Crashing the Ritz

Baroness Hale, carrying off a very silly hat magnificently.

In the course of her Henry Hodge Memorial Lecture at the Law Society in June of last year, Baroness Hale recalled Lord Justice Mathew’s aphorism that “in England, justice is open to all — like the Ritz”. I don’t know about the Ritz — I don’t get there that often, entirely through pressure of work, you understand — but sadly, for the past few years, justice has enforced an ever-stricter door policy; almost literally, now that we are getting accustomed to talking about “gateways”.

There has been some interesting research on the adequacy of the proposed domestic violence gateways which has appeared today, and which I want to comment on in more detail later, but looking back again at Lady Hale’s lecture (which you can find here) has prompted me to give you a bit of a flavour of it, because it remains an important comment on the changing situation, and because to my disappointment it wasn’t terribly well reported at the time. It was covered by most of the legal press, but almost entirely for the eye-catching claim that the public funding cuts would affect the poor disproportionately. In fact, her lecture made it clear that even one of the highest judges in the land now has serious concerns not only about how restrictive the access has become, but what the effects of that restriction will be.

The lecture was entitled “Equal Access to Justice in the Big Society”, and as I’ve already noted it predictably caught most headlines for the statement that the Legal Aid reforms will “have a disproportionate effect on the poorest and most vulnerable in society”. Rightly so; this was bold, plain speaking.  It was bold, also, to place the issue of access to justice (which, as she pointed out, is not quite the same thing as access to lawyers) in the context of the “Big Society”, that politically radioactive concept which continues to divide the populace. In fact, the only time she referred to the Big Society  by name is in the title of the lecture, but she had a number of interesting reservations about the current plans for the Legal Aid system which make it clear that she believes that they cut across and impede the stated “Big Society” objectives. If the Big Society is about anything, it is surely intended to be about social inclusion, but she made the point  a number of times throughout her speech that the Legal Aid reforms will probably have the practical effect of barring access to justice for many people, and that result is, in effect, social exclusion. Just after she has noted in the speech that the effect on the poorest and most vulnerable will be disproportionate, she quotes (without comment) Legal Action‘s concern that “this would lead to an underclass of people disenfranchised from justice and indifferent to the rule of law”, and notes herself that

“the idea, recently floated, that some claims recognised by the law should become non-justiciable in our courts is truly alarming. This would turn debts and other legal duties into voluntary obligations, binding in honour only. And we know what risks of truly alternative enforcement mechanisms those can bring.”

Strains of the theme from The Godfather: but of course her point is a valid one. If you leave, say, debt collection and the general law of obligations to be dealt with by means of self-help, guided by ideas of honour and loyalty which may be fairly rough and ready, bad things tend to happen. As she also remarks, this idea runs counter to the “no right without remedy” principle set out in Ashby v White over 300 years ago (in 1702, in fact). This new idea is therefore, in its proper context, (but this is my gloss on what Lady Hale is saying) a truly revolutionary one. There is something rather sinister about this concept of a legal system which admits that it cannot afford, for reasons of lack of money, time or other resources, to provide an adequate remedy in response to a legal right. Note that it is not the resources of the parties which are being questioned, but the resources of the process. It is an admission of a systemic failure which is, in its own way, a quiet catastrophe.

She considered the various alternative routes to justice, other than lawyering up, but overall her conclusions were gloomy. Tribunals have not worked out to be as simple or as cheap as was first hoped, in part because the system has had to be restructured to reinforce the concepts of independence from the state and impartiality. Mediation is, she thinks, suitable and indeed preferable for family disputes (“no family judge who has had to decide who will pick the children up from school thinks that this is a sensible way to do things”), but possibly not such a great idea for other disputes, particularly where it is forced on the parties. What about their Article 6 rights to access a court?

She is also concerned that compulsory mediation can reinforce the power imbalances between the parties unless it is “very professionally conducted … and professional mediation costs money”. If  you have been involved in a David and Goliath mediation of this kind, you will probably recognise the profound truth of that sentiment.  It is the unfortunate habit of Goliaths in mediation simply to flex their muscles and indulge in je m’en fichisme until everyone gives up and goes home. The cost of the mediation may be a drop in the ocean to Goliath, but a small fortune to David, meaning that David has much more of a stake in the success of the process. Mediation is not the answer to all ills.

