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FLBA-gasted *

 

I think many of you may have heard that the FLBA (Family Law Bar Association) have written to the Government requesting that there be a review of advocacy within family law, and making it fairly obvious that their steer is that solicitors should be discouraged from doing it and that only the Bar is really competent to do it.

If you haven’t seen it, I’ll link to it here  (you need PDF skillz to read it, sorry if that shuts you out)  http://flba.co.uk/wp-content/uploads/2015/07/16july15lettertosvmp.pdf

 

There’s much of it that is very sensible – absolutely the stakes are high in public law cases and it is vital that those who are being represented are receiving that representation from people who are both confident and capable. If people, particularly parents, are not being well represented and points that ought to be taken are not being pursued, then that’s something that needs to be stopped.

 

And the points that are made that a financial element has pushed solicitors who would rather not be doing advocacy into having to do it to keep their firms afloat, are I think well made. It must be wrong that a lawyer is tackling work which they feel is beyond them because the only viable business model at present is one where a family lawyer does lots and lots of their own advocacy. You have to have a system in place where a solicitor who feels that the case requires a degree of experience and advocacy that is more than they possess is able to instruct counsel without feeling that the case has become as a result unprofitable.

 

However, I can also see that some of the underlying tone of the document creeps into what I trust is an unintentional assumption that the Bar is never guilty of the poor advocacy described here whereas it must be ‘par for the course’ for Solicitors;  the elements of “two legs bad, four legs good” are not attractive. I’m not sure that divide and rule is the best strategy in these difficult times for both branches of the profession.

 

*If the FLBA do want to do use as their telephone hold music, a reworking of Shabba Ranks finest hour so that it goes “Mister Loverman, FLBA” they are welcome to implement that idea…

 

Nakama

 

One of my many obsessions, alongside law geekery, 80s references and all the other stuff you’ve probably picked up by now, is manga/anime, and specifically the Eiichiro Oda magnum opus “One Piece”

 

“One Piece” is the longest running manga series, telling stories set in a world of what can best be described as super-powered pirates. As well as fight sequences which are so pacey and dramatic that they make X-Men and Avengers look flat footed and pedestrian, One Piece’s over-arching theme is that of the importance of nakama.  Nakama is a Japanese word meaning “True Companion”  – a friend, but much more than that, a friend who you can completely count on, and they can count on you.

 

The nakama in One Piece are the Straw Hat pirates, the heroes that we follow.  They consist of :-

 

Monkey D Luffy, the captain who is made out of rubber and is a formidable fighter (but cannot swim, something of a failing in a captain of a pirate ship) and has literally no common sense.  I love Luffy because he is fiercely loyal to his friends, is hugely impulsive and is the only fictional character I know that has less common sense than me.

 

Roanora Zoro, the green-haired master swordsman, who practices Three Sword Style  (yes, he fights his foes with three swords at the same time – left hand, right hand and one between his teeth), who has no sense of direction and once famously got lost walking up a flight of stairs

 

Sanji, the chain-smoking, high-kicking chef, who set off on the journey around the world so that he could catch and cook new kinds of fish, and who is such a ridiculous womaniser that when faced with beautiful mermaids got so excited that he got a nosebleed that almost made him bleed to death.

[Sanji is my favourite]

The aforementioned Sanji.  (In my head, that's how I look. Sadly not in real life)

The aforementioned Sanji. (In my head, that’s how I look. Sadly not in real life… My eyebrows are less curly)

 

Usopp, the pinocchio-nosed sharpshooter, who is a teller of tell tales and an inveterate coward, who still manages to follow his nakama into life-threatening situations even though his knees are knocking.

Nami, the navigator extraordinare who wants to map the world and steal everything that isn’t nailed down

Chopper, the ship’s doctor, who also happens to be a reindeer who looks like a racoon and who adores compliments

Nico Robin, the ship’s archeologist (I know), who is like an even sexier version of Catwoman, she used to be the right hand woman of a really evil warlord, and she can sprout copies of her hands on any surface.

Franky, the shipwright, who is a cyborg who powers up on cola, and has a penchant for dancing around in Speedos.

and

Brook, a skeleton swordsman with afro-hair, who is a colossal pervert.

 

This crew are actually quite normal compared to many of the bad guys that they face.

 

I have my own nakama. The people who I work with are True Companions. We face stuff together, and sometimes things are tough, but we have each other’s back.  I’m lucky to have found them. They may not have super powers, but they are super people.

