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Tag Archives: can you get an expert without permission? Can you pay for your own expert in care proceedings?

In England, justice is open to all, like the Ritz Hotel

Is there a difference in family justice provided to middle-class parents? A discussiony paranoidy rant…

As you may know, the title of this piece is drawn from a remark by an English Judge, Sir James Mathew and was made in the Victorian era. It is intentionally barbed.

It had quite a flurry of revival in popularity  last year, as the Government debated and then implemented legal aid cuts that removed free legal advice from large chunks of the most vulnerable in society.

Private law

In terms of private law dispute, my initial question is likely to be true, sadly, as we go past April 2013.  After that time, a parent who is denied contact is going to struggle to get their case off the ground and into court unless they are (a) literate (b) articulate or (c) a person of financial means.      One might be cynical and say that the three things are interwoven, and that having three possibilities isn’t much use if they mostly capture the same group.

Of course, a person can represent themselves in court proceedings and a great many people do very well at it.  (I’d recommend Lucy Reed’s book “Family Courts without a lawyer”  for anyone who wants to do this  http://www.amazon.co.uk/Family-Courts-without-Lawyer-Litigants/dp/0956777406/ref=sr_1_1?ie=UTF8&qid=1359383824&sr=8-1 )

But even then, the litigant in person will either need to pay the Court fee for a contact application, which will be £200, or (if they are of limited means) navigate the byzantine system by which you can avoid paying the Court fee if you can satisfy an unsatisfiable bureaucracy of your entitlement to do so, a task which exhausts many private law solicitors who are well accustomed to trying.

[A bit like the Groucho Marx line that banks will lend money to people who can prove beyond doubt that they don’t need it]

Moving beyond that, you will as a wealthy or moderately wealthy person, have an option, a choice, which is denied to the non-middle class.  You can decide whether to represent yourself or have a specialist used to navigating the courts, who speaks the same language as the judge, who can advise you.  That’s a choice that won’t be open to someone who is not middle-class.  [using middle-class as shorthand for someone who has a professional job which pays them average or better income, regardless of family background and such  – of course there are plenty of plasterers who earn more than bank clerks.   Perhaps the class debate is better expressed as ‘haves or have nots’ but is a shorthand for this piece]

If you are faced with allegations of violence or abuse, you won’t get a lawyer to represent you and defend you against them unless you have money. The other parent, the one making them, might well get a lawyer, even if the allegations are false.

More and more private law cases these days are descending into these sorts of allegations, and probably more and more will in the future, as the funding system says that making them gets you a lawyer, whereas defending yourself against allegations that you say are false, doesn’t. 

Care proceedings

What about care proceedings though? The law says that if you are a parent and the State might be intervening in the way you bring up your child and might be contemplating your child no longer living with you, you would be entitled to free legal advice.

Everyone is on a level playing field then.  Family justice is like the Ritz, it is open to everyone.

But how true is that, really?

Here are some names that you will have seen in care proceedings, often many times, if you work in this field  – Zac, Jordan, Chantelle, Destiny.

Here are some names you have probably NEVER seen in care proceedings, Oliver, Crispin, Sophia, Harriet.

You might well say, and you’d be partially right, that a large tranche of care proceedings relate to neglect, and neglect in part springs from poverty.  So, a middle-class family don’t face the same social problems as a poor family, since they have choices and options.

A middle-class parent who struggles with managing household tasks has an option to get a cleaner, or to have someone do the ironing, they don’t have to prioritise between food and electricity, or gas or a toy for their child.

I would argue that not all poor families end up neglecting their children, and that it is possible, and indeed the vast majority of poor families do it, to get their children brought up in clean, safe and loving environments despite a lack of resources.

But it is certainly true that you’re at far greater risk of living in neglect if money is very tight than if you are affluent.