In the light of the current arguments about the new public funding gateways, this speech remains as pertinent as it was six months ago, and I urge you to read it if you haven’t already done so.

The Care Home Kid


If, like me, you’ve sometimes gathered up your papers at the end of a care application and wondered, “What next for this child?” — or even if you haven’t — can I recommend to you the two BBC documentaries by Neil Morrissey, which are available on iplayer here, but only for the next couple of days. Neil was taken into care at the age of 10 and lived in a care home until he was 17. He gives an enormously touching, honest and courageous account of his time in the care system, and the impact it had on him in childhood and into adult life. It will give you an idea of the trauma involved if I tell you that Neil and his brother Steve, to whom he was extremely close, were not expecting to be taken into care at all. They were suddenly separated from their parents, and each other, at the Magistrates’ Court, and sent to separate children’s homes. Neil did not really see his brother again for another 10 years. His brother was in fact sent to a children’s home which later became the focus of a police investigation for physical and sexual abuse on a large scale. It sounds like a Dotheboys Hall for the 20th century. This was in the late 1970s, and certainly things are a lot more child-centred now, but it is heartbreaking to see the effect this sudden and dreadful dislocation had on Neil, and children like him. Certainly nobody appears to have given any thought to how the process felt from the point of view of these two children, and the damage has been permanent.

Even as an adult, Neil had no real idea of why he had been taken into care in the first place. One of the most interesting sections of the documentary is the meeting between Neil and the family’s social worker, who gives him some more of the background. Neil lets him off a bit lightly in my view, but one of the important things he says in the programme is that he has learned not to dwell on the past. I can imagine that if you started to allow yourself to get angry about some of this stuff, you’d never stop.

He talks to some of the people who were in the children’s home with him, and to young people in today’s care system. These are not easy interviewees, who are at times telling stories of significant distress and damage, and I thought he was a great interviewer. He clearly has a lot of natural openness and empathy which encouraged them to talk. It obviously helped that they knew he had gone through the care system himself. He also highlighted the particularly significant problem of what happens when a young adult leaves the care system and has to learn to fend for him- or herself, often without any significant life skills or support. This is a really serious issue and deserves to be more widely known about.

His is of course a purely personal and subjective view of what it was like to be a child and teenager in the care system thirty years ago, but it’s that personal touch and subjectivity which gives these programmes their strength. I really do urge you to have a look at them, I think they’re very important.

And I was utterly delighted, on a personal note of my own, to find that my two favourite Norn Irishmen, Adrian Dunbar and Charlie Lawson, are old friends — of Neil Morrissey and each other! (So they are.) (Not Brazil.) But you’ll have to watch the second programme to find out about that.

Persecution of lawyers: then and now

Banksy's brilliant "No Loitrin" by Chris Devers on Flickr


I’m not minimising the concerns of lawyers in the UK about public funding cuts and access to justice; obviously these are important issues and they need to be fully argued and discussed. But can I ask you to click the link below to Jonathan Goldsmith’s article in the Law Society Gazette online, which reminds us that in some times (including now) and some places you can face physical injury and imprisonment just for doing your job. Perspective is always useful. His comment that oppression of lawyers in China has increased since the protests in the Arab world is particularly interesting. Please spare a thought for the lawyers named in this article and consider doing something concrete to help, such as supporting Amnesty.

 

Persecution of lawyers: then and now.

Radmacher v Granatino: Where to Find It

The Honeymoon Most of you will probably have found this already, but I thought I would post this link to the Supreme Court website where the Radmacher judgment is published in full. There is also a version of it on the Guardian law page hosted on Scribd, but for some reason when I tried it last night the print button wasn’t working, which isn’t terribly useful for oldies like me who can’t read more than five pages on a screen without feeling dizzy. My younger readers may fare better. Family Law Week‘s website, which I believe is still free to subscribe to, has what looks like an interesting analysis by James Turner QC here. I will try to round up as much of the early analysis as I can, as soon as I can, but it will probably take a few days.