All of us need nakama, people around us that we can count on, that help us out, that make us smile when things are hard, that can sense when you need a kind word or a hand. I’ve always pretended to be a lone wolf, travelling from town to town, place to place – the sort of person who doesn’t need anyone else to get by. I’m Cain out of Kung Fu, David Bruce Banner out of the TV version of Incredible Hulk, “The Littlest Hobo”  – I go to a place, help out and move on.

 

But it isn’t true. I have my nakama in my home, and I happen to be madly in love with her, but I also have and need my own nakama, my crewmates. We just happen to be lawyers rather than super-powered pirates.*

My best nakama leaves the team for a while today, starting a great adventure of her own.  I will miss her very much.  The ship won’t be quite the same without her, and when she comes back, she won’t be quite the same either, because there will be a new nakama in her life too.  She won’t be quite the same, she’ll be better.  And it will be up to me to make sure that I’m better too.

 

The Straw Hat pirates  (and not, as you might have imagined, my team photo)

The Straw Hat pirates (and not, as you might have imagined, my team photo)

 

 

* We would, if any mad scientists are reading, be amenable to discussions about becoming super-powered lawyers. Well, at least, I would.

 

Oh what a tangled web we weave

 

I do love it when I learn something new.

This is a case decided by a Circuit Judge, Her Honour Judge Taylor, in a case where a woman had lied to a man as to whether he was the biological father of her child.  He was then suing her for deceit.

[I confess my ignorance, I didn’t know that you could sue someone for deceit. Helpfully, HH Judge Taylor sets out all of the relevant law, so now I not only know that the concept exists, but what you need to prove]

X v Y 2015

http://www.bailii.org/ew/cases/Misc/2015/B10.html

 

I can already hear, as I type this, the sound of readers ears pricking up at the idea of being able to sue for deceit.  [We have discussed before that you can’t sue for defamation for anything that someone says in Court or puts in a Court statement, and that a criminal prosecution for perjury is (a) difficult, and (b) not the decision of the victim, but of the Director of Public Prosecutions. So is suing for deceit a remedy? We shall see]

The law and deceit

45 Following the cases of P v B [2001] 1 FLR 1041 and A v B [2007] EWHC 1248 QB, followed in Rodwell v Rodwell [2011], it is clear that the cause of action in deceit may arise in cases such as this in a domestic context.

46 In A v B at para.43 Blofeld J set out the ingredients of deceit.

(1) a representation by words of conduct.  [Suess note, I think that is a typo and it should be ‘or’ conduct. meaning that you could give rise to a deceit action by semaphore, or more realistically that when asked a direct question the person nodded, shook their head, or put their thumbs up or some obvious gesture of that kind…]

(2) Secondly, that representation must be untrue to the knowledge of the maker at the time the representation was made.

(3) Thirdly, the maker must make the representation by fraud, either deliberately or recklessly, in the sense that he or she could not care whether the representation was true or not.

(4) Fourthly, the representation must be made with the intention that it should be acted upon by the claimant.

(5) Fifthly, it must be proved the claimant acted upon the fraudulent misrepresentation and therefore suffered damage.

 

In English

 

(1) that the other person said something

(2) that when they said it, they knew it wasn’t true

(3) that there was either intention, or recklessness that you might believe it

(4) That  they MEANT you to do something as a result of believing it, and that you acted on what the person said  (i.e you didn’t just believe it, that belief caused you to do something about it)

(5) That those actions caused you loss or harm

 

So, for the immediate question on your lips “If a social worker tells lies about me, can I sue them for deceit?”  I think that the fourth ingredient is the problematic one.  In order to sue for deceit, you need to show that not only was there a lie, but that you believed it. And that you did something as a result of believing it. If you never believed the lie, then you weren’t deceived.

You can only sue for deceit if the person successfully deceived you.  A lie is different to a deceit – telling a lie that you didn’t believe isn’t a deceit, it is an unsuccessful attempt to deceive.

[It might be possible to construct such a case – that the social worker told a lie about mum, dad believed it, dad did something as a result, and dad suffered loss.  Or I suppose the section 20 style case where a parent is told that it will just be for a few days and having signed the agreement never gets the child back]

 

In this particular case, the couple had made use of a fertility clinic. The man had had a vasectomy, but had taken the precaution of having his sperm frozen before the procedure. He had been told by the woman that she, with his consent, had used his sperm to conceive a child through the fertility clinic.  In fact, she had not. The sperm used had been another mans. DNA testing later proved that the child was not his.  The man had made maintenance payments to the woman for this child.

The woman’s case was that she had taken two samples to the clinic, one from the man and one from another person and that she had not known which sample was used – so she had not been honest with the man that there was a possibility that the child was not his, but had not lied to him because she did not know that he definitely was not the father.

