The importance of professional advocacy in family proceedings

Family Law|March 17th 2016

We live in dangerous times so far as family court proceedings are concerned. Prior to April 2013 it was the case that everyone, irrespective of their means, could obtain professional advocacy if they were involved in family court proceedings. Sadly, that situation no longer pertains, after the government saw fit to abolish legal aid for almost all private law family matters. This, as we shall see, has not only affected the litigants themselves who have been left to cope without proper advice and representation, but has also affected the very administration of justice, as the lack of good advocacy makes it difficult or even impossible for courts to reach correct conclusions.

This is, of course, a point that has been made previously, including by myself. However, it bears repetition, as the recently reported case Re C, D & E (Children) confirms.

As Mr Justice Baker states at the beginning of his judgment (handed down last May) Re C, D & E (Children) was a very sad case, illustrating the terrible consequences of sexual abuse within a family and how it affects the lives of succeeding generations. The case concerned care proceedings relating to two children then aged nine and four. The local authority were concerned that the older child had exhibited sexually inappropriate behaviour and when they investigated they found that the father of the younger child had, in 1990 when he was twelve years old, been cautioned for sexual offences involving his younger brother. At the request of social services the father moved out of the family home and was directed not to have any unsupervised contact with either of the children.

The father then started private law proceedings seeking contact with the children. Concerned that the mother was unable to protect the children from the father, the local authority then started care proceedings. In their evidence the local authority relied, amongst other things, upon the fact that the father had accepted the caution in 1990. After legal discussion, it was conceded by the local authority that no reliance could or should be placed on the caution itself, but rather on the admissions allegedly made by the father at or around the time the caution was administered. Accordingly, it was directed that the matter be listed for a fact-finding hearing, limited to the findings sought by the local authority that the father was responsible for sexual assaults upon his brother and/or sister in or around 1990, and the truth of the admissions that he had made in respect of the same. Mr Justice Baker’s judgment related to that fact-finding hearing.

I will not go into the details of the fact-finding, as set out in the judgment. Suffice to say that it involved an enormous amount of evidence (there were no fewer than 17 bundles of documents, much to the chagrin of Mr Justice Baker) and huge complexities, made considerably more difficult by the passage of time. It emerged that the father had grown up in a family where sexual abuse was a regular feature of the home, he had been a victim of physical and emotional abuse over a prolonged period of time, and probably sexual abuse as well.

Mr Justice Baker was satisfied that the father did say on several occasions words to the effect that he had abused his younger siblings but, having given the matter careful consideration, he found that there were grave difficulties in attaching significant weight to those statements. The reasons for this included the poor quality of the evidence, the age and the circumstances of the father when he made the statements. Accordingly, on balance he found that the local authority had not proved that the father had committed acts of sexual abuse upon his younger siblings.

Happily, after the hearing the father co-operated with a detailed psychological and risk assessment by a Consultant Psychologist, who was asked to identify any risk of sexual abuse or domestic violence that he may now pose. The report was favourable and the local authority sought permission to withdraw the care proceedings. The father has resumed unsupervised visiting and staying contact with his children.

Mr Justice Baker concluded his judgment with some words about the value to the court of professional advocates. He said:

“…this case has demonstrated yet again the importance of professional advocacy in family proceedings. It would have been impossible for this case to have been concluded without advocates, as might well have been the case if they had remained private law proceedings. It was only through hearing the case presented and argued professionally by experienced specialist counsel that I was able to reach my conclusion.”

Obviously, in care cases parents are still entitled to legal aid. However, as indicated, this is not the situation in private law family matters, and it may well have been the case that the parents would not have been able to afford representation had the local authority not issued the care proceedings. Had the issue of the 1990 caution arisen in private law proceedings without either party being represented then the court would have been left with an absolutely impossible task in ascertaining the true facts. In those circumstances justice would almost certainly not have been done.

The full report of Re C, D & E (Children) can be read here.

