Ripping out the heart of the family justice system

When talking about the new “parental involvement provisions” Justice Minister Simon Hughes said:

“We have made bold reforms so that the welfare of children is at the heart of the family justice system.”

Bless him.

The concept is fine, good even. That is, that as from 22nd October, the family courts will presume, unless it is likely to cause harm, that both parents will play a role in their child’s life.

But what isn’t remotely right, is the bizarre suggestion that the Governments reforms are placing children at the centre of the family justice system. Children are far from the centre. They are, at best, standing on the sidelines, screaming in an effort to get heard, whilst everyone else on the pitch pursues their own agenda’s. It’s a bit like watching the England squad bail out of yet another world cup qualifier.

Children are a long way from the centre of the family justice system. Following the Governments legal aid cuts (which removed all legal aid in cases between parents) over 60% of parents represent themselves in proceedings about their children. That’s obviously bad news for children in the middle of disputes. Cases where parents are unable to access legal advice and representation are going to take longer. That’s prejudicial to children. Cases where one parent is represented and one is not can and must create a clear inequality in arms (a basic principle and cornerstone of our system). That’s prejudicial to children. Cases where one parent lacks the ability whether due to language skills, emotional, learning or other difficulties to put across a case. That’s prejudicial to children.

So make bold reforms. That’s fine. But don’t say children are at the centre of our justice system. They are not. For this to happen, there should be access to advice and representation for all parents in cases involving children. Agreed there should be encouragement, where safe for the child, towards both parents being involved in a child’s life. But don’t dress this up as putting children’s welfare at the heart of the family justice system. Let’s face it. The heart of the system, which promoted equality and fairness, has already been ripped out.

‘I’ve an idea. Let’s pull out of the European Convention on Human Rights.’

Firstly there were the cuts in legal aid.

‘I know,’ said some not-so-bright spark in Whitehall, ‘lets slash legal aid for divorce. That will free up a bit of cash.’

‘Bravo,’ came the replies.

‘Lets face it,’ not-so-bright continues, ‘it’s easy enough for people to do it themselves. They just have to fill in some forms, send them in to the court then agree something about their homes and their kids. They’re lucky really, most of them probably have only got one house to worry about anyway. ’

‘Brilliant,’ another spark scoffs. ‘But what else can we do?’

‘Do we need to do more?”

‘Well yes. We’ve a general election coming up. We need to do something assertive. Drastic even.’

‘Golly,’ not-so-bright says, ‘what could that be?’ He frowns as his sparkle dims even further. ‘I’ve got it. Lets pull out of the European Convention on Human Rights.’

‘Really?’ some say.

‘Yes lets,’ he says as others begin to nod at his genius. ‘Just think. No more decisions by Europe. We can make our law and if people don’t like it, tough. They can’t do anything about it.’

‘But umm, didn’t the UK kind of draft the thing?’ says reasonably well-lit spark.

‘Don’t worry about that.’

But we’re like an example other countries look to in terms of their human rights. If we pull out, won’t others just follow?’

‘Yes, probably.”

‘But then,’ reasonably well-lit gets brighter, ‘there’s no chance that some more volatile countries, which currently adhere to the Convention, will respect human rights at all.’

Not-so-bright is lost.

‘We need the European Court,’ well-lit is now bright. ‘individuals, from all member states, need one court which prevails over all others for the sake of conformity, independence, collective expertise. If this goes ahead, it weaken our justice system far more even than the legal aid cuts have.’

‘Pre-cise-ly,’ not-so-bright smiles. ‘So lets do it.’

Rotherham: Child Sexual Abuse and Priorities

It’s headline news: Should Shaun Wright stand down?

Important? Yes. But surely there are more important issues in this terrible story of violence, abuse and gross negligence by so many agencies.

Of course Mr Wright, as South Yorkshire Police and Crime Commissioner, must take responsibility for his failings. But is his resignation really going to make a huge difference to the victims? Also is it going to stop this happening again?

