changing…the climate concerning the practice of disclosure has changed and continues to change. With the advent of internet searching is it not right that clients should track not just our passions, but also our prejudices?

Divorce Arbitration

Financial remedy mediators have been concerned that there would be some cases for which complete agreement might prove elusive – whether a small sticking-point, or a fundamental difference on a particular point.

It’s right to say that facilitation (or mediation) has a very high success rate. But those who are experienced in this field  felt that getting parties close to agreement, or even at the point where agreement was never going to happen, and then returning clients to the court process, was not a good idea.

This is where divorce arbitration comes in.

It was originally conceived as a ‘back-stop’ – to be suggested should facilitation not have succeeded in providing a full settlement. The offer of a private arbitration would create the opportunity for the parties to seek a binding outcome, enforced by the courts on the basis that both parties had agreed to it; and the resulting award would be sealed by a court unless there was a good reason not to do so.

This month sees the first forty family arbitrators, trained by the brand new Institute of Family Arbitrators, a group formed to deal with financial arrangements following separation. One of the forty, Marilyn Stowe, senior partner at Stowe Family Law, suggests that the arbitration process will be attractive to two groups of people – those involved in big-money cases, clients who don’t want to wait for the court process; and those who want a specific arbitrator to decide the case or a specific point.

The blogger senses that family dispute arbitration will be taken up by a wider client base. It is an attractive option, not just those with considerable wealth or specific needs – but the ordinary couple who have tried for a mediated settlement and would welcome a final solution should they not agree.

Perhaps Jane Croft’s article yesterday in the Financial Times misses an important point. Arbitration is not simply for the super-rich. After all, they can afford to fight their cases out behind closed doors, before a High Court Judge, with Queen’s Counsel representing them. No, the arrival of private arbitration in the field of financial remedy proceedings is for all – a simple, low-stress, economic alternative to the court battle.

Walk the tight rope

Standards at the Bar have fallen  for several reasons including,

“larger chambers and greater mobility between chambers as they compete for shrinking quantity of work from solicitors. This means that collegiate peer pressure to maintain ethics for the benefit of the group or chambers was weakened. The days of feeling free to share an ethical burden with the head of chambers and take advice are gone. Heads of Chambers are more like marketing tools these days. As a result, ethics has diminished as a subject or focus of legal practice. It’s been pushed out by structural changes“.  LuminiferousEther

‘LuminiferousEther’ was responding to the Guardian Law tweet that alerted ‘we internet fishers’ to the comments from UCL Professor Richard Moorhead about ethics and lawyers. Professor Moorhead contends that some lawyers walk “a dangerous and sometimes untenable path because commercially and culturally they were disposed to defend the client to the death.” He goes on to suggest that “the culture of clientelism needs a long hard look”.

Law director Sylvie Delacroix supports Richard Moorhead: “the gap between personal morality and professional ethics has grown wide in recent years. And as we have seen, conforming to professional standards isn’t always enough”.

Fascinatingly for the blogger, Silvie Delacroix suggests that an answer to the ethical issue facing lawyers would be to “promote space for discussion”. We should respond more like doctors, sharing ethical issues; and we should prioritise the teaching of ethics as part of lawyer training. Perhaps this landscape of thinking goes some way to justify the barrister’s blog – open to all, wide ranging, inclusive discussion; rather than secretive ‘commenteering’ by professionals behind closed doors.

As a profession, are we in danger of prioritising ‘outcome focus’ rather than ‘doing what is right’? The adversarial process certainly drives ‘outcomes’ rather than ‘fairness’. What part of our duty involves ‘fairness’?

In the ‘Fair Minded and Informed Observer‘ we considered the burgeoning pressure on the legal profession to identify and promote fairness.  And in ‘The Price is Right‘ the blogger refers to the prospect of third party investment in litigation, and the recent development of chambers wholly owned by a holding company. When lawyers are owned by hedge funds – what then about professional ethics?

With thanks to Alex Aldridge

Jury disservice

Photo courtesy of http://www.dailymail.co.uk

“The sentence of the court is 56 days imprisonment of which you will serve up to half”.

What have March, Malta lies, deception and Sciatica got in common? The answer lies in a robbery trial last month at Preston Crown Court.

At the outset, the trial judge H H Judge Baker, took pains to check whether any proposed juror would face difficulties if they were sworn in to deal with a four week robbery trial. The case concerned raids by accused Raymond Mallen on security vehicles carrying cash. This was a big trial, with huge implications for the defendant, witnesses and society.

On the Monday of the fourth week, just as the summing up was about to start, jurer Janet Chapman did not turn in, instead sending a message “Hello, this is Janet Chapman Juror Number ***. I won’t be attending court for a period of up to two weeks. I have got to return to the doctors next Tuesday. I have got sciatica. Thank you. Bye”.

But rather than being bed-ridden, she is on a plane to Malta with her partner Raymond Pritchard. The £699  trip was planned three months earlier in January, although according to Mr Pritchard, had been concealed as a secret until the night before.

In sentencing, the Recorder of Preston, H H Judge Anthony Russell QC said “Jury service is one of the most important public duties that a citizen of this country can be called upon to perform. It is inconvenient, but an essential part of our democratic system. It is essential that the duty of jury service is taken seriously by those called upon to perform it, and that it is performed diligently and responsibility”.

Mallen the robber was convicted by the remains of the jury and got 12 years imprisonment.  The rest of the robbery gang got 80 years in total. Janet Chapman the juror is serving her 28 days. Mr Pritchard, the disbelieved schemer, is “choking back his tears at his semi-detached property on the outskirts of Blackpool”. Perhaps he is lucky not to have joined them for ‘seeking to pervert the course of justice’?

The case highlights issues of social responsibility. There was a time when the question of jury service for those eligible, would have gone unquestioned. Janet Chapman reflects contemporary thinking that social responsibility is a question of personal choice. At a time when ‘some’ are carrying a high level of responsibility for ‘others’, isn’t it refreshing that Judge Anthony Russell should give a wake up call to those who feel that they can shirk their share of duty?

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