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The demise of family law? Courts now ‘largely inaccessible’ and ‘unintelligible’, says court president

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As solicitor is lambasted for ‘extremely serious professional errors’ in complex child abuse case

Sir James Munby, the president of the Family Division of the High Court, has lambasted the family justice system, claiming its rules and procedures are “largely inaccessible” and “truth be told, unintelligible” to its litigants.

The public is today still reeling over reports that a Christian five-year-old was “forced” into Muslim foster care where she was denied bacon and encouraged to learn Arabic. The girl has now been ordered to live with her grandmother, who is reportedly a non-practising Muslim.

Now, in another family law upset, Munby has said this:

The truth is that we face a massive challenge. At present our practices and procedures are designed for — assume — a family justice system where the typical litigant has legal representation, whereas the reality is that, across vast swathes of the family justice system, the typical litigant now has no legal representation.

Continuing his foreword to a family law guidebook written by Bristol-based barrister Lucy Reed, Munby said:

The consequence is that practices, procedures and rules designed for lawyers are largely inaccessible — truth be told, unintelligible — to litigants-in-person.

The huge impact unrepresented court users has on the family justice system is becoming increasingly, and terrifyingly, apparent. Reed, a tenant at St John’s Chambers, bluntly said they clog up the courts, while the Personal Support Unit has traced a meteoric rise in clients seeking help. All the while, care cases are on the up, and a U-turn on swingeing cuts to civil legal aid (courtesy of the Legal Aid, Sentencing and Punishment of Offenders Act) looks unlikely. What a mess.

As well, a recent judgment in a “complex and serious” care case shows a solicitor, acting for the children, has been lambasted for her conduct. The case involved allegations of sexual, physical and emotional harm. The solicitor in question, Sinead Noel, works at Clark Brookes Turner Cary and was admitted in 2006, according to her Law Society entry. A representative from Clark Brookes Turner Cary informed Legal Cheek that Noel is currently on leave.

High Court judge Mr Justice Keehan criticised Noel for her “inappropriate questioning” of one of the children. He, pretty brutally, said:

I was moved to comment during the course of Ms Noel’s evidence that by her actions during the interview with X [the child] she had run a coach and horses through 20 years plus of child abuse inquiries and of the approach to interviewing children in cases of alleged sexual abuse. I see no reason, on reflection, to withdraw those comments… I had no sense that Ms Noel had any real appreciation of what she had done or of the extremely serious professional errors she had committed. She appeared to be almost a naïve innocent who had little or no idea of what she had done.

Clark Brookes Turner Cary’s spokesperson said:

The issue is subject to further investigation which may result in disciplinary action. As such, it is inappropriate to make any further comment at this time.

Indeed, Keehan later said in his judgment that the issue of whether Noel should be referred to her disciplinary body will be determined at a separate hearing. A spokesperson for the Solicitors Regulation Authority told Legal Cheek that as and when the regulator receives a referral, it will be given due consideration.

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17 Comments

Anonymous

IRWIN MITCHELL EQUITY PARTNERS MAKE HALF A MILLION AND GIVE NQs 34k. LEGAL CHEEK KEEP EDITING/REMOVING COMMENTS THAT ARE CRITICAL ABOUT THOSE CRIMINALS.

(7)(5)

Anonymous

What have they done that is criminal? (This is not a troll, I am genuinely interested in hearing about why you think that.)

(2)(2)

Anonymous

“”””””””””
The huge impact unrepresented court users has on the family justice system is becoming increasingly, and terrifyingly, apparent. Reed, a tenant at St John’s Chambers, bluntly said they clog up the courts
“”””””””””

If barrister Lucy Reed said this, then she is misrepresenting the evidence or she does not understand it?

The research shows that since LASPO average duration of Private Law cases has dropped from over 30 weeks to under 25 weeks.

The research also shows that cases in Private Law ‘with’ legal representation for both parties took ‘longer’ than cases where the litigants were unrepresented:

Timeliness of cases by legal representation
In general, across all case types, cases where either both parties or the respondent only had legal representation took longer than those cases where only the applicant was represented or where both parties were without legal representation.

Family Court Statistics
Quarterly, England and Wales
Annual 2016 including
October to December 2016

It is disturbing that a barrister has such a poor grasp of the actual evidence.

(7)(0)

Anonymous

This is a bit imprecise and all over the place, isn’t it? It’s no good blaming litigants in person when it is cuts to legal aid that is preventing good representation. They have to try and do the best with what they have.

(5)(3)

Anonymous

Did you actually read the article at all? It’s not blaming litigant in person for anything.