For years, the child protection system has recognized the need for agencies to work together to protect vulnerable children. The Government’s Every Child Matters programme in 2002, following the Victoria Climbie Inquiry (where a little girl died following multi-agency failings) set up Local Children Safeguarding Boards. The idea was that representatives from health, social care, education etc would meet and collaborate to ensure a more joined-up approach to protecting children.

Yet still it goes on. Agencies do not talk to each other and more importantly, do not seem to listen to young people. Certainly in Rotherham, it seems the young girls and women were blatantly ignored.

I wonder if the problem is tied up with the victims, that is, the teenage girls who are particularly vulnerable to this type of targeted grooming. They may not be a group whom some find easy to help. They may be hard to engage with. They may have poor attendance in school or have dropped out altogether. They may be highly evasive and easily led because of difficult backgrounds and limited positive relationships. It is frightening yet not difficult to imagine that some agencies could tick their own responsibility box by adopting the I can’t help you if you won’t help yourself attitude.

Although the debate around Shaun Wright’s position is useful in highlighting the extent of the failings in our system, there needs to be a big change in attitudes to young people. We need to make sure that all young people are listened to. Jimmy Saville got away with his crimes for so long because it was felt by so many victims that they would never be believed. If the agencies had listened to and acted upon the complaints of the girls in Rotherham, there’s a good chance that the pathetic number of prosecutions (9 out of 1400 victims) could have increased therefore protecting others at risk.

Lessons need to be learned from Rotherham. Young people need to be listened to and the systems set up to protect them need to be used. Otherwise we will just all be reacting to the next scandal. Wasting so much energy on scapegoating may well be counter productive. That energy could be much better used in supporting the current victims and protecting those teenage girls who could be at risk of becoming future victims.

The legal aid cuts in cases about children are not right or fair.

Mumsnet Guest Post see http://www.mumsnet.com/Talk/guest_posts/2130320-Guest-posts-Legal-aid-cuts-the-family-courts-have-become-a-two-tier-system?

So, imagine you’re finally divorcing the husband who has sapped your confidence and made you feel ignorant and worthless for years. Now he wants to take your daughter, aged ten, to live with him in New York. Next week at the hearing, he’ll have a solicitor and a barrister to represent him – you will have no-one.

Or, you’re in court. A pinstriped barrister sighs loudly: ‘I think what you’re referring to is on page 417 of the bundle Mrs Jones,’ she says. Getting hotter and redder, you quickly leaf through the documents. “I want to say something about the Welfare List,” you say.

‘Welfare Checklist, I think you mean,’ the Barrister says slowly and deliberately. ‘Where’s this document in the bundle?’ she asks.

‘Oh it’s not,’ you reply, ‘it’s in my handbag, though’. You pull a crumpled mass of papers from your bag. ‘I read this last night. I sort of think it’s relevant. It’s the middle bit. I’ve put a star by it, it’s says, er…’

Now imagine that you dropped out of school at 14, and you struggle to read. You’re confronted with a pile of court papers that seem to relate to your son and your ex. You’ve been told you have to write your statement of evidence for the court.

Or you’re 22-years-old, your wife has just died and you’re only able to speak a little English. Her parents think your daughter would be better off with them – they would give her everything they gave their daughter – and they’ve got the best legal minds to help them fight you all the way.

All of these people are Self-Represented Litigants – that is, people who cannot afford legal advice and representation, and have to go it alone.

Before April 2013, legal aid was available for all parents in contact and residence proceedings concerning their children. But in an effort to cut £350million from the legal aid budget, along with some other areas of law such as divorce, welfare benefits and employment, access to legal aid in this area has been generally abolished. This has meant that a more or less level playing field has become vastly unfair.

In a recent survey by the Bureau of Investigative Journalism in partnership with the Magistrates Association, 46% of parties in private family proceedings represented themselves which shows a 40% rise from December 2012 to December 2013. In the survey, 97% of the respondent magistrates said they believe people representing themselves has a negative impact on the courts work. The magistrates voiced concerns about delay, mis-balance in legal battles and the possibility of injustice.

