All-round roasting for family justice reforms
MPs, judges and expert practitioners yesterday condemned the government’s planned legal aid cuts and family justice reforms, warning that the fiscal imperative driving them will harm children.
Plaid Cymru MP and barrister Elfyn Llwyd said the Legal Aid, Sentencing and Punishment of Offenders Act, which from April removes public funding for most private family cases, will ‘change the whole landscape of family law’.
Llwyd told a seminar on the future of family justice: ‘The changes are likely to be detrimental to families, detrimental to access to justice and probably contrary to article 6 rights and others which come into play when a fair trial of issues is not afforded.’ He told delegates at the event, organised by the Westminster Legal Policy Forum, that the changes will not achieve the costs savings claimed by the government.
In his 20-year parliamentary career, LLwyd said that he had never seen such ‘intransigence’ from government than during the bill’s passage. He said: ‘This was a bad bill, it remains a bad bill and, unless some sensible government appraisal is urgently undertaken, the consequences for society at large and vulnerable families in particular are going to be little short of catastrophic.’
The removal of legal aid, he said, will leave courts ‘inundated’ with litigants in person and ‘curtail or undermine’ the principle of paramountcy of the welfare of the child as parents struggle to put across their points across in court. The result, he said would be a ‘huge surge’ in demand for court time with extra cost and delay - at a time when the government is also seeking to impose time limits in care proceedings. ‘How can they work against this most unfortunate backcloth?’ he said.
Llwyd said more use of mediation, the government’s proposed solution to problems, is not a silver bullet, and will not work for the vast majority of cases.
Aside from the impact of the legal aid cuts, speakers expressed concern over some of government’s planned initiatives to reform family justice, in particular, the imposition of a 26-week timetable for care proceedings.
District judge Nicholas Crichton, who set up London’s pioneering Family Drug and Alcohol Court, said the target was ‘helpful as an aspiration’ but questioned how many cases would realistically be resolved in 26 weeks. He said the focus should not be about timelines but ‘outcomes for children’ and warned ‘we’re heading for disaster’ if the time limit is treated as a ‘straightjacket’.
Chair of the Family Law Bar Association Nicholas Cusworth QC, said the ‘financial imperative’ driving the reforms will cause children to suffer and warned that the ‘over-emphasis on speed carries real dangers’. Both called for the appointment of more judges to improve continuity.
Crichton supported mediation information sessions in so far as they may reduce the number of cases going to court, but criticised the removal of legal aid in private law. ‘We have too many people going to court for the wrong reasons. If we take away their legal aid they will come to court unbridled and without the benefit of legal advice,’ he said. ‘Petty problems’ are already a burden, he said. ‘I don’t want to spend half a day disputing whether a child should be picked up at the police station or McDonalds.’
Plans to introduce into legislation a concept of shared or cooperative parenting were criticised by most, including the National Society for the Prevention of Cruelty to Children, as unnecessary and against the best interests of children.
Crichton said that courts already try to ensure children maintain relationships with both parents. He saw no problem including the concept in the welfare checklist, but said there should be no reference to the words ‘equal’ or ‘shared’. To do so, he said would lead to ‘20 years of litigation’ as parents seek to enforce rights that they think they have.
Comments
Equal parenting
District Judge Crichton has vast experience of the problems which can arise when parents are unable to resolve parenting problems in the best interests of their children. It is therefore disappointing that he cannot picture a system which starts from a presumption of equality when it comes to the involvement of both parents. In the work place it has been the law since 1975 that there should be equality irrespective of sex, and if there are good reasons there will be a difference in treatment which reflects the objective requirements of the work place. I accept that there has been much litigation to ensure that such rights are enforced. However, legislation which prevents employers and the courts from discriminating has been in the interests of employers.
Why is it so difficult for Judges to understand that they have done great damage to children by their unbalanced view of the role of fathers? Social progress has rarely resulted form the wisdom of Judges, in the arfea of family law (and particularly the relationship between children and their father), the Judges have failed and are rightly seen as contributing to the problem and not the solution.
As an equality lawyer I was shocked to experience this prejudice first hand. In many cases the damage done to children by the prejudice of the Family Courts is permanent; but now there are politicians who are prepared to reduce the prejudice they should be applauded.