This beautiful illustration comes courtesy of Coffeelatte on Flickr and is the work of John R Neill, who illustrated the original Wizard of Oz and other Oz books. It is just about 100 years old (published 1914) and I think we can safely say that the concept of marriage has lost a lot of its romance since, and has just lost another little bit of its sparkle. Mind you, I don’t say that’s a bad thing.

Where’s your sense of humour?

Take my wife .... From the National Library of Scotland archives on Flickr.

You’ve got to love this story from the Daily Telegraph about the intellectual property rights to laugh about the divorce. A stand-up comedian, Stephen Grant, was asked by his ex-wife’s lawyers to give an undertaking that the divorce would not form part of his act. It’s not quite clear from the story what happened, because the request was made in April 2009 and seems to have been immediately rejected (rightly, in my view), but Mr Grant seems to say that he has only now felt free to use the material in his act, which tends to suggest that the dispute went on for a bit. Practitioners will certainly recognise the sentiment, “She seemed to love my sense of humour back then but she very quickly lost it in the divorce”. A sense of humour, along with a sense of proportion, is one of those assets that lawyers can’t get back for you once they’re gone, but it should be treated as valuable all the same.

This story is a sad little sign of the times. I’ve come across quite a few attempts myself recently to gag departing partners from talking about the break-up. The long shadow of Facebook and other types of social networking is getting cast over more and more partings these days, and more people now have the capability of airing their grievances to the world at large, even if they’re not stand-up comedians. And, as we know, the danger is that once the information is out there, it will be out there forever. (I’m not totally convinced about this, actually, there are storage limits on blogs and social networking and eventually items will be deleted just out of sheer apathy, but I agree that your past will certainly hang around for longer than it once did.) Even the man or woman on the Clapham omnibus has a “public profile” these days, and wants to protect it.

Anyway, I strongly suspect that Mr Grant had better be very, very funny if he wants to avoid further wrath from his ex.

Long time no write


Oh dear. Well, it’s true I have been very busy, but apologies for the long gap between posts. Many interesting things have happened while I’ve been elsewhere, although from my point of view the most interesting is probably the Jones v Kernott decision, about which I intend to write in the near future, but there are lots of other potentially important developments. I hope to return very shortly with more news and comment.

Putting the brakes on charging orders

New York orphans off on a trip to Coney Island; from the New York Public Library collection on Flickr.

Further to my comments recently about the folly of paying mortgage instalments via credit cards, I was interested to see this announcement of an MoJ consultation on whether there should be a minimum level of consumer credit debt before charging orders can be made or enforced. A brief look at the consultation paper reveals a concern that there is potentially a disaster waiting to happen here. There is lots of unsecured credit or credit secured against the (now diminishing) equity in property, and although statistically the number of charging orders obtained has actually fallen over the past couple of years, the threat that these orders could be used to enforce defaults in the future is still out there and the government is clearly apprehensive. Personal insolvency is increasing – record numbers were recorded last year – and lenders will be looking more and more to get hold of security to increase their chances of repayment. Do follow the link and contribute to the consultation if you have clients who have already been affected by this problem.

Children worry about money too, you know

I have sometimes been surprised by the attitude that some of my colleagues at the family bar, and family lawyers generally (and indeed, I regret to say, sometimes the family bench), have towards money. Quite often I have been told, in the context of a private law section 8 dispute or indeed sometimes in the course of care proceedings, that family money is an unimportant issue. I have been told that it is trivial; I have been told that one or more of the parties is being mercenary; I have been told, implicitly and explicitly, that disputes about money, particularly in the context of contact proceedings, should be treated as totally irrelevant because they are not what family law should be about. It turns out, as I always suspected, that the children involved in such disputes emphatically disagree. I am delighted to see that, as this report from CAFCASS demonstrates, 46% of children involved in contact disputes were worried about money and accepted the blindingly obvious truth, namely that they had got poorer as a result of their parents separating. Money is important to children too. The very least we can do as professionals is accept that they have got a point. Bravo to CAFCASS for commissioning this research and, I hope, making all legal professionals aware that money matters as much to children as it does to their parents.

The image is “Mrs Guinness and her Children” from the Library of Congress Collection on flickr. I love the standing little girl’s rather mad oversized hat.

