Helpful Information

For families in the Bristol, Bath, Weston & Gloucester Family Court area

Free Family Law Session open to all – 1 Oct

What does the Family Court do? … This is your chance to find out.

Join His Honour Judge Stephen Wildblood QC, designated family judge for the Bristol area, and a panel of legal experts to hear about how the Family Court works, what to expect and where to get helpful information.

Find out what the Family Court does, what it’s like going to Court and what to expect in terms of: paper work, giving evidence and the hearing process in general.

Get information about Legal Aid, the support available when you attend Court by yourself and alternatives to the Court process.

This will be an opportunity for you to come to the court building and ask questions about the practice of the Family Court.*

 

Who should attend?

  • Anyone interested in finding out more about the Family Court
  • All professionals in the field of family law
  • Journalists
  • Students

 

Other materials covered

  • What are Private Law Orders and upon what basis are they decided?
  • Public Law Orders (Supervision, Care, Placement and other Orders)
  • Civil Partnership and Divorcing Couples
  • Who decides on Cases?
  • What happens after a case?

 

The panel

Numbers are limited so book as soon as possible to avoid disappointment (booking via Eventbrite).

*Please note that individual cases will not be discussed.

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A surge in the number of people representing themselves in court has prompted legal organisations to draft guidelines for lawyers who come up against people who find themselves in court without legal representation.

The guidelines have been developed by the Bar CouncilChartered Institute of Legal Executives (CILEx) and The Law Society in response to the rising numbers of people representing themselves in court without a lawyer as a result of cuts to legal aid, the increase in the small-claims limit and the introduction of employment tribunal fees.

The practical guidelines are relevant to the civil and family courts and tribunals, where there has been an influx of people who cannot afford to instruct a lawyer, have not been able to obtain free legal advice and often have no alternative other than to embark on 'do it yourself' justice.

The guidelines discuss how far lawyers can help unrepresented people without this conflicting with their duties to their own clients. Lawyers are advised to communicate clearly and avoid technical language or legal jargon, or to explain jargon to the unrepresented party where it cannot be avoided.

Law Society president Andrew Caplen said:

'Cuts to legal aid and increases in court fees have forced more and more people into "do it yourself" justice, where they find themselves dealing with unfamiliar procedures in busy courtrooms whilst trying to resolve often life-changing issues regarding their families, their homes and their futures. We recognise the difficulties that people face in these circumstances and the consequent challenges created for lawyers acting for represented parties. We hope that these guidelines will help everyone concerned with cases involving self-represented litigants, but would again emphasise that the cuts to legal aid need to be urgently reviewed by the incoming parliament.'

Chairman of the Bar, Alistair MacDonald QC, said:

'The people who lose out most from the rising tide of litigants in person are the litigants themselves. It is one of the worst outcomes of the legal aid cuts that people facing major life events such as a family break up, have little choice but to put their case alone and without legal support or representation. It would have been easy for the legal profession to sit back and let the chaos play out in order to highlight the full impact of the cuts. However, we believe access to justice is a fundamental part of the rule of law and are doing all we can to help limit the impact upon those who find themselves in this dire situation. As well as supporting this initiative, in 2013 the Bar Council produced A Guide to Representing Yourself in Court, with the specific aim of giving litigants in person a better understanding of how to represent themselves in court. However, there is only so far the legal sector can go in tackling this problem. It won't go away unless the cuts to civil legal aid are restored so that those of limited means can, again, have proper access to justice.'

CILEx president Frances Edwards commented:

'In drafting these guidelines we have sought to give useful information so lawyers can best support those without legal representation. The ability of any litigant to have access to justice should be the key outcome of our legal system yet, at present, traversing the justice system in the best of circumstances is a challenge, and we expect to see litigants in person in substantial numbers for many years to come. Therefore, whilst we hope these guidelines will help, it does not alter the need to ensure litigants are placed at the heart of the justice system. Meanwhile, we will continue to press for the cuts to legal aid to be reviewed so that legal help is available to those who need it, and maintain our campaign for better access to justice and legal assistance for all.'

Lord Dyson, master of the rolls, commented:

'I warmly welcome the publication of these joint professional guidelines, and the collaboration of the three leading professional bodies in producing a valuable and timely reference for lawyers.

'An increasing number of litigants in person are coming before courts and tribunals in all jurisdictions, and the challenge for all of us in the justice system is to make sure that everyone is treated equally, fairly and impartially and according to the law.

'This presents particular challenges for practitioners, with the interests of the client and the duty to the court seemingly coming into conflict. However, ultimately, a client is best served by a fair and transparent system.'

The guidelines and accompanying notes are available to download below:

Litigants in Person Guidelines for Lawyers - June 2015 

These Guidelines are intended to offer practical advice to lawyers on good practice that is broadly applicable across the civil and family courts and tribunals.

Litigants in Person Guidelines for Lawyers - Notes for Clients 
These notes explain how one's lawyer will deal with the other side in a court case if they are representing themselves.

Litigants in Person Guidelines for Lawyers - Notes for Litigants in Person 
These notes are to help litigants in person understand what to expect (and what to not expect) from the lawyer for the other side in court proceedings.

Litigants in Person Guidelines for Lawyers - A Selection of Relevant Cases 

This guidance is co-authored by the Bar Council, Law Society and CILEx. It is reproduced here with permission of the copyright owners.

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How to represent yourself in family court in England and Wales
Advicenow

How to fill in your financial statement (Form E) - England and Wales
Advicenow

Cautious welcome for new separated families support, but Ministers need to learn from mistakes

24 OCT 2014 National Family Mediation (NFM) has given a ‘cautious welcome’ to a Government announcement of a new £2m package of support to help families avoid court room confrontations.

But NFM says Ministers and officials must learn from recent errors if the package is to work.

The Government announcement (23 October) comes after the number of litigants in person – unrepresented parties attending family courts – soared following cuts to legal aid entitlements.

'There is a desperate need to change the culture of the way divorce is ‘managed’ in our country,” says Jane Robey, National Family Mediation’s Chief Executive. “But if these new measures are to succeed in helping change the culture, Ministers need to learn from mistakes they’ve made in the recent past.'

A written statement from Justice Minister Simon Hughes (23 October) outlined three main areas where the Government package will focus:

  • Improving online information so that it is accurate, engaging and easy to find.
  • A new strategy, funded by the Ministry of Justice, and agreed with the legal and advice sectors which will help to increase legal and practical support for litigants in person in the civil and family courts. 
  • A new ‘Supporting separating parents in dispute helpline’ pilot run by the Children and Family Court Advisory and Support Service (Cafcass) to test a more joined-up and tailored out-of-court service.  

Jane Robey commented:

'Whilst the wish to improve online information is laudable, recent Government experience in online help for separating families does not augur well. In June 2014 Ministers admitted that the so-called ‘Sorting Out Separation’ app had cost taxpayers nearly half a million pounds, and there’s precious little evidence it’s made any difference.