The blog team at Stowe is a group of writers 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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  1. Tim Haines says:

    Unfortunately, ‘professional’ all too often doesn’t mean ‘professional’ in the family courts: just ask any parent who has been unfortunate enough to find themselves saddled with a ‘professional loser’ recommended by the local authority in care proceedings. These parents often discover that they are much better off with a keen McKenzie friend than a tired and jaded solicitor or barrister who is in the pockets of social services.

  2. Charlie says:

    I have no argument with the case under discussion, primarily because I have no knowledge of the facts and am therefore not qualified to comment. However, I will say that to contend, across the board, that “professional advocacy” is the ONLY way to succeed in getting true justice — in a divorce case, for instance — is, well — fallacious.

    My experience is that, it was BECAUSE I paid (and paid handsomely) for “professional advocacy”, that I ended up with a situation that is very far from true, or natural, justice. I won’t discuss the details, but I will say is that, in my view, although I needed some kind of “law clerk” to take care of the legal filing dates, etc., my solicitor, who was both lazy and lacking in initiative — as well as being gender-biased — hardly HELPED me present my case. So much so I definitely feel, looking back, that I COULD PROBABLY HAVE DONE BETTER MYSELF. I most certainly could not have done any worse, with the way it turned out, with a wildly inappropriate “settlement figure” that I, being a man, am required to pay to my ex-wife.

    I am most certainly not contending that all lawyers are so over-priced and un-professional. I had to turn to others, in fact, who did tell me what I should know, which my own lawyer signally FAILED to inform me about. But that is it — with a fair bit of “freelance” legal advice, I believe, as an educated person, I could have done better conducting the case myself. And I am sure I would have had nowhere near the bill I was finally handed (yet, eventually managed to bargain down by more than 30%). But so what? Having now had the opportunity to FULLY investigate my ex-wife’s finances (something my lawyer never had the initiative to do) I am now setting about making an appeal — to be conducted entirely by myself.

    * “For the avoidance of doubt” I am not referring here to any UK lawyer.

  3. JamesB says:

    Your lawyer may well be on another side to your interests such as their own bank balance or the local legal community or as you say above I agree.

  4. Jac says:

    A keen McKenzie friend would tell you that they have not 9 out of 10 have the right of audience / permission to speak or professional law qualifications!!! Then you find out to late. Also most charge what the helll they like to attend court and do and say nothing!!!!Again 9 times out of 10 are pointless…. Always check out a So called McKenzie friend.Remember they are not actually you’re friend regardless what money passes there greasy palms….

  5. Sarah Phillimore says:

    Interesting isn’t it that our experiences can be so different. I am a ‘professional loser’ – cheers Tim – who has to grapple with cases going down the toilet on an all too frequent basis because of the inept and partial handling of a case by a McKenzie friend who doesn’t understand evidence or how to present a case. Who thinks that aggression and intimidation are effective tactics in court (as no doubt they think they are in life generally).

    Why are we wasting time sniping in this way? difficult, complex cases require people who have the skills and training to deal with those difficulties and complexities and who are not emotionally involved in the case. You may not necessarily need to be a lawyer to have those qualities, but it is more likely that a lawyer will have them, by temperament, by training and by experience.

    but by all means continue the snide trumpeting about ‘professional losers’. When legal aid is finally completely abolished and care proceedings dealt with by tribunal of lay people, you might miss us.

    • Tim Haines says:

      Not all legal aid solicitors and barristers fall into that category by any means, Sarah. We have a list of excellent professionals that we send cases to, and who send cases to us; I am sure there are many more that we have not yet had the good fortune to encounter.

      I completely agree that there are some abysmally awful ‘McKenzie Friends’. We have recently attended court with a client to assist in recovering her money from one such, who took a large sum off her, did nothing, lied about filing her appeal and did serious damage to her case. She has judgment in her favour and is now instructing High Court Sherrifs, whilst we attempt to convince the Court of Appeal that her case should be heard long out of time.