It’s clear that we are regressing into a two-tier system. If you’ve got the cash, you’re fine; your lawyers can advise you on court procedures and your chances of success, so your expectations are managed, and you’ll know what you’re in for. Your lawyers can prepare your evidence and then negotiate on your behalf. This is particularly useful when every direct contact with your ex is a mountain that you are nowhere near yet able to climb. Your lawyers can then stand up and present your case in court too, using their years of training. They can call witnesses, analyse evidence, and cross-examine. Using the legal resources they have access to, they can cite relevant case law and legislation.

But if you can’t pay the fees, you get none of this. You will have to resort to a few books and whatever information you can find online to learn about procedures, filling in forms, submission of evidence and advocacy in court. For some, this may well be fine. But for many, it will be a long way from that. Some groups, such as those with learning and other difficulties, those with limited English, and, probably, women as a whole (who generally have less disposable income than men, especially after the breakdown of a relationship) are disproportionately affected by these cuts.

Making decisions about children is one of the court’s most crucial roles. But with all best intentions it is difficult to imagine that, where one party has legal advice and representation and the other does not, decision-making will be unaffected.

Whilst it is understandable that cuts in legal aid had to be made, it is difficult to accept that such cuts are right or fair in cases about children. Parents should not be expected to become quasi-lawyers and there should be equality of arms. The system should not be evolving to engender delay – particularly when a key principle of The Children Act 1989 provides delay is likely to be prejudicial to the child.


We cannot let this two-tier system establish itself and become the norm. We must put children at the core, and make cases involving children in our family courts absolutely fair – because, without fairness, children will ultimately be the ones who suffer.

Self-Represented Litigants – Access to Injustice

Picture this.

Mercy arrives alone at the Magistrates Court. David, her ex and the father of their twins, is already there. He though is chatting with his solicitor. Mercy, feeling terrified at the prospect of a 3 day court hearing, leafs through the 700 page bundle of evidence. Knowing their case is on next, she tries to remember what she has read on various websites about the court process. She pulls from her bag the Bar Council’s Guide to Representing Yourself in Court and re-reads the small section on family law. Then, David’s barrister arrives. David and his legal team huddle together. On David’s nod, his barrister approaches Mercy. David has made an offer to settle which is far from what Mercy feels to be best for the children. She looks about. Her heart thumps. She feels sick. What should she do?

Well she’s stuffed basically.

She either accepts the offer without having any form of independent legal advice. Or, she is forced to conduct a long and complex hearing where, alone and unaided, she will have to present her case, assimilate evidence, give evidence and cross-examine her ex (and maybe others if there is medical and other evidence at issue). Oh yes, also, she may have to argue a point of law referring to case law and legislation.

So how can this be fair? Both parties with legal advice and representation: that’s fair. Or even both parties without legal advice and representation: that’s far from ideal, but at least is fair. But what is unfair is this regression into a two-tier system caused by the Government cuts that have taken some proceedings about children outside the scope of legal aid. The result is that only the wealthy are able access advice and representation in cases concerning their children.

Last week the Independent reported that 46% of people seen by magistrates in the family courts are Self-Represented Litigants (‘SRL’s). That is, people like Mercy above who are D-I-Y litigants. The majority of magistrates in the survey felt this increase was leading to delays and injustice. This must be particularly so when those litigants face language barriers, have learning difficulties, mental health problems and/or other additional needs as well.

The Children Act 1989 makes the child’s welfare paramount in any decision made by the court. It is difficult to see how that can be maintained when a parent is putting his or her case to the court unaided. Also, there is a principle against delay in the Act. Again, how can delay not occur when litigants are dealing with their own cases without advice? All this has such huge potential to create injustice to the parties but more importantly, to the child or children at the centre of proceedings.

I know some cuts in legal aid had to happen. But they should not have been made in any area of law where children are the subject of the proceedings.

Equality of Arms. My foot.

Family Proceedings: New ideas or just a load of new lingo?

Well the soap writers won’t be happy. They will be hankering after the good old days, pre Children Act 1989, when the terminology in family proceedings was about as loaded as a Russian Oligarch’s pockets.

