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The economic case for what seems uneconomic

An article by David Jockleson

Someone coming new to family proceedings especially with a business background might be appalled at what he or she sees. Why do cases tale so long? Why is there so much paper, so much duplication? Why people need to come to court so much? Why can’t more be done by e-mail?

That person would have half a point – a lot of the administrative hearings we have could be done by e-mail and there would be considerable savings.

Anyone from outside of the law coming to 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 not a lot.

The apparent inefficiency is often due to lawyers, parties and witnesses hanging about outside of court. 1. In fact cases are often resolved by negotiations at court. In theory meetings could have taken place some time earlier with all the parties and experts to hand. And if they didn’t succeed in resolving matters then we all come to court another day? Not actually efficient.

Simple lack of judge time. That is the real waste of time and resources. When we are all ready to go in, but there is no court ready to take us.

But the pomposity and long-windedness of some lawyers and Judges is real and should be addressed.

I am keen for modern technology to help in court. We certainly love it in our offices. How else would we survive being paid the same as 11 years ago without hugely increased efficiency?

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 outsource our longer typing to South Africa or to an ex-employee in UK. We send dictation from out Blackberries. We use voice recognition. Yes we love innovation and efficiency. So this submission is not coming from a place of conservatism or love of tradition.

But the other half of the picture does not support the modernisation of family proceedings that may seem the obvious way forward to a business person.

In my area of work the state is taking away children from parents.

That is the most devastating, horrific act imaginable. In almost any parent such an act would produce fear and anger; fight and flight behaviour. Obvious reaction – take the baby and run – or fight the social workers. And remember we are dealing with many parents who have very little education and often mental health problems.

And yet there is in fact very little extreme action. Very few case of parents running away. Very little violence or physical resistance. Few real fights at court. Few social workers attacked (enough to be it to be a serious issue, not enough to be a common phenomena statistically).

And, crucially, few examples of parents tracing foster carers or adopters and harassing them or attempting to remove children. And with the internet it is easier and easier to trace people.

If any of those things happened the result would be horrific and need to be looked at carefully.

In court, justice would be blocked, for this case and 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.

If adopters were traced and harassed or children abducted, then the supply of them would dry up – and that is one of the great blockages in the system with children remaining in care for far too long waiting for adoption – at great emotional cost to the children and financial cost to the Local Authorities.

And 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 previous 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 had 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 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. Although it sounds bizarre to say so – almost for them to get used to it.

And 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 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 failures.

I have started cases where at the outset parents have been acutely and seriously threatening to others or themselves. 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 mistakes of 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.

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 policeman 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 important, 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, issue an application for enforcement all with costs and delays which can be devastating to the children.

So 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 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 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.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.