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The fickleness of legal fashion

“Fashion is a form of ugliness so intolerable that we have to alter it every six months.”

– Oscar Wilde

Well, I’m not entirely certain that I agree with that (OK, some fashions are of pretty dubious appeal), but Oscar Fingal O’Flahertie Wills Wilde did at least have a point about the ephemeral nature of fashion. What is in vogue one day can be passé the next. And so it is with so many areas of human endeavour, including the law.

I recall many years ago when I was an articled clerk (‘trainee’ in modern simplistic parlance) my principal, who I shall call ‘Mr Bloggs’, joked about a conversation he had had with a client. Trying to impress my principal with his legal knowledge, the client mentioned Mareva injunctions. Mareva injunctions, which are court orders preventing a party from removing assets from the jurisdiction, were much in the news at the time, despite being very rare and used in a tiny number of cases. “Ah yes,” replied my principal, “Mareva injunctions – we lawyers at Bloggs & Co. talk about nothing else!”

OK, perhaps not the most amusing joke (especially to non-lawyers), but it does demonstrate a point: a certain topic can become so topical that it can dominate the legal news and, dare I say it, thereby acquire a distorted importance. Mareva injunctions, for all the judicial deliberation, legal argument and learned writings about them, were never very important in the scheme of things, and were probably never encountered throughout the entire careers of the vast majority of lawyers (certainly not this one).

So, what are the family law fashions of today? Well, I can think of quite a number, but here I will confine myself to just two examples.

My first example is deprivation of liberty safeguards, an issue so commonly discussed that it has acquired the acronym ’DoLS’. For those who don’t know, DoLS are part of the Mental Capacity Act 2005. Their aim is to ensure that people in care homes, hospitals and supported living are looked after in a way that does not inappropriately restrict their freedom. The safeguards are intended to make sure that a care home, hospital or supported living arrangement only deprives someone of their liberty in a safe and correct way, and that this is only done when it is in the best interests of the person and there is no other way to look after them. DoLS came to prominence last year when the Supreme Court considered them in the Cheshire West case and decided that three people had been deprived of their liberty and should therefore be subject to the legal safeguards.

DoLS are now a regular topic of discussion amongst legal academics and writers, as the number of cases relating to them has increased greatly – I have come across two reported decisions just this week.

Now, of course it is quite right that such an important subject as DoLS is fully debated, but there is a downside. When the public become aware of it, they can easily jump to the conclusion that people in care homes and hospitals are regularly and routinely deprived of their liberty without good reason and without following correct procedures. It becomes another example of the state interfering with personal freedoms, just like all those cases of children being forcibly removed from loving parents. The reality, of course, is that whilst there may have been some issues in some cases, in the vast majority of cases the law is correctly followed, just as it has always been. The hard-working people doing extremely difficult jobs in care homes and hospitals should not be vilified because of what has occurred in a relatively small number of cases.

My other example is that recurring chestnut, transparency. As I have mentioned this here before a number of times (e.g. here), I will be brief on this occasion. Transparency is the naïve but well-meaning idea that if we are all open about what we are doing in the family justice system, then all those nasty people who believe we operate a system of secret and unaccountable justice will suddenly see the error of their ways and realise that all of us working in the system are really very nice people after all.

Transparency really is de rigueur amongst family lawyers these days. You can hardly read a judgment or article without coming across it. But is it really such a big thing? Were we really so secretive previously? I don’t think we were – the problem, in most cases, was that the ignorant didn’t understand the difference between secrecy and privacy.

And too much transparency can have adverse effects. An emphasis upon it can actually give the public the impression that we are secretive. Transparency can also go too far, for example if it relies upon journalists using information in a responsible way – inappropriate use of information by a journalist could, for example, have serious implications for children involved in the cases they are reporting.

Both DoLS and transparency will of course soon disappear from the general legal consciousness, to be found only in the dusty pages of legal textbooks. What will replace them we will have to see, but whatever we consider to be the ‘thing of the moment’, just remember that all things must pass.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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