Advocacy – a low in Family Courts, or a sign of the times?

bald faced

With thanks to Mark Anderson for use of his cartoon  https://www.andertoons.com/

After 37 years of practice at the Bar – out of touch? I hope not as much as you would expect. Moved with the times? Now, here you can judge.

Today’s blog concerns family court advocacy.

I have not always been a family practitioner. There was a time – up to 1997 – when my practice involved largely criminal defence and regulatory work. After a diet of inner and outer London Crown Courts, and of course, the Central Criminal Court, I moved to the North Eastern Circuit to spend my time in the Crown Courts of Yorkshire. It follows that my advocacy skills were seated in the demands and honed by the constraints of plain speaking criminal advocacy.

The process was simple. Examination involved asking questions. Non-leading questions. The simpler, the better. Each question could, and frequently was prefaced with the words “who, what, where, when, how, why”. The aim of the question was to elicit a reply, and the reply was the evidence. Oral evidence was the currency of the court.

Cross examination permitted leading questions – where a direction or suggested answer occurs naturally within the question. Previous inconsistent statements could be put to a witness and tested by questioning – “here, you said ‘a’; now you say ‘b’; why the difference?”

Beyond those simple rules, we did not stray. To do so would result in the judge stopping line of questioning and the defective question prevented. Save for older silks, most complied, and we got along fine.

Whilst the admissibility of affidavits and statutory declarations has always been permitted, there came a time when pre-prepared statements were encouraged, and later required. In civil proceedings, the statements were to stand as the witness’ evidence, and it would be on their written statement that they would be tested in cross examination.

As a process, this lasted ‘but five judicial minutes in a long legal landscape’. Advocates used the statements to prepare the ground, rather than setting it. So it is rare today that witnesses are called and tendered on the basis of their written statement. Instead, advocates track through already deposed facts and recollections, and judges sit silently permitting this to happen, as if they hear the revelation for the first time.

But the main current transgression in advocacy skills, is the use by advocates of ‘comment’ dressed elaborately as a question. We all know that there is a massive difference between questions, assertions and comments. The first is designed to elicit evidence, and the others are an argumentative measure of the questioner’s opinion.

Habitually in family courts, lines of questioning are loaded with comment, or flung at witnessed as assertions. Some practitioners may say this is simply to ‘set the scene’ for a question. Mostly, the scene does not need to be set, and the assertive comment from an advocate is entirely out of place where the judge has read the evidence bundle. Maybe this is the problem – maybe the judges haven’t and the advocates are seeking to describe the case to the judge, rather than question the witness on their evidence?

The more judges permit it to occur, the more it happens, to the point of normalising the ‘assertive-comment question’. The clarity of the process is not the only casualty; another is a diminution of the skill of the advocate. As opinion and evidence blur, so does the original integrity of the purpose and function of questioning witnesses. Witnesses are not simply confronted – which is good; but bullied, confused and invited to argument – which is cruel, unnecessary and to my view, unprofessional.

The flaw now appears ubiquitous in family courts, as family judges sit back and listen to comment-laden questions fired repetitively, to the point that when it comes to closing submissions (or comment) there is not a fresh comment to make.

Some suggest that the family courts have ‘floated away from the mainstream civil legal process’, with altered rules of evidence and procedure. Yes, family courts have a special, human job to do -one that frequently requires a more informal approach -but the casualties of free-for-all questioning are extensive, not least the skill and ability of advocates to question without comment.

 

 

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Its my money. Trust me!

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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?

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.

Scandalous Costs

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Between 29 October and 5 November 2014, Mr Justice Mostyn heard a financial remedy dispute between two embattled divorcing parents.

Their home was worth £291k, a property portfolio worth £317k, pensions of £115k and two businesses valued at £2080k.

By the Financial Dispute Resolution appointment on 12 March 2014, they had spent £226k in costs.  However, eight months later on 6 November, their legal costs rose to a staggering £920k – nearly one third of their assets.

In another case, the current President of the Family Division (in 2008 as a High Court judge) spoke of excessive costs constituting to “a scandal which must somehow be brought under control“. In 2012 Lord Neuberger had a go at costs in his lecture to the Association of Costs Lawyers, saying that hourly billing confused “cost with value”.

To avoid “the grotesque leaching of costs”, like Lord Neuberger before him, Mostyn J proposes fixed costs legal services to replace hourly billing, together with costs caps – and is to send the issue back to the President of the Family Courts for action.

This blogger has always been ambivalent towards hourly rate billing, believing that ‘time spent’ varies according to expertise. The lazy or inept lawyer can spend considerable time doing what the expert will do in an instant. With hourly billing, one is overpaid, whilst the other is inadequately rewarded.

But has the judiciary really grasped the nettle of costs?

The simple flaw lies deeper, in the fact that two firms of litigators, whose interests are served by protracting conflict, are permitted to take their clients into headlong battle, for which both the public and their clients pay at an hourly rate.

