Its my money. Trust me!

Wont-Get-My-Money-400x234

Over the final half of my 37 years as a barrister in private practice, I have been arguing over money.

Not mine, I hasten to add, but other people’s. In particular, divorcing spouses or cohabitees. There comes a time after almost every separation when two people who have lived together and loved, start to argue about the spoils. Those that can afford it rush to a solicitor or direct access barrister and commence battle. Those that cannot pay may chose to go it alone.

Either way, they have embarked on a battle from which there is little respite – until they run out of money, of energy, or are crushed at court in a final hearing.

But the purpose of this blog is not to bemoan honest,hard-working people spending inordinate amounts of their money on lawyers and in courts. It is to examine the fundamental flaws of financial remedy proceedings (as the financial arrangements are called in court).

My first observation is prosaically procedural. How is it that going to court to argue financial splitting of assets can remotely be justified? The cost of this process starts at £12,000 for the couple, and soars to a dizzy £100-120,000 in more complex cases. In J v J the parties managed to rack up £920,000 in costs between them, much to the judicial amazement and displeasure of Mr Justice Mostyn. Do they get a return on their investment? J v J didn’t; and generally, the chances are – not.

Readers of my earlier blogs will recall my commentary on the alternatives of mediation and arbitration, which I will not repeat here. Guidance by a single expert makes sense, assuming the expert knows what a judge would do, and that both parties agree to be bound by the outcome. There is, of course, the other ‘questionable’ alternative of splitting at the outset by way of pre or post-nuptual agreement.

My main concern here is to do with the philosophy of division where children are involved. In fact, my problem goes further – to question of ‘ownership’ and ‘responsibility’.

The financial wars that I have witnessed rarely focus on the children. Yes, this may be the court’s first consideration when it comes to making an order, but the children seem to remain ‘bit players’ in the battles, unless they are to be used as weapons to secure a greater share of the booty for one of the parents.

So, what would happen if we changed the rules?

Imagine this. When two people decide that they are to have children, they would do so in the knowledge that they forfeit ownership of property to them? How would that be?

Simple. The law would deem that all matrimonial property vested immediately in trust for the children, and that each parent became a trustee for the child. Rather than children being ‘the first consideration’ for a court, a child or children would be deemed to be the beneficial owners of all of the property. There would no longer be the ‘divvy up’ entitlement of assets to to each parent; there would be an appropriate of provision for the parents’ immediate needs and no more. The rest would be managed exclusively to provide everything that their child would need through to the age of 21.

What a glorious world that would be – children placed, where they deserve and need to be – at the centre of decision making as the beneficiary and responsibility of their parents’ endeavours.

But will such ever come to pass? Of course not. We have neither the imagination to prioritise children over parental greed, nor the legal system to oversee it.

Instead, we will continue to subsidise the lifestyle of lawyers (of which I am one). But, long may it continue – for after all, what value the future of our children?

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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.

Culture Casualty

 

Yesterday, I found myself reminiscing about ‘the old days at the Bar’ – as one does after 36 long years in private practice.

Unusually, eleven lawyers were beached together in the small advocates’ room at York Family Court Centre whilst Judge F, the single judge, battled with a massive list, complicated by all manner of legal conundrums. I permitted the wash of sound to lap against my consciousness. If I needed confirmation that I was in a family court the words were ‘children’, ‘mum’, dad’ and the odd ‘grandchild’ provided it.  Ahead of me was a flash of red lining from a young advocates new suit, a blue silk scarf wafted beyond on a peg, files were piled on tables and window ledges, and a suitcases staggered in a crazy parking lot by the lockers.  These were the true signs of the family court.

But there was no mention of ‘lunch’.

These days, as the plastic forks and boxes and vacuum packed sandwiches join the cardboard coffee and aluminium flasks on the advocates’ tables, there is no thought of communal ritual or routine. At one time, courts would have risen almost simultaneously, coughing advocates up and out to join each other at ‘the mess’ – the legal ritual daily lunch.

Here on the North Eastern Circuit at Leeds, an entire centre row of tables in the advocates’ area would be cleared at noon and set for lunch, with meals served simultaneously by the waitress staff. When a jury had recently returned a verdict – and the day’s work completed, a bottle of burgundy may also appear. In Sheffield and Hull, this event was honed to a fine art by the court junior. Arriving at the selected pub or hotel, advocates would be greeted by door and waitress staff, and led to linen-dressed tables, pre-set with wine and flowers. Joined by the judges, lunch would last as long as they deemed proper, with occasional messages phoned from the corner booth to inform court staff that the judge was ‘unavoidably delayed’.

