Judge Dread – The Future

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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Musings on new fangled equality

Just a thought. I’m not trying to be controversial or nuffing. But it did occur to me today that whilst the clamour for a presumption of equal parenting is all well and good (I agree its a solution that should be given serious consideration in most cases, but not that this should be elevated to a presumption) its something which is really completely novel as far as the history of the family is concerned. And I began to think about what equality really means in the context of parenting.

I’m all for equality of opportunity as far as parenting is concerned. It doesn’t matter to me whether its Mr Mom or Lady Cab Driver. Or a shared arrangement that defies the traditional homemaker / breadwinner paradigm.

However, whilst I’m no historian, I can’t think of any time in history or any culture where the role of primary carer is or has been generally  split equally between both parents. Aside from cultural norms and historical societal organisation into very gendered roles, there remain all sorts of practical and financial reasons why one parent most often carries out the bulk of the care of the children. It’s still most often the mother who performs this role, but there is no reason why it needs to be her as opposed to him.

I pause here to observe that even for topsy turvy families like mine where there is a gender role reversal from the traditional female carer : male breadwinner, it is quite often very hard for both of us to shed our guilt for not providing (him) or not being there to kiss it better (me): gendered expectations about our roles as parents are deeply ingrained in us all whatever our philosophy or intellectual belief. I go out to work: I feel like a bad mother, even though I know better. But there is no reason why the carer has to be the mother. And courts must ensure no prejudice in that respect.

But I want to draw out a distinction between avoiding discrimination in our attitudes to who should provide primary care and the quite distinct proposal that the primary care should be split equally between the two parents on separation. When families are together shared care and equal divisions of time are far from the norm, and I’m not sure why they should be the norm when they aren’t together.

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Fathers seek equality in matters of family justice. Equality to me means that each parent should have equal treatment from the courts, equal status as a parent, equal importance in the life of a child. It’s not a mathematical equation and it can’t be expressed in binary. What is legitimate to ask for is that the court, when faced with applications for residence from two parents, does not make its decision based on prejudice or gender stereotype. What is not legitimate is to prioritise a parent’s desire for recognition or affirmation over what is right for the child in any given case.

The complaint is often made that the overwhelming majority of residence orders are made to mothers, ergo discrimination. Well I don’t agree that this equals discrimination, because I don’t think you can tease out from that that brute fact that, in spite of big changes in society over recent decades, the way in which most families still continue to organise themselves is with mum as main carer, and that when most disputes come to court it is from the starting point that the children are used to being cared for by her. Which is not to say there isn’t discrimination in individual cases, but only that the statistics reflect the general trends in society that persist.

In private law disputes the title and status of ‘primary carer’ can become a much sought after prize, the symbol of victory in the battle for equality. The goal of 50% of a child’s time I think is often a symptom of competitiveness between parents, determined on securing a victory in their own conflict. Parents who count up how many nights a year they have and demand an extra 3 nights per annum to balance it out have really lost the wood for the trees – their kids aren’t counting. They are wondering why daddy / mummy is so angry all the time. The 50:50 approach fundamentally misunderstands the way in which our children see us as important figures in their lives. A breadwinner is no less of a parent than a homemaker / carer. My dad worked hard, he didn’t get home to put us to bed often and the patterns and nature of my relationship with him as a child was very different from that I had with my mother. But my parents are equally important to me, regardless of who bandaged my knee or made my sandwiches or who stumped up the pocket money. It is only adults who need to quantify their relationships in hours. Insistence on shared residence can be to impose the judgment of Solomon on children, if not tearing them limb from limb forcing them to be constantly moving from pillar to post in order to share themselves equally between their parents.

Shared parenting works well for some. Equal splits of time also for some. There are any number of combinations or arrangements. But, when there are two homes the practical and geographical problems can often make shared care stressful or impractical. For the bulk of families, whether separated or together the only practical solution is to take different but equal roles. Children understand that in their own way and think no less of us for it. Sometimes I think that the more parents try to demonstrate their equality through carving up the weeks into 50:50 shares, the more they force children to choose between them.