 

The Judge held that the ingredients for a claim of deceit were all made out.

 

84. On the facts of this case where I have found there has been clear deceit and fraud in relation to the agreement, in my judgment it is right that the court order repayment of these sums which are not for the benefit of Z. The sum claimed in respect of these payments for maintenance to Y is £22,845 plus interest which has been calculated to date at £2,476 making a total of £25,321.

  1. Consequently, the sums that I award are the sum of £10,000 of general damages plus £4,000 in respect of the loss of earning capacity and the £25,321 inclusive of interest in relation to the maintenance of the property.

 

 

 

 

So, what IS the explanation for the huge drop in adoption decisions?

Following on from earlier blog post about the adoption stats

http://suesspiciousminds.com/2015/06/29/the-adoption-statistics/

 

 

[I coined the word ‘Jelfie’ today, to refer to the act of a Judge quoting themselves in a judgment.  To be even-handed, the fact that I am writing a post in which I link to my own post must be classed as a “Quelfie”  – or quoting/selfie. For shame, Suesspicious…]

 

So, you look at the graph and you see numbers of ADM decisions for adoption, and then you see those figures on the graph plummet, at exactly the same time that the Court of Appeal decided Re B-S and granted appeal after appeal after appeal. And those figures keep going down, but the astronomical drop is EXACTLY at the point that Re B-S came out.

That made me wonder. Just what DID cause that drop in the stats?

Is it that everyone in Local Authorities just got tired of adoption?

 

Is it Sarge?

Is it Sarge?

 

NO

 

Is it that as a result of the improvement in the economy that there were no longer any socio-economic problems that led to care proceedings?

 

 

Rosemary the telephone operator?  No way man

Rosemary the telephone operator? No way man

 

Is it anything at all to do with the Court of Appeal ?

 

 

Phenry, the mild-mannered janitor?

Phenry, the mild-mannered janitor?

 

 

COULD BE !

 

 

[Yes, I did do a blog post, just because I thought of a Hong Kong Phooey gag. That’s how I roll…]

Recommendation :- New blog written by a parent

 

I would like to recommend Surviving Safeguarding to all of my readers.

http://survivingsafeguarding.co.uk/

 

It is written by a mother who has been through the family justice system and after a lot of struggle and hard work has been reunited with her child, and now spends time helping others. She therefore gives a very different perspective than the other child protection blogs written by professionals can give, and she’s also a very gifted communicator.

Please give her writing support and comments – I think this blog has the potential to be an amazingly helpful resource for parents, and also for social workers and lawyers who want to connect with how the process can feel for a parent caught up in it.

 

Is the system failing parents?

Unlike most newspaper headlines that pose a question, to which the answer turns out to be “no”, this particular article from the Guardian ends up with the answer “yes”, and I would agree with it.

http://www.theguardian.com/society/2015/apr/25/are-we-failing-parents-whose-children-are-taken-into-care

 

I do complain often about how the mainstream press report on care proceedings, but this piece is a good example of how it can be done properly.

Firstly, when reporting on a particular judgment, the piece provides a link to the judgment itself, so that the readers can if they wish read the source material.

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B158.html

Second, the account of the judgment holds up as being accurate even after you’ve read the judgment itself.

And third, rather than a single source story (which is specifically against the code that journalists have signed up to), this particular journalist, Louise Tickle, has taken the trouble to go and speak to a variety of sources to inform the story.  And she has picked smart people (like Cathy Ashley of Family Rights Group, Karen Broadhurst and the Pause project) to speak to.

The really sad thing about this case is that it is not a unique and unusual outlier – it isn’t the story of a dreadful miscarriage of justice, or the truth coming out following dogged cross-examination, or a Local Authority being put to the sword for mistreatment.

It is an example of a case that people working within the system will see week in and week out – a mother who is very damaged by her own experiences and upbringing, who needs proper therapeutic help to address those difficulties and who didn’t get that therapeutic help in time to make a difference for her care of her child, with the effect that the child can’t  be with her.  This sort of thing happens all the time, up and down the country. The fact that it happens all the time shouldn’t immunise us to the pain involved and the sense that it must be wrong.

 

Whilst the Judge, His Honour Judge Wildblood QC, carefully pointed out that this was a mother who had a need to change substantially and was not going to change within the time that the baby needed her to, he went over and above the usual expression of sadness and into not only a critique of the system but an exhortation that the system must do better.