We cautiously welcome hearing that a new strategy will be developed to help litigants in person, and National Family Mediation very much looks forward to being involved in shaping it. Our caution is because we fear the experiences of the recent Family Mediation Taskforce might be repeated. Many people and organisations contributed to that Taskforce in what, on the face of it, appeared a root-and-branch reform.

Yet when push came to shove, the recommendations of the Taskforce were largely ignored.

Families who are facing the heartache of separation, and who hear murmurs that support is on the way, really can do without another "talking shop".'

The Sorting Out Separation app had cost £417,500 as at 30 June 2014, according to a written Parliamentary answer published in Hansard on that date.

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Self Help for LIPs

In California USA, the state pays for ‘family law facilitators’ who provide explanations to parties about law and procedure on behalf of the courts. The family law facilitator programme was created by the Assembly Bill 1058 (Stats 1996, ch 957) in 1996. Family law facilitators are experienced family law attorneys who works for the superior courts in each county of California. All 58 Californian superior courts have some legal help available to people who do not have lawyers and are representing themselves. All family law facilitators deal with child support and give out educational materials that explain how to:

•        establish parentage (paternity);

•        get, change, or enforce child, spousal, or partner support orders.

S/he also:

•        gives out the court forms needed;

•        helps fill out forms;

•        helps a party come to support amounts; and

•        refers parties to local child support agency, family court services, and other community agencies that help parents and children.

Some family law facilitators can help with divorce, child custody, domestic violence and other family law issues. The family law facilitator is not a personal legal representative. S/he is a lawyer who works for the court and provides education, information and explains options without giving legal advice. If parties already have a lawyer, the family law facilitator cannot help them. There is no attorney-client privilege with the family law facilitator nor is there confidentiality. If a party wants help with case strategy s/he has to consult with a private attorney for legal advice. Both parties can get help from the family law facilitator who is free of charge regardless of income. The family law facilitator is not responsible for the outcome of the case. See further:  http://www.courts.ca.gov/selfhelp-facilitators.htm

At a conference in London in June 2014 Bonnie Rose Hough from the Centre for Families, Children and the Courts, part of the Administrative Office of the Courts, California, gave a paper on ‘Building the Capacity for Justice System Innovation’ dealing with the increasing need for self-help strategies in California because of the increasing number of litigants in person in the family courts. To appreciate the scope of the Office’s work, of which family law facilitation is a part, California has about 38 million residents, 5.6 million of whom are in poverty and 40% of whom speak a language other than English at home. There are more than 2,000 judges in California and the State court budget has been cut by 1/3 over the last 4 years. As regards family law:

•        70% of divorce cases involve at least one person without an attorney at beginning of a case – 80% by the end of a case;

•        90% of domestic violence cases involve no attorneys;

•        many people start by going to court rather than to a lawyer.

Since 1997 state funding for LiPs overall has increased from $0 – $40 million. The vast majority of LiPs are now getting some level of assistance. There have had to be cultural changes, namely:

•        more partnerships between court and legal aid;

•        judges becoming more comfortable in their case management role;

•        the Bar being generally supportive – the amount of limited scope representation (unbundling) has increased;

•        court staff are providing information and focussing on helping people through the system.

There has developed a unity of interest between courts and public in providing assistance to help people handle their court cases. The Californian experience has also shown that it is easier to change systems and provide extensive education for 2,000 judges and 160,000 court staff than to educate 38,000,000 potential litigants. Ms Hough was clear that, ‘the smartest person is the one who helps people address their legal need - not the one who can find the most errors. The smartest person is the one who can figure out how to explain complicated concepts in plain language – not one who knows all the legal terms’. Her Office has found that, overall:

•        over 1 million people with legal needs have been served each year;

•        4 million people have used the Office’s self-help website;

•        parties are now happier with the court system;

•        they get their cases resolved;

•        cases generally take less time than with paid attorneys;

•        parties get assistance with referrals to appropriate help including counsel.

Research findings show that people tended to care more about how they were treated by the system than by the outcome itself, for example:

•        they felt that they got to tell their story;

•        they felt respected;

•        they understood the court process better;

•        they believed the court was trying to be helpful.

Ms Hough suggested the following to case management judges and administrators:

•        schedule cases involving self-represented litigants for one calendar;

•        get as many resources as possible into the courtroom – self-help, mediation, legal aid, relevant social services, etc. and work to get cases resolved;

•        provide good pro bono work for attorneys – short, focused and tangible;

•        provide staff support

•        carve some money from direct service to provide coordination, education and support for volunteer leadership

•        use that person to get others engaged

•        be strategic about who is best to do what work - volunteer leadership or staff.

She said that the role of court self-help attorney/family court facilitator was not only to provide direct legal assistance and information but to voice with the judges and administrators about what changes needed to be made to appropriately respond to the needs of low income people coming before the court. She said that a little seed money went a long way:

•        it allowed interested people to get together;

•        it leveraged other resources;

•        it identified projects which needed to be done.

To view the Californian online help centre go to: http://www.courts.ca.gov/selfhelp.htm

Orders must be obeyed

In Re W (Strict Compliance with Court Orders) [2014] EWFC 22, [2014] 2 FLR (forthcoming) judgment delivered 25 July 2014, Sir James Munby, President of the Family Division, repeated what he had said in Re W (Adoption Order: Leave to Oppose); Re H (Adoption Order: Application for Permission for Leave to Oppose) [2013] EWCA Civ 1177, [2014] 1 FLR 1266. He emphasised that the parties in cases in the Family Court are not permitted to amend a timetable fixed by the court without the prior approval of the court. He emphasised the obligation on every party, spelt out (as in this case) in the standard form of case management order, to inform the court ‘immediately’ in the event of any non-compliance: ‘That obligation is imposed for good reason, though too often, as in the present case, it also is not complied with’. In that case he did not ‘mince his words’:

‘That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: see Re S (A Child) (Family Division: Without Notice Orders) [2001] 1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne.  I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431, para [74].

The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence. Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21  pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it. Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority.” (paras [50] [54])

Sir James particularly noted London Borough of Bexley v V and Others [2014] EWHC 2187 (Fam), [2014] 2 FLR (forthcoming) in which, on 16 June 2014, Keehan J denounced what he called ‘the contumelious failure of the London Borough of Bexley to comply with directions set out in an order’ he had earlier made in care proceedings. Keehan J said:

‘I understand that social work professionals and lawyers, whether engaged by public authorities or in private practice, are under enormous great strain in the current circumstances and economic climate, particularly given changes to public funding, but that does not relieve them of the obligation to comply with orders made by the court. The failures by the London Borough of Bexley in this matter are stark. This hearing would not have been required if they had complied with their orders and, in my judgment, it was right that this matter was listed at the earliest opportunity to address those failings and to enable the other parties to make submissions as to when they could comply with their obligations to file documents. Accordingly, I am in no doubt that it is right that the local authority should be ordered to pay the costs of this hearing. I shall direct that there is a transcript of this judgment. It will be anonymised and published. I give leave for it to be reported. All parties will be anonymised save for the London Borough of Bexley. The London Borough of Bexley will pay for the cost of that transcript.’