      To counterbalance the above, I can tell you about the couple which we assisted, who fought tooth and nail to keep their two children out of care. Unfortunately, when it came to the final hearing, they were unable to afford the travel expenses for us to attend (and that is all we were asking) since the hearing was considerably distant, and was listed for several days, so they engaged a legal aid sol & barrister. They went to the court all ready for a three day battle, but it was all over by lunchtime on the first day, because the barrister told the court that they did not contest the care order. Of course they couldn’t even appeal. Thanks, “professionals”…

      We have also attended in the small claims court and successfully assisted a parent to sue a solicitor for taking £4,500 from her and doing absolutely nothing for it. This solicitor claimed to be an appeals expert, but insisted in court that the time limit for filing an appeal was fourteen days: a small detail, but a telling one.

      Part of the problem is that in the Family Court, “the system” is so heavily weighted in favour of the LA that it is hardly surprising that some solicitors and barristers become disillusioned and don’t bother to work hard for their clients, simply because they know that it won’t make any difference, even if they do. As someone who represents the LA on a regular basis, I am surprised that you thought that I would include yourself in that group of ‘professional losers’, Sarah. LAs often maintain a list of solicitors which they give to parents when they first attend court, and many feel that these solicitors often don’t work hard for parents because they are worried about being taken off the list and losing their stream of legal aid clients if they fight too hard or dirty. There are good and bad on both sides of the fence, but I do feel that it is a specious argument to say that parents will do better if they have a ‘professional’, since they might draw the short straw which ever route they take.

      Quality McKenzies often have a different, but equally valid, approach to professionals and sometimes find legal arguments that professionals have never considered, because they are not constricted by training, and can think ‘out of the box’ in a way that many professionals cannot. In W Children [2015] EWCA Civ 403, the President said that the court needs fresh ideas coming from ‘untrained’ people such as ourselves. This case was, to the best of our knowledge, the first occasion that a final adoption order has been overturned by the Court of Appeal, and was accomplished only by close collaboration between McKenzies and professionals. It is a fact that the case would never have even gained permission for appeal, were it not for the McKenzie input.

  6. Luke says:

    This is all comes back to the same problem – the legal system we have is too bloated and expensive for the people (i.e. general public) it is supposed to service – few people want to address that because there is no money in doing so.

  7. Sarah Phillimore says:

    I am all in favour of ‘fresh ideas’.

    The problem is that many of these ‘fresh ideas’ are simply the rehashing of someone’s agenda without paying any heed to what is actually achievable in law. There is a basic legal framework with which we all have to operate and far too many MKF (in my views) either don’t understand the law or worse, aren’t even aware of it.

    For a perfect example, just look at Father’s For Justice’s exchange with Lucy Reed yesterday over the interpretation of the statutory coercive control offence.

    They are advising their members to report denial of contact to the police as an offence. LR patiently pointed out that it simply wasn’t possible to interpret the statute in that way – cue insults, flouncing and general venom directed her way.

    I am sure they think this idea is very ‘fresh’ – trouble is it is not going to advance the cause of their members one iota – but will no doubt annoy a lot of police officers. Maybe that is their aim. Who knows.

    • JamesB says:

      ‘trouble is it is not going to advance the cause of their members one iota’

      Ok, Sarah, what is going to advance their cause and get them to see their children more?

      Also, wrt Tim’s post I am not sure what LA means, I assume Legal Assistant.

  8. JamesB says:

    Please advise if I am wrong and correct and advise what it should be if not Legal Assistant, perhaps Legal Administrator. Perhaps law should be open to being read and understandable also.

  9. Sarah Phillimore says:

    James – What will help Fathers for Justice advance their cause?
    I am afraid most of my advice will be in terms of what they have to STOP doing
    They have to stop giving vulnerable people harmful and false advice
    They have to stop framing the debate in terms of vile and violent misogyny
    They have to encourage their members to have some insight into what they may have contributed to the toxic breakdown of the relationship between two parents.