 

This case is another example of how important it is that, if therapy is needed, it is obtained at an early stage. Time and time again I see a process whereby the following occurs: a) a Local Authority intervenes and begins making assessment of a family; b) months later proceedings are issued; c) an order is made for some form of expert evidence to be produced (often a psychological report); d) months later the psychological report is obtained which says, invariably and utterly foreseeably, that someone within the family needs therapy and e) it is stated that, by then, the beneficial effect of therapy would be ‘outwith the timescales for the child’. In this case, for instance, it would have been perfectly obvious to all that, when the mother was referred before birth, she was a prime candidate for therapy. If therapy were to be obtained at an early stage such as that there is at least a prospect that outcomes in some cases might be different. I have therefore already set up arrangements in the New Year to look very carefully at how we facilitate and access therapy in this area, with a view to doing my utmost to encourage much earlier therapeutic intervention if possible. I ask for as much help as possible with that endeavour.

 

The Judge is completely right here. I’ve been saying for many years that the system was geared up to get and pay for a Harley Street diagnosis but left the business of obtaining  treatment to a model of  stand outside Superdrug looking sad and hoping the staff take pity on you.  {It’s even worse now, since we don’t even have the Harley Street diagnosis money any more to redirect where it always should have been going}

It’s really easy to wring our hands and say that the system is the system and what can you do. It is even easier to say that when the pragmatic reality is that Local Authority budgets were cut massively in the current Parliament and are set to be cut still further in the next one, whoever is in charge.  Social Services isn’t education and it isn’t health, so there’s no budgetary ringfencing – it will have to take its share of the cuts and some of health and education’s share into the bargain.

I like that His Honour Judge Wildblood QC isn’t satisfied with hand-wringing and wants to do something about it. I very much hope that his scheme works, and I hope that it works so well that versions of it are rolled out nationally.

As Louise’s article touches on, there’s precedent for that. District Judge Crichton saw so many care cases with drugs and alcohol being a feature that he took it upon himself to devise and champion a specialist Family Drug and Alcohol Court, and that model is now being rolled out to other areas in the country.

As George Bernard Shaw said “The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man”

I have no idea at all whether His Honour Judge Wildblood QC is an unreasonable man – I’m sure he is instead a deeply reasonable one. But if he is choosing to be unreasonable about a system that can see when a parent is crying out for therapeutic intervention but doing nothing about him, then all power to him.

I’d love to see some legislation that insists that where a Local Authority issues care proceedings, they must arrange and provide funding for therapy for the parents; it must be more economically sensible and morally sensible and less costly in terms of pain and trauma to try to fix what is wrong with a parent rather than simply waiting around for them to have the next child and starting the whole process off again.  (I’d love also to see that legislation backed with some government funding to pay for it, but although I am an unreasonable man, I’m not an unrealistic one)

Yes, there’s far more to tackle in family justice than this one issue of providing therapy for those who need it (rather than them trailing off to see their GP who at best puts them on a two year waiting list), but it would be a starting point, a base camp – and a message that there’s more to do to make a family justice system really be about both families and justice – rather than at the moment, where it is all simply about “system”

 

[I feel like I ought to put a You-Tube clip of “My name’s Ben Elton, good night” here, as I got a bit student ranty there]

Let’s watch out for Louise Tickle – this is damn good journalism, and it would be nice for mainstream writing on family justice to have this blend of outrage and factual accuracy.

Fax it up, m’lord

 

I was listening to Radio Five this morning, to a debate on the NHS and at one stage an expert told the listeners that the NHS was far too behind in modern technology – by way of disparaging illustration he said “Most GP’s are still using faxes, for goodness sake”

Which reminded me of the apocryphal story of the High Court Judge sitting in a Court far away from London, reaching the end of the case and realising that he has left all of his notes and preparation for delivery of his imminent judgment back at his London home. He mentions this dilemma, and someone helpfully suggests, “Fax it up, m’lord”  – to which the Judge sadly responds, “yes, I’m afraid it rather does”

And that led me to think that anyone who began practicing law in the last ten years would probably not understand that joke.  We have a fax machine in our office, but I can’t remember the last time anyone used it in anger. All that I ever see come out of it are single page spam adverts – invariably telling us that if we have had an accident in the workplace, we could get compensation – hugely informative stuff of that type.

When I first started working in law, which was a long time ago, I was at the beck and call of the fax machine. I don’t know that I want to give precise dates, but by way of indication my Local Authority was using a junior barrister named Cherie Booth and we were dimly aware that her husband was an MP but had no idea who he was.

