Family Justice Review Submission.
The practical economic case for what may seem uneconomic procedures.
Someone coming new to family proceedings especially with a business background might be appalled at what he or she sees. Why do cases take so long? Why is there so much paper, so much duplication? Why do people need to come to court so much? Why is there so much hanging about at court? Why can’t more be done by e-mail? And in court – why so much ceremony and ritual? Why is it so slow? So pompous and long-winded?
That person would have half a point and it is important to explore that; to explore the savings that can be made. And then to explore the other half – the less obvious aspects where some of this procedure is a part of the fact that it is a painstaking process for very good and possibly unobvious reasons, including economic reasons.
To go with the protester: Let us be critical at each stage and ask ourselves was this action really necessary?
Let there be fewer papers: Many documents get repeated, the details cut and pasted over and over. Care plans are often the same for each of four children; what is wrong with saying that? – or just specifying those aspects which are different?
Guardians often do two reports at the end of a case – one for the care order and one for the placement order. 90% the same content. Challenge that surely. Reports quote other reports; sometimes they could simply refer to them?
Let there be fewer hearings: Some of the administrative hearings we have could be definitely done by e-mail or conference calls and there would be considerable savings. Video conferencing is usually an unnecessary luxury which involves the participants going to various video suites – just so we can see each others’ faces. If there is a witness, then there may be some mileage in that. Although judging veracity and reliability by video is questionable.
But if it is just lawyers? Fond though I am of many of my colleagues, I do not always need to see their faces. Telephone conference calls means nobody has to leave their desks; no travel; no equipment hire; people can use mobiles if they can’t get back to their offices etc etc. You can even get a verbatim transcript quite quickly and easily from BT.
If there is a live hearing – at the end there should be a standard question from the Judge – was this really necessary? Could it have been done in another way?
Let there be less hanging about at court: Anyone from outside of the law coming to the court will also probably be shocked at the apparent inefficient use of resources and the leisurely way the proceedings are conducted.
There is some connection between these two but it is not 100%.
There is one very obvious apparent inefficiency – that lawyers, parties and witnesses ‘are hanging about outside of court’. But consider: some cases are often resolved by negotiations at court. The time has in fact been put to good use; indeed we often have to beg the court for more time to allow successful negotiations to conclude.
You may ask – couldn’t those negotiations have been conducted earlier and away from the expense of court? Is this a good use of court resources?
But it is not just negotiations between lawyers – the negotiations in fact require the presence of all the parties – the social workers, the parents and other family members, the Guardian and sometimes other witnesses.
In theory meetings could have taken other place at some time earlier with all these people to hand. But – if they didn’t succeed in resolving matters, then we all reassemble and come to court another day? That is not actually very efficient. Using the door of the court as a negotiating situation has in fact worked for hundreds of years, and may be the most efficient use of resources.
But sometimes the delays are due to a simple lack of judge time. That is the real waste of all of our time and resources. In a number of other cases, when we have negotiated a solution and are all ready to go in, there is no court ready to take us.
So a useful question might be – Is it possible to predict which case will fall into which category?
And / or encourage the more common use of the order “Parties to attend one / two hours early to hear the current information and positions, negotiate and draw up agreed orders so they go into court at the time allotted.”
Once we are in court: The pomposity and long-windedness of some lawyers and Judges is real and should be addressed and needs a culture change. It is beyond this note (and my skill) to suggest how that can be done but the new President looks like being our best bet for such a culture change.
That is the reform that could be implemented; fairly obvious in a way .
Let me now put forward a balancing point of view: I want to protect some aspects that may seem to an observer to be old fashioned and wasteful.
Let me make some preliminary remarks which may sound defensive but in order to justify the rest of this note I need to persuade you I am not some hidebound traditionalist.
I am keen for modern technology to help in cases and in court. We certainly love it in our offices. How else would we survive being paid the same rates as 11 years ago without hugely increased efficiency?
In my office we all have remote access and work from home early, late and weekends. We all have Blackberries and work when at court or travelling. We all do a great deal of self-servicing on e-mails and shorter documents. We use voice recognition. We outsource our longer typing by digital dictation to South Africa or to an ex-employee in the UK. At court we can send dictation direct from our Blackberries.