    When they have stopped behaving in this profoundly counterproductive way then maybe we can all have a sensible discussion about the problems that clearly do exist in promoting a child’s relationship with both parents.

    we need to urgently look at better education at a very early age about healthy relationships and the heavy responsibilities of parenthood
    we need to improve facilities for supported contact
    we need proper research as to whether indirect contact actually ever has any benefits

    • Luke says:

      No, the first step is pretty simple – consistent and heavy punishment by the courts when it is clear that the resident parent does not comply in full with a contact order.

  10. JamesB says:

    re : we need to urgently look at better education at a very early age about healthy relationships

    I have been saying that for years.

    Don’t have much time now but think your Do list lacks a bit of family law change.

    No, I don’t speak for F4J and FnF. Yes, I sympathise with them massively, having been messed around by many including the courts trying to maintain healthy relationships with my children for over a decade now.

    Thank you for your reply and answering the question. It is more than most people especially politicians do.

    • JamesB says:

      I did not join either of them. If I had my time again perhaps I would have joined FnF and tried to make it into a more social and less campaigning organisation or set something up myself as being a non resident parent can be difficult and a support group would be good and Gingerbread is not it. I would go on about Barristers and Judges and Cafcass officers and MPs making fun out of me for trying to see my kids or the lack of court being able to help at all with that other than telling us to sort it out between us and the lack of any enforcement for contact orders but I am a bit tired on that. I do agree though that teaching people how to communicate and have good relationships is to be done wasn’t done when I was at school. I also like to think there is less feminism and man bashing then there was.

      With re to the misogynistic stuff. I have seen a lot of angry men and I have been on on this stuff myself. I have been assaulted and arrested and locked up for it more than one and NFA’d a few times (100% of the arrests). Have been assaulted also and lost friends through not defending myself against lies of abuse etc.

      On balance, no, I think its a cop out calling men names its like men calling women names, just silly and not an argument in itself.

      Perhaps we can have a sensible conversation in the future if we stop complaining isn’t much of an incentive to stop complaining either.

      I think you and me agree, sometimes there isn’t enough money or time to go around and emotions can also get in the way. I think arguing for a fairer fight and better communication is something you are doing and something I support you in and think we agree on a way forward here.

      I don’t know what you are in terms of if you are in family law but I wish you were my ex or her father or her lawyer or all of them.

      Also, I do a thing of going quiet rather than saying anything aggressive in court. I did take a breath about to lose my temper in court and judge found against me for that. So much for leeway and fairness. So I think your argument on that is missing the point and unfounded and shooting the messenger as I think its the courts not the non resident fathers in courts that need to look at themselves more. Although I admit the men need to keep temper. Not that doing so did me much good – well, I get to see my kids every now and again but that’s not much really have lost the money and respect of all concerned and for what? Because she wanted and the lawyer told her she could have it all without having to work for it.

      Still we agree on the main point of your post, yes, more communication and respect please. Fairer more affordable law and enforceable contact orders and shared residency as default also please.

      It was a difficult time though and I don’t mean to be funny, but when I socialise I don’t want to go on about it too much. I want to have a life beyond being messed around with contact or whatever it is called these days it can drive you mad that stuff perhaps it has driven me mad well close to it but I don’t think so. Best Regards to all.

      • JamesB says:

        re I don’t know what you are in terms of if you are in family law but I wish you were my ex or her father or her lawyer or all of them

        Or one of the Judges or other ‘professionals’ involved I didn’t find them very able to do anything to enable more good contact. This two separate houses thing is difficult I admit but they could do better for people other than millionaires. Pre nups and scrapping the cms and presumption of shared residency would be a start. The way people are encouraged to grab the kids and change the locks when a relationship falters needs improvement and working on also. Best regards to all.

  11. JamesB says:

    Best regards to you and everyone else.

  12. JamesB says:

    I agree with Luke’s comment here on this that the first thing (among a few things as discussed partially) that should be done is to make contact orders enforced.

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