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Posts Tagged ‘human rights’

I managed to get away from court early today. No stringing things out just to earn an extra bob or two for me. No, common sense and good counsel prevailed and the public purse has been saved a pretty penny and justice done etc etc. But as always there is much to do back in chambers. So whilst there is no time to hone the following into some compelling piece of art or pop-journalism, here are some interesting bits and bobs I’ve collected this week:

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Wall of Brick’s excellent observations on Martin Narey of Barnardos (and ex Probation Service) recent expounding of views on the family courts. I agree with Brick, and I think it best if I let him express my views through the link to his blog post, otherwise I might vent my spleen inappropriately – there are so many people with so many views on how to fix the family courts – Barnardos, LSC, solicitors organisations, CAFCASS, children’s organisations and slightly informed journalists… Every time I have turned on the radio I have heard a different element of the system being blamed for the totality of the current or impending catastrophe. I’m glad that the crisis is reaching a wider audience but there is an awful lot of balone out there.

Barnardo’s press release is worth reading in full. The headlines sound sensible – why not aspire to a 30 week longstop, even if we all know it won’t happen? But then you read that Barnardos want to have a a tiered, fast track target of 12 weeks for children under 18 months. Don’t get me started on why that’s *not good* idea. Quite apart from the fact that I hadn’t even worked out which end of my baby was up by the time he was 12 weeks, its astonishing to hear the suggestion that we can deal with quite the most difficult and sensitive of cases in the shortest period of time. Maybe we should just brand parents ‘bad mother’ across their forehead when their first child is taken away so that we can fast track them through to adoption when they deliver their next child? You see what churlish mood I’m in? I’ll stop now before I say what I really think.

Also worth a read are Law Society Gazette’s interview with Carolyn Downs (interesting take), and Catherine Baksi’s summary of the same.

I’m off to do some work. And some deep breathing.

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Background to this post appears here.

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Alas, this is not the beautifully crafted discussion piece I had wanted to post, but I cannot devote as much time to this as I would like, and so I offer it as your starter for ten in its slightly disjointed and unpolished form…

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Firstly, let me explode the myth that the outcome of care applications is inevitable and that therefore care proceedings are purposeless.

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Almost all care applications result in orders of some kind. Most result in permanent or long term removal, many in adoption. Only a very few are withdrawn because the evidential hurdle of threshold cannot be met. In that limited sense applications made are by and large justifiably made (The alternative viewpoint is that almost all applications succeed because the courts are a mere rubber stamp – I don’t subscribe to that view).

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But many applications result in different orders than originally anticipated or sought (supervision orders, residence orders or special guardianship orders) or with less draconian care plans (care order with a placement at home, a plan for eventual rehabilitation, a change in placement type, or identification of more suitable carers, more structured or substantial support package for parents or child, proper financial and support package for kinship carers). These changes in plan and outcome are on one level matters of detail, but it is in matters of detail that long term outcomes for children and families can be radically altered – the chaos theory of family law. Complaint was made at the review session that there is an increasing tendency for courts to micro-manage care planning and that this is inappropriate. In the first place I don’t think that this is an accurate representation of the law or of practice. But really, why shouldn’t care plans be scrutinised? If they are appropriate and properly thought through there will be no problem – detailed scrutiny is necessary where, as is sadly often the case, they are ill thought through or poorly justified. The extent to which courts scrutinise the detail of care planning is in direct correlation with the quality of the care planning, and the confidence of the courts in it. (more…)

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The Family Justice Review is calling for written evidence by the end of September (see here). Anyone who is considering submitting a response should consider this: at the recent oral evidence session I attended with other lawyers, the panel were asking serious and reaching questions about the extent to which the courts needed to be involved in decisions about care planning. Suggestions were made that in our search efficiency we need to seriously scrutinise whether or not there is a need for judicial sanction along the whole process we currently know as ‘care proceedings’. Although there seemed to be an acceptance that court involvement could not be avoided insofar as there were disputes of fact, the need for judicial scrutiny of Local Authority decision making was not necessarily approached as immutable: the implication being that once threshold is proven to have been crossed decisions to removal of children from their families could become decisions of social services alone (or possibly of some yet to be created tribunal?).

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Take a deep breath and wait for the significance of that to dawn upon you. Yes. They are really considering leaving these decisions to The Man, without the safeguard of The Judge. The full horror of it may be evident to you and I, but it evidently raises crucially important questions that do not appear on the call for evidence list of questions – but which need to be answered explicitly, directly and forcefully. Those of us who believe in a Family Justice System clearly need to make the case at base level for judicial scrutiny of state intervention into families. It will be vitally important for those responding to the call for evidence to give their views about this very specific and fundamental issue rather than just answering the questions as posed. To get you thinking I will post something shortly on the question of ‘Why do we need care proceedings?’ which you will be at liberty to plagiarise, develop or denounce as you see fit. But I’m afraid that now is too late in the evening for me to contemplate embarking on that little beauty. It will have to wait…

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The Times reports on a recently published Civitas report which is critical of Sharia Courts and in particular the tensions between Sharia and human rights and the law in this jurisdiction. Of particular note for family lawyers or those interested in it is of course the community pressure which can bear upon muslim women, and their relative powerlessness within the context of community justice fora like Sharia Courts, both in terms of divorce rights and in relation to the upbringing of children.

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One of the first things we are taught in bar school is that our job is to ‘promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person’ (pa 303). Hand in hand with that duty goes the overriding duty to assist the court and not to mislead it either knowingly or recklessly (pa 302).

