Let’s leave the party….

child protection

 

Back in February 2014, I raised a question about ‘party status‘ in relation to private law proceedings concerning children – cases where parents disagree about the care and upbringing of their children. To save the reader returning to it, I was simply querying whether giving parents in conflict, the right to manage proceedings in relation to their children was right or appropriate for the twenty first century?

Since then, I have had a number of discussions with other lawyers about public law cases, and their responses have been surprising.

For the uninitiated, public law proceedings concerning children relate to situations where local authority children’s social services feel the need to be involved with families to protect children from harm. The harm may come from poor or inappropriate parenting, downright dangerous lack of care, or even an outside threat from extended family or friends.

As a civilised society, we need local authorities to be proactive in this role, as much as we may instinctively hate the idea of children being removed from their parents -and the only home they have known.

Under a regime introduced by the President of the Family Court, local authorities may have involvement with families for a substantial period of time before proceedings are issued in court. By seeking to work with parents, social workers may be able to achieve sufficient improvement in care that parents may provide good enough parenting and matters need not go to court.

As lawyers for parents and children, we become involved when all attempts to provide a safe home and upbringing appears to have failed. Then the local authority will issue an application in a family court for a public law order – maybe a care, supervision, or even a placement for adoption order. Only now is a guardian for the child or children appointed, and even here their active role is limited.

However, public resources are provided for the parents or carers of the child. Parents become ‘respondents’ to the application brought by the local authority, and have a right to publicly funded representation. The court then wrestles with the dichotomy between the rights of the parents to their family life, and the rights of the child to protection.

So, what is my concern?

Well, it is simple. At a time of limited resources and huge pressures on public funding, why are the parents appointed (and funded) to be drivers of the case? Why do we insist on an adversarial approach in every case involving local authority intervention? Why are parents pitted against social workers backed up by social services lawyers? With legislation that is supposed to be ‘child centred’, why is not the voice of the child – or the independent professional charged with representing the child – not calling the shots?

It would take a significant change in the intellectual/social/legal approach to child care cases to implement a new, totally child-focused system. We would need to go back and re-write the Children Act 1989. But how would it be if, in every case where a child was considered to be at significant risk, a properly trained, properly paid, experienced professional guardian was appointed to oversee conflict between the local authority and the parents from the point of view of the child or children?

Where proceedings were notified by the local authority, a Public Guardian Service with sufficient resources of lawyers and structures, would take over the proceedings. The parents would become compellable witnesses – having the right for their voices to be heard, thus attending to their Article 8 rights. But the case would be conducted by the Public Guardian’s Office with the needs of the child being central. The guardian’s legal team would received or obtain statements from the parents, and these – together with all the other evidence (including that of the local authority) would be considered by a family judge or tribunal.

Other lawyers will be quick to realise some of the implications of this concept. Yes, along with the loss of ‘party-status’, the parents would lose the right to be legally represented, save in cases where very serious findings against a parent may be made. Parents would become answerable to the court’s assessment of the needs of their children to be protected, rather than remaining as they are now, as central managers of the litigation. And we lawyers, who have made a living out of representing parents, would forfeit that work.

But the idea is not simply to save spending massive resources on providing representation for parents, it is to bring about a change in the culture of public law family proceedings. To get away from the adversarial, combative approach – and to substitute a system where everyone’s focus started and finished on the needs of the child. Competent guardians (supported by a Public Guardian’s Office) would encourage local authorities to engage more, and more positively, with families to secure good-enough parenting. They would determine when the whistle should be blown on parents and carers that had not responded to the chances given.

For the first time in the history of children’s litigation, the child would be centre stage – supported and resourced by those best equipped to see through the eyes of a child.

Do barristers and mediation mix?

news6126

 

Some barristers risk perpetuating adversarial stereotypes. But there is still a place for counsel in the mediation process.

Are barristers a useful tool in mediation, or does too much time have to be spent calming their egos before the mediation can get going?

Rachel Rothwell asks the question in her excellent article (click this link) in the Law Society Gazette. Do you agree with her answer?

 

Down the High Street or direct to Counsel?

Welcome to Clerksroom Direct – a recent web presence to be rolled out to the public on 1 January 2015, providing a new service for barristers, clerks and chambers with a portal designed to be an end-to-end solution for the Public Access Bar.

Clerksroom say that their portal will invite enquiries from the public, obtaining quotes from barristers and allowing the public to select the appropriate service. It is to be free for barristers, clerks and chambers as the client will pay a small additional administration fee for using the portal, importantly, giving client choice.

Direct access has been with us in one form or another since 1999 when I set up and ran the first BarDirect pilots that gave corporate and institutional clients free access to the Bar. Since then, metamorphosing into Public Access, with regular training sessions for barristers and the Bar Council’s directory of practitioners, direct access has become part of the legal landscape.