The ‘C’ word. All those years ago, separating and divorcing parents had a mighty tool in their arsenal. ‘Custody.’ Even just the threat of it was often enough to cause irreparable harm to an already fragile relationship. Custody; a word conjuring up confinement, control and possession. A Custody Order would often result in one triumphant parent. The other (aka the loser) would then be awarded ‘access’ as though it were some kind of consolation prize.

The Children Act moved us on from all that. Like wearing velcro-edged shoulder pads in the workplace, the late eighties bought us fresh ideas. The Act slashed Custody and introduced the Residence Order. Likewise we lost Access and instead a parent wanting to see her/his children has to apply to the court for a Contact Order.

Arguably, some of the drama was lost.

‘You’ll see. I’ll fight you all the way. I’ll get custody of my kids.’ You can just see it. Man pointing aggressively in woman’s face as he storms out of the house. Or, woman screaming at man after being shut out of the family home because she’d been having an affair.

It wasn’t quite the same. Ie. ‘You just wait. I’m going to apply to the court for a Residence Order.’ Scary.

Now the Child and Families Act 2014, which becomes law on 22nd April, is going one stage further. Amongst loads of changes (which include the setting up of one Family Court) Residence and Contact Orders are being scrapped and ‘Child Arrangements Orders’ introduced. The principles will remain the same. That is, that the welfare of the child is paramount, that delay in proceedings is generally not good and that the court will only make an order if that is beneficial to the child. But the idea is that this terminology will remove any kind of winner/loser status and help parents work more positively together in terms of sorting out arrangements for their children.

It will be interesting to see what, if any, difference it makes. Personally, having spent many years talking Residence and Access, my view is that any step towards reducing antagonism and promoting cooperation, is a good thing. But I’m not so sure the screenwriters, undoubtedly still mourning the death of child Custody, will agree.

 

Cinderella Law: Pushy mothers – Beware.

Firstly, it’s a terrible tag line for a law. I’m guessing the implication is that should this proposed law (ie making the emotional abuse of children a criminal offence) have been around in fairytale land, Cinders wicked step-mother would’ve been facing 10 years inside.

The emotional abuse of children is serious and its effects far-reaching. Yet making it a criminal offence is at best problematic.

Here’s why.

Firstly, it’s hard to define. In the recent media publicity, examples such as ‘witnessing domestic violence,’ and ‘degrading punishments’ are used. Yet the NSPCC on it’s website says emotional abuse also includes ‘persistently ignoring a child,’ ‘never expressing positive feelings towards a child,’ and ‘pushing a child too far.’

So it’s not inconceivable that by introducing this law, we could be filling our prisons with over ambitious parents who’ve forced their children into endless streams of after school activities. And what about those American style pageant mothers who dress their toddlers up to look like Diana Dors? Or those who force them onto X Factor? Pushy definitely. But criminally abusive? Really? The NSPCC also states emotional abuse can occur when a parent is absent. So does that mean that a parent in hospital/prison who returns to the family home could then be locked up again for being absent? Sadly parental absence has always happened due to death, war and family breakdown. If this is seen as ‘emotional abuse,’ we are going to see a massive increase in our criminal population.

Problem two is proof. For a child to suffer emotional abuse, generally speaking we are not talking about a one off event. It has to be persistent and over a long period. Generally it will take place in the family home. So how is this evidence going to be secured? Are we again relying on our over-stretched and under resourced social care system? Or are we relying on our schools that already take on extra pastoral responsibilities as social care budgets are cut. I just can’t see where this evidence will come from. It certainly won’t be the parents (who maybe due to unmet mental health or other welfare type problems are unaware of the potential for emotional abuse anyway) and it won’t be the children.

Cinderella Law needs a lot more thought. There needs to be a clear definition of ‘emotional abuse’ plus systems and services in place to identify those children who are affected. Interestingly, in the civil system, children become involved in the child protection system due to neglect or sexual/physical abuse. The category of ‘emotional abuse’ is rarely seen. That’s not because it is not out there. It’s because it is so hard to identify and prove.