Sir James drew attention to the financial penalties visited by Keehan J on the defaulter in that case, ‘including the ingenious and salutary requirement that the defaulter pay the cost of the transcript “naming and shaming”. This might be thought an appropriate adaptation to the age of the internet of the penalty inflicted in 1596 by Lord Egerton LK in Milward v Welden’.

For the full judgment go to the Family Law website at: http://www.familylaw.co.uk/news_and_comment/re-w-strict-compliance-with-court-orders-2014-ewhc-22

Family orders

Family orders Elizabeth Walsh

In his ‘View from the President's Chambers: the process of reform: an update’ in August [2013] Fam Law 974, the President of the Family Division, Sir James Munby, explained his concern at the amount of time and money wasted in the process of drafting orders that could be standardised. He appointed Mr Justice Mostyn to lead a drafting group with the aim of providing a comprehensive set of orders, the use of which would become mandatory in the Family Court and the Family Division. In November 2013 and in August 2014 standard orders were released. They can be found in one place for ease of reference at: http://www.jordanpublishing.co.uk/l/family-orders. This page will continually be updated with breaking news on the orders project. Comments on the August batch of orders (Abduction, Disclosure orders, and HFEA and Child treatment) should be sent to Andrew Shaw by email at Andrew.shaw@judiciary.gsi.gov.uk

Social Work Template

A social work evidence template has been produced by the Association of Directors of Social Services (ADCS) and Cafcass. It can be used by local authorities to submit an application for a care or supervision order. The template supports professionals in submitting summarised, clear and analytical material to the court, setting out the reasons why the local authority is making an application for a specific order in relation to a child. A balanced, analytical and evidence based application will avoid unnecessary delay for the child and enable the court to quickly identify the issues in dispute, and potentially limit the cross examination of evidence.

The evidence template has been designed to be used as a national template. As a matter of good practice social work evidence statements should be proof read and checked by a manager and the legal department, before it is submitted to court. It is an important piece of evidence: any errors or omissions within the statement could cause unnecessary delay for the child. The social work evidence statement must contain analysis of the potential risks and benefits of all the realistic placement options for each child. This might include a return to parents, placement with extended family or friends, long term foster care or adoption. The template is not mandatory but is endorsed by:

•        the President of the Family Division

•        the ADCS

•        Cafcass

•        Her Majesty’s Courts and Tribunal Service (HMCTS)

•        Department for Education

•        Ministry of Justice.

The template is compliant with the Public Law Outline 2014 and also accommodates the guidance in Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 1 FLR 1035. Guidance from ADCS and Cafcass about completing the national local authority social work evidence templates (initial and final case analyses) is set out in In Practice at p 000 below. The template itself can be downloaded from http://www.familylaw.co.uk/news_and_comment/ guidance-from-adcs-and-cafcass-about-completing-the-national-local-authority-social-work-evidence-templates-initial-and-final-case-analyses.

Children and the Media

A study exploring the degree to which children and young people have a right to have their private lives kept private was published at the end of July. The report, Safeguarding, Privacy and Respect for Children and Young People and the Next Steps in Media Access to Family Courts by Dr Julia Brophy with Kate Perry, Alison Prescott and Christine Renouf (in conjunction with NYAS and the Association of Lawyers for Children) shows that a child’s safety and well-being during court processes and in the longer term are of the utmost importance. There follows the executive summary and recommendations.

The Media

•        Young people are well informed about the media and options for reporting, from print (local and national newspapers, magazines and free newspapers, etc) to television and radio (national and local news, current affairs programmes, etc) to on-line sites.

•        They are also familiar with the roles of those working in and managing the media (eg journalists/reporters, editors/sub-editors, newspaper/media corporations).

How do young people think journalists report information generally?

•        Young people do not trust the media – in all its forms. This view results from their experiences as consumers of print, televised and social media but also personal experiences with reporters and photographers from print and televised media.

•        Young people see the media as a highly competitive, commercially driven industry motivated by the need to increase sales figures through populist readership.  That core objective has often resulted in a portrayal of young people in a negative light.

•        For these young people this results in an industry – whether newsprint, TV, radio or other social media, which does not prioritise the truth. Fairness and balance are not features they identify with any part of the media: indeed they see commercial priorities as overriding – and in some cases precluding, truth telling.

Pictures of babies, children and young

•        The views of young people in this field need to be placed in the context of their views about information and images of children in the media generally, and a need for greater respect for the reputation and dignity of children and young people.

•        Young people pointed out the dangers of pictures of children being published (eg on ‘reality’ television and social media): pictures ‘go viral’ very quickly, cannot be retrieved and can have lifelong implications for the child concerned.

•        Young people said parents under stress or in conflict are not well placed to decide the use of pictures of their children in the media: use often indicates a failure of parents to consider a child’s right to privacy and the need for informed consent from or on behalf of a child.

•        Informed consent as to the use of a picture applies regardless of the child’s age. Where a child is unable to give consent, young people said a picture should not be published unless the implications for the child are assessed by an independent person with safeguarding experience and knowledge of the possible long term implications for a child.

•        With regard to pictures of children involved in family proceedings, apart from exceptional circumstances (eg locating a lost/abducted child), young people said it was unacceptable and indeed unethical to publish pictures of babies and children.

•        Like all pictures of children in the media, those published alongside a parent’s story about a court decision remain in the public arena indefinitely.

•        Young people said this is an unacceptable burden for society to place on children who have to negotiate their lives against a background of ill-treatment and enormous change and where they struggle with issues of self esteem, dignity and respect in relationships at school, friendship groups and wider communities.

Media access to family court hearings

•        Following changes in Family Proceedings Rules (2009) accredited media representatives are permitted to attend hearings (unless the court directs otherwise). While a case is ongoing however the media is currently not permitted to publish information intended or likely to lead to the identification of a child(ren) in the case.

•        This group of young people, like others, was unanimous in opposition to media attendance at hearings.  They said the family court is not a public arena and this move represents a failure of Parliament to consider and take seriously the views, needs and long term welfare of the children concerned.

•        They argued that increased, meaningful public knowledge about the work of family courts could not be achieved via the media: there are other ways to achieve this.

•        Notwithstanding that position, young people were unanimous in arguing that when a court is considering media access it should first ascertain the views, interests and long term welfare implications for any child. This raises serious challenges for courts and welfare, clinical and legal professionals in their early discussions with children.

•        In the context of early discussions young people said they are not always informed about what is happening in their case – before or during proceedings. They said out dated paternalistic approaches by professionals are not in children’s interests: they need honesty and accurate information about processes and decisions about their care and at a time when they can make informed choices.

•        The person best placed to discuss this issue with a child is the person he/she most trusts. That person must be independent, with safeguarding knowledge and an understanding of the potential long term implications for the child of giving consent.