Yes, we love innovation and efficiency. So this submission is not coming from a place of conservatism or love of tradition for its own sake.
But the other half of the picture does not support the sort of modernisation of family proceedings that may seem the obvious way forward to a business person, or which fits with this modernisation of our business procedures. Modernisation can achieve immediate, measurable, visible, surface efficiency.
But we need to go back to the basic facts which I hope to show are totally relevant to the deeper efficiency – the less obvious, longer term efficiency of the system. We need to consider them if we are not to fall into considerable error.
Two aspects: 1. The cost of a wrong decision. 2. The cost of a right decision.
In my area of work the state is taking away children from parents. That is the most devastating act imaginable.
1. In many cases these are not forgone conclusions. Social workers are not always right. Many parents succeed – or in another language, many children are reunited with their parents because of the painstaking approach of care proceedings.
Remembering always that a mistake one way means a child is removed from parents who can in fact care for them and a mistake the other way means a child is exposed to abuse and neglect. Please see my earlier submissions on this.
There are hideous costs in human terms of course. But also in financial terms: children unnecessarily in care cost huge sums of money. Children wrongly returned home may lead to later expensive proceedings, leaving aside the long term outcomes of abuse and neglect – at the extreme end, deaths and criminal charges and enquiries. And in many less extreme cases, children growing up with mental health problems, anti-social behaviour, crime, repetition of failed parenting.
We cannot afford – humanly or financially – to get these decisions wrong. It is worth being painstaking. And that word highlights the problem. Taking pains. It is painful. That is how we may experience the fact that it is expensive in the short term. And it may be pain that we have to learn to bear.
2. But if the right decision is taken… and it may be a case where the outcome seems obvious? However, even here, there is more going on that a cold, mechanical weighing of the evidence. Even when the decision is right, the process needs to be right as well – not just Justice being seen to be done as in the old maxim but for good, if unobvious economic reasons.
Consider: In almost any parent the act of removing a child or threatening to do so would produce fear and anger; flight and fight behaviour. Remember we are dealing with many parents who have very little education and, often, mental health problems. The obvious reaction is to take the baby and run – or to fight the social workers, physically.
And yet there is in fact very little extreme action. Very few cases of parents running away with children. Very little violence or physical resistance. Few real fights at court. Few social workers attacked (enough for it to be a serious issue, not enough to be a common phenomenon statistically).
And, crucially, few examples of parents tracing foster carers or adopters and harassing them or attempting to remove children. I am sure you appreciate that now, with the internet, it is easier and easier to trace people.
If any of those things happened the result could be horrifying and I suggest we need to look at them carefully.
In the actual court, physical attacks mean justice would be blocked, for this case and many others in the building. It would generate the need for greater security staff.
For social workers it would also make their whole jobs much harder with a cost to all families and a financial cost to the Local Authority.
If foster carers were attacked then the supply of foster carers, which is already insufficient, would be massively reduced. The children placed with them would be traumatised.
And assuming now that the case is proved and a final order made – If adopters were traced and harassed or children abducted, even one or two, then the supply of adopters would be very adversely affected. Lack of adopters is one of the great blockages in the system, with children remaining in care for far too long waiting for adoption – and at great emotional cost to the children and financial cost to the Local Authorities.
In this context, a point I am surprised not to have seen elsewhere is that assisted conception has only just started and yet it is making infertility more and more avoidable. The supply of childless couples keen to adopt may be shrinking already.
These are real risks and costs. So why hasn’t any of this happened up until now?
The answer is because parents in fact accept the verdicts of the court. They accept the legitimacy of the act of removing their children.
That is extraordinary. We have got so used to it that we take it for granted. I suggest we should not take it for granted and we need to look at this carefully. It is a precious resource that need protecting.
Why do parents accept this? Because however dysfunctional they are, whatever mental health problems or educational deficiencies they have, they can see that the case has been dealt with fairly and fully.