The Bar’s need to compete in the private client market was accelerated by the Law Society‘s insistence on obtaining higher rights of advocacy for their members. This led to the Bar Standards Board declaring,

“Whilst the referral model remains robust for those cases which require and can afford a division of labour between advocate and litigator, there is a need to allow greater flexibility in service provision in cases where this is not so.”

“The BSB anticipates a market for privately funded work where clients involved in litigation have a choice between the traditional referral model, one-stop services supplied either by solicitor-advocates or by barristers who also provide litigation services, public access services where the barrister provides advocacy and advice but the client conducts the litigation and ‘spot’ purchases by self-represented litigants of advice or assistance with particular aspects of their case.”

With the reduction in legal aid contracts and the hike in legal aid entry criteria for firms of solicitors, combined with the removal or reduction of legal aid from areas of legal work, high street solicitors have been feeling the strain.

Some solicitors are now expressing dissatisfaction with the concept of direct access to the Bar, seeing this as the latest nail in the high street coffin.

The question to be asked by us all is whether these changes are here to stay? A quick web search says that they are. The professional bodies slip stream government policies – and appear to agree.

So, is not now the time to recognise change, rather than adopt Luddite responses of denial? Direct Access may not yet be a legal ‘combined harvester’, but the signs are that this is a distinct possibility. Clients gravitate towards two incentives – cost cutting, and expertise. And this is where the Bar is unique.

The Bar will continue to increase its direct client market share. The professions will have to re-configure their relationships to reflect this. But those ahead of the game -like Clerksroom Direct -may have the steal on us all.

 

 

Mediation and Private Law Update

Family-Law

After one of the hottest days of the year so far, and being parboiled at court, chambers, or in the office, it was always a ‘big ask’ to expect a crowd for the latest of the Dere Street Barristers Family Team Lecture Series.

However, Ross Lee on Family Mediation, and Karen Lennon’s Private Law Update (together with two CDP) proved to be more than a sufficient draw.

Yesterday afternoon’s session was held at the Royal York Hotel, right in the centre of York and within jogging distance of Dere Street Barristers South premises in Toft Green.  From the windows of the Crown Room, the Yorkshire Wheel provided an elevating backdrop to this fascinating lecture.

Ross Lee opened the proceedings with a potted history of the developments in mediation – from the early 1990’s of Lord Irvine and Lord Woolf:   Halsey v Milton Keynes NHS Trust (2004) EWCA Civ 576 – to ADS Aerospace v EMS Global Tracking (2012) EWHC 2904. It rapidly became clear that family mediation, from its tentative start, is now becoming central to the process of resolving disputes concerning both children and finances.

Naturally for a Family Group Lecture, Ross Lee’s principal focus was on the development in family law – addressing the contact activity direction to attend a Mediation Information and Assessment Meeting (MIAM) under s11A Children Act 1989 and r.3 Family Procedure Rules and Practice Direction 3A  – Pre-Application Protocol for Mediation Information and Assessment 3A. This he set in the perspective of the Law Society’s response to Norgrove. As a group we explored the will of the courts to apply r.3 actively, and concluded that the district bench still has some distance to go.

This raised the question of compulsory mediation – not simply in private family law matters, but in financial remedy proceedings.  ‘Expecting’ and ‘requiring’ attendance at MIAMs are two different concepts arising from differing cultures. Attenders appeared to favour an element of compulsion in relation to the mediation process.

Finally, Ross Lee addressed the rise and use of Arbitration in family proceedings – opening the door to the private and confidential resolution of family conflicts. Is this the beginning of ‘private courts’ for family conflicts? Ross drew our attention to AI v MT (2013) EWHC 100 (Fam) where between paragraphs 26-37 Mr Justice Baker considered the use of arbitration in relation to proceedings involving children.

 

Karen Lennon updated attenders on CW v SG (2013 EWHC 854 (Fam), W (Children) (2013) EWCA Civ 335, AB v BB (2013) EWHC 227 (Fam) and Re H-L (A Child) (2013) EWCA Civ 655.

CW v SG and W (Children) concerned applications relating to Parental Responsibility, and when – and in what circumstances – this could or should be terminated. Karen Lennon drew our attention to the conflict of approach between the cases and the difficulty practitioners may encounter in this area.

AB v BB concerned the risks to children of a direct contact order with their father. In this case, mother gave evidence by video link and the court balanced the father’s Article 8 rights with the risks arising from contact. The case has significance arising from Mrs Justice Theis’ test at paragraph 13.

Re H-L (A Child) concerned the appointment of experts and R.25(1), a case featuring Janet Bazley QC and Carly Henley – both members of the Dere Street Barristers Family Team who were commended by the court for “the helpful way in which they have assisted the court in teasing out both the detail of this case and the wider implications of the new rule”.

