Bloomsbury Professional Family Law Conference: Morning Review

The inaugural Bloomsbury Professional Family Law Conference brought together a world-class panel of speakers to explore some of the major challenges and issues within family justice. I attended as a PhD student from the University of Warwick, currently nearing the end of my studies. In addition to providing a much-appreciated break from the at times rather isolating world of doctoral research, this conference offered an invaluable opportunity to connect with, and learn from, practitioners at the forefront of practice in their fields.

There is currently much to concern family lawyers and academics alike within the family justice space, not least the ongoing deleterious impact of the reforms to legal aid and the potential consequences for access to justice of the court modernisation programme. But what struck me most from attending this conference, and the speakers’ presentations summarised below, were the shared messages of the power of collaboration and openness in providing a robust response to these challenges – whether this be in forging cross-sector collaboration between lawyers, social workers and academics, engaging court users in the debates which affect them or moving away from the thinking that different areas of family justice have to be conceptualised in silos. The magnitude of the challenges demands collective and creative responses, and conferences such as this have an important role to play in building these responses.

Opening Address: The Challenges Facing Family Lawyers in the 21st Century – The Right Honourable Lord Justice McFarlane

It was a privilege to hear the Right Honourable Lord Justice McFarlane’s opening address, in which he provided an overview of some of the many challenges facing family lawyers. First, although the ambitious £1bn programme of court reform is presenting opportunities, it also carries risks. Many elements of this programme are positive and are showing promise, such as the introduction of the online divorce process. Other elements, such as court closures as part of the move towards online hearings, are raising important questions about the safeguarding of access to justice and must be approached with caution. The dynamic nature of family law cases does not sit comfortably with this shift towards online hearings, with the presence of all the key actors and parties to proceedings in the same physical space remaining crucial. If the majority of family law cases are not to be heard remotely, then it is imperative that meaningful access to physical court spaces is maintained, despite court closures.

Second, the transparency of family justice remains of pressing concern. The President will be issuing guidance before his retirement in July. Third, and as every family lawyer will be acutely aware, the impact of the removal of legal aid in the majority of private law cases, and the low levels of remuneration in public law cases, cannot be overstated. Recruitment into the profession, and morale within it, are suffering. Fourth, what Brexit means for the family justice system is uncertain. And, finally, the significant increase in applications for care orders and the number of children in care, currently under investigation by the Care Crisis Review, is demanding robust and multi-faceted responses. But while all these challenges facing family lawyers are numerous and significant, the family law community remains steadfast in its commitment to family justice, and a spirit of collaboration and openness sits at the heart of the process of finding the solutions.

Developments in Children Law: The Highlights of 2018 to Date (and the final 11 days of 2017!) – Will Tyler QC, 36 Family

Will Tyler QC provided a useful overview of the recent case law developments at the Court of Appeal including: Re P (A Child) [2018] EWCA Civ 720 on appeal timescales and requests for further reasons; Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 on relocation and shared care; Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121 and Re J (Children) [2018] EWCA Civ 115 on fact-finding in private law and McKenzie friends; Re J (Children) [2018] EWCA Civ 115 and Re M (Children) sub nom. In re A (Children) (Contact: Ultra-Orthodox Judaism: Transgender Parent) (Stonewall Equality Ltd and another intervening) [2017] EWCA Civ 2164, [2018] 4 WLR 60 on children law and the judicial reasonable parent and exhausting all available alternatives. A number of other developments were highlighted as significant: the Cafcass High Conflict Practice Pathway has been undergoing a period of stakeholder consultation, with the final Pathway due to be launched in Summer 2018; the Law Commission of England and Wales and the Scottish Law Commission have started work on a review of the laws around surrogacy; Practice Direction 27A is undergoing revision to take account of electronic bundles; settlement conferences in care cases have recently been the subject of lively debate; and Practice Direction 3AB remains unissued but urgently needed.

Transparency: Why It Matters, What It Means – Lucy Reed, St John’s Chambers

Lucy Reed made a powerful case for greater transparency within family justice. While there is understandable unease among family lawyers about being opened up to scrutiny, transparency is crucial. Transparency is no longer a binary concept representing ‘all or nothing’. It has evolved into a far more nuanced concept, which does not equate itself with the surrendering of all privacy. As part of the movement towards greater transparency, there is a need to engage the public in the issues which affect them, and to view the system through the eyes of its users. The publication of judgments alone is insufficient to secure transparency since it cannot be assumed the public will access or read them. It is necessary to go further and to face outwardly to the public, letting information and ideas in, rather than being confined to closed-off practitioner silos. It is also necessary to be open about existing evidence bases sometimes being incomplete, or even inadequate.

