Soldiering on

Family analysis: Barbara Connolly QC, barrister at 7 Bedford Row, discusses how the recent family law reforms have affected her practice.

What are your views on the quantity and pace of recent reforms?

Of course, the most significant reforms are the introduction of the single Family Court and the 26-week rule for completion of care proceedings. The principle of the unified Family Court not only makes good sense, I recall it being championed by reformers before I was a pupil. So it is difficult to argue that its introduction nearly three decades later was achieved at breakneck speed. As for the 26-week rule, how can any family practitioner consider that achieving the resolution of care proceedings in the majority of cases within 26 weeks, is anything but desirable? But aspiration does not always match reality. And we cannot ignore the devastating impact legal aid cuts have had and will continue to have upon the entire family justice system at a time of such major reform, together with savage cuts in local authority finances affecting vulnerable children and families.

What are your experiences from the front line?

It is too early to say how effective the single Family Court will be in the long term. There are bound to be some teething problems, and inevitably a period in which we 'find our way'. We need to give it time, and I suspect we may see further changes as better/more effective systems are worked out (and perhaps some of those lengthy forms and case management orders will be shortened). I believe there is goodwill all round, from the judiciary, practitioners, and staff, so that everything will be done to ensure its success.

I have very limited personal experience of the impact of the 26-week rule given that most of the cases in which I am instructed fall into the exceptional category outside 26 weeks. Where I have needed to argue an extension outside 26 weeks, I have done so successfully. This accords with repeated observations from the President of the Family Division, Sir James Munby, (in Re M-F (Children) [2014] EWCA Civ 991) that the 26-week rule should not be seen as a straightjacket, endorsing the warning of Pauffley J in Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam), [2014] All ER (D) 135 (Feb) that 'Justice must not be sacrificed on the altar of speed'.

However, from discussions with colleagues, I understand that there is a genuine concern that in many courts there is a rigid application of the 26-week rule and that there are real difficulties - whether caused by delays in local authorities filing evidence leading to insufficient time for parents' responses and/or the proper presentation of their cases - because of judicial pressure to complete cases within 26 weeks (particularly the lower tiers). There are real concerns about injustice to parents, and particularly the children. This is compounded by the increasing number of cases where proceedings are delayed as a result of an effective stand-off when the Legal Aid Agency refuses to fund expert fees, at all or sufficiently to ensure appropriate experts are instructed. All too often it seems precious weeks are lost arguing over funding issues in relation to experts' costs, or indeed, sourcing necessary experts willing to accept instructions at legal aid rates.

PSL practical point: See also the recent decisions of the President in Re W (Children) [2014] EWFC 22, [2014] All ER (D) 25 (Aug) (as to extensions to the 26-week timetable) and Q v Q [2014] EWFC 31, [2014] All ER (D) 40 (Aug) (as to funding issues).

Added to this, increasingly counsel is instructed at a very late stage, some time after important case management decisions have been taken and/or applications for assessments or expert reports should have been made. Inevitably late applications meet with judicial resistance, if not total opposition, not least because of the stage proceedings have reached.

What other challenges are family lawyers facing at the moment?

At the moment practitioners are soldiering on in the face of further cuts in income (but with increased workloads, bureaucracy and administration per case) and grave attacks on the integrity of the family justice system as whole sections of vulnerable people are removed from eligibility for legal assistance. It is often said that barristers do not like change and are forever fearful that the bar is doomed. There may be some truth in that. But history tells us that actually the legal profession, and the bar in particular, is pretty resilient. At my first pupillage interview I recall difficult questions about the then major concern, fusion of the legal profession and (of course) the end of the bar. However, my experience of the family bar, particularly those undertaking publicly funded work, is that generally it has embraced change, always striven to do the best for clients, and has done so with general good humour and enormous goodwill.

There is no doubt that, as with other sectors of the publicly-funded bar, the family bar is facing huge challenges as a result of funding cuts and morale has been affected. I am aware of many who have either left, or are seriously considering leaving the bar altogether, and others who are able to, switching from family to other areas of work. Solicitors face similar challenges and there is a steady stream of those moving out of publicly-funded work. Word has spread to new practitioners and there is no doubt many are choosing other options. Nevertheless, there remains a solid hard core dedicated to continue practising in family work. The fear is that even if they are able to do so in the face of reduced income and ever increasing pressures on their ability to properly present their clients' cases, who will replace them and will they have the same level of expertise and commitment? And do we risk a downward spiral in the quality of representation as a consequence of practitioners taking on huge volumes of work in order to stay financially afloat, or the selection of advocates based upon cost rather than quality or effectiveness?

What has all this meant for clients?

As a speaker at an International Bar Conference a couple of years ago, fellow international speakers congratulated me on being able to practise in a Rolls Royce family justice system - particularly in relation to children's issues, where there was an extremely high quality of representation for those reliant upon public funds. While acknowledging the many positives in our system and its superiority to what was on offer in many other jurisdictions, I had to confess that we had already exchanged the Rolls Royce for a series of old Fords. My fear now is that in some respects the wheels have already fallen off. This has nothing to do with the move to a unified Family Court, or the introduction of the 26-week rule which of itself should benefit clients despite the risks referred to above. But it is the savage cuts to legal aid and services available to vulnerable families that present the greatest threat to justice.

In reality, in public law proceedings, while clients may not receive the same quality of service they did several years ago, in most cases their interests are protected, even if only just. It is the removal of legal aid in private law that represents the greatest assault to justice. No doubt there are many cases where parents are able to act as litigants in person, even if they would prefer representation. The increase in litigants in person may be burdensome to the court but with extra resources (were these available) should be manageable. But what of the vulnerable parent who having escaped a difficult controlling relationship, whether or not involving actual physical violence, now finds themselves pitted in legal proceedings against that ex-partner? And what about the increasing number of cases where cash-strapped local authorities, rather than issuing care proceedings fund one parent in private law proceedings against the other, who cannot pay for legal representation and will not be entitled to legal aid? In M-F the President warned against care proceedings by the back door. But I know from my role as a reviewer for the Bar Pro Bono Unit and discussions with others that it is happening and in my view presents a grave injustice to the families involved.

What should family lawyers be doing about all of this?

First we must keep things in perspective. If you need to get from A to B, you can do so just as well in the old Ford as the Rolls Royce, although we may prefer to travel by the latter. But I am concerned that, rather than just accepting situations/decisions and getting on with it (as I am afraid happens rather too often), we should be more ready to challenge bad decisions and injustices. If strict adherence to the 26-week rule will lead to injustice, challenge it and if necessary appeal. So too, where a local authority inappropriately and unfairly funds one parent in private law proceedings to avoid issuing care proceedings, or funding decisions of the Legal Aid Agency will lead to clear injustices, we should be challenging those decisions, where necessary by judicial review. Instead of focussing on the negatives, we need to make it work.

Barbara Connolly QC undertakes disputes concerning children, financial remedies, and cases in the Court of Protection involving both welfare and financial issues. Having spent many years practising across all areas of family, mixed common law and crime, Barbara continues to do some non family civil work, including cases involving allegations of child abuse--particularly historic claims against local authorities. She has a keen interest in international family law issues and has written and spoken at international conferences and seminars on a variety of subjects affecting family law around the world.

Interviewed by Kate Beaumont.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

 

 

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