(4)(2)

Anonymous

You mean the article that describes them as ‘clog[ging] up the courts’?

(2)(0)

Anonymous

Perhaps that was not the best language she could have used to express her point, but I don’t think on any reading of the article could it be said that anyone is “blaming” litigants in person. I think the suggestion is that litigants in person are clogging up the court *because* they are unable to get representation. This is obviously not their fault, but it is a fact. Anyone doing any kind of civil litigation (not just family) would probably accept that things take ten times longer when parties are unrepresented.

(5)(2)

Anonymous

Fair enough, I think most of us are agreed on the damaging effect of lack of representation, that’s the important thing.

(2)(1)

Janathaan

Fantastic Article

(0)(3)

Anonymous

The comments about Ms Noel are between approx paras 179 to 206 of the judgment.

She was represented by counsel as to whether the judge should name her in the judgement.

The reasons of personal and professional mitigation against doing so are not recorded – deliberately – and the judge does name her.

The child’s guardian gets to keep anonymity as AB. AB sat in the interview, made poor notes of it, did not stop it but showed remorse about it in court. She was also suspended from work but later reinstated.

Rough handling by Noel, done in such a way that it could have led the child to give new made up evidence about the abuser. Implication that it caused distress. Her notes did not record the demeanour of the child, nor did AB’s. Implication is that they should have done and the interview should have been terminated, not prolonged for 2 hours. (!)

(4)(7)

Anonymous

Family lawyers are just as vulnerable, they represent the most complex of cases to protect children from their abusers . The abusers themselves then look for a case to blame the solictors and file a case to discredit solicitors. Why ? Because they no longer have access to carry out their abuse.

(8)(4)

Anon

The reasons why things take longer when at least one of the parties is unrepresented should be looked at though – often the judge or represented party is to blame, its not always the LIP.

(4)(2)

Anonymous

Would love to see some evidence for this assertion. It certainly does not accord with my experience. It’s obvious and unsurprising that it takes less time for an expert to undertake a task properly than it does a non-expert. That’s no ones fault, but it is a fact of life. In my experience, the reason hearings take longer when parties are unrepresented is because the judge (almost always) and opposing parties (often but not always) are doing their best to make sure the LiP is following proceedings and trying to ensure there is no injustice. It *is* possible to have a hearing with an unrepresented party without it taking longer, but the LiP will (usually) not be able to follow it.

(1)(2)

Anon

The evidence is seen in the treatment of LIPs in many cases, and I think Munby’s comments provide some evidence too. Much (but not all) of what goes in court doesn’t really need a great deal of expertise to follow and can easily be approached just as quickly by a layperson. Remember that many LIPs are experts in other fields which can easily be transferred to understanding court proceedings and cases in which LIPs are involved are generally not the most complex cases. What often happens is that lawyers, when dealing with a LIP, won’t communicate properly as they feel aggrieved at the ‘non-expert’ being involved in the process. They’ll ‘churn’ a lot of paperwork and generate a lot of hours as a way of bumping up the costs, which they’ll then try and justify as being necessary due to the volume of correspondence caused by the LIP, when it is actually the represented party’s lawyer who has slowed things down. Of course not all lawyers deal with LIPs in this way, but many do. I’d love to see some evidence of opposing parties assisting LIPs to ensure that there is no injustice – I’m not saying this never happens, but it must be quite rare! Judges vary in their approach – some are sympathetic and understanding towards the LIP but there are many (and remember judges are almost always ex-lawyers) who are hostile/haven’t been trained in dealing with LIPs. Not all LIPs are ‘nutters’ or incapable of following hearings – in my experience most will be able to follow hearings just as quickly as lawyers provided that the represented party’s lawyer doesn’t obfuscate or unnecessarily complicate matters just because they’re dealing with a LIP. There are exceptions to everything, but it isn’t always the case that things take longer because of the LIP – its often the way opposing lawyers and judges behave when a LIP is involved which slows things.

(2)(0)

Anonymous

Not according the evidence.

Represented cases take longer than unrepresented cases.

Check out the MOJ research in the links above.

It has nothing of course to do with the fact that the longer cases are in Court, the higher the payouts to the Lawyers.

(3)(2)

Anon

Actually the evidence supports my argument.

From the links, cases where neither party is represented take less time than those where one of the parties are represented, suggesting that lawyers often extend the time taken in cases where LIPs are involved. Additionally, the evidence certainly appears to support the argument that delays aren’t always the fault of LIPs, given that time taken generally reduces with representation. And yes, I’m sure this has nothing to do with the fact that the longer cases are in Court, the higher the payouts to the lawyers.

(2)(0)

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