•        The key issue in ascertaining a child’s consent is level of maturity, not age. Children in care proceedings are often more mature than other children of a similar age: they may well have had responsibilities and made decisions anticipated of much older children.  It is therefore level of maturity that should determine capacity to consent.

•        Young people said courts must be aware that parents have their own agenda and may thus be less concerned or unaware of the long term implications for children of talking to the media. Children therefore look to judges to protect them.

Relaxing reporting restrictions during cases:  the ‘next stage’

•        In addressing whether it might be possible to relax the rules on information that could be published during proceedings, young people demonstrated how easy it is to identify a family – even if coverage did not include names.

•        ‘Jigsaw identification’ – from the area where a family live, school attended, ethnicity or religious details, details of harm a child is alleged to have suffered, information about a parent’s mental or physical health and lifestyle, enable children to be identified.

•        ‘Jigsaw identification’ is not simply a problem for children in small communities. The nature of communities in urban areas mean families can be identified making them equally vulnerable to harassment, bullying and further violence.

•        Young people do not ‘buy’ the argument of policy makers that permitting the press to report detailed information from live cases will reduce criticisms of family courts. They said there are better ways to improve public knowledge and other avenues to explore allegations of unfair treatment.

•        Under existing powers when a court is considering reporting restrictions, it is required to undertake a ‘balancing’ exercise, usually considering the rights of children and parents to respect for a private and family life and to a fair trial (Arts 8 and 6 ECHR) against the rights of the press to freedom of expression (Art 10).

•        Notwithstanding objections to media access to hearings per se, young people said a key issue for courts when deciding any relaxation of reporting restrictions during  proceedings is safeguarding the immediate but also the future safety and wellbeing of children – and in the context of their ascertainable views about media reporting.

•        This suggests that to protect children, the decision as to whether to relax reporting restrictions during a ‘live’ case should remain a matter of judicial discretion.

The impact on children: rights to dignity, respect, self esteem and wellbeing

•        Young people were unanimous about how a young person might feel, reading about their case in a newspaper – even if not named. They described feelings of anger, sadness and depression, embarrassment, shame, guilt, and humiliation.

•        Where children suffer emotional problems these could spiral in the face of potential media coverage leading to serious depression, self harm and suicide.

•        Young people described the ongoing stress and anxiety for those in care: they highlighted the stigma involved and the constant fear that people will discover the reasons they are in care. Media access and reporting will exacerbate that stress.

•        They also said children are often resistant or unable to share feelings; the seriousness of emotional health problems is thus not fully recognised. The risks posed by media reporting may increase the number of children in this group and thus those not recognised as at serious risk of self harm and suicide.

•        Young people said once information is published, public humiliation will follow.  Moreover, children then live with the fear of further exposure of highly intimate details of their care for the rest of their life: web sites are not ‘next week’s chip paper’.

Reporting cases once they are completed

•        Automatic restrictions on media reporting where this permits identification of a child and family cease once a case is completed (unless the court directs otherwise).

•        Not only did young people not know this, but they had serious concerns about a loss of protection for children at this point. Save in exceptional circumstances therefore, they said reporting restrictions should be maintained.

•        When considering an application to extend reporting restrictions beyond the life of a case, young people said the court should ascertain the views of the child concerned -if necessary, with the assistance of an assessment as to capacity and by a trusted person who is aware of the safeguarding implications.

The needs of some parents to be able to speak to the press

•        Young people raised serious doubts about allowing parents to talk to the press once a case is completed and to identify themselves and any child/young person. The reasons parents may want to do this (eg where they feel a decision was unfair) did not hold weight with young people.

•        Given the seriousness of ill treatment and the work of courts in coming to a decision, young people said aggrieved parents did not need to take issues to the press.  There are other avenues to address grievances and if necessary, these could be improved.

•        In response to the suggestion that parents should be free to vent anger and raise concerns about professionals and courts, young people were clear: using the media was not an acceptable route, ‘parents need to act like parents’ and put children’s interests first:  children do not want the press involved in family proceedings.

•        Like other samples, this group said parents must seek permission from a child before talking to the press but this does not dispense with the requirement that courts must ensure the child is able to give informed consent.

Arguments in favour of naming professionals: the response of young people

•        With regard to whether the press has a useful role in reporting cases where a judge identified health, social work, guardian or court failures, young people understood the argument about exposing failures but said there are better ways to do this (e.g. through Key Performance Indicators and inspections in some instances and an independent review agency for others).

•        They were unconvinced about arguments as to the benefits of ‘public exposure’ through the press: it represented a ‘poverty’ of thought in the development of public services to respond properly to complaints.  ‘Oversight’ by the press will not resolve complaints about lack of fairness.

Benefits to children and young people of media reporting

•        As to whether children might be pleased or benefit from media reporting about why they were removed from parents, young people said that would not be the case; the reality of what would be reported and the long term risks to them are too great.

Media access to court documents: the ‘next steps’?

•        Like previous samples, young people were also unanimous in their rejection of the proposal that reporters should have access to court documents.

•        As to whether there are any benefits to media access to documents, young people said there were not. Information from a single case was not effective in educating the public nor could it address public confidence in a meaningful way.

When should children/young people be told about media access to court documents?

•        Care proceedings are usually at the end of a long process; young people said honest and accurate information about media access to hearings, documents and reporting should start when a child/young person becomes the subject of state concern such that a local authority takes or becomes involved in decisions about their care.

•        This would enable young people to make informed choices in the context of rights to information under Art 12 (UNCRC). They said information about media access withheld, or given at the ‘door of the court’ is unethical; it also breaches their right to information in a format and at a time to enable them to make informed choices.

The impact on engagement with professionals by children and young people

•        Once told the truth about developments in media access to hearings and to certain records young people said children will be unable or unwilling to talk further to professionals about ill-treatment and are likely to withhold information.

•        Those views, coupled with those of young people in earlier samples, indicate this issue has not been aired sufficiently in Parliament, with young people themselves, or with the professionals involved in assessments and advocacy on behalf of children.

Implications for children and young people’s health and well being

•        Concerns about the implications for children’s heath and emotional wellbeing and self esteem dominated discussions about the release of court documents to the press.

•        The prospect of media access to documents and thus more reporting of cases adds to the anxiety and risks posed for the long term health of children subject to ill-treatment.  Young people said this is an unacceptable additional pressure on them.

•        Young people were also concerned about effects of these changes on other children: once they hear about media access to hearings and records that will deter abused children from coming forward; they will be unwilling to discuss ill-treatment because the consequences for them are perceived as potentially worse.

•        Rights to confidentiality in other contexts such as medical records were raised.  These rights underscored young people’s trust and willingness to talk to their GP and other health care professionals.

•        In essence these young people talked about a right for children subject to abuse and court proceedings ‘not merely to survive, but to thrive…’ and the responsibility of Parliament and family courts to ensure an environment that supports that endeavour.

Telling children about media access: difficulties for professionals

•        In addressing difficulties this area poses for social workers, guardians and advocates (caught between a desire to protect children and an obligation under Art 12 (UNCRC) to give them information to enable them to make informed choices) young people said professionals who did not tell them about media access were not honest with them and were simply ‘opting out’ of difficult conversations.

