Not even a mouse

Something strange has happened in our house. It’s 9.30am on Boxing Day and nothing is stirring, not even a mouse. Well, actually the dog is mooching around going scratchity scratch on the kitchen tiles, and I have been stood thoughtfully with my hands in hypnotically hot, soapy water at the kitchen sink… but otherwise nothing is stirring.

The kids are now not only taller than me but keep later bedtimes than me, and rouse only once the sun is over the yardarm. Even for Father Christmas. It was the same yesterday (although it was slightly more fast paced as the meal was more complicated yesterday – it was a triumph, if I do say so myself). We had an actual lie in, stuck the turkey in the oven and self-caffeinated, all before they emerged in search of presents. Peculiar and slightly sad not to be woken at six with the tinkling of the giant stockings that mammaw made them as they drag them upstairs.

Anyway, I don’t usually spend Boxing day blogging. That’s a bit weird. I’m just dropping by briefly during this moment of calm to say a couple of things:

Firstly, I have news. Some of you will have seen it, others not. I’m going to be appointed King’s Counsel. I’m not going to bang on about it, but it seems appropriate to mark it on this blog since it’s been with me for nearly fifteen of my 20 odd years at the bar and has tracked my journey through the incredulous accidental labelling of me as a silk a decade too early in 2013 (mistaken identity), till the day it became reality (23 December 2022). I don’t really believe it this time either, but I am in the twinkly hinterland between real life 2022 and real life 2023, so everything is a bit peculiar.

Before the teens emerge and begin rampaging for good, and before I go back to peeling spuds there are two groups of people I want to acknowledge:

The non-lawyer readers of the blog. I see you shrugging with bemusement. I will at some point write something explaining what King’s Counsel is and how it all works. Maybe when I understand if fully myself. Most of my family had to look generally impressed and then secretly google it on wikipedia. Responses involved references to Kavanagh QC and Beefeaters…

The second group of people is the people who applied and didn’t get it. It sucks bigly.? It’s a cruel process and it eats you up and spits you out. I know you probably feel miserable. I know, because I’ve been there. I’m sorry.

(I’ve got lots of thank yous to say, but this is not an oscars speech and I’ll be saying those in private)

And with that, I hear footsteps on the stairs…Happy Christmas all x

Ready for a reset…

As is customary each December, I’ve had enough of the current year, and am ready to begin a fresh one in the hope that a new number will mean a new beginning. It won’t of course, but a change is as good as a rest, or something…

Right now I’ve got the particular ‘ump with the expectations placed upon advocates to draft, agree and lodge complicated draft orders within unrealistic timescales. Some things never change, they only get more normalised. I have started to push back and explain fully and frankly just WHY I can’t get an order drafted by tomorrow at 4pm. Because I have other cases. Because I have family. Because I have meetings. And now travel again. And sometimes I need to switch off my computer, my brain. Sometimes I even need to sleep. In these short and gloomy December days wellbeing seems like a distant dream. Last week I had to debrief a client in a car park in the icy wind and the dark at 6.30pm because the judge sat late to finish the case. It was meant as a kindness on the parties of course, but it meant I got home tired, hungry and in no fit state to deal with yesterday’s left over drafting. Advocates (and I’m sure the judges too) have commitments precariously stacked one atop the other, rather like my kitchen draining board. And just like my draining board, every addition, adjustment or removal of an item risks shattered crockery on the floor. My husband will tell you that just carefully piling one thing on top of another and then having to rummage amongst the undergrowth to find your favourite cup or the tin opener is no way to stack a draining board. But there is no time to wipe everything up and stack it neatly to make room for more. And certainly no time to put everything away in order to reveal the surface below. No, the draining board is never clear in our house (unless my husband does it). Maybe I can balance just one more plate on top of the mound…maybe not. I feel like my life is like a badly stacked draining board…or a tall pisa-like stack of folded (but not ironed, obvs) washing, beside empty drawers.

Yes, I’m at that stage of the year when my dishwasher salt is about to run out. The warning light is on, my glasses have lost their sparkle, and have nasty grit in the bottom. And everything is slightly grubby…

You’ll have noticed I’m at that time of year when my analogies become even more ridiculously strained than normal. And my blog posts more unstructured than is entirely wise. This weekend has been the first for approximately two eternities since I’ve had a decent amount of kip and some down time. It has been lovely. I had a lie in this morning, plus (in an extra bonus) the central heating has been fixed so I woke up to a warm bedroom and bathroom. I have been lounging on the sofa surrounded by twinkling lights and draped in blankets, dogs and children. I’ve done absolutely no Christmas organising, on account of having entirely run out of f*cks to give (maybe Santa will bring me some if I’m a good girl). I thought I’d write a blog post, like in the good old days when I had time for such things, but I don’t really have a plan (Can you tell?)