Some readers will read this with incredulity. Others, censoriously, sensing inappropriate practice and privilege. But, at the time, it provided the perfect setting for the real work of the Bar – communication.

Retiring from active practice at the Bar, HP’s recent observations  about ‘lunch’ were remarkably insightful – not surprising for those that knew HP’s innate perspicacity. She may read this and deprecate the linking of her remarks with historic excesses, for that is not what she meant. Her point (and mine) was simply that busy, overworked, over-stressed advocates needed an opportunity to unpack, talk, listen and reflect. Rather than taking home the stresses of unresolved conflict to unwitting families  – how much more appropriate to sit together as professionals, take lunch and chat things through?

These days the elegance of practice – whether as a barrister or solicitor of the Supreme Court – has been removed, stolen or simply evaporated with the passage of time. Mostly, we subsist as executives working in the law, festooned and remunerated by regulation. Like the judges before whom we appear, we have little or no ‘thinking time’. Last minute preparation of digital information requires instant responses and sees us enter courts with sometimes superficial grasp of the case in hand, and no later chance to reflect or discuss what we should have learned.

The system – whether imposed by Ministry of Justice, HM Court Service, Legal Aid Agency or merely present day structure of the professions – simply impoverishes our work rather than enhances it. The greater the pressure to deliver in the shortest possible time without reflection, the poorer the judgement, and the service that we deliver.

I say, “bring back lunch”, and breath new, old meaning into legal practice.

End of life – now await Lord Falconer’s bill on 18 July in the House of Lords

tony nicklinson

The long awaited judgment in R v Nicklinson has been handed down in the Supreme Court. Here is a link to the YouTube video.

Readers will note that the judgment comes after considerable deliberation by  a massive nine  Supreme Court Judges – an extremely rare occurrence. It follows that this is one of the most important judgments of recent times, and is worthy of a careful and comprehensive read.

Dignity in Dying summarise the 366 paragraphs of judgment thus:

Summary of the case outcomes

Martin case

None of the nine justices ordered the Director of Public Prosecutions (DPP) to clarify the prosecuting policy on assisted suicide in relation to healthcare professionals. However, Lord Neuberger, Lady Hale, in particular, made it clear that the justices expect the DPP to look again at her policy in the light of their concerns and comments, and to amend it as she sees fit.

This is, in particular, to address a clear contrast between what the prosecuting policy actually says about healthcare professionals and assisted suicide, and the interpretation given to it by the DPP’s legal counsel during the court hearing on her express instruction (this was essentially agreeing with Lord Judge’s interpretation in his decision on the case at the Court of Appeal).

Nicklinson/Lamb case

Whilst there was no declaration of incompatibility, several of the justices indicated that they think the court could (depending on the application before it) declare section 2 of the Suicide Act incompatible with Article 8 ECHR rights in the future if Parliament does not amend it.

Lord Neuberger, Lord Wilson and Lord Mance accept that, in the right case and at the right time, it would be open to the Supreme Court to make a declaration that section 2 of the Suicide Act 1961 is incompatible with the right to respect for private life protected by article 8 of the European Convention on Human Rights. However, they would prefer that Parliament have an opportunity of investigating, debating and deciding upon the issue before a court decides whether or not to make such a declaration.

Lady Hale and Lord Kerr would make a declaration of incompatibility now. Lord Kerr put matters simply:

“If one may describe the actual administration of the fatal dose as active assistance and the setting up of a system which can be activated by the assisted person as passive assistance, what is the moral objection to a person actively assisting someone’s death, if passive assistance is acceptable? Why should active assistance give rise to moral corruption on the part of the assister (or, for that matter, society as a whole), but passive assistance not? In both cases the assister’s aid to the person who wishes to die is based on the same conscientious and moral foundation. That it is that they are doing what the person they assist cannot do; providing them with the means to bring about their wished-for death. I cannot detect the moral distinction between the individual who brings a fatal dose to their beloved’s lips from the person who sets up a system that allows their beloved to activate the release of the fatal dose by the blink of an eye”.

Is  the judgment the ‘yellow card’ to our legislature; or simply indicative of the Supreme Court judges being too cautious – despite the weight of public opinion concerning their moral duty?

The Assisted Dying Bill brought by Lord Falconer is due for its first reading in the House of Lords on 18 July 2014. The majority of Supreme Court judges have sent a clear message to the legislature – ‘whilst we will not interfere now, should the law not be clarified by new legislation, we may’.

Party Animals

MUNBY

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

“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.

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.

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.