Equal parenting
This assumes that fathers are keen and eager to participate in full parenting responsibilities after separation, which, in so many cases, they are not.
Shared Parenting
If one parent is less keen to look after the children they will readily agree a suitable arrangement, often out of court, from the starting point of equal time with each parent. The fact that regrettably some parents are not enthusiastic parents should not prevent the remaining majority from agreeing, from a starting point of equality, a shared care arrangement. There is abundant evidence that minimising time with one parent is destructive to children and family relationships, and a starting point of the vast majority of time with one parent is clearly so wrong and needs correction immediately. Why the Judges, Law Society, and a minority of lawyers imagine that their insistence on so brazenly protecting the money-making role of lawyers in family law is seen as anything other than protectionism, is hard to understand but doesn't make it any less laughable.
It is staggering to compare
It is staggering to compare work place with raising children and to talk of discrimination in this context. This ignores fundamental principles of nature, the interests of children and the views of child psychologists, for example the attachment theory. The damage to children is caused primarily not by the family courts but by angry and selfish parents who ignore the interests of their children and are fixated on their own wishes, rights and equality.
The problem with the current family law system is the backlash against mothers in the recent years due to pressure on judges from organisations such as Fathers for Justice against which mothers have had no time and resources to defend themselves even in their individual cases, let alone through lobbying as they are too busy working, caring for the children and defending litigation from fathers.
I completely agree with the views of DJ Chrichton. It is plainly not in the interests of children to treat them as property. The proposed legislation focusses on the rights of parents, not the interests of children.
Shared Parenting
I agree with you, anonymous, that angry and selfish parents are the prime cause of the problem - but the family courts are the ones who set the arrangements in law, and the presumption that the children should spend very little time with one parent is so obviously wrong (unless, of course, there are issues of violent parent etc.) - put this simply I'm sure you will agree.
Not all judges are the same.
Not all judges are the same. However, some time ago one in the North East stated that my client, who was a very hands on father, should accept every other weekend and a Wednesday tea time. "After all", said the judge, "That is the industry standard" As a child of divorced parents myself I would have been devastated if a judge had done that to me.
What hope is there for fathers when they come up against judges like that? Shared care should be on the welfare checklist.
Contact
As a family lawyer who has involvement in childrens matters predominantly I have found that the Court and CAFCASS do in my area (the South West of England) do give consideration to the roles of the parents particularly fathers who are hands on and clearly wanting to have as much time as possible with their children. In some cases I have also found fathers having residence and contact to mothers. I think largely there is a greater recognition of fathers roles however I am not sure that equal sharing should be part of the welfare checklist as this could lead, as DJ Critchton says, to ongoing arguments in Court with parents trying to enforce rights that they do not have.
It does us well to recall that the most important person here is the child and it is the needs and wishes of the child that should be of paramount importance.
Shared Parenting
It is not clear to me why starting with a presumption of equal time with each parent will lead to any more argument in Court than starting with a presumption of hardly any time with the father which, contrary to the clearly better family law practice in your area, is indeed and unfortunately "the industry standard" outcome - your commendable belief in "greater recognition of fathers roles" has not yet filtered through to court decisions across most areas of the country. Most commentators seem to agree that a starting point of equality would lead to less court wrangling than the current unbalanced "industry standard"; less court wrangling is in itself a worthwhile goal, in addition to all the well-documented benefits to the child of plenty of time with each parent.
Judges and the real world
As a "victim" of the system I can be certain that judges are so out of touch is unbelievable.
What happens is that a wife leaves with the children, doesn't work and claims legal aid while the husband, who does work, cannot. And due to cost of legal fees he then cannot afford representation.That is the most unfair system imaginable - those who contribute to society are seriously disadvantaged over those who do not - although it is rather the norm these days.
Adding insult to injury, even if... somehow... he were to win some right of access (custody is almost impossible), all the ex-wife has to do is play the system. The kids are always ill or she just isn't there when he calls to see them. and so on and so forth - the wrinkles are endless and seem to be known to all.
What is so sad is that so many women actually do this.