•        They said there should be an end to hypocrisy and outdated paternalism in this field: professionals should be subject to a formal regulation such that they are required to inform children/young people about media access to hearings, to records and reporting of cases as soon as their care becomes an issue for the state.

•        They said this should not be a matter of personal choice:  it is an ethical obligation in terms of truthfulness and an obligation under Art 12 of the UNCRC but in neither context do young people currently have any power or redress.

Family court judgments on line: the response of young people

•        More judgments are published on a public website (BAIILI); before a judgment is published however, the names of parents and children should be removed.  The names of lawyers, social workers, the local authority, the guardian and any doctors involved are to remain, as is the name of the judge.

•        Young people understood judgments provide accurate information of events and the reasons for a court decision but were concerned about ‘jigsaw identification’. They said the capacity of reporters and others to trace children has not been addressed.

•        They also said that this level of publicly available information may make abused children more vulnerable to inappropriate attention from predatory adults.

Public confidence in family courts: views of young people

•        Young people said accusations that family courts are ‘secret courts’ are disingenuous: they are private, and for good reason. They said such accusations are a justification for press access to information it would otherwise not achieve.

•        Young people did not think newspapers could or would achieve change in family proceedings. They said all cases are serious for the child or they would not be in court: to make them ‘newsworthy’ the media will select the most intimate, ‘juicy’ details.  Where change was necessary there are other avenues to achieve that.

Alternative ways of addressing issues of public confidence

•        Young people said posing the media as the solution to a perceived lack of public confidence in family courts represented unimaginative and clichéd thinking: they said there were better ways to address issues of public confidence.

•        They said that where the court is asked to address the wish of parents to talk to the press, the ascertained wishes and welfare of the child should take priority; Parliament should ensure the law reflected that priority.

•        They said judges are there to protect children: the terms of their work and training provide public assurance there is nothing ‘secret’ going on and that the process is fair.

•        While accepting judges are not infallible, they said reporters will not stop mistakes; checks operate and other measures should be explored.

•        They further argued that the President should perhaps establish a small department - independent of government to inspect and assess some cases from the perspective of justice and fairness to parents/others, and the welfare and rights of children.

Good enough for your children? Messages for Parliament, the President, frontline professionals and the public

•        Young people said it does not appear that children’s rights, views and interests are clearly on the agenda of Parliament or the President of the Family Division.

•        They said the President should stop trying to please the media, not least because it will not fulfil his agenda; he should explore other mechanisms for monitoring and, if necessary, improving services and information about services.

•        Sanctions as an ‘answer’ to the concerns of young people about identification of children miss the point: they are also consumers of family court services and members of ‘the public’ but for them, the damage is done and likely to be long term.

•        Sanctions also fail to address the difficulties where children effectively disengage from the process when told about media access. Young people also said editors may risk sanctions where the financial rewards from publishing are likely to be high.

•        Anecdotal evidence supports young people in that they are not told about media access to hearings. The reasons why professionals do not tell them is because they do not want to distress children and they hope the press will not attend. Many indicate it is not their job to persuade children to trust the press nor do they think it is safe to do so.

•        Failure to tell young people the truth cannot continue - not simply because it is dishonest but because access to records and relaxation of reporting restrictions make it more likely that the press will attend hearings, and if the rules are sufficiently relaxed to meet commercial imperatives, will report on more cases.

•        Developments are unlikely to stop here.  It is naive to think that the press will be content with access to some records but not others, or that in the long term they will be content with reporting restrictions. As reporters in England and Australia argue unnamed parties do not sell newspapers.

•        As young people identify, this field is a ‘Pandora’s Box’ with potentially severely detrimental and far reaching consequences for children.  It may therefore require and indeed benefit from a proper consideration by Parliament (as was originally intended) along with a transparent consultation exercise where the full proposals and the views of young people are presented to the public.

•        Two key issues arise for children in private law cases.

–        Without separate representation and where most parents are litigants in person, there is no one independent to ascertain and advance views on a child’s behalf.  Children are thus at greater risk that warring parents will use the media as a weapon in their own agenda, with children trapped in that battle but without a voice. The court is also without access to independent evidence on a child’s behalf when considering a balancing act between a child’s Art 8 rights (to privacy) and a parent’s/press rights under Art 10 of the ECHR. 

–        Solutions posed by young people in pubic law cases (eg seeking a child’s view or assessing capacity to agree to media involvement through an independent person) do not exist: access to a guardian, solicitor or family court adviser is absent in most private law cases.

•        It is naïve to think that the media can provide a more effective, accountable role in exposing mistakes and preventing future miscarriages of justice than, for example, an independent, accountable agency as suggested by young people.

•        It is also naïve to think that miscarriages of justice do not happen in both family and criminal proceedings, but it is useful to bear in mind that the media has had access to the latter courts for many years and the reality does not always support rhetoric: miscarriages of justice are not necessarily prevented.

•        While conscious and unconscious ideals drive goals, greater humility and honesty about the limitations of the media is perhaps required and thus a more sophisticated approach where children’s views, health and protection are explicitly central. Indeed Parliament may consider their welfare should be paramount.  As young people and others identify, the framework for this area of legal policy has to be considered against the commercial imperatives of the contemporary media and not an ideologically driven agenda about, for example, public education, which the press itself does not claim to fulfil.

The full report is available to download from: http://www.familylaw.co.uk/news_and_comment/children-s-rights-views-and-interests-not-on-the-agenda-of-parliament-or-the-president-claims-report

Law Com and mental capacity

The Law Commission’s 12th programme of law reform will include recommendations on mental capacity and detention.  Work on the project has started already and a report with recommendations for reform and a draft Bill, is due to be published in summer 2017. In 2004, a case before the European Court of Human Rights established that it was possible for decisions taken in a person’s best interests about the provision of residential and social services were capable of amounting to a deprivation of liberty under Art 5 of the European Convention on Human Rights. The UK was found to be in breach of the Article, because in such circumstances the law in England and Wales did not provide for an adequate system of authorisation and review of the deprivation of liberty.

In 2007, in reaction to the finding, the deprivation of liberty safeguards (DoLS) were introduced into the Mental Capacity Act 2005 by the Mental Health Act 2007. They were introduced in order to plug the gap identified in the case, and to ensure that such situations are properly regulated in line with the person’s human rights. DoLS applies only to deprivations of liberty that take place in hospitals and care homes. If a person’s right to liberty is compromised in other settings, his or her deprivation of liberty has to be authorised and supervised by the Court of Protection. The DoLS provisions have been criticised since they were introduced for being overly complex and excessively bureaucratic. It is said that staff often do not understand them and that there is confusion over the differences between the powers of the Mental Health Act 1983 and DoLS.