 

The fax machine and I were very close. Our first version had no programmable numbers, you had to dial them all manually. And it didn’t use ordinary paper, but some horrid shiny stuff akin to the toilet paper in schools at the time (and possibly prisons now).  When we received our evidence, we had to fax this out. It had to go to the Court, to three firms of solicitors (mum, dad, Guardian) and to our counsel. So each piece of final evidence, I, as the junior dogsbody, had to fax out five times. I was junior dogsbody for eight lawyers at the time, so there was a LOT of final evidence, most of it having to be sent out on a Friday afternoon.

And the fax couldn’t send and receive at the same time, so if we had one lawyer with evidence ready to go out, and another waiting to receive the faxed copy from the social worker, that would be a juggling act with the social services dogsbody and I on telephones “Can I start sending it now?”  “Just wait, ten seconds… oh damn, the one to Thimbleby Fisher has jammed again”

If you aren’t old, like me – for example, my colleague Gimson, who does not believe me that we didn’t always have stuff on television whenever you turned it on and that for about five years daytime television consisted of Pebble Mill then three hours of “Pages from Ceefax”, it probably seems ridiculous to think that I was spending close to eight hours a week doing nothing other than feeding paper into a fax machine and swearing copiously when two pages went through at once.  I had to do this, because there was no way of sending these documents from one computer to another.

The social worker would write their statement out by hand, take it to a typing pool, a typist would type it up, the social worker would give it to the social services dogsbody, they’d fax it to me, I’d take it to the lawyer who would check it. If it was okay, then I would fax it out to everyone.  And then when they got it, which would often be at about seven pm, because I’d be doing this for eight cases on a Friday, they’d have to fax it out to their counsel.

And as archaic and dreadful as that sounds – this was an improvement. This was cutting edge tech – it was instantaneous compared to the system that had been around before I started, when you’d be DX-ing or posting it out and it would arrive a day or two later – usually just after you’d left for Court on the case you needed the document on.

None of us had computers on our desks – I remember that coming in, and many of the lawyers being mortified that this was taking up space on their desk where their files and notes would have been. When we finally got email, it meant that we no longer had to have the social work statements faxed to us, and that we could make changes and amendments to documents without having to get a typist to do it.   (It also ended one of the other curiousities, which was that I was keeping an index for all of those cases, which I was doing by making handwritten annotations to the typed index as new documents came in, and then getting it typed about once a month – if the case was going wrong, I’d be squeezing more and more annotations into a tiny space).

But we still couldn’t send documents out by email, because most of the other solicitors didn’t have it straight away.

I can’t really imagine doing the job now without a computer, being able to see a document and edit it and perfect it and send it back and forth until it is just right, then simply send it out to everyone who needs to see it in a task that takes less than 30 seconds when it used to take an afternoon. I can’t really now, even after such a short time, really get straight in my mind what it was like to only be able to look at your emails if you were sitting at your desk – to not be able to read them on the way to Court or whilst waiting for Facts and Reasons. And that’s a change of only the last four years or so.

The really odd thing of course, is that without blackberries, and email, and computers, and word processing – without even photocopiers, the lawyers in the early days of the Children Act got all this done – and they actually did it in shorter timescales and with less delays than we manage now with all of our assistance. That’s rather like learning that Formula One cars in the 1930s were faster than modern ones (they weren’t)

I wonder what is coming in the next few years, and how it will make our lives easier, but how as Parkinson’s Law shows us, work expands to fill the time available to do it.

I’ve been reading a book called Future Crimes, by Marc Goodman, which is about incredible advances in technology and the opportunities that these bring, and also the threats that they may pose. It isn’t an alarmist book – every story that the writer tells, he is able to show a real-life example where this has happened (often where hackers are demonstrating weakness in things like GPS, drone missiles, pacemakers, hearing aids, central heating controls, by hacking them and taking them over as proof of concept).  It was a great read, and frankly I could devote the blog for the next month to quoting you individual stories from it – there’s something astonishing on every page. (Paypal’s privacy policy contains more words than Hamlet… how one hacked tweet knocked 20% off stock prices in America for a morning, allowing the hackers to profit by shorting stocks, Target emailing a 14 year old with discount vouchers for maternity items leading to her father writing them an angry letter only to send another one two days later  saying that unknown to him she was pregnant – Target’s shopping algorithm knew she was pregnant based on purchases of things like unscented moisturiser before the girl herself even knew)

http://www.amazon.co.uk/Future-Crimes-journey-technology-survive/dp/0593073657/ref=sr_1_1?ie=UTF8&qid=1429206768&sr=8-1&keywords=future+crimes

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