I was daft enough to marry a Colombian woman who "accidentally" became pregant after a year or so. About 4 years after we were married she left to shack up with a boyfriend -= no particular problems in the relationship except that she kept wanting her mother to come and stay for months on end.
She had legal aid, I did not. She won a £50k lump and maintenance, but the kids were never available for me to see them. One day I had an emeil telling me that she had left the boyfriend and was now living in Colombia, along with demands for money to enrol them in a school, music lessons etc.
She later returned to the boyfriend and still made it impossible for me to see my kids.
I simply cannot afford to pay endless legal fees, particularly knowing that anything I "win" will never materialise - she will just play the system and I still don't see the kids.
I had a chat to her boyfriend and sadly it seems that she is a terrible mother, leaving them hungry, food at irregular intervals and usually rubbish, taking them to the classes she does etc and having them sit in a corner while she does it. She also hits them, throws them against the furniture and makes them "earn" rewards that they're entitled to anyway. Even leaves them to walk home from primary school on their own.
He has moved her off to another house, paying some of the deposit, because he cannot stand living with her. The only reason he stays together as a couple is because he fears that what happened to me will happen to him (he has a child with her too - another "accident").
Social services were completely useless. They got it into their heads that complaints about her were all a scheme cooked up by me - quite unbelieveable. The trouble is that, like most in this situation, she is sweetness and light when anyone in authority is around.
In fairness, the only person that ever saw through her was the judge in the first divorce case, but it didn't last by the second time around.
This governemnt reneged on a promise to F4J to change the law. Instead they did their usual "review" and... of course, nothing changed. Shame on them, totally spineless. I will not vote for any of the major parties in future sice that seems to be the only thing they care about.
This country has gone to the dogs. Fatherless kids become problem kids, they do less well in life. I could give them a good life, I earn good money, she has qualifications but chooses to do all kinds of black market nonsense, Colombian-style rather than make a career. So why do I not have custody? Or even enforceable access rights?
How can judges not see that the real inequality is the fact that the law is only accessible to the very rich and the less well off - those in the middle, working to pay their way through life hve no realistic access to the law. I have to represent myself in any court case since legal representation would be too expensive.
In the meantime I try to build something to pass on to my kids one day, if I ever see them again -something other than a large legal bill. It's all that keeps me going. When I see utter tripe, such as that uttered by taht judge, however... it makes my blood boil. Truly, totally and utterly without empathy or understanding of how the world really works.
shared parenting
We in Australia have embraced shared parenting. It is successfully raising childrens safety and standards. Those amongst us whom are great parents are being encouraged to give as much as we can, those whom have fallen by the wayside are piicked up and mentored to proper parenting and those whom are not fit are being kept away from children.
Ms Isabel Field
CHILD ADVOCATE CLASS ACTION
( A NATIONAL CHILD ADVOCATE )
Wishes of the children. Huh?
I find Fiona's comments above a little odd. How can a child of, say, two, know what it's "wishes" are with any validity? How can they be expected to know what's best for his/her future? And even if they did, how many judges even bother to ask that question?
All little kids want to snuggle up to Mummy. Then they get a little older and the disadvantages of living with someone who doesn't earn very much become apparent - but it's too late, life is already going to be hard.
I saw my kids about 4 times over a month or two in the last 7 years. They wanted to come and live with me so their mother soon put a stop to them seeing me. If you'd asked them when they left here when they were 4 and 2, the 2 year old would have stayed with mother - what other choice would a 2 year old make? But even at 4 I suspect the older one would have wanted to be with her Dad.
Now they are desperate to come here - or they were last time I saw them about a year ago - but they can't, and the power that the law puts in the hands of women is the reason why.
Nonsensical "bleeding heart" dogma such as "children need their mother" rules the roost. Always the emotive argument that wins the day over logic and common sense. Leading to a broken society, with fatherless kids becoming urchins and politicians too spineless to do anything about it. It won't change until fathers stop voting for them in general elections abd make it absolutely clear taht their vote is being cast on this issue and this issue alone..
