Party Status in Family Proceedings: radical changes

Photo courtesy BBC

In an earlier posting – Parents in Care Proceedings -Parties or Witnesses, I raised the question of whether parents should have party status in cases involving their children.  I also explored the success of  Mediation Information and Assessment Meetings as a mechanism to moderate adult protagonists in private law family proceedings.

A number of readers have expressed a particular interest in these ramblings, and I feel the time is right to pull the ideas together into a tighter structure, so to progress the debate.

The premise was that, whether public or private law proceedings, frequently the competing and increasingly vociferous claims of  parents, grandparents and other family members don’t promote – but often get in the way of justice for the child. Proceedings, where the flames are fanned by lawyers, fuelled by a jerry can of public funding, develop a life of their own – with the voice of the child getting lost in the melee.

I considered whether the voice of the adults should have such prominance. Should family cases be instigated as they are now, like civil cases, with a claim that brings parents as ‘applicants’ and ‘respondents’ in opposition? What is the real need for an adversarial process in family law? And what is the justification for using the public’s money to pay for such a potentially polemic process?

Important decisions are taken in relation to families. Some would say that they constitute the most important decisions next to the issue of depriving individuals of their liberty. This seems to be the main driver for retaining the adversarial process in family law. However, what we have ended up with is in fact a quasi-adversarial process, where roles are fudged, and the traditional adversarial approach is deprecated by the judges who have responsibility for it. Perhaps rightly, when you see first-hand what the conflict produces – attempts at manipulation, polarity, and a reluctance to compromise.

In a real child-centred system, you would not have a system where the competing claims and counter-claims of parents set the stage for a court hearing. You would substitute a process where the voice of the child was heard first and last, and the adult players gave their opinions as witnesses.

Of course such a process would require significant cultural and statutory changes. First, you would need a new mechanism in which, when an issue was raised that concerned a child, the child or children would be represented as a matter of course. The solicitor for the child would take charge of the case, contacting the parents or other witnesses with a view to taking statements from them. The child’s solicitor would share the various views and arrange a moderation meeting where appropriate. Whenever possible, out of court agreements would be forged. Where not possible, a judge would adjudicate on the basis of the evidence – oral and written – the parents attending simply as witnesses.

The children’s guardian and the guardian’s solicitor would have a paramount duty to the child, and to the court from whom they received their appointment. Clearly, there would be a need for oversight of their functions and role, but this could be provided by a professional body for guardians and, of course, the judge – who would have  final case-management responsibility.

The blogger believes that many parents would be greatly relieved by such a change. On the whole, parents do not love the adversarial court process, and those that do should not dictate a system for those that do not. Furthermore, most parents do not relish the considerable cost of representation in a battle concerning their children. What they do want is someone to help them formulate a realistic position that has a chance of favour with a judge, the right to answer any concerns about their ability to parent, and the opportunity to be heard before a decision is made.

Whether represented by lawyers, or litigants in person – parents, grandparents and other family members make bad case managers. Solicitors representing both public law and private law clients sometimes fare little better and miss or avoid opportunities to re-direct their clients’ energies away from conflict into the constructive compromise that courts seek.

The downside of these radical ideas is that thousands of family lawyers would face a lean time. The plug pulled on the stream of public funding, and their role restricted to assisting parents as witnesses, the lawyers would no longer feature as visible players in the process. However, the public costs saved could be diverted to fund the guardian’s role, ensuring that public money is put where it will have the best advantage – to enable the interests of children to take centre stage.

The Virtual Court

Photo: Kenya’s 1st virtual court session

Hertfordshire, along with Kent, Cheshire and London, have undertaken pilot studies of ‘ the virtual court‘. Designed for criminal cases, prisoners were video linked from prison for remand hearings.

Last week, the blogger video linked yet again from Leeds to the Royal Courts of Justice for a hearing in a family case.

The idea of the virtual court is not new. Nearly a decade and a half ago following the publication of a number of papers on the subject (including this one from Robin Widdison), the then Lord Chancellor Geoff Hoon mooted the idea of virtual court hearings. In 2001, Lord Justice Sir Henry Brooke had a go,  and in November 2011, Lord Neuberger came very close to the concept of the virtual court.

If you were to poll both professional court users and litigants, the blogger suspects that feedback would centre on the age-old issues: cost, delay, stress of attending court, waiting for the case to be called on, not getting on. They are the main reasons that the English legal system has been moving more and more towards alternative dispute resolution. Might ‘the virtual court’ also address or help with all or some of these issues?

Almost all interim hearings could so easily be removed from the court setting to a judge-supported administrative path. Yes, sometimes the parties need to see and hear from the judge in person – for example where settlement indications are sought (for example in financial dispute resolution meetings). But the sound of the voice and the whites of the eyes are equally audible and visible through video linking.