The evidence of the Local Authority has been fully presented and challenged by their lawyers. Their own views have been put across in a way they can follow. They have been given a fair chance with full assessments. This has been done very thoroughly and slowly over months.
The parents see the court actually hearing the evidence. The very slowness of it all – outside court and during the actual hearings has given them time to absorb what is happening. For some it means they really believe they need to change and they do so with positive results.
And where they fail – although it sounds bizarre to say so – the process almost allows them to get used to it. To sound almost cynical but with no disrespect – most parents in our cases have much more limited powers of concentration than the professionals and are almost overwhelmed and numbed by the proceedings in court. I am amazed at how they sit there while the most intimate details of their lives are laid out in front of strangers and they are criticised and judged to be failures.
I have started cases where, at the outset, parents have been acutely and seriously threatening to others or themselves. Security staff have been on standby. But by the end, if they lose the case, they are simply sad and resigned.
None of that process will happen if the proceedings are made ‘quick and efficient’ – if things are done at a speed they cannot follow. If judges go off and read papers in their offices and then send out their judgments by e-mail.
If I say that parents have a great awareness of justice, people might doubt that. If I say they are very alert to seeing any injustice, then that may be more convincing. It is very true. Being attacked and criticised makes parents very quick to spot any mistakes or deficiencies in others or in the process.
That is all true of care cases, my main area of work. But another main area of Family Court work is disputes between parents or partners.
Domestic Violence requires the violent partner to respect the orders of the court. An outsider may assume orders are respected because they can be enforced.
But actual enforcement in the face of defiance is extremely expensive – in money and resource terms and in terms of the effect on the adults and the children. In practice the state cannot have a police officer involved to arrest anyone who breaches an order.
The violent person has to have an internalised respect for the order.
Less dramatically but just as importantly, orders about who the children live with and what are the contact arrangements also need to be respected. If a child is not returned at the end of contact – you don’t call the police; you have to go back to court and issue an application for enforcement, all with costs and delays which can be devastating to the children.
The authority of the court cannot rely simply on enforcement. Enforcement is only one half of the authority. The other half is the respect for the court which is the earned authority of legitimacy.
If you simplify and speed up courts and proceedings too much then that legitimacy and authority are lost. If you reduce the legitimacy and therefore the authority of the court then it is a recipe for an expensive disaster.
What are the practical implications of this? It is not simply keeping things as they are or keeping them complex and slow for its own sake.
It does mean preserving some crucial, apparently inefficient and wasteful aspects. It does mean making sure parents are well represented. By solicitors who actually deal with the person, taking time to meet and talk and listen and then actually deal with the case – not by paralegals who send a different barrister to court for each hearing.
It means preserving the fact that Local Authorities spell out matters fully in their statements and care plans. It means that assessments are planned and carried out. It means experts are brought in to check the evidence, especially medical evidence.
It means not rushing to judgement, in spite of the universal, unchallenged mantra that delay is always not in the interest of the children. Sometimes it is. Sometimes giving parents the chance to change works; under pressure from the court they can change genuinely and children can return home safely. A rush to judgment, a worship of targets would have robbed them of that chance. .
It means having hearings which in some cases last for several days. It means that the Judge should give a full and clear judgment, showing the evidence has been considered carefully and explaining the decision. And the lawyer dealing with the clients has time and the situation in which to explain it and discuss it with them.
These are things that may seem wasteful and self-indulgent on the part of the legal profession. As a high street legal aid solicitor for many years I am somewhat removed and have little vested interest in the higher levels of pomp and circumstance of the law.
But I know my clients and I know they need to respect the decisions of the court. They need some belief in the authority of the court and the legitimacy of the progress.
To modernise and over simplify that would in due course incur great costs and great suffering for adults and children.
This will also generate horror stories in the media about hurried, inhumane miscarriages of justice which will bring disrespect to the politicians who devise new systems, those who advise them, to the whole legal process, to social workers and to child protection generally.
I suggest to the enquiry that these are the dangers of an over enthusiastic embracing of modernisation producing surface efficiency and deeper inefficiency. .
Miles and Partners
88-90 Middlesex Street
London E1 7EZ
020 7426 0400