What do they pay for? Frequently, the ‘what is there?’ – the identity and value or the assets – is not the problem. Where divorcing couples can’t agree, they get an independent valuation. The real issue is to determine ‘what to do’ with what is there; and that is the job for their barrister.

The impenetrable form E – the court designed document intended to set out a financial picture probably fails in every regard, other than to raise rancour. What is needed is a simple schedule of assets, liabilites and income. After all, the court will attend to these (as did Mostyn J) – not the aspirations and wishes of the parties, nor tactical positions crafted by their solicitors. Why, then, should the preparation (and possible agreement) of such a schedule not be made a pre-requisite of a financial remedy claim?

What to do with the assets is frequently fairly obvious. Up and down the country District Judges hear contested cases in a matter of hours and give extempore judgments immediately following the evidence. More frequently, matters resolve at the financial dispute resolution stage when a judge (without hearing evidence) makes sage suggestions.

Why the battle lines? Why two lawyers and an adversarial process? What is wrong with simple experienced and impartial analysis to help resolve these issues? That the parties won’t agree is simply an excuse by an over-priced, unwieldy adversarial system – made possible and perpetuated by the court process.

Regrettably, what Mr Justice Mostyn did not evaluate was the significant cost to the public of hearing the case – numerous appearances before the lower court, a Deputy District Judge, Judge Bancroft’s salary, Mostyn J’s own salary over seven days, the Family Court and High Court buildings, court staff, heating and lighting – to deal with a ‘delinquent’ couple who had spent £920,000 with their lawyers.

How bizarre is it having public courts dedicated to this massively costly process, paid for at huge cost to taxpayers?

 

 

Parents in Care Proceedings: Parties or witnesses?

Photo by Gerard Van der Leun

“The worst aspect of care proceedings arises not from the unfair intervention of local authorities, but the unrealistic expectations of parents”.

How controversial is that?  As barristers we spend a significant proportion of our professional lives exposing, or modifying local authorities’ incursions into the family lives of our clients, and sometimes with great success. The blogger recalls intervening in a recent case where the trial judge considered that both the local authority and the Children’s Guardian had got it very wrong, and ordered the return of the children to mother within hours of the judgment.

But quite often there is a fundamental issue with regard to parents’ care, or at least a real cause for concern that needs to be addressed. In such cases is the current adversarial process the best way of addressing it?

The Human Rights Act capture of Article 8 of the European Convention on Human Rights arrived some time after the then Mr Justice Judge said that ‘the difference between public bodies and individuals is that individuals are permitted to do anything not prescribed by law, whilst public bodies may only act as the law permits’. Both tell the same story – that individual rights and freedoms come first in a democratic system of law making.

Where then the question of party status for parents in public law children cases?

The ‘paramountcy principle’ which drives the Children Act 1989 arose as we know from a long history of trial and error in relation to child care and protection. Yes, we have moved some way from the  corrupt Tudor Court of Wards, where Wardship was determined according to the value of the ward’s estate. The blogger recalls his long weekend in Windsor with the then Mrs Justice Butler-Sloss and the then Mistress of Girton College, Mary Warnock whilst some of the structure of the Act was considered. Putting the child first was its aim, but did the Act really accomplish this?

In the perennial tension of competing rights and duties, the voice of parents was retained as a constitutional and jurisprudential ‘must’. But is it essential to keep it in the form of party status?

It has recently been suggested that the controlling management of children’s cases by local authorities should be counter-balanced by an increased management role for the Children’s Guardian.

Imagine a case where, with early, properly resourced intervention, a Guardian working with the Children’s solicitor takes an overall management role in relation to care proceedings. Rather than the long line of different judges (or magistrates), it is the Guardian’s lawyer who ‘case manages’ the proceedings, convening advocates meetings, suggesting a proper approach to the instruction of experts where the parties agree, ensuring that the statements prepared and filed do not replicate each other, where positions are clarified and recorded at the earliest stage; and where recourse to a judge occurs only where the parties dissent from the Guardian’s steer?

With this alone, the five lever arch files could be reduced to two (0r better a small e-file), the number of time consuming and resource expending hearings could be contained to a minimum, and perhaps a less adversarial approach to care proceedings would be possible.

The next question would simply be “why not release the parents from the case management role as parties, and give them automatic (and compellable) witness status”?

In a child-centred system of care proceedings where the children are represented by a Guardian Case Presenter, the party roles could be almost invisible. Witness statements from the parents could be taken by the Guardian’s lawyer and these would become their pleadings in the case. Party status of the local authority could be modified, so that ultimate control was wrested away to provide the necessary balance of rights and obligations.

Clearly, there will always be a need for ‘party status’ for some parents – where serious allegations are to be adjudicated, or where significant harm as defined on Form Ex506 would justify an enhancement, but in so many cases parents would simply be relieved of an unmanageable burden contained in an adversarial process.

Over the next decade or so, will we see an end to the adversarial approach to family law? The signs are already there in private law cases, and the cost/time/stress reasons are becoming more prominent. Is this the last era of the lawyer-led family law dispute? Now, you must have your own thoughts about this? Why not reflect them here on the blog?