Guidance from the President on transparency is forthcoming and the Family Procedure Rule Committee is considering proposals to change access to private law hearings for legal bloggers. Thought must be given to the ways in which the challenges identified within research into transparency can be resolved. Transparency matters and it cannot be ignored: the question is not whether it can be rejected as an issue of concern to lawyers, but rather how lawyers can positively respond in evidence-based ways to mitigate the potential risks posed by publicity and bring about meaningful transparency within family justice. Lucy’s full speech can be read here: http://www.transparencyproject.org.uk/transparency-why-it-matters-what-it-means/.

When Will the Court Consider Restricting or Terminating the Relationship Between a Parent and a Child? – Madeleine Reardon, 1KBW

Madeleine Reardon provided a fascinating challenge to the tendency to view public and private law proceedings as distinct and context specific, particularly in the light of the increased specialisation of the family justice profession, arguing that this filtering into narrow pathways should be critically questioned. Is it justified, for example, for the law to take a different approach in a public law case to a similar situation in private law? Should a court considering relocation, with contact limited to three times per year, adopt a similar approach to an application by a local authority for an order which will place a child in long-term foster care, with contact again limited to three times per year?

Without downplaying the differences between public and private law proceedings, there are shared issues and approaches which unite these two branches of law in relation to the substantive law. The procedural paths taken through the family justice system are, however, different, such as in relation to the availability of legal aid. It should be questioned whether these procedural differences can be justified. Private law is often considered the poor relation to public law in measures such as court targets and legal aid, but this is based on the assumption that private law cases are less serious than public, which is not necessarily the case. It is also important to step back and remember that the impact on children of proceedings is significant, regardless of whether these proceedings take place within the public or private law.

There is much to be gained more broadly in finding creative solutions to complex family justice problems from looking outside the immediate area of law of the case in hand when the underlying issues are the same: why not, for example, reflect on public law cases when preparing for a private law relocation case? And why not learn from private law removal of parental responsibility cases when preparing for a public law adoption case? Cross-fertilisation, breaking down barriers, identifying shared issues and learning from similar contexts, has significant potential for the development of children law over isolated, inward-looking practice.

Children Giving Evidence in Family Proceedings – Alex Laing, Coram Chambers

Alex Laing delivered a comprehensive and engaging outline of best practice in children giving evidence in family proceedings. There has been a sea-change in the frequency in which children are heard and are giving live evidence in criminal proceedings. It is now not uncommon in the criminal context for children aged three and upwards to give evidence. This sea-change has not yet taken place in the family court, but the importance of ensuring best practice is no less significant in this context.

The ‘go-to’ document on Achieving Best Evidence interviews (ABEs) is ‘Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses’ (March 2011). This guidance, despite its title, has been held to apply to family cases. What must be understood is that the purpose of an ABE interview is not to elicit a specific narrative, with a child simply repeating in the same form an allegation made outside the ABE interview. The purpose is to elicit the best evidence. A successful ABE has four principal stages: initial contact; planning for ABE; setting up ABE; and conducting the interview. The interview itself has four key components: rapport; free narrative; questioning; and closure.

It is crucial to reflect on the language used in cross-examination of children, since a question such as “So, are you in school at the moment?” is going to elicit a response from a child such as “Um, no, I’m in this room with these cameras so people can see me in court …”. Cross-examining child witnesses requires skill and careful preparation. There are a number of resources available on best practice: the Advocate’s Gateway; the 2011 Guidelines in Relation to Children Giving Evidence in Family Proceedings; and the Children and Vulnerable Witnesses Working Group. Alex’s co-authored book with Dr Bianca Jackson (Public Children Law: Contemporary Issues) will be published in August 2018.

Participation of Vulnerable and Intimidated Witnesses and Parties – David Burrows

David Burrows provided an insightful overview of the measures in place regarding the participation of vulnerable and intimated witnesses and parties within proceedings, including a discussion of FPR 2010 Pt 3A and the Youth Justice and Criminal Evidence Act 1999. There are a number of broader reflections to keep in mind when thinking about the participation of vulnerable and intimidated witnesses and parties. First, it is common within family law practice to make distinctions between different areas of family justice, whether it be private law versus public law or children law versus financial relief. This approach of dividing different areas of law from each other stands in tension, however, with the pervasiveness of issues surrounding procedure and the presence of vulnerable and intimated witnesses and parties in all areas of the family justice system.

Furthermore, it is important to remember that the source of protective measures for vulnerable and intimated witnesses and parties comes from the common law, and the common law remains the main source of protection, even after the introduction of FPR Pt 3A. And finally, it is necessary to think creatively and carefully about the methods which represent the best way to provide evidence and support the court, which may involve evidence being given through unconventional means, rather than being limited to traditional written statements.

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