 

[Subsequent to writing this, I came across an excellent blog post in Community Care on why more poverty does not mean more neglect :- http://www.communitycare.co.uk/blogs/childrens-services-blog/2013/01/poverty-does-not-equal-neglect-benefit-cuts-will-not-see-more-children-taken-into-care.html   and is an interesting counterpoint to this debate. I don’t think we are miles apart, though I think if you increase the basic numbers of families in poverty, you may well increase the numbers of those families who don’t manage that sort of poverty well enough]

[This is reminding me of one of my favourite books, George Orwell’s “Down and Out in Paris and London”

It is altogether curious, your first contact with poverty. You have
thought so much about poverty–it is the thing you have feared all your
life, the thing you knew would happen to you sooner or later; and it, is
all so utterly and prosaically different. You thought it would be quite
simple; it is extraordinarily complicated. You thought it would be
terrible; it is merely squalid and boring. It is the peculiar LOWNESS of
poverty that you discover first; the shifts that it puts you to, the
complicated meanness, the crust-wiping….

 

And there is another feeling that is a great consolation in poverty. I
believe everyone who has been hard up has experienced it. It is a feeling
of relief, almost of pleasure, at knowing yourself at last genuinely down
and out. You have talked so often of going to the dogs–and well, here
are the dogs, and you have reached them, and you can stand it. It takes off
a lot of anxiety.

I have been, in case you doubt, exceedingly poor, as both a child, and as an adult, and recognise what Orwell says, particularly in his passages about how when you are truly truly hungry, nothing else in the world much exists than that hunger, that preoccupation with food and filling your belly with something.

So, perhaps the care proceedings net doesn’t cast over the “Haves” because neglect isn’t much of an issue in the “Haves” world.

But what about violence, what about sexual abuse, what about alcohol abuse?

I’m fairly certain that the disease of alcoholism, and the effect that it has on parenting, is not a class issue – it can take anyone.   In fact, I have worked, in the past, with people who drank a bottle of wine a night or more, and who would on that basis fail the sort of psychiatric examinations that we were sending parents to.

I have also encountered paedophiles from all walks of life – yes, very many were from damaged and impoverished backgrounds, but many others were teachers, professionals, doctors.

And I fail to believe that it is only poor people, only ‘common’ people, only ‘rough’ people, who reach the end of their tether, lose control and do something to a child that they should never have done.

There’s sort of a feeling, an unspoken one, in the Court rooms of this country, that child abuse is not done by people like us, that it belongs to a different world, another one, that we can look at, and judge, but not one that we truly belong in. There’s very little “there but for the grace of god” in child abuse cases.

As we know, and must remind ourselves, “The plural of anecdote is not data” and therefore it is of only  limited (or indeed no) evidential value that most of the times I have seen parents with middle-class jobs, accents, bearing and relations, facing allegations of physical mistreatment of children, a reason has been found as to why the medical evidence is wrong, and why they can be exonerated.

Efforts seem, again anecdotally to me, to be found by a mixture of professionals  (and again, I don’t claim that this is a conscious or deliberate action) to be more amenable to accepting that people like us couldn’t have done these dreadful things, than when similar things are alleged of people who live in a different sort of world to our own.

I don’t know how one could do the research on whether the outcomes for middle class parents are better for them than those for other parents – there’s no box on the application form for “Is the parent a bit posh?”    or “Do they shop at Asda or Waitrose?”   “Do they say napkin or serviette?”   but I’d like to see some, if someone wants to set out to do it.

So there is  at least the possibility of an unconscious bias of favouring or being more amenable to accepting the evidence given by people like us.

Can it go even further than that? To the overt stage, where actual cash, actual financial resources buys you a greater opportunity in a family case?

I don’t mind bribery, obviously. I don’t think that bribery plays any part in English justice. Call me naive if you want, I just honestly don’t believe that.

I had recently a conversation which prompted me to think about this piece, about a case (not one I was involved in, even tangentially and not necessarily a recent one) of suspected non-accidental injury, where the parents wanted to get a further piece of medical evidence, a fresh report. The Judge refused it, for good reasons about delay and proportionality.

The parents then pipe up that they could pay for the report themselves, rather than through legal aid, and lo and behold, there’s a reconsideration and the report is directed.

The justification, perhaps not unreasonably, is that the report is likely to be accelerated, expedited, on-time, if the expert knows that people are paying for it privately.  So the delay might not be so long, and the expert report will probably not hold the case up so much.  And of course, in the world we operate in, the Judge knows that the parents writing a cheque saves at least 2-3 weeks of messing around with the Legal Services Commission and prior authority, so the report probably will get done quicker.

