The Bracewell Essay Prize 2015

I am pleased to announce the launch today of the 2015 competition, which is open to all members of the FLBA who have been called to the Bar and are less than 6 years’ call on 31 July 2015. The title is: “I have a dream: the future of family justice”. The closing date for submission of entries is Friday 25 September at 4 pm and the winner and runner-up will be announced at the national regional conference in Cardiff on Saturday 21 November 2015. The judges are: Lord Justice Ryder, Mr. Justice MacDonald and Jo Miles, Senior Lecturer, Faculty of Law, University of Cambridge. Space does not allow for a full record here of Jo’s appointments. Suffice to say that Jo is a highly respected academic; she was a judge in the last competition and is a good friend of this association. First prize is £4,000 Second prize is £1,000. We are most grateful to Family Law (Jordan Publishing Limited) for agreeing to sponsor the competition by providing half of the prize money. Essays must be typed, double spaced, no more than 3,000 words and submitted to the administrator, Khadija Khan on admin@flba.co.uk or by post or DX, if preferred. Please read the rules of the competition on the website before submitting an entry.

Deputy High Court Judge competition

This is open until 30 July 2015. There are vacancies for up to 2 deputies in the Family Division sitting at the Royal Courts of Justice. Here is the link. Have a look at the competencies and if you believe that you can evidence your ability to match them, then you should apply. In a speech to the Temple Women’s Forum and the Association of Women Barristers on 27 April the Lord Chief Justice expressed the hope that this competition will deliver a diverse pool of candidates. In order to attract a greater diversity of applicants no previous sitting experience is required.

London & South East Divorce and Financial Remedy applications

The new Divorce Centre at Bury St. Edmunds will be responsible for processing all new divorce petitions and financial remedy matters for the Central Family Court from 20 July. By October the Divorce Centre will be processing all work across London and the South East. Forms A should be issued at BSE and will be referred to a Divorce and Financial Remedy Hearing Centre local to the parties or any other such centre for which the parties may state a preference EXCEPT Central Family Court. Unless CFC is the ‘local’ court only financial remedy applications which are accepted as complex can be issued there. The procedure is to complete a ‘Certificate of Financial Complexity’ at the same time as issuing Form A. If assets are £10m or less reasons need to be identified why the case should be heard at the FRU. Specific reasons are identified on the form such as ‘complex asset structures’ or ‘involves a complex or novel argument’ but there is no limit to the possible reasons why a case may have a sufficient degree of complexity to render it acceptable by FRU staff. If they consider that the criterion of complexity is or may not be met the case will be referred to a FRU judge who may decide to return the application or to refer the Form A to BSE for allocation to the appropriate local court. It is also possible that at the First Directions Appointment the judge will transfer the case out of FRU. Any Family Court may transfer cases to FRU where it is not convenient to retain the hearing in the local court by reason of complexity or other good reason. At the open Court User Group meeting at CFC on 24 June it was made very clear that solicitor convenience will not be a good reason for issuing at or transfer to CFC. A copy of the Certificate of Financial Complexity is placed on our website. The contact email address for FRU is cfc.fru@hmcts.gsi.gov.uk No legal or other changes have been made which affect the ability to issue urgent petitions where there is a jurisdiction race or the application is urgent for any other reason. However, once the urgency has been dealt with the case will be transferred out of CFC for financial remedy proceedings unless the complexity criterion is satisfied.

Allocation of financial remedy cases to a High Court Judge

On 1 July 2015 there was published a revised Statement on the Efficient Conduct of Financial Remedy Hearings allocated to a High Court Judge whether sitting at the RCJ or elsewhere. It has been placed on the website here.  A new section has been inserted, entitled “Principles of allocation” and it commences with this paragraph:

The governing principle is that a case should only be allocated for hearing by a High Court judge if it is exceptionally complex or there is another substantial ground for the case being heard at that level and that allocation to that level is proportionate. Such allocation is rarely likely to be proportionate unless the net assets exceed £7.5m. (emphases in the original).

Relevant considerations are then set out for determining whether the governing principle is satisfied. They are similar to those in the FRU Certificate of Financial Complexity but the language is peppered with words such ‘substantial ‘ and ‘serious’ by way of reinforcement of the governing principle. The basic thresholds are overall net assets exceeding £15m and/or overall net earned income exceeding £1m, but those figures are not necessarily determinative.

Bar Standards Board Consultations

The Association has submitted responses to 3 consultations in the last 3 weeks. They are all on the website.

Cab rank rule

This consultation considered whether the cab rank rule exemptions in rC30 of the Conduct Rules should continue to refer to the standard contractual terms, or whether the exemptions should extend to such reasonable terms as the individual barrister and/or solicitor may put forward. In essence we favoured retention of the status quo on the basis that sufficient flexibility is currently available, whereas the alternative options would carry the risk of undermining the cab rank rule due to the uncertainty in the market and barristers being placed under undue time pressure to accept alternative terms for fear of being in breach of the Conduct Rules.