I have two more court days to go before the Christmas break. I’m trying to muster some enthusiasm for Christmas and the new year…It will be a disappointingly short 10 days this year, and in our household it will definitely not be a normal Christmas. But at least it’s a break of sorts. I am keeping expectations low.

I’m sure there will be more exciting stuff happening in 2023, but I haven’t really thought about next year except as this beyond-the-immediate-survival-horizon thing that is just an ill defined blob of next-yeariness. I see with alarm as I flick through it that my diary has THINGS in it right up until June. I suppose the usual January joys will be with us –? January tax bill to pay, new CPD plan to draw up, still cold and dark, annual realisation by about 4 Jan that actually this year won’t be any better than the last…but perhaps its best to keep 2023 blurred and out of focus until it arrives and smacks us around the chops like a cold wet fish.

The only specific 2023 news item I can think of to offer you is this one:

The Family Court Reporting Pilot will finally go live at the end of January. The pilot will only be in Cardiff, Leeds and Carlisle, and it isn’t perfect – but it is happening. And it is an opportunity to really push forward transparency in the Family Court. If we can get enough journalists AND legal bloggers to attend, observe and report. And IF the local judges and professionals keep cool. I will do my best to play my part, but I’m going to be honest, I’m too tired to muster much enthusiasm right now. I hope 2023 (or my increased dose of HRT) will bring renewed energy and time. But on any basis the legal blogging community really does need new recruits. If legal blogging remains the province of me and the same handful of others it will be both minimal and samey. Never fear, I will be at the FLBA conference in January 2023 talking with ENTHUSIASM AND VIGOUR about transparency, I just need to recharge my batteries first…

Righto. If I could be bothered I’d find a neat way to weave in a final reference to my draining board / dishwasher analogy now, but I can’t (be bothered). I’ve mainly been tapping away with my best serious face on, whilst pretending to watch Polar Express, so that I can avoid unloading the dishwasher for a bit longer…I mean really, what’s the point? Someone’ll only make it all dirty again, right?

 

Sauce for the goose?

A quick little post to ponder this: I’ve seen a number of recent posts from lawyers which give anonymised case studies of family court cases concerning children, which (on the face of it) seem to go further than is permitted under Family Court privacy laws (by which I really mean s12 Administration of Justice Act 1960, taken in conjunction with the FPR). I’m not linking to those posts, partly because I don’t want to start a pile on to individuals, partly because I don’t want to accidentally compound any breach of privacy rules or confidentiality, and partly because I want to flag a more general issue and don’t really need to link.

Suffice to say that the posts / articles I’ve seen have been both in the mainstream media and by means of tweet thread. The ones I’ve seen recently have been from solicitors but I’ve seen similar from barristers in the past on occasion.

Although I have no objection to the publication of anonymised case studies as a legitimate vehicle for furthering public debate, I have a number of beefs with this:

Firstly, I am anxious that some of these ‘anonymised’ case studies look as if they would almost certainly be identifiable to the people involved in them, even if they are not identifiable to the public at large. So, one recent tweet thread about a children application which gave specific details of the ethnic origin of the family (along with a detailed procedural chronology) would almost certainly have been one that the parties (and probably the judge) would have recognised had they seen it. It seems highly likely that the author of the tweet thread was one of the lawyers in the case (how else did they know all this?). Did they have their client’s consent to publish this information, woven in, as it was, with their own perspective on the case? Perhaps they did, and I am being unfair. Even if they did, I doubt that they had the opposing parties’ or the judge’s consent. Again, perhaps they did and my hypothesis is built on quicksand. Or perhaps it had never even crossed their mind because the post was entirely harmless (it was pretty unobjectionable in terms of wider identification of the family, albeit probably a partisan account). I wonder what would happen if the other party recognised their case and took exception? Yikes.

Perhaps, perhaps, perhaps (as Cake once sang).

