| Lament to deteriorating UK Family Law: Collaborating with the enemy!

Collaborating with the enemyPhilippa Dolan, Family Law.

I know that we family lawyers care deeply about our clients. So why didn’t we fight hard to protect them?

Our criminal colleagues seem to be made of sterner stuff with strikes and boycotts culminating in the recent Court of Appeal decision in the Operation Cotton case where the Prime Minister’s brother failed to persuade the Court to uphold the decision of His Honour Judge Leonard.

In the red corner was Alex Cameron QC standing up for the right of defendants to be represented by barristers of a similar calibre to those acting for the prosecution. In the blue corner was the FCA and Minister for (lack of access to) Justice standing up for….a duly elected Government’s right to slash its own budget.

This case hit the mainstream media largely because the Prime Minister’s brother was on the other side. Let’s face it, no one could accuse the British press of adopting an overly analytical or nuanced approach to the rights of the accused in criminal cases, or the remuneration of fat cat legal aid lawyers. But there’s nothing the media likes more than a family at war; the Kane and Abel Milibands or Cherie Booth QC championing the human rights denied her clients by her husband.

In this case HH Judge Leonard had decided that the PDS, Public Defender Service, was unlikely to have barristers available who could guarantee a fair trial to the five defendants in this VHCC (Very High Costs Case) fraud trial within a reasonable time. So instead of granting an adjournment as requested by the FCA, he ordered a stay. In other words, some oblique judicial support for the barristers who’ve stood up to the recent Draconian cuts in criminal legal aid, and a belief that they were not likely to cave in any time soon. And perhaps an endorsement of the view that barristers will feel constrained from joining the PDS because of the opprobrium they could face as scabs.

I have no idea about Alex Cameron’s politics, nor HH Judge Leonard’s. I’m sure there are criminal solicitors and barristers who are acting from self interest and only worried about the bottom line. Can they afford to continue funding a small high street practice if their income suffers a further diminution? Will young barristers on low incomes be able to afford their train fares to court when they’re already on state benefits? And they are understandable concerns. But, underlying it, I’d like to think, is a preoccupation with our justice system and what’s happening to it.

So how have we family lawyers performed in our role of safeguarding access to justice in the Family Court?

The attack has, of course, been two pronged: the removal of legal aid, and crippling cuts to the court budget. The first made victims of families who had previously been eligible for legal aid and can afford neither legal advice nor representation at court. The second has brought the already creaking court system close to collapse. So what should those who can’t afford a lawyer do now? Mediate, of course.

The Government has been trumpeting the advantages of mediation for years. As a mediator, I know that it can be a great way for couples to resolve their own issues without submitting themselves to the cost, indifference (sometimes) and inefficiency (often) of the family court system. But one of the reasons why mediation works is because we can point to the fate that awaits our clients if they can’t find a compromise and act sensibly. We talk about negotiating in the shadow of the court, not mediating in a vacuum so that the strong can bully the weak into submission.

And for those who can afford a lawyer but can’t face the chaotic court? Family arbitration. It’s a new development and there have been few arbitrations so far, but it received the President’s support in S v S (Financial Remedies: Arbitral Award) [2014] EWHC 7 (Fam), [2014] 1 FLR 1257, reported at April [2014] Fam Law 448 earlier this year. This nailed the concern that the court might challenge arbitrators’ awards because, unlike civil arbitrations, of course, there still has to be a consent order to bind a financial agreement in divorce.

Arbitrations and, to a more limited extent, private FDRs, are regarded as an innovative way of keeping control of the process (as opposed to the outcome) in the hands of the clients. I suspect there’s also a more negative story behind the gathering popularity of privately administered justice. A venue that doesn’t require you and your clients to discuss directions with three warring couples and two children under five in a tiny room? A competent tribunal where the arbitrator has had time to read the papers and they haven’t been lost somewhere between Gee St and High Holborn? A timeframe that doesn’t require clients to put their lives on hold for 2 years? What’s not to like?

But in some ways, it’s the equivalent of NHS surgeons talking with enthusiasm about charging patients for the use of an operating theatre set up temporarily in one of their houses. It’s all about disaster response, not righting the wrong.

Of course lawyers have to be pragmatists and we have to uphold access to justice as best we can in all circumstances. But have we family lawyers allowed ourselves unwittingly to help dismantle the entire system? Why did the Law Society, Resolution and the Family Bar not do more to resist the removal of legal aid? Why no marches or threats to withdraw representation in public law cases?

With a few honourable exceptions, we’re all culpable, particularly those of us who don’t have a legal aid practice and couldn’t have been accused of self interest if we’d stuck up for our legal aid colleagues. I should have cared enough to create a stink before it was too late.

The Criminal Law Solicitors Association, even the Prime Minister’s brother, have made far more of an effort to protect proper representation for defendants in criminal trials than we did to save legal aid. You could argue that family cases don’t involve loss of liberty at the hands of the State and, perhaps, a criminal conviction is more important than getting a smaller percentage of the second home or spending less time with the children over the Easter break.

But lots of family cases are of fundamental importance to the families involved. What about not being able to see your children at all? Or not being able to afford anywhere to live because the family home is in the name of your husband? Or being frightened of threats or violence if you try to stand up for yourself? And it’s not the quality of State funded representation we’re talking about. It’s no representation.

These are the victims of our inertia and pragmatism. Lawyers in other jurisdictions risk their lives to right injustice. Here the talk is of mediation, unbundled services, collaborative law and a little light pro bono work. Maybe all the talk about collaborative law has turned us into collaborators. New silk stockings anyone? Or maybe we should just shave our heads and be done with it.