Insurance requirements for SPEs

This consultation considered whether single person entities (individual incorporated barristers) should be required to purchase their primary layer of professional indemnity insurance from the BMIF. We agreed with the proposal that they should, as this would support the sustainability of the mutual model which provides insurance for all barristers who are deemed fit for practise by the BSB, regardless of background, experience or practice area.

Future bar training

This consultation sought views on a draft Professional Statement, developed with the intention of describing the knowledge, skills and attributes that all barristers should aim to have at the point of being issued with a full practising certificate. We expressed the view that the draft is focussed on the detailed behaviour and conduct contained in the Handbook at the expense of an adequate description of the most important and distinctive aspects of what a barrister does and which marks him/her out from other legally trained individuals, ie advocacy.

The Lord Chancellor’s speech and Modernisation

Many commentators on the speech of the Lord Chancellor delivered on 23 June at The Legatum Institute have focussed on his remarks regarding the need for more financially successful lawyers to undertake pro bono work. The Chairman of the Bar, Alistair MacDonald QC pointed out the existing commitment of the Bar, evidenced by the number of those who provide their services pro bono and the number of cases covered by the Bar Pro Bono Unit which is funded almost entirely by the profession. My view is that more barristers should give some of their time pro bono but that is not the solution to the problems brought about by LASPO for the most vulnerable and needy in the family justice system. They need advice and representation by specialist family advocates with experience of the complex issues in such cases and the skill to ask the right questions and in an appropriate way.

At the core of the Lord Chancellor’s speech was the description of what is being done to tackle inefficiency in the court system, to get rid of “snow drifts of paper, archaic IT systems and cumbersome processes.” His focus was on the criminal courts but not entirely so. Last year the President outlined his plan to decouple divorce from financial remedy proceedings and to render the divorce process simple and efficient. Most of the Divorce Centres are now up and running.

This year, at the annual dinner on 27 February and at Cumberland Lodge on 9 May the President outlined what the future holds in terms of on-line issue, e-filing, F-diary and even online hearings. The Lord Chancellor confirmed that the MoJ has committed to invest in the technology which will underpin the electronic reform programme which could “liberate tens of thousands of individuals from injustice and free hundreds of thousands of hours of professional time. Online solutions and telephone and video hearings can make justice easier to access and reduce the need for long – and often multiple – journeys to court.” Unsurprisingly the Lord Chancellor then moved on to indicate that the court estate would be reviewed; that probably means further court closures.

No one would disagree with the Lord Chancellor’s view that “it makes more sense to deliver a more efficient court estate than, for example, make further big changes to the legal aid system.” But the needs of vulnerable litigants and witnesses must not be overlooked in these changes. There are those who will always need interaction with a person, a person who can put them at their ease and ask the right questions, whereby appropriate and adequate advice and assistance can be provided. Telephonic communication has its limitations. Fewer court buildings may be needed in due course, but smaller places where vulnerable people can access advice need to be provided. Electronic modernisation in the Family Court is round the corner. For an understanding of how it will work I recommend the keynote lecture delivered by The President of the Queens’ Bench Division, Sir Brian Leveson at the Modernising Justice Through Technology conference delivered on 24 June 2015. All of us need to rethink the way in which we conduct our practice, as chambers and as individuals. Just as the MoJ will review its need for the existing ‘estate’ so will barristers need to rethink the extent to which they need to retain their existing premises.

Re TM and TJ (Children: Care Orders) [2015] EWFC B83 (29 June 2015)

Last week the DFJ at Bristol, HHJ Wildblood QC, was obliged to re timetable a case whereby its conclusion would not be within the 26 week limit. The judge pointed out that 27% of care cases in his court are exceeding the time limit by reason of poor case performance. In the particular case he criticised the making of an order by the magistrates for a psychological assessment which he considered contained little of value that could not have been found elsewhere within the evidence, if the evidence had been properly prepared. The case was referred to the DFJ due to the overall lack of preparedness by the local authority with evidence missing in several key respects. The judge was reluctant to criticise the local authority, recognising the pressures that they are under, but he stressed the need for a collaborative approach by all professionals involved in a case and said this (@ para 15):

i) If a case is going off track it is imperative that the issue is brought to the attention of the court as soon as this occurs. It may then be possible to retrieve the position. Once the problem has occurred, as it has here, it is too late.
ii) Cases do not involve just one professional. They involve a large array of people and it must be a collective responsibility on all to bring a case to the attention of the court once it is going off track in this way.
iii) Where one party to a multi party case fails it brings down the others and also affects the efficient running of the court.
iv) If a social worker is not performing as she should there are management and legal teams within a Local Authority that should pick up on what is happening.

This is reminiscent of the point made by McFarlane LJ in Re T (Children) [2015] EWCA Civ 606 (see the FLBMail of 22 June 2015) about the responsibilities of each and every party to raise the matter with the court if a case is going off track.

Susan Jacklin QC Chairman