In March 2014 a House of Lords select committee conducting a post-legislative scrutiny of the Mental Capacity Act found that DoLS were not ‘fit for purpose’ and called for them to be replaced. The committee also recommended that the new system should extend to cover people in supported living arrangements, not just hospitals and care homes. Shortly afterwards, the Supreme Court found that a person will be deprived of their liberty in more situations than had previously been thought to be the case (see P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents) below. The Department of Health has accepted that there are difficulties with DoLS and has announced various measures designed to improve the way the safeguards operate. The project considers how deprivation of liberty should be authorised and supervised in settings other than hospitals and care homes, where it is possible that Art 5 rights would otherwise be infringed. In addition to considering these settings, the project will also assess the implications of this work for DoLS to ensure that any learning which may be relevant is shared. See further the article below.

Deprivation of liberty

On 7 August 2014, Sir James Munby, President of the Court of Protection (CoP) handed down his judgment in respect of the practical and procedural implications following the Supreme Court judgment in P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents); P and Q (by their litigation friend, the Official Solicitor)(Appellants) v Surrey County Council (Respondent) [2014] UKSC 19, [2014] COPLR 313. In the introduction to his CoP judgment, Re X and Others (Deprivation of Liberty) [2014] EWCOP 25, [2014] COPLR (forthcoming) the President is unequivocal that he is dealing only with the practical aspects arising from the judgment and not offering any legal analysis of the Supreme Court’s decision which turned on its head his definition of what constitutes a deprivation of liberty (set out in his leading judgment in the Court of Appeal, Cheshire West and Chester Council v P [2011] EWCA Civ 1257, [2012] 1 FLR 693).

Lady Hale gave leading judgment in the Supreme Court and provided us with an ‘acid test’ (much like that set out in HL v United Kingdom (App No 45508/99) (2004) 40 EHRR 761 in the European court of Human Rights). She said that individuals with intellectual disabilities had as much right not to be deprived of their liberty as those who did not: ‘The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to "everyone" (Art 1)’ (para [36]). The ‘relevant comparator’ test previously set out by the Sir James Munby when he was a judge of the Court of Appeal was therefore politely rejected by Lady Hale (as being inconsistent with her view that persons with disabilities have the same rights as everyone else) in favour of determining whether an adult was under ‘continuous control and supervision and not free to leave’. By way of context it is important to remember that the judge dealing with simplifying procedure as a result of the widening of the test is the judge about whom Lady Hale said (at para [48] of her judgment):

‘I entirely sympathise with the desire of Munby LJ to produce such a test and thus to avoid the minute examination of the living arrangements of each mentally incapacitated person for whom the state makes arrangements which might otherwise be required.’

Much like Sir James, I will not be providing a legal analysis of the test but instead will focus on the implications of this new process for ‘P’, the person who might lack capacity to consent to care arrangements and finds themselves deprived of their liberty in an environment other than a hospital or care home (where the statutory deprivation of liberty safeguards will provide protection). We all know there will be significant costs for authorities, and I will touch on that, but the right not to be deprived of one’s liberty by the state is about the individual and it is on the individual that I will focus.

If Lady Hale’s test is fulfilled, then, however good the placement, however happy or obliging P is with the arrangements, (and here we remember her now famous quote ‘a gilded cage is still a cage’) that placement must be authorised. In placements other than care homes or hospitals, an application must be made to the court for such authorisation to be given to ensure that it is compliant with Art 5 of the European Convention on Human Rights – the right to freedom from deprivation of liberty (DoL).

Sir James has had to deal with this because of the inevitable rise in applications that the court will now have to deal with, coupled with local authorities who are crying out for guidance. My assumption had always been that the President would probably try to separate cases in such a way that many of the ‘gilded cage’ type scenarios could be dealt with on the papers to avoid the need for unnecessary and costly oral hearings where P was content but that there would be some mechanism whereby those more complex and potentially contentious matters could be spotted and brought to hearing. The President considers that it is indeed a feasible and achievable objective to distinguish between, ‘those DoL cases that can properly be dealt with on the papers and without an oral hearing, and those that require an oral hearing’.

A ‘streamlined’ process

Sir James’s judgment gives some guidance as to how that should work in practice, which rules might need amending to give that effect and how P should be protected. It is relatively scant on detail and instead sets out the practical steps required to get an application seeking authorisation of a deprivation of liberty off the ground. The President says the steps required to achieve that are a ‘streamlined’ process and his judgment is a brief response to most of the 25 questions posed by a ‘who’s who’ list of Court of Protection barristers and solicitors following a three day hearing in the summer. Those steps have been helpfully summarised for applicant authorities by 39 Essex Street chambers in its guide, Judicial deprivation of liberty authorisations (see http://www.familylaw.co.uk/news_and_comment/judicial-deprivation-of-liberty-authorisations. The President’s main priority was to ensure that he produced a workable process that was compliant with Arts 5 and 6 of the European Convention on Human Rights (para [28]).

Jess Flanagan
Solicitor, Clarke Willmott, Bristol

A full version of this article with further detail is published at: http://www.familylaw.co.uk/news_and_comment/court-authorised-deprivations-of-liberty-dol-in-a-post-cheshire-west-world

‘Streamlining: judicial authorisation of deprivation of liberty’ by Her Honour Nasreen Pearce, Retired Circuit Judge, and District Judge Sue Jackson, Nominated Judge of the Court of Protection, will be published in the October issue of Family Law.

This article has been taken from the November 2014 issue of Family Law and made available ahead of print." and "For details on how you can subscribe to Family Law or for any offers, please contact a member of our sales team: Tel 0117 918 1555, or email: sales.manager@jordanpublishing.co.uk"

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'The Way We Are': Accessing the court after LASPO

HHJ Stephen Wildblood QC

Designated Family Judge for Avon, North Somerset and Gloucestershire

Claire Wills GoldinghamQC

Albion Chambers, Bristol

Judi Evans

St Johns Chambers, Bristol

We are writing this article to explain a process involving four points that we have put into effect in the ‘DFJ area’ of Avon, North Somerset and Gloucestershire. Those four points are:

(1)     support for litigants in person;

(2)     support for parents and families outside and during litigation;

(3)     disseminating information about the above; and

(4)     supporting and reinforcing the roles of family lawyers.

In developing that process, the three authors of this article have worked with many people. We are deeply indebted and, at times, have been truly humbled by what we have discovered to be available to those in need of help and support.

Following the announcement in April 2013 of the implementation of the modernisation programme, people in this area have worked very hard to achieve improvements in our public law work. I, Stephen Wildblood, became the Designated Family Judge in this area in that same month. I said then, as I do now, that we can only achieve what we need to achieve if we observe four alliterative concepts – good communication, effective collaboration (ie team work), a change in culture and, finally, a commitment to the people who really matter – the public who are forced into our systems for a resolution of family and personal issues where consensus (assisted or otherwise) fails. Thankfully, and as a result of a collaborative exercise, we have now reduced our delays considerably so that the average public law case takes about 25 weeks here.