Just like working from the screen rather than the page, video hearings require new skills from both the lawyers and the judges, and to get them, a degree of new discipline. The blogger is unconvinced by lawyer’s assertions that “it takes the door of the court to broker a settlement”. All that is needed is a culture change. What better way to change the culture of settlement than for judges to prepare for a video hearing by reading the papers and setting an agenda, and the lawyers to prepare their clients properly before the video hearing?

The technology is there, and so is an increasing level of judicial experience of video hearings. The parties to a claim or case could simply attend their solicitor’s offices for a video conference with the judge. Any documentation to be shared could be scanned and emailed and in one simple measure the issues of overcrowded courts in staffed and expensive real estate, long delays and waiting time, court security, costly and lengthy travel arrangements and the unscheduled use of judge’s time, could be reduced.

Or is the legal profession too conservative, profit orientated, orally obsessed, or self-interested to make such developments work? Why has fifteen years of judicial driving towards the virtual court resulted in virtually nothing?

Job description of a barrister

Did I miss it? I have just undertaken a web search for a job description of a barrister, without much success. How interesting…

Targetjobs got my best score (nine out of ten points);  Allaboutcareers had a go : “yep, that’s right, barristers are likely to do a fair bit of advocacy work”:  (4 out of ten points); and the Bar Council condensed their attempt into five lines (a miserable 2 out of 10 points from me).

But to their credit, their purpose was one of general description, rather than role definition. Maybe they should be forgiven, and perhaps the blogger should have used more fastidious search criteria.

The problem with the job of barrister is that it really defies simple description. Possibly every barrister in private practice does a different job, and so merits a different job description. The assorted collection of types, personalities, practices and outlooks in chambers tells a similar story – where individuality can transform the type of work received, the way in which it is undertaken, and the level of income at the end of the tax year.

However, the blogger thought it might be fun to try to define the role. The interest of the exercise is not necessarily in the finished product, but more in the questions that arise in the journey. Take a look, and see how suited you are for the job!

Specification

 A barrister who:

  • complies with the 8th Edition of the Code of Conduct of the Bar of England and Wales;
  • has paid all fees and subscriptions to maintain practising status, and is listed as currently practising in the Barrister’s Register;
  • has passed chamber’s selection process and been admitted to chambers as a practising member;
  • complies with the responsibilities of a practising member as set out in the constitution of the individual set of chambers;
  • pays all dues required of a practising member under the constitution.

Job Description

Title:                            member of chambers (member)

Reporting to:            Head of Chambers

Hours:                         sufficient to undertake the demanding role of barrister

Function:                   to advise and act as advocate for professional and lay clients where instructed to do so.

Key Accountabilities

  1. To read instructions as soon as reasonably practicable and in any event within 7 days of receipt.
  2. To decide whether the member has the skill, expertise and experience to undertake the tasks required for that piece of work, and to return any instructions to the appropriate clerk that fall outside this requirement.
  3. To comply with the instructions:
    1. by the target date specified in the instructions,
    2. by key dates required by the court or tribunal,
    3. by any protocol,
    4. within an appropriate period of time taking account of the complexity of the issues, the amount of work to be undertaken, or any time scale agreed with the person instructing the member.
  4. To attend any hearing as directed.
  5. To notify the appropriate clerk if the member encounters any difficulty in attending a hearing at the specified date and time.
  6. To inform the appropriate clerk of the outcome of any hearing, where possible on the day of the hearing.
  7. To endorse in a legible manner on or with the instructions the outcome of any hearing and of any other work done by the member, and to prepare an attendance note for the client.
  8. If the member is unable to undertake or complete any work, to return instructions and case papers promptly to the appropriate clerk.
  9. To keep all instructions and case papers safely, to encrypt where necessary, to respect case confidentiality and to ensure that instructions and case papers are disposed of appropriately when work has been completed.
  10. To comply with the Code of Conduct of the Bar, the constitution of chambers, and protocols issued by the specialist bar associations.
  11. To respect the confidentiality of others within chambers and of chambers business.
  12. To comply with directions from the Head of Chambers, the member’s head of department, and in relation to administrative arrangements, the member’s clerk.
  13. To comply with statutory requirements of the Data Protection Act 1998 and the Proceeds of Crime Act 2002.
  14. To report to the Head of Chambers any issues that may have a bearing on the professional reputation of the member or affect the standing of chambers.

The blogger is confident that he has only just scraped the surface with his serious list. ‘Inviting  judges for dinner’, ‘working throughout the night’, ‘cancelling the annual holiday’, ‘dealing with difficult opponents’ are some of the tasks that have not been included, but maybe should be there. Of what would your list comprise?