Letters roundup - 6 July 2020 | Opinion

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Family justice is broken: Your letters to the editor

Family justice is broken

I was at a hearing for a client whose ex-partner withdrew ordered contact on the day it was meant to happen, for no reasonable excuse save to ‘cry Covid’.

At the enforcement hearing, the judge said, rather proudly, ‘this is one of only two cases I am hearing’ regarding parents unable to agree about contact through Covid. This was said to admonish these parents for behaving in this way.

Thank goodness the hearing was remote. What an astonishing level of delusion. We have dozens of complaints from parents. They do not file for enforcement of contact because they do not trust the family justice system. And with some justification – it is broken. Most of them cannot afford it, either, especially if they have been furloughed. If they have an order, they have been through the family court mangle and come out the other side poorer and worse for wear.

Judges are insisting on following the usual rules about enforcing breaches of Covid guidance rather than using ‘robust’ case management powers to meet the challenges of such unusual times. They could direct statements in automatic directions following exchange of Scott Schedules and an advocates meeting, and list for two hours with a view to adjudicating the matter rather than listing for an hour and giving ‘early indications’. These are quite simply saying – well, we are where we are, it’s not proportionate and what would it achieve to proceed? Even if you win at round two, because the contact time has been lost, the ‘victory’ is pyrrhic.

The plain fact is that there is no point going for enforcement of family orders. Judges rarely use the sanctions available to them because these sanctions are not fit for purpose. So why bother going to court at all, when the response is so limp and the net result is ‘oh dear’? The president of the Family Division’s response to lockdown on 24 March was yet more puffery to keep non-resident parents quiet during this period. If anyone is considering making a Covid breach of child arrangements order application, take my advice: don’t bother, even if your client has the money to do it.

Unless and until we have legislation to unequivocally enshrine the principle that parenting is shared unless there is a welfare reason to derogate from it or by agreement between the parties, contact disputes will carry on. Because the one thing that we can rely on is that the family justice system is not up to the challenge. The most recent guidance of 9 June makes one despair. ‘Robust case management’ is an anagram for ‘Go sort it out yourselves because we can’t’.

Name and address withheld on request

Hands off our jury system

Without questioning the good faith of the lord chief justice in floating ‘temporary’ options to traditional and much-respected jury trials, Lord Devlin’s ‘lamp that shows that freedom lives’ today flickers more dimly.

Does anyone truly believe that with one of those options in place any government would be minded to reintroduce the inconvenience – for them – and the expense of that time-honoured underpinning of our justice system?

Lord Sumption’s gloss of requiring juries to give their reasons must have a precondition of extensive and sensitively conducted research into juries’ deliberations, as the Law Society had – to no avail – recommended to the Auld review on criminal justice.

In short, hands off: the coronavirus is a crisis to be weathered and in no respect can justify such inroads.

Malcolm Fowler, Solicitor and higher-court advocate (retired), former chair, Law Society Criminal Law Committee, Kings Heath, Birmingham

Legal aid shakeout inevitable

Reading last week’s Gazette headline regarding 120 criminal firms collapsing and more to follow, one could not help but wonder whether (despite the sheer gravity of the situation for all concerned) this is a necessity in a completely flooded market.

Having been around pretty much at the beginning of the duty solicitor scheme, I remember painstakingly preparing the rotas on my Olympia typewriter. There would be big trouble if a slight error was made. Back then the only issue duty solicitors had would be whether or not they would be on the rota as duty for Christmas Day or Boxing Day, with a little backhanded glass of wine sometimes offered as a bargaining tool.

Nowadays a whole department deals with the legal aid rotas; the machine that operates them is the Defence Solicitor Call Centre (DSCC). The system grew and grew from its humble beginnings of maybe 10 duty solicitors in any one area to perhaps 75.

The biggest problem facing the profession seems to be that it is no longer profitable. If you have a ‘stack ’em high, sell ’em cheap’ model, then solicitors can only maximise revenue if the profession is not flooded. What used to be ‘swings and roundabouts’ has now turned into ‘snakes and ladders’ – the more ladders that are put up, the more snakes that are needed. A profitable day in court in the old days would have been one solicitor, five cases a day; now you may have five solicitors covering those five cases, which automatically is a loss.

I do not even know whether my own role is safe from the coronavirus lockdown but I do believe that if the government has a shred of nous then the time to reform the criminal justice system is now. If that means that further closures happen, so be it. After having worked in and around the system since 1988, and having heard whispers that trust in advice and representation is diminishing, I can actually confirm that it is not diminishing – it has well and truly gone.

The reforms needed are vast, but here are a couple of suggestions. First, at the police station stage, defence representatives to suggest avenues of investigation, during interview and verbally. Second, at the magistrates’ court stage, full, frank and open disclosure from the outset (no fighting for the truth) uploaded to the DSCC so that we can all see it.

Alison Fitch, Surrey