Also some very some strange views by Anon and Anon2 - hardly surprising that they won't even put a name to them. One minute the line of argument is that many fathers don't care, but then the next minute fathers are supposedly taking up everyone's time in court fighting to see their kids. You can't have it both ways.
And to claim that the mothers are the ones without acess to resources is ridiculous. They are usually the ones whose legal bills are paid by the taxpayer while the father has to spend their hard-earned or represent themselves.
Fathers are the ones who are being oppressed - after all, if the mothers were allowing reasonable access... why would this be in court at all? How many cases do we see with mothers having to fight for access/custody? Not many at all, because fathers don't get custody. Mothers have to do something along the lines of being on drugs and abusing the kids in front of witnesses before heading off to the pub and leaving the kids behind before any judge starts thinking about doing the right thing.
Shared Parenting
I agree with Chris' comments above. It is likely that Anon and Anon2 are the same person - almost certainly a very hurt mother who may for a long time find it difficult to adopt a balanced view; I hope that one day she will see that fathers are only asking to be treated as equal parents not just as financial supporters. The only justification advanced for children being allocated, usually against their wishes, to one parent more than the other is continuity. But it is not that difficult for children to cope with two homes and, in this age of internet-based learning, on-line homework and activities, good transport etc. it is straightforward to arrange equal time with each parent - it works very well for many families. Unfortunately Chris is right that many respectable hands-on parents (usually fathers) are allocated a small amount of time with their children, with all the proven damaging effects on the children that this has. It's illogical, is causing ongoing lasting damage, and needs immediate correction.
Lawyers argue against removal of legal aid? No kidding.
Is it surprising that an article here is against this Bill? That it puts forward arguments that are truly feeble? Or that the MP speaking against it is a barrister?
Presumably anything that slows the gravy train must be fought tooth and nail - the hell with the consequences for society? Lawyers, sigh. Why waste my time. Good luck sleeping at night.
Goodbye.
A typical story.
A very sad story above but one which is not unusual. It sums up the inadequacies of the justice system when dealing with families. I know of similar scenarios where one party is being unreasonable (probably because they are being funded by the taxpayer) and the opponent (usually the working father) is being crippled in legal fees.
It is an unfairness seen everyday. The vexatious, the fraudsters and the feckless prosper in a perverse system at the expense of the hard working and decent. The lawyers support such a system because they make money from it.
Not enough cuts to legal aid
kelly mathews is right - having seen the most recent accounts for two west wales solicitor firms involved in my childrens case - one of whom as admitted in court derives most of her income from legal aid work - I discover that the net cash balance over the year increased by some £300,000 and shareholders funds increased to nearly £800,000 and two directors paid themselves over £100,000 - poor legal aid lawyers! give me a break - this is where the real scandal is. Yet judges campaign against legal aid cuts on the basis that lawyers do not do family law for the money!!.
The judiciary are failing by not applying the law which is i understand itself judicial corruption certainly in scotland anyway. As for the experts how did Professor Roy Meadows and other discredited experts get so much money for peddling their "expertise." And how may times has a consultant paediatrician who treated a child been admitted as an expert so that he/she can be paid from legal aid - happened in one case i know.
And why are unregulated costs consultants allowed rights of audience without application whilst Mckenzie friends have to be admitted under the "guidance".?
Elfyn Llwyd is a practising family law barrister and so should have declared an interest.
And as for an independent judiciary - how may people know that lawyers, judges, social services, experts, police etc all meet once or twice a year under court user groups from which LiPs are excluded. Now it tanspires that documents can be secretly sent by child protection services [police & social services] & solicitors to the judge because no rules prohibit it.
Cutting legal aid and reforms will cut the corruption. The alternative to lawyers is Mckenzie friends yet legal aid is not available for them but is for unregulated costs consultants?? and some judiciary are quite content for lay persons [McK F] to represent but others are not - equality of arms anyone?