Secondly, I am annoyed that it seems to be ok for lawyers to do this – that is, to blithely adopt the ‘Hey ho, no harm done’ approach to anonymisation of case studies, when – if a similar approach were adopted by a legal blogger or journalist without a specific application for permission to report – all hell would break loose and the cry of ‘contempt of court’ would go up (Perhaps). Maybe someone will tell me it would be totally fine for a journalist to publish this as long as it was not identifiable (the mainstream newspaper who published one solicitor’s recent ‘anonymised’ case study evidently thought so – or perhaps they were testing the water, pushing the envelope, sticking two fat fingers up etc etc). But perhaps there are just double standards at play here….

Not even just double standards. A journalist / publisher does have to adhere to s12 AJA 1960 which prohibits publication of ‘information relating to’ children act proceedings heard in private (even if a lawyer is confident nobody will mind and they re therefore effectively exempt), but reporters don’t have the added layer of a specific duty of confidentiality or other ‘best interests’ duties to a client who is a party to those proceedings. Here, neither of these issues appear to have acted as a chill on the ability of these lawyers to publish details in support of whatever point they were trying to make about flaws in the law or judicial process…

And a third thing (my grumbles always come in threes, like all good buses): one might argue (if feeling a little grumpy and churlish of a Sunday night), that if a lawyer wants to complain about the probity or wisdom of a particular decision in a case they are involved in, then they should either appeal it OR at least ask for the judgment to be published so that those who are genuinely interested in assessing that complaint can form an informed view about whether or not those complaints are fair and balanced, when seen alongside the full reasoned judgment. It’s easy to publish a tweet thread some pattern of injustice and giving an example of an unnamed judge in an unnamed court who made an outrageous decision, and to highlight a few select facts that seem to support the general proposition – but it takes far more calzones* to actually evidence that properly. It’s one thing for a litigant (in person) to grumble online about the injustice of their case, but shouldn’t we expect more from the lawyers involved? There are different views about the extent to which it is proper or permissible to talk about cases we have been involved in, but I don’t think that those issues can be massaged away by sleight of hand of simply not making clear if the case is one you’ve acted in.

Don’t get me wrong, I’m not saying I’ve never written a tweet or a blog post referring to things that have happened in my cases. Of course I have, though I tend to refer to trends or phenomenon that I have observed rather than giving an account of individual cases. But in any event, I never put stuff out there in terms that would enable anyone to identify one of my cases (except where permissible because of a published judgment). And never, I hope, in breach of s12. Perhaps I am too careful.

Anyway, the point I came here to make (though I seem to have been distracted en route) – was that EVEN IF the stuff I am seeing is in fact entirely permissible (which I don’t think it is if you read the judgments telling us what s12 MEANS in practice), the real life effect of s12 is that it stops legal bloggers and (most) responsible journalists from publishing accounts of things they’ve observed or been told about ‘just in case’, given the potential penalties, whilst (some) lawyers seem to feel that the same rules don’t apply to them (And, as we all know quite a lot of parents just stick two fingers up to the stupid rules and publish whatever they like). Perhaps these lawyers are more confident that they are on the right side of the line than I would be – but I would never ever publish accounts with a level of detail that would enable my client or anyone else in the case to identify themselves or the case – certainly not without my client’s consent, and even then very probably I would feel unable to publish for fear of accidentally doing a contempt whoopsie. But the upshot is that it’s the media are the only cohort who are actually constrained by s12, and strangely are the subject of the most criticism for irresponsible or tendentious or ‘inappropriate’ reporting.

Frankly, I find it all a bit puzzling.

Sorry for the massive subtweet-by-blogpost. I don’t want to be unfair on anyone, and I also don’t want to start a big barny. I don’t want to stop people writing about their cases as long as they are mindful of their duties towards their clients and the need to protect confidentiality and anonymity – I suppose I just want to publicly scratch my head and ask the question:? why is this ok when we get so agitated about reporters publishing, frankly, almost anything at all? I suppose the answer is probably because we think lawyers are the ‘good guys’ and we don’t really trust reporters… But (again without wishing to be disparaging), tweet threads or comment pieces arguing for a particular position whilst revealing only very select nuggets of information about what will inevitably have been a detailed piece of legal reasoning would not satisfy even the most basic standards of journalistic balance. To frame it differently for lawyers: submissions that skate over or are disconnected from the actual evidence in the case are the least persuasive submissions of all. At least to anyone paying proper attention.

*yes, calzones