Party Animals

photo of Sir James Munby, President of the Family Division, courtesy of Brian Smith for the Telegraph

A further post dealing with putting children first in family proceedings

“Going to court about your children is almost as bad as accepting an invitation from Jeremy Kyle…you should have sat down quietly together and sorted it. Instead you go for broke and destroy your last bit of dignity in a courtroom drama?“

Strong words, (I hasten to add, not from the President of the Family Division) and amusing in their invective; but containing that trace of truth that harbours an important point.

If anyone was to invent a process that was better designed to fan the flames of conflict and at times humiliate the protagonists, they may be hard pushed to beat the current ‘family court system’. Take two people who are at loggerheads, a judge who ‘has better things to do’, bring in two lawyers with their jerry cans of publicly funded fuel, strike a match and you’re sure of a big blaze. If you are legally aided, the taxpayer gets to pay for your day in court, and if you are not-so-sponsored, you can also add in a huge bill for all the damage that is sown and reaped.

For over thirty years I have played my part as a barrister in these cases. Often, there are no winners – apart from the lawyers. The adults leave court with the compromise they could or should have agreed many months before, and the children pick up the emotional tab of their parents’ conflict.

In my previous blogs I have explored the role of mediation to tame the tempest. Glance back to see my ‘mediation musings’. But in this blog, I want to explore the question of why we allow (and frequently require) the adult players to be the drivers of litigation concerning their children.

The Children Act 1989 was intended to put children first. Maybe it did, but the legislators did not seize the stinging nettle as to ‘who should manage’ competing claims. In 1989, the adversarial system was still in full flight, even in children cases, and family advocates were rated on being a “good fighter”, “doughty opponent”, or “a determined advocate”. It would have been unconscionable to remove from parents their cherished ‘party status’ through which they could both commence proceedings and seek to control them as litigators.

Now the climate has changed. The courts have felt the effect of global warming and frequently turn on the air conditioning, or even the sprinklers to cool the temperature of conflict. The Children and Families Bill seeks to remove some of the more divisive concepts concerning private law orders. So, is the right time to take that extra step – and withdraw party status from the protagonists?

Envisage a system where, when an issue arises in relation to the care or management of a child, the court is notified, and appoints a ‘children’s guardian’ as a matter of course.

Rather than allowing the adults to rush through the doors of the court, the guardian would mediate between the parties, aiming for the middle ground that is so often adored by judges. Where agreement was possible, it would be recorded as an agreement and submitted to the court as endorsed in AI v MT and re-affirmed in S v S.

Should agreement not prove possible, the guardian’s solicitor, owing an equal duty to the child and the court, would take over the whole case management. One of their tasks would be to obtain statements from the parents setting out their concerns, positions and requests. The parents /grandparents /extended family members would all remain witnesses, having a right to have their voice heard, but not to manage and control the case. Only in public law cases where serious allegations were made against a parent would the question of party status arise.

In the absence of party agreement, the Guardian’s advocate would present the contested issue to the court, calling the parents as relevant witnesses. That which had already been agreed could be outlined, and the remainder decided by the district judge.

Of course, we would have to move away from the adversarial process, and that would require cultural and legislative changes. This may already be awaiting in the wings with the advent of the Single Family Court. We would also need proper funding of guardians and their solicitors. But the saving of replicated costs of party status for parents would probably pay for a pretty good service.

The requirements of efficiency and institutional functionality would probably rule out CAFCASS as a service provider, yet with a large pool of funded, professionally regulated, independent guardians, this problem could be overcome.

European Convention articles 6 or 8 may be cited as an issue, but  the European Court in Rosalba Alassini & Ors v Telecom Italia SpA & Ors, a endorsed the introduction of compulsory mediation as a preliminary step to litigation. Here, the facilitative role of the Guardian would be a preliminary step before the right to be heard by the court.

Do you agree that the change is a timely and necessary step on the road to managing both public and private law issues competently and proportionately, keeping the child on centre stage?

But what about the poor lawyers who would lose work? …..Yes, you have a point there.

The relationship between the Bar and the Bench

In January two years ago in Family Proceedings on the Move I raised an issue about the requirement for advocates to draft court orders.  In July last year in The Headmaster’s Slipper, I had cause to revisit the topic in the light of the ‘Submission of Orders in the Single Family Court’ direction.

It is now established practice that the advocates in a case will be responsible for drafting the majority of court orders within tight time-scales, so relieving both the judge and the court service who otherwise would prepare and ‘type it up’. Only those of my era will appreciate fully what a sea-change in responsibility and time this produces. Advocates, who formerly strolled away from court for lunch – their job done – now spend hours in drafting and agreeing the order. Mostly, this work falls outside remunerated time. In other words, the preparation of orders is a pro bono contribution.

As of the 17 March 2014, should Advocacy Forms not be signed by judges on the day of hearing,  Newcastle Combined Court has stated that it will refuse to pass them to Judges for signature. Instead advocates will be required to make an appointment with the Judge (probably prior to court commencing) where the Judge will consider the matter and listen to the advocate’s representations as to why this wasn’t done at the conclusion of the case before leaving court.

The probability will be that the judge did not stay long enough at the conclusion of a case for the information required on the form to be added, and it to be handed in for signature on the day.

Yet it occurs to the blogger that this is yet another example of ‘the administration of advocates’ by the court.

The Advocacy Form was always a flawed concept, proving nothing that could not be better obtained from more reliable, existing sources – a set of instructions, an up-to-date index and a witness list provide all of the information that is needed. The ludicrous issue of a judge certifying start and finish times can, if needed, be spot checked by reference to the court file.

A senior member of the Bar has recently observed that where the court service lose court orders and bundles in a case they will now be required to ‘make an appointment with her and she will consider whether to provide them with another copy’. I agree with her; yet this brilliant and witty ripost shows just how far we as advocates are being pushed by ‘the system’ away from our old collaborative relationship with judges.

With the Quality Assurance Scheme for Advocates appointing judges as ‘graders of advocates’, the historic relationship between the Bar and the bench is now up-for-grabs. Judges and advocates are being manipulated and tied by the court service and government into a new web of bureaucracy. At what point will judicial discretion in relation to the drawing of court orders, the completion of Advocacy Forms, the grading of advocates – and most certainly many other issues – be totally removed, to be replaced by ‘management strategies’?