Lawyers
I couldn't agree more with Kelly and Dai. Lawyers are protecting their own financial interests at the expense of justice to the public - in this case children and their parents. It is so clear that modern families need a legal presumption of equal parenting by both parents; individual family circumstances (parental working hours, abusive parent etc.) may require adjustments, but from a starting point of equal time with each parent these adjustments are more likely to be agreed out of court - just what the lawyers don't want. Lawyers have admitted to me that they and the Law Society have a financial interest in opposing anything that reduces litigation, for example pre-nuptial agreements and presumption of shared parenting. Self-interested lawyers, supported by their supposed "regulatory" body the Law Society, are a serious problem and impediment to justice in this country, and not only in family law - we badly need a proper regulatory body for lawyers.
Lawyers
I shall be taking a firm of solicitors to court - the (first) hearing is this Tuesday. The Law Society refused even to hear my case when I asked them to try to get these lawyers to discuss my issues with these solicitors' performance and fees; so I'm left with tackling them in court - adjudicated by a local judge who of course is a lawyer and knows these local solicitors personally - the whole system is corrupt. Does anyone know who is above the Law Society - to whom should I go next? Newspapers ? MP?
Brett's court case
Brett
Is it a case against your solicitor?
The Solicitors Regulation Authority can punish solicitors who breach the rules. I suspect if you are a litigant in person against a firm of solicitors you will find it tough. Not because the judge might not let you have your say but as you suggest, because the system is against you. The Law Society are hopeless and would not help you even if they were set up to do so. They do not even seem to represent solicitors with any enthusiasm.
In my experience, publicity is the best course. Solicitors generally hate bad publicity (prepare for empty threats of defamation if you go down this line) and for that reason it is probably the most effective strategy. There are one or two websites (still not closed down by the legal profession) which feature stories of injustice and wrongdoing. Also the national newspapers are taking more of an interest in the legal profession - particularly the Daily Mail which solicitors love to hate.
Not sure if you are in Scotland but I recall that this journalist has covered stories in Scotland but also in the rest of the UK. Apparently he even investigates some issues too. Worth a brouse.
http://petercherbi.blogspot.co.uk/
contact in private children law
I am a family law solicitor from south wales and been working in israel for years before.
I'm sorry to say but the courts are bending themselves for mothers and the mothers are usually being believed to. Noone stops to think why people arrive to court in the first place - because they have no choice and they can't manage to create communication. - so that has to be checked first - why there is no communication. Second thing the courts forget is why the mothers give hell to the father... As usually the case is a father who fights for seeing the children. The court accepts the mother view that she "wants" to allow the child to see the father but the child doesn't want too. Here comes another problem - listening too much to the child. . 2 things I would bring from israel :
1. Decisiveness of judges. There cannot be a situation where a mother brings back the father to court 4 times to change a contact order. And the court won't be decisive enough to say - we discussed that 3 weeks ago - prove us what's new and only when we are convinced that something has changed we'll allow another hearing. Anyone in the proffession will know that they find themselves chewing the same "food".
2. The courts have to be given enforcment means. What is the point in a law that has no "teeth"?
In israel there are possibilities for forclosure of assets, confiscating driving license, costs, and the list is long... It proves itself.
Contrary to the many comments
Contrary to the many comments there is no magic solution to the many issues regarding arrangements for children following the separation of parents. Irrespective of any amendments to primary or secondary legislation the simple reality of family life is that parents will separate and whilst a large number can, and do, reach agreement over arrangements for children many do not. Can I ask people to consider this point I use the word parents rather than mother and father. The tapestry of 21st Century family life has moved on from "a mother and a father" to encompass a whole range of what is a "family". It is no longer as simple as the ongoing debate of the courts "favouring" a mother over a father - an example is civil partners. It also seems whatever the family set up, the fact remains relationships end and irrespective of mediation or other support the courts are called upon to resolve disputes over the arrangements for a child's life. This system is not perfect, as in life nothing is.
As for the merits of legal representation, in particular access to publicly funded representation, on balance it does, in my experience, seem to assist with outcomes for children. As for the issue of publicly funded parties abusing legal assistance to cause delay or unreasonably block access between a child and a parent or other significant person (be it grandparent, mother, father, siblings), yes this can happen. This is the fault of that individual, not the legal aid system. It should not be used in this way, and the LSC do suspend / revoke public funding in a number of such cases. Perhaps this issue of the "merits" of continued public funding is one that could have been improved on.