Importantly, Lord Justice McFarlane prefaced his judgment with these words,

“In preparing the judgments which are now being handed down I have had the benefit of reading in draft the judgment of Sir James Munby P in which he sets out general guidance upon the interpretation of Family Procedure Rules 2010, rule 25.1 which restricts expert evidence “to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”. I would wish to associate myself, word for word, with the guidance contained within the President’s judgment in this case. The judgment which I now give seeks to apply the approach described in the President’s judgment to the facts of the present case.

The court made reference to Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535[2008] 2 FLR 625, paras [120], [125]. R25(1) it was said “has a meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.” In my judgment, that is the meaning, the connotation, the word ‘necessary’ has in rule 25.1.

So, now we know exactly what the court expects!

Of importance, Karen Lennon asked us to consider the case in relation to private law proceedings where experts may be required and where the same test would be applied.

This, the second of nine lectures in the current series, was a superb resource, saving those attending a considerable amount of work in sourcing these important cases and materials. Discussions continued after the lecture, until the final pod of the Yorkshire Wheel came to rest – a fitting end to two fascinating lectures.

The Headmaster’s slipper

headmaster2

In a previous posting Family Proceedings on the Move we caught sight of Judge Stephen Alderson’s pincer move concerning the drafting of court orders by advocates.

With the imminence of the Single Family Court, and the critical time limits by which it will be judged, a further new direction has been given concerning the filing of orders. I have set it out in full below, with some highlighting.

When many years ago, this blogger came to practice at the Bar, the judges drew their own orders – for that was a part of their job  – for which they were paid.

Now, it seems, it is a task for the advocates – for which in publicly funded cases, they are not paid. No doubt the President would deem it to be part of the not-inconsiderable ‘pro bono’ work of the 21st Century Bar.

What is even more questionable is the way in which the burden shifts deftly from the Applicant  ‘litigant in person’  – to the privately paying Respondent.

So, not only does a represented party bear a responsibility to prepare the case summary, court documentation and bundles, but now to spend further time after the case has been completed in drafting the orders. Those who responsibly seek representation, end up paying the whole cost of case management.

Of course, counsel and solicitors can and do prepare perfectly agreeable orders when needed, but there are cases where a draft order limps back and forth before a reluctant agreement is reached. That is because the advocates have to unravel from the judgment what the judge really intended – and sometimes this can be a mind-boggling affair.

When we listen to a judgment, we take from it a differing emphasis or ‘spin’ , and this may find its way into the order that we draft. Other times, the judge may fail to cover a point that could have been picked up by the judge had she or he drawn up the order. In such cases it is left to the battle lines of counsel and solicitors who may have very different views from the judge.

But for now, it is to be our job. Do it to pleasure the judges. Fail – and it appears that you will be punished on costs. And you don’t want that!

Submission of draft orders for approval in the Single Family Court

This direction applies to the High Court and all of the County Courts sitting in the area of the jurisdiction of the Northumbria Cluster and North Durham Courts.

It has become apparent that on a number of occasions Counsel, advocate Solicitors and/or instructing Solicitors have been responsible for delay in submitting draft orders for approval by the Judge when required to do so and this has caused disruption to the management of cases in a proper time frame. A considerable amount of Court time is being spent pursuing Orders causing delay in producing sealed Orders for the parties.

While it is accepted that in a few individual cases that the Judge and the Advocates may make separate arrangements, at the Advocates request, this direction sets out the expectations of the Judges to apply automatically in all Family cases.

  1. In all cases the responsibility to draft orders and submit them to the Court lies initially with the Advocate/instructing Solicitor for the Applicant however if the Applicant is not represented, then the responsibility falls to the Advocate/instructing Solicitor for the First and then the subsequent Respondents in order unless all of the parties are unrepresented.
  2. In all hearings before a High Court Judge, a Circuit Judge, Recorder or District Judge the Advocate/instructing Solicitor shall submit a draft order for approval within 48 hours.
  3. In the case of final hearings of applications for a Financial Remedy under Part 9 of the FPR 2010 the Advocate/instructing Solicitor shall draft and submit the Order for approval by 4:00 pm on the seventh working day after the close of the hearing.
  4. All draft orders following a hearing shall be submitted by e-mail in Word format (not PDF) to the relevant Court as listed below or by agreement to the individual Judge directly.
  5. If an Advocate/instructing Solicitor has not submitted a draft order as above or as individually agreed then the matter will be referred to the Judge and if necessary listed for a mention before the Judge for an explanation of the delay and the costs of that hearing will be at large.