That feels very much like ‘phase one’. While all that has been going on some very strong statistical information has been produced about what is happening in private law proceedings. Private law proceedings cannot be viewed as the ‘poor relation’ of the system. Children caught in the midst of parental conflict in private law proceedings can be every bit as vulnerable as those involved in public law proceedings. We are very conscious that we meet and assist people at times of great stress and distress in their lives and where, in some cases, the court is being asked to make the most life-changing order possible – that of adoption.

The number of private law applications that are now being made is down by something like 36% since the legal aid changes in April 2013; it may be informative to bear in mind that, in the Employment tribunals, applications are said to be down by about 80%, with obvious knock-on effects. Most litigants in private law proceedings appear without legal representation (57% in December 2013 and now said to be around the 70% mark). The Law Society Gazette contains an article published on 24 September 2014 which suggests that ‘nearly three-quarters of private family cases involve one or both parties without legal representation’. The figure of 70% emanates from the Office of the Children’s Commissioner which has recently published a report Legal Aid Changes Since April 2013: Child Rights Impact Assessment (see above p 1505). As a result, the Minister for Justice, Simon Hughes, is reported as saying: ‘I have asked the Ministry of Justice to review the findings in this report. We have had to make difficult decisions to protect legal aid for the long term but this shouldn’t be at the expense of the rights of children’. In the Bristol area the figures are these:

(1)     Private law receipts per child for Bristol DFJ area July 2014 – 209. Private law receipts per child for Bristol DFJ area July 2013 – 285 [ie a reduction of 74];

(2)     Private law receipts per child for Bristol DFJ area April 2014 – 225. Private law receipts per child for Bristol DFJ area April 2013 – 320 [ie a reduction of 95].

Combine the 2 months and the total reduction over 2 months is 164 less applicants. It may also be worth citing the figures that come from the Administrative Office of the Courts of California (see E Walsh, ‘Self-help for LiPs’ in September [2014] Fam Law 1345) which are said to be:

(1)     70% of divorce cases involve at least one person without an attorney at the beginning of a case – 80% by the end of a case;

(2)     90% of domestic violence cases involve no attorneys;

(3)     90% of tenants in eviction cases do not have attorneys – nor 30% of landlords.

It is right to observe that, recently, there appears to be an increase in the take up of mediation.  The Chief Executive of National Family Mediation, Jane Robey, has spoken of a 30%–40% increase in some areas. But that cannot, of itself, account for the downturn in applications during the period of which we are speaking.

Taking steps

We have been determined to do as much as we can to help those involved in family disputes and, in particular, those involved in family litigation (some of whom may receive about 140 pages of documentation when considering a private law application).  We think that the time to take these steps is now (the changes having come into force 18 months ago) whatever may happen in the future about legal aid. We give the following examples of the sort of the people that we have particularly in mind:

(1)     a mother with an IQ of 85;

(2)     a father whose first language is not English;

(3)     a subordinated wife leaving a non violent but dominated relationship; and

(4)     a distressed grandparent who wishes to intervene in care proceedings.

The purpose of this article is not to make any sort of political statement. We are simply not qualified to make any remarks about whether the legal aid budget should be increased or decreased. The legal aid budget in this country is huge (apparently somewhere between £1.5 and £2 billion). The purpose of this article is not to discuss how that money, or any variations in it, should be spent. Instead our aim is two-fold. First, to ensure that there is an optimal, accessible and sustainable system of family justice in our area and, secondly, to achieve, if we can, the respect of those with whom we work. The role of Designated Family Judge (DFJ) does not involve telling anyone what they must do (except in the limited confines of  court work and subject always to the direction of higher courts, more senior judges, statutes and any appeal). But it does create a leadership role with a responsibility to maintain and improve the family justice system in this area through discussion and example.

The four points that we mention at the outset of this article have taken us to more meetings over a short period than any of us can ever remember encountering before. We have met some of the most outstanding, rewarding and considerate people.

Support for litigants in person

The work of six voluntary agencies has been co-ordinated. We will describe them now in turn. They each gave short presentations at a conference that we organised on 23 September 2014.

The Law Centre in Bristol – A family solicitor, Jay Oberoi and others, work as part of a voluntary solicitor scheme on Tuesday evenings giving free legal advice on family matters. That work is extremely valuable and is to be promoted as part of the scheme that we are putting in operation.

The Citizens Advice Bureau – In a succession of very helpful meetings with the director of the CAB here (Sue Evans) we have forged links between the family court and that organisation by which there can be an established route for litigants in person (or would-be LiPs) to obtain outline advice about their legal rights and some help with forms and procedures. The CAB is very skilled in this type of work and is well used to signposting people to other sources of help. It also has a strong publicity machine which it offers to publicise the initiatives that we have put in place (including offering a ‘pop up’ shop facility in premises on Park Street, Bristol on a day in October when members of the public were able to call in to hear what we do).

The Personal Support Unit – This is a national charity of which the Lord Chief Justice and others are patrons. Paul Bryson is the manager of the unit in the Bristol Civil and Family Justice Centre. The unit has an office here in the court building and sees about 200 members of the public each month. The unit has about 25 volunteers. They provide personal support to litigants in person, help them find their way around the court building, sit with them sometimes in court and help them fill out forms (by sorting out what forms they need and then acting as scribe to them). We see their volunteers in and about the court and have very clear evidence of the invaluable service that they provide.

The multi faith support group – Sarah Pullin, who is a solicitor but not a family lawyer and who has a humbling dedication to the task, has set this up. It is genuinely ‘multi faith’ and draws from a very wide range of faiths and cultures from around this area. It is operated entirely by volunteers who attend the court building to give personal, emotional and faith / culture based support to those who seek it. They are now present at court on each weekday and see about 45 people a week (nine a day). There is a quiet room on the third floor of the court where those who wish to do so can practise their religion, pray or just sit quietly.

The UWE graduate representation scheme (‘CLARS’) – This is managed by Ian Thompson of UWEBristolLawSchool and, under the scheme, post-graduate vocational law students provide legal assistance and representation before the family courts. It does not pretend to provide a substitute for legal advice or representation by fully qualified lawyers and cannot conduct litigation itself but does provide a very valuable service assisting the Personal Support Unit and other charities, as well as helping litigants arriving at court without representation.

The Samaritans – Maggie, the future director of Samaritans in Bristol, has attended many conferences here to explain the very necessary work that Samaritans do. She and Martyn (the present director) have trained some judges and court staff in how to identify and assist people who may have fallen into despair or distress when overwhelmed with the fear of losing children, homes, relationships, etc. They offer themselves as providing very necessary emotional support for litigants and others. It is impossible to give figures for how much this now established link has been used. We suspect that it is used heavily.