Edlington trial: Judge refused access to Serious Case Review

A busy day today. Those who keep up with this blog will know that I take a very keen interest in openness in the family courts and the comparisons, sometimes invidious, with what happens in criminal cases. In that regard I bring your attention to this story from the Times that Mr Justice Keith has been refused access to the full Serious Case Review in the case of the Edlington children, despite the fact that Peter Kelson QC (for the older brother) wanted the Judge to be able to read in full prior to sentencing how he believed social services and other authorities had failed the children. The decision was taken by the Doncaster Safeguarding Children Board, although I have to question whether this particular child is being “safeguarded” by having access to important pre-sentencing information about him withheld from the trial Judge. It may well be that this is not a case where the professionals involved are putting their interests in front of the childrens’, but the problem, as I think I have said before, is one of perception. What conclusion will the public draw from this turn of events?

Amin v Amin: Chancery’s Approach to a Property Tangle

by Tina Manthorpe on Flickr; all rights reserved

The case of Amin & Another v Amin & Others [2009] EWHC 3356 is now up on Bailii here and looks like an interesting read. In many ways it is exactly the kind of case this blog was set up to pick up on, since it is a family property case par excellence. “Others” is something of an understatement: there were no fewer than 18 defendants. There are company law issues, but it is said (I haven’t had a chance to read it through properly yet) that it sets out some very useful guidelines to the Chancery Division approach in dealing with complex family arrangements involving multiple properties/multiple ownership. If you want to find out for yourself you can read it on Bailii (you have been warned: there are no fewer than 614 numbered paragraphs!), but if you want to wait for the boiled-down version, I will be posting my take on it sometime next week.

Lack of information = child poverty

From the McCord Museum of Canadian History collection on Flickr

I make no apologies for directing the attention of all advisers to this important press release from the Child Maintenance and Enforcement Commission. No doubt many of you will have come across the automatic assumption among many separated parents that to obtain any maintenance at all for the children, they have to go through the CSA (and they don’t want to do that for many different reasons, most of them good ones). The result is, as the press release points out, that children often miss out on financial benefits and in some cases financial security.

Note that 25% of all separated parents did not speak to anyone at all to get advice about the financial support of their children; a further 25% spoke only to their mothers. All Nanas out there should take note, and also take note of the website address www.cmoptions.org. But this is an issue for all advisers, including lawyers — and note that 29% of separating parents did not want to involve lawyers. We came in only 2% ahead of the CSA! We can all make our clients aware of this important resource, whether they have legal problems or simply practical ones.

This beautiful image from the collection of the McCord Museum of Canadian History collection on Flickr reminds us of the bad old days (or it ought to). The children are probably Irish immigrants living in Goose Village, Montreal around about 1910. The little one doesn’t look too happy about being photographed, does she?

Facebook: the New Co-Respondent!

Everything was going great until he rediscovered his first girlfriend on Facebook. From the George Eastman House collection on Flickr.

Not strictly money-related, but I cannot resist directing your attention to this article in the Daily Telegraph (originally from Divorce-Online, but I can’t find the story on their site) about the increasing role Facebook is playing in divorce petitions, taking over from Friends Reunited. Having your divorce announced by your husband on Facebook (before he tells you!) is possibly a new low, lower even than that notorious episode of Sex and the City when Carrie Bradshaw was dumped by Post-It note. Times are changing so quickly that sometimes it feels difficult to keep up.

Beneath the surface

Photo by Cortomaltese from Flickr

Normal service will be resumed within the next day or so, but in the meantime I found this story on the Shelter website interesting. Tenants and homeowners are resorting to paying their mortgage instalments or rent via credit cards. This recession may be less brutal on the whole than the one of the early 90s, but there are still victims who are finding it a struggle. It speaks volumes about the UK attitude to what seems, at first glance, like cheap borrowing: the rationale, I suspect, is that it is worse to go into arrears on your mortgage than to borrow money on plastic that you might have trouble repaying. As Martin Lewis points out, it is not. Ironically of course the mortgagors who are borrowing on credit cards to keep up with their payments have less protection if they fall into arrears than if they simply fell into arrears with their mortgage, particularly now the Horsham Properties/Clark & Beech loophole is to be closed – but more of this anon. Those advising clients in this position will probably be well aware of Martin’s site, www.moneysavingexpert.com, but I will give it a shout here for those who don’t.