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I know that fathers rights / equality campaigners don’t think that the welfare checklist / best interests test achieves a non-discriminatory result, but I think a presumption of shared care would subjugate the welfare of the child to the straitjacket of dogma. But what if instead we were to legislate to remove any perceived discrimination by identifying what is impermissible for the court to take into account: a codification of the principle of non-discrimination by, say, a provision that the court must not make decisions about the care or residence of a child on grounds of gender.

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These are just my Friday night musings and I’ve had half a glass of wine (baby related abstinence means even this results in mild squiffiness). But I do think there are more creative ways to think about how we promote equality for mums and dads and I think that the debate about this needs to be both more rigorous and more innovative.

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Lightning Fast Lawyers

40 minutes apparently. That’s the time it takes to get to and from Bath County Court from chambers in Bristol. Or at least my clerks tell me (to snorts of derision from me) that this is all the LSC say I can claim. There is a list that tells them so.

Lets assume that we ignore the 10 minute fast paced walk between chambers and Bristol Templemeads. Let’s say for the sake of argument that this is not something I should be able to bill for. The train journey itself is between 11 and 15 minutes depending on which service you catch. The walk from the station to the court is 10 minutes at a fairly fast clip. I make the total time to and from Templemeads no less than 42 minutes. This does not allow for the time it takes to buy a ticket, the inevitable wait at the station on the return leg for a train to arrive (often 10-20 mins) and the 20 minutes to and from the starting station. And of course it does not factor in delays and cancellations. The reality is that this journey usually takes up around an hour and a half of my day. It is simply not possible to complete this journey in 40 minutes even if services run smoothly, and the LSC must know this.

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It may seem like pedantry to quibble over a few minutes of travel time, but it does add up. And I sort of feel that if a payment for travel time doesn’t actually relate to the time spent travelling it would be better to add a fixed amount to the fee and ditch the travel claim altogether so we all know where we are.

If the LSC expects counsel to jog to and from court perhaps it could circulate a memo to that effect, and whilst they are at it they could amend the SIP form to include a claim for the cost of running shoes. It brings a new meaning to ‘fitness to practice’.

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Shut Your Face(book)

Dear (Imaginary*) Client,

Please read, digest and act promptly upon this article in The Guardian which tells you how to appropriately protect your privacy on Facebook.

I reserve the right to sack you forthwith** should it appear that evidence of any of the following information has made its way to court as a result of your inability to understand the basic implications of using social networking:

• You have slagged off, bitched about, or harassed your ex on Facebook (or Twitter, or whatever)
• You have discussed your dispute about the kids on Facebook
• You have published information relating to the court case about the kids on Facebook
• You have sent messages to all your exes Facebook friends telling them what a b****** s/he is
• You have secretly tried to make contact with the kids using Facebook
• You have logged into your ex’s Facebook account and posted bogus information
• You let the kids find out about your new boy/girlfriend by seeing the photos of the two of you canoodling which you posted on Facebook or because you changed your profile information to ‘engaged’
• You have tried to ask the kids questions about what your ex is up to by instant messaging them on Facebook
• You have conducted an argument via status update on Facebook
• You have posted information on Facebook completely at odds with your evidence to the court that you are a pauper and live a modest lifestyle (to include pictures of new shiny boys toys, exotic holidays, lavish parties etc)
• You have posted pictures of yourself on Facebook completely plastered or in a substance induced compromising position
• You have joined the Facebook group ‘Ganja is great’ or similar
• You have posted pictures of yourself in a location or with a person you have denied going to or spending time with
• Your profile shows you as ‘in a relationship’ with that dodgy bloke that you agreed in court / with the social worker should not come into contact with the kids

For the avoidance of doubt I also reserve the right to charge an uplift on my usual fee in the event of either of the following scenarios arising:

• You have allowed your ex directly or indirectly to gain access to information you ‘hope’ will remain private (by way of mutual friends or otherwise misunderstanding the privacy settings) and such failing results in the exposure of all parties, lawyers and judge having to listen to and experience the utter tedium that consists of you explaining pages and pages of banal status updates in cross examination simply to reach the very obvious conclusion that you are in fact an arse without an ounce of discretion, credibility, common sense or IT literacy
• You have yourself gathered any of the above information about your ex and brought it to court on the morning of the hearing under the mistaken belief that anybody but you will be remotely interested.