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But how does that duty to fearlessly defend the client and her interests operate in cases involving children? I have often had it suggested to me that my primary duty is to the child(ren) in a case, but in fact that is not strictly correct. So what is the position?

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Paragraph 302 and 303 of the code of conduct continue to apply and to govern what we do when representing a party (whether that be a parent, a spouse, a child, a local authority or another relative). In addition to the duties mentioned above those paragraphs also state that:

  • as between professional and lay client (solicitor and ‘punter’ if you like) the primary duty is to the lay client (‘punter’), and
  • that in publically funded cases there is also a duty to the Legal Services Commission (which is essentially to inform the LSC if a client for reasons of merit or means is no longer entitled to the benefit of public funding. You can read those parts of the code of conduct in full here.

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Although the Children Act 1989 governs much of what the family courts do each day - in particular the principle enshrined in s1 of that act that the welfare of the child is paramount – it is important to remember that it is judges not barristers that are bound by the Children Act – our behaviour is regulated by an ethical code, it is our advice to a client that is circumscribed by the law.

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There are other pieces of guidance which apply specifically to family work: for example the guidance note: Disclosure of Unhelpful Material Disclosed to Counsel in Family Proceedings which can be found here or the guidance note on Illegally Obtained Evidence in Civil and Family Proceedings which can be found here.  The most important principle which can be drawn from the former is that there is a duty of full and frank disclosure upon the parties and their legal representatives in all matters involving children, as of course is also the case in relation to ancillary relief matters. As rightly identified in that guidance note there is a general ‘practice in which all matters concerning issues in family law cases are routinely disclosed, the client being advised that there is no possibility of preventing disclosure even of matters which would seriously undermine the case’. The only exception in relation to that is where legal professional privelege applies (broadly communications between lawyer and client).

Plainly the enhanced duties of disclosure which have emerged in family law arise in the main from the need to ensure the court is in a position to properly assess and ensure the welfare of the children affected by his decision, regardless of the position adopted by the respective parties. Counsel must continue to fearlessly defend his client and set forth his position but she must do it on the basis of full and frank disclosure. The rule is so important that if a client refuses to give consent for the disclosure of relevant material counsel must withdraw and cannot continue to act, not because of any duty to the child, but because it would be a breach of the duty owed to the court.

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Of course on a practical level one is usually working towards the welfare of the children – whatever my client’s instructions are they are almost always given with the genuine belief that they are in the best interests of the children. The reason we are at court in most cases is precisely because the parties differ frequently and significantly about what is and is not in the best interests of the children – there is a common purpose if not agreement about how to achieve that purpose. Even on days when it does not feel as if we are working towards the welfare of a child because the position I am being instructed to take on behalf of a client is so wrongheaded, it is my job along with my opponent to put forward the opposing viewpoints so that the judge can make a good decision.

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So both in terms of gently suggesting to a client why it is that the position she is putting forward might not be the best solution for the child (have you thought about this…do you think Billy might find it easier if such and such happened instead?), or in terms of trying to explain to a litigant in person or an opposing lawyer why the position we are putting forwards is welfare driven (no, its not because she wants to inconvenience you for the sake of it, its because a six hour car journey for a child is a bit much all in one day), we are – indirectly – promoting the welfare of the child.

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Again, in terms of advising the client of the prospects of success and trying to promote an agreed outcome and reduce conflict we are indirectly promoting the welfare of the child. When we deal with directions and case management so that a case can proceed smoothly and swiftly to a conclusion with the right evidence and without unecessary delay we are indirectly promoting the welfare of the child.

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And in terms of setting out clearly and articulately for the judge what the options are and why one may be better than another – ensuring that both parents are equally able to explain their concerns and their wishes, we are indirectly promoting the welfare of the child.

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So no, we don’t directly owe a duty to the child (unless of course we represent the child). But in ‘fearlessly defending’ our client whilst also complying with our duty to assist the court we are part of the process that is designed to promote their welfare.

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And although the phrase ‘fearlessly defend’ is a peculiar, perhaps archaic and awkward phrase to find in the field of family law, that conjures up imagery of battles and conflict, what is really signifies is that assisting the court also means not being afraid to say to the Judge ‘No – that is wrong’. We say it politely ‘with respect’ (almost always), but we say it nonetheless.

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NB: This system falls down where there is not equality of arms, so for example where a litigant in person finds it hard to articulate their position through intimidation or lack of oral ability. A judge will usually try to ensure that the balance is struck fairly by assisting a LiP, and the courts are increasingly willing to allow a McKenzie Friend to assist a LiP. It is also clear that lawyers owe a duty of fairness to a Litigant in Person, although this is not prescribed in the code of conduct it is in my view a part and parcel of the overriding duty to the court. Nonetheless, as the numbers of LiPs increase and there is more pressure on court time and significant downward pressure on counsel’s fees in publicly funded cases, the likelihood of the system becoming unbalanced in individual cases increases. The system currently relies heavily upon the assistance of representatives to the court, and in the years ahead this may need to be adjusted or recalibrated.

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The judgment of the Court of Appeal in the Webster v Norfolk adoption saga is available here. A very sad case. The judgment is very long, but in essence the Court of Appeal has held that the adoption orders cannot be set aside and there is no purpose in reopening the findings made against Mr and Mrs Webster in 2004 since their youngest child remains living with them.

PS Can somebody tell me if I’m losing my marbles slightly – paragraph 189 of the judgment of Lord Justice Wall contains the word ‘unexceptionable’ which I’m pretty sure is NOT a word. Although the Court of Appeal has many inherent powers I’m not sure that creating new words is one of them…

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