Is that okay, or does that feel wrong?

It feels wrong to me that a person gets the chance to have a report not because of the merits of their case or the circumstances of the case, but because they, unlike someone else, can write a cheque and get it done.

[I couch all of this with the caveat that it wasn’t my case, I wasn’t there, I don’t know the detail – there may well have been very compelling reasons I am unaware of to have taken that course of action, but even just looking at it in the theoretical sense, would it be right in this hypothetical case below to allow the report?

 

Doctor says “I can do the report in 12 weeks, on public funding, but if it is paid for at my private rates, which are higher, I can do it in 5” 

 

If the Judge was going to refuse the report on basis that 12 weeks delay was too long, should she allow it in 5, if the parents are able to pay for it privately?    Or, is refusing it, if 5 weeks is considered reasonable delay, unfair just to preserve equality with some notional other parents who couldn’t pay the private fees?]

 

 

Can you go off and pay for your own expert without the Court’s permission?

Well, there have been some important decisions about that.  Firstly, you need leave of the Court to give the papers to the expert, and then  if you get leave of the court to instruct an expert, you have to cough up the report even if it is not favourable to you (unlike in crime)   [Re L : A Minor : Police Investigation : Privilege 1996 1 FLR 731 and then Re V (Care Proceedings : Human Rights Claims 2004 1 FLR 944]

 

If you don’t get leave of the Court and go off and get the report anyway, it still has to be disclosed.

[If there are ongoing criminal proceedings, the parent can keep those reports secret and even refuse to say if there are any expert reports and who has written them, and can keep legal privilege when discussing those reports with their care lawyer  S County Council v B 2000 2 FLR 161]

One clever way around this was tried in RE J (Application for shadow expert) 2008 1 FLR 1501

Where the applicant sought permission not to obtain a report that would have to be disclosed whether it was positive or negative, but instead an expert to basically advise the lawyer and formulate good questions for cross-examination and be a sounding board for the barrister’s theories. 

The Court felt that this was not appropriate and would not be granted. And of course, it would only have been a course open to someone paying for the report privately.

Can you get a better barrister by paying money?

A parent relying on a barrister who is being paid with public funding (or what all sane people call “Legal Aid”) will get proper advice, from someone who works hard and does their best and is bright.  All barristers who have experience in care proceedings do legal aid work, so you can’t get some better barrister, better advice by paying privately.  There’s not a Premier League of barristers who know about care but don’t do legal aid work.

I would NOT, for a second, suggest that the average barrister works harder or better on a case that they are earning more money on, I don’t think money comes into it. Honestly, I don’t.

But what you can get, potentially, is a QC.  If you are willing to pay for it, you can get a QC in a case that the LSC (legal services commission, or what sane people call the legal aid board) would not let you have one for free. 

That QC is the best of the best, and may give you an edge in the case.  Though some barristers who don’t have QC after their name are better advocates than some QCs, in general, a QC is going to be better.

It may well send a subliminal message to the Court about your case and the quality of it. Certainly there’s always an impression that the Court treats a QC with more respect than a run of the mill advocate.

Or you may not even need to go that far. Suppose you think about your barrister doing your case for public funding – they will work hard at your case, and put in effort. But they have another case the week before where they are doing that, and another the week after.

Might you get better representation from the same barrister, if you were willing to pay them to take two or three days off the week before your case to prepare?

We can’t know for certain, but I’d suggest that we all work better when we’re not shattered.

That’s an option available to those who have money that doesn’t exist for those who don’t.

Ring your solicitor up and say “I think my barrister should really only work on my case and nothing else the week before the hearing”, and you’ll get this answer if you have no money “That’s a nice idea, but I’m afraid it doesn’t work like that”   – and if you have lots of money, this answer  “They don’t normally do that, but we could see if they would – it would be very expensive though, you’d be paying for seven days of their time instead of five. Do you want me to speak to them about it?”

So, is English family justice really like the Ritz, or am I just crackers?