Why I have a problem with the Family Law Bar Association

Man Hanging on a Scale While Another Man Fills Dish

The ‘May fees update’ from the Family Law Bar Association has now hit our email boxes.

The FLBA warns us in no uncertain terms to take heed of the proposed changes for public funding in criminal cases set out in the government paper ‘Transforming Legal Aid: delivering a more credible and efficient system‘ , and to see this as a “far reaching” proposal that may go on to deny ‘the most vulnerable members of our society access to specialist legal advice’.

Clive Baker, in his detailed response to the government paper links back to the effect of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). There  he cites a cut of £350m per year affecting 600,000 people. He suggests that  LASPOA was the start of ‘work in progress’ to trim the legal aid budget for family work rather than the end of the matter.

So, has the FLBA got it right. Is Armageddon just round the corner for both the legal profession and the public they serve?

Chris Grayling, Lord Chancellor and Secretary of State for Justice subscribes to a simple view concerning the funding of criminal cases,

“Over the past decade, the system has lost much of its credibility with the public. Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid. Under the previous government, the cost of the system spiralled out of control, and it became one of the most costly in the world”.

The blogger has memories that exceed the ‘past decade’ and is tempted to say that since public funding has been available ‘it has always been thus’. Indeed, the blogger’s favourite legal friend Matthew Shardlake interfaced with the same frivolous claims, wealthy criminals and exploitative lawyers in the 16th century. It could be said that ‘where there are lawyers, there will always be conflict’.

The doomsday practitioners gather sustenance from Lord Justice Ward in Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 23416, who at para 2 addresses one of the consequences of withdrawing public funded legal advice:

“What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. …. how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved”. ” It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. …. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”

But an essential question is not whether the court is able to cope with litigants in person, but whether the system should direct them there as the most appropriate venue to resolve their dispute?

Blog readers by now will know of my views on the importance of mediation and private arbitration. You will also have read of my views about the relevance of an adversarial process in family disputes, and questioning the need for parents in conflict to have ‘party status‘.

Has Lord Justice Ward missed the point as he reaches his 18th year aboard the Court of Appeal? Is it necessary, or even advisable to have lawyers directing proceedings from the beginning of a dispute to its end? And should the public carry the bill?

Should he not reflect back on Lord Woolf’s comments in Cowl v Plymouth (2001) EWCA 1935 at para 25:

Without the need for the vast costs which must have been incurred in this case already being incurred, the parties should have been able to come to a sensible conclusion as to how to dispose the issues which divided them. If they could not do this without help, then an independent mediator should have been recruited to assist. That would have been a far cheaper course to adopt. Today sufficient should be known about ADR to make the failure to adopt it, in particular when public money is involved, indefensible”.

There is something singularly unattractive about a profession as well paid as ours, raising principled arguments concerning the withdrawal of our publicly funded income.

Whilst the points are well made, surely the art now is to raise them subtly, record them, and work positively and creatively with a popular, democratic idea. Should it fail, of course we will be there to pick up the pieces.

Stobart Barristers

Eddie Stobart

Eddie Stobart subsiduary, Stobart Barristers has entered the legal ring to provide direct public access in criminal cases.

‘Stobart Barristers’ was formed last year charging fixed fees and using paralegals to instruct their team of barristers.

Stobart’s legal director Trevor Howarth said,

“We can deliver the service at a cost that’s palatable for the taxpayer, our business model was developed with this in mind”

“We …are well known for taking out the waste, and the waste here is the duplication of solicitors going to the courtroom. At the moment there are 1,600 legal aid firms; in future there will be 400. At Stobart, we wouldn’t use 10 trucks to deliver one product.”

Trevor Howarth has developed some insight into the legal process. He is shortly to face trial for contempt of court , although it has to be said that the background to the allegations is decidedly murky. But, no doubt it places him in an informed position to comment on the provision of legal services.

howarth

In my previous blog ‘The Price is Right we looked at the impact of third party investors moving into the legal market place. There, holding company LawVest introduced their Riverview concept, causing both consternation and interest amongst legal professionals. Other recent entrants include Parabis.

The Bar Council, spearheaded by current Chair Maura McGowan, has launched its 38 degrees petition to oppose the move to competitive tendering for publicly funded criminal defence contracts.

Whilst understanding the potential for problems, the blogger does not share the Bar Council’s calamity vision.

We are, after all, dealing with public money, a finite resource. A proper legal service for the defence of criminal charges is essential, but not at unsustainable cost. The proliferation of criminal defence practices during the blogger’s career has not added to the quality of representation, as neither has the higher rights of audience for solicitors improved the legal landscape.

Is the time not right for those who spend public money being more accountable for the costs?

With direct public access to an expert barrister, should the Bar not be focussing its attention on obtaining and managing public funded contracts, rather than supporting the disparate high street solicitors practices of the past?