Yours Sincerely,

Etc…

* Whilst the client is imaginary the scenarios below are (sadly) not. I can report from first hand experience that Judges do not get Facebook, but they do get irritated by Facebook evidence and the whole court will most probably have lost the will to live before its over.

** I’m kidding. Ever heard of the cab rank rule?

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Manners Maketh a Lawyer

I had a particularly taxing day at court recently. My opponent solicitor and I did not – ahem – gel. My attempts to engage in negotiation met with much dramatic huffing and flinging about of the word ‘nonsense’, escalating to swearing and door slamming of a most juvenile kind. You know constructive dialogue is at an end when your professional conduct is impugned simply for disagreeing with the other side’s position. And when I’ve volunteered to draft an order that by rights should have been drafted by the other side, criticising my handwriting is likely to result in a biro-in-eyeball incident (I counted to ten, the urge passed). He didn’t do his client any favours – although she probably thinks he put on a grand performance – he was so busy with the amateur dramatics and bullyboy tactics that he completely failed to appreciate the significance of the information I was trying to give him.

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But most lawyers do at least maintain a certain sense of decorum, and we can agree to disagree on our client’s respective positions, and operate courteously even in the face of the most divergent of instructions. I cite as one example the case of Arkell v Pressdram. Brilliant.

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Heads and Eyes Rolling

Is there any part of the family justice system not being adversely affected by a lack of resources?

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A quite astonishing experience recently in a Family Proceedings Court: already delayed care proceedings were being re-listed for final hearing and all advocates and all parties were united in their view that the case required a four day hearing, and that greater delay would most likely be caused by listing for the original allocation of 3 days, as the matter might have to go off part heard or be vacated. The Court Manager refused the Legal Advisor’s request to even search for a block of 4 days to enable the advocates to discuss timetabling back from the fixture, even when the clerk had re-argued the points made by the advocates at length on the telephone in court in front of the parties and the bench. Eventually the Magistrates took it upon themselves to formally rule that four days was required -the chair making a rather wry remark about the likelihood of his head being chopped off – and yet still the Court Manager refused the request. It was only upon further argument and when detailed explanation of the number of witnesses and issues to be resolved was again argued (a word deliberately chosen) by telephone by the poor legal adviser that the Court Manager ‘authorised’ that 4 days could be searched for and booked. I can tell you that eyes were rolling on both sides of the bench by the time we sorted it out.

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This is all wrong and is a very bad sign. Whilst resources are clearly to be carefully husbanded it is for the Magistrates to take decisions about what the interests of justice require in any given case, and if the Magistrates rule that four days is required that is the end of it: the Court Manager’s job is simply to facilitate it. The charade I witnessed in court undermines confidence in the Magistrates, and the system at large, notwithstanding that these Magistrates did eventually stand up to the Manager. It also put the legal advisor in an extremely invidious position. And the policy of refusing to even indicate when the next slot of a particular length might be available to enable advocates to put together sensible draft directions for the bench to consider is simply obstructive and in our case extended the length of the hearing considerably because we had to construct detailed directions during the hearing as different dates were proposed, with people popping in and out to make phonecalls about availability (At the outset of the morning I had sought information on behalf of all advocates as to the next available 3 days slot so we could think through possibilities and seek availability of our experts – and was politely told where to go). All at court and being paid whilst this was dealt with in unnecessarily protracted fashion were 5 lawyers, 3 social workers, and 2 Reliance officers (escorting a party produced from prison). And the legal advisor missed half his lunch break.

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Result: no money saved for HMCS, but a considerable additional expense to the legal aid fund, to the Local Authority and to the Prison Service. Job well done, I say.

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