As for one party causing unreasonable delay? My experience is that it can be those unrepresented party's who can cause the most delay. I am aware of cases where the only reason an unrepresented party has attended court is after personal service of documentation and the threat of prison for failure to attend.
As for enforcement, the court has powers. The problem is that in some cases the realistic options are limited by the likely adverse impact on the child. I actually welcome the courts using the current powers to enforce court orders and when this happens cases, suitably anonymised, are reported. And yes change of residence, as a final sanction, yes it can and should happen.
Trying to get the best outcomes for children subject to these proceedings is not easy and alas in many cases the outcome is almost a "least worst" option.
Making changes to, in effect, change the balance from the courts paramount interest being the child to creating "rights" for parents over a child is about as retrograde a step as one could make and will simply create a situation were parents focus on their "rights" and the rights of the most vulnerable people, children, will be sidelined in a torrent of adult "rights" superseding the welfare of children. Children at not chattels to be divided between adults they are not "mini people" with "mini rights" they are vulnerable young people who deserve the best outcomes in life that the courts can provide when the adults, who should be the most important people in the child's life, cannot reach agreement on arrangements for children.
Any refocus of "rights" should not be focusing on adults but on outcomes for children.
These people talking about "lawyers" being "fat cats" and the "legal aid gravy train" need to sit down and speak to the people who work in the profession, ask them what they get paid and the hours they work. I'm not after sympathy for lawyers, just asking that before assumptions about lawyers driving around in Bentleys are made, they should seek some factual information.
Fathers for Justice
@Paul @22:05
You are wasting your time trying to put a reasonable argument, or counter the opinion of lawyers being fat cats.
It seems to me obvious and self-evident that when the only people who complain about lawyers are people who have lost that the real reason for their complaint is not a big conspiracy in secret family courts, etc., etc., yawn, yawn. The reason is - purely and simply - they did not get what they wanted.
If lawyers were blood sucking money grabbing leeches, one would expect that complaint would be pretty equally spread between those who lose and those who win - after all surely lawyers give poor service also give poor service to winning clients.
Amongst any intelligent, rational, fair people, the above posts and many others of the anti solicitor obsessives who come on here, are proof of one thing:- there should never be publication of complaints data to the Legal Ombudsman!
But actually, I fully expect that within a few years, the name of every law firm will be on the Legal Ombudsman website anyway - especially when it gets out amongst the "consumer forums" that you don't have to pay your solicitors bill if you put in a complaint to LeO.
Family Courts and value for money Hug a Tree!
I suppose that in Children Act proceedings, where the outcome is 99.9999% known before the application is even conceived less aborted, why legal aid is needed becomes much more than my little male-brain can fathom. 20,000 leagues below reality?
I would assume Dear Mr Osborne could be a bit utilitarian thus allocate funds for more rubber stamps. In this manner we could all cry out in a furry and THUMP.....In the Child's best interests, save the whales!
More cuts to legal aid needed
The judges and lawyers can always fall back on the mantra that litigants in person waste court time. Maybe they do or at least some of them but wasting court time gives them no advantage. On the other hand lawyers get more money the more time they spend in court. When they consider the childrens welfare or making more false allegations to wind up the case I think you will find it is the latter. On legal aid there is a win win situation exaggeration by a private lawyer risks costs against the client - legally aided not much chance of that.
As benefits are being capped at £26000 pa maybe it is time to look at a similar cap on legal aid. The LSC need not go through a tendering process and risk the wrath of the trade unionists sorry Judiciary campaigning against them and behaving like one of those LiPs who has lost a case writing letters of complaint, once a law firm reaches its cap its out and the next law firm gets a go. It might mean lawyers cutting rates and time so that they can have a decent client base. Only an idea but the trade unionists should not concentrate like some hapless father on side issues but on ensuirng legal representation is spread as widely as possible and any litigant in person receives the same legal advice as the legal aid lawyers to get them out of trouble - happened in one case I know where teh jduge did not know he had certain powers like a surgeon doesn't know what a scalpel is for with a LiP he was able to get away with it.
After all it was a Lip that got a barrister jailed for deceitful behaviour a few years ago, maybe that is what they all fear - a LiP with a badge!!?