Rota of duty family lawyers – Bristol Resolution helpfully invited discussion as to whether a duty scheme of family lawyers at court might be feasible and as to the shape that any such scheme might take. Those discussions have begun and we are in the midst of investigating whether it is possible to have a rota of family lawyers who attend court (eg once or twice a week) to give outline legal assistance to LiPs at court, where they can also signpost people to other organisations that may also be able to assist. Some members of Bristol Resolution, individual barristers at St Johns Chambers in Bristol and Claire Wills Goldingham QC have given support to investigating whether this can be achieved. There are difficulties such as avoidance of professional conflict / compromise, complaints, diary management and insurance. Some professionals in the area are very opposed to such a scheme, feeling that it would support legal aid cuts. However, we hope that these difficulties and objections can be surmounted and that the scheme will operate soon. If they cannot be overcome, then there are obvious alternatives that can be put in place in any event – such as holding family law ‘classes’ at court and over  the website mentioned below (as they do in California, see above) where groups of LiPs are advised about law and procedures.

Support for Parents and Families – There is a huge pool of voluntary and extremely valuable organisations which offer support to families and parents. The idea is to co-ordinate that support and inform the public in this area of its availability. Its importance does not just lie within the court process. It may well be that, with proper support (both within what we would call private law but also public law) families and parents can find a way of avoiding litigation or the need to mediate. If litigation does follow, parenting and family support can make a very big difference. Time and time again we see young mothers facing, or being involved in, care proceedings with only limited personal help with the basics of parenting and coping with litigation. Seemingly simple issues such as housing, budgeting, finding therapy, coping with children, etc may all benefit considerably from personal support from the voluntary sector. We have already seen the benefits of these links (and an increased knowledge of what is available) particularly in public law cases.

On 23 September 2014 we heard from many organisations that most of us had simply not thought about before. Some groups came from the church (for instance a system of ‘parenting buddies’ that operates here through one church and the National Parenting Initiative, which is supported locally by Jane Auld). Other groups came from other organisations. The Windmill Hill City Farm, for instance, offers opportunities for parents to work with children on the farm or in a cycle repair workshop. ‘Family Lives’, Home Start and ‘CAN Parent’ offer support, access to parenting courses and befriending. A number of organisations offer support for children. They are too numerous to mention and meetings with newly discovered groups continue in rapid succession. Cafcass is also investigating whether it can be involved in an early intervention scheme which will help divert families from litigation. We will know shortly whether this very valuable input from Cafcass will be available.

Our intention now is to continue to draw together the main strands of support that exist to help parents and families. It is very rewarding indeed to work with these groups and also to be able to say to a mother who faces multiple assessments in a public law case, ‘please think about support from voluntary agencies and here is a list of those who can help you’.

Publicity and information

None of the above is any good if the public within the local community do not know what we are doing. We are therefore taking the following steps:

(1)     We have the offer of help with setting up our own website. One has been designed for us. We need to organise funding for it and a team to maintain it. All that is well underway. The idea is not to create a website for lawyers or about the law. It is a local community website to advise people what is available and also how to deal with litigation. We are confident that the website will be up and running soon.

(2)     Ben Jenkins (from Albion Chambers) has offered to join with us in speaking to organisations (including the public) in arranged conferences about the law and procedure of the family court. Our idea is to roll our sleeves up and get stuck in with telling people about what we do. There has been a lot of interest in this.

(3)     Creating a one page flyer to be posted in libraries and other public locations (including the CAB front window) about the facilities that exist and which are described in this article. Sarah Phillimore of St Johns Chambers has kindly agreed to lead this initiative.

(4)     Holding regular conferences in which the work of the family court becomes more visible. There is now a very active medico-legal society. We have organised four conferences so far (the last one was on ‘Sudden and Unexpected Death in Infants’ in October).

(5)     Liaising with schools. Jo Lucas (of Albion Chambers) and Abigail Bond (of St Johns Chambers) are linking with schools to organise conferences, meetings, marshalling, etc so that young people and teachers know of our work.

(6)     Liaising with the very active and supportive University of the West of England, Bristol. Emma Whewell from that university gives us the most tremendous help, inspiration and encouragement.

Supporting the roles of family lawyers

Many family lawyers feel very vulnerable at present for obvious reasons. In addition to organising and speaking at conferences with lawyers (because visibility of the legal profession and the work it does is so important) there has been consideration of single issue representation (by which, as in California (see above), lawyers act on single issues within proceedings rather than by way of a general retainer). We have suggested that participation in a family lawyer rota can only help the professions (in the way that the free half hour offered by many solicitors provides a route into their work); but if that cannot be achieved then the holding of family law ‘classes’ can only  assist in the drive for increased visibility.

Conclusion

We do not pretend that the system of voluntary services we have created is a substitute for legal advice and representation by qualified lawyers.  It cannot be. What we hope to achieve is to reinforce the accessibility of our system of justice. Thus, those who would otherwise not have sufficient confidence to access court services will hopefully gain some support in resolving family issues which are very often a source of real crisis and harm.

This article has been taken from the November 2014 issue of Family Law and made available ahead of print." and "For details on how you can subscribe to Family Law or for any offers, please contact a member of our sales team: Tel 0117 918 1555, or email: sales.manager@jordanpublishing.co.uk"

 

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Cautious welcome for new separated families support, but Ministers need to learn from mistakes

24 OCT 2014 National Family Mediation (NFM) has given a ‘cautious welcome’ to a Government announcement of a new £2m package of support to help families avoid court room confrontations.

But NFM says Ministers and officials must learn from recent errors if the package is to work.

The Government announcement (23 October) comes after the number of litigants in person – unrepresented parties attending family courts – soared following cuts to legal aid entitlements.

'There is a desperate need to change the culture of the way divorce is ‘managed’ in our country,” says Jane Robey, National Family Mediation’s Chief Executive. “But if these new measures are to succeed in helping change the culture, Ministers need to learn from mistakes they’ve made in the recent past.'

A written statement from Justice Minister Simon Hughes (23 October) outlined three main areas where the Government package will focus:

  • Improving online information so that it is accurate, engaging and easy to find.
  • A new strategy, funded by the Ministry of Justice, and agreed with the legal and advice sectors which will help to increase legal and practical support for litigants in person in the civil and family courts. 
  • A new ‘Supporting separating parents in dispute helpline’ pilot run by the Children and Family Court Advisory and Support Service (Cafcass) to test a more joined-up and tailored out-of-court service.  

Jane Robey commented:

'Whilst the wish to improve online information is laudable, recent Government experience in online help for separating families does not augur well. In June 2014 Ministers admitted that the so-called ‘Sorting Out Separation’ app had cost taxpayers nearly half a million pounds, and there’s precious little evidence it’s made any difference.

We cautiously welcome hearing that a new strategy will be developed to help litigants in person, and National Family Mediation very much looks forward to being involved in shaping it. Our caution is because we fear the experiences of the recent Family Mediation Taskforce might be repeated. Many people and organisations contributed to that Taskforce in what, on the face of it, appeared a root-and-branch reform.

Yet when push came to shove, the recommendations of the Taskforce were largely ignored.

Families who are facing the heartache of separation, and who hear murmurs that support is on the way, really can do without another "talking shop".'

The Sorting Out Separation app had cost £417,500 as at 30 June 2014, according to a written Parliamentary answer published in Hansard on that date.