FAMILY LAW: CLARITY FIRST

What about cleaning the dirty window first

Paul M of the Transparency Project (http://www.transparencyproject.org.uk/the-emperors-nude-clothes-or-delusions-of-candour/) takes issue with John Bolch’s dismissal of the efforts of family proceedings transparency supporters (http://www.marilynstowe.co.uk/2015/06/08/the-transparency-delusion-by-john-bolch/#.VXW5YFoCRew.twitter ). This note looks at the logically prior point: if you can’t see what your being shown if the dirty window is cleaned, it might as well stay dirty. If those who want to see a transparent family court’s system are still confronted by a maze of confusing laws and inconsistent procedures the laudable efforts of the transparency reformers are of only limited value.

In https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/ I likened the legal profession – and the judges who write the judgments are very much part of this – to priests in the pre-Lutheran medieval catholic church. Only they – or those of them who could read Latin – had access to the bible. That was the text which was said to define the church as it then was. The equivalent for court proceedings and modern justice is the various documents and texts which make up the law. If these are not capable of being understood by all who take part in a system of justice then it is not just.

Laws: clear and ‘simply expressed’

Courts Act 2003 says that the drafting of family court procedural rules (Family Procedure Rules 2010) s 75(5) says that the rules should be drafted in such a way that ‘the family justice system is accessible, fair and efficient’, and that the rules themselves should be ‘both simple and simply expressed’. Rules are a good place to start. They define the way cases proceed from issue to trial and beyond: costs appeals and enforcement. If they are difficult to understand it is a bad starting point for litigants.

Many rules are not easy to understand (try following the family proceedings costs rules from an uninformed start). Many rules do not follow the common law (ie they are unlawful: court constraints on disclosure of documents in financial proceedings; the ‘transparency’ rules themselves and some of those same costs rules). Often the rules are not followed by the judges themselves (eg case management rules).

Transparency, by all means – if the privacy of children and family members are properly respected (all concerned in family proceedings have the right to have their family life respected: European Convention 1950 Art 8(1)). But before we spend too much time looking in, let’s make sure we can read and understand what we find behind the grubby windows of the family courts.

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One thought on “FAMILY LAW: CLARITY FIRST

  1. Reblogged this on | truthaholics and commented:
    ‘I likened the legal profession – and the judges who write the judgments are very much part of this – to priests in the pre-Lutheran medieval catholic church. Only they – or those of them who could read Latin – had access to the bible.’
    Agree wholeheartedly. Part of a false narrative trajectory still used to rewrite history in judgments based on false factual bases instead of actually engaging and securing the affected rights in question. When lawyers are in on it too, where is the Right to effective legal representation (held by ECtHR as integral to a fair trial in the interplay of Arts 8 and 6) and how can there have been a fair trial? Absent this, access to court isn’t even access to Justice. The never-ending and complex procedural maze is deliberately perpetuated in order to maintain a fog and smokescreen in order to evade accountability. Far too many instances are rife of ruling out innocent parents by wrongfully blaming them by manufacturing risks of future emotional harm for unnecessary and forcible child removal to sever birth ties. When parents lawyers, instead of scrupulously fighting their own clients corner, have blatantly batted for and cheer led the local authority’s over-precipitate interventionism and consequently been praised, even promoted for this, reeks of conflict of interest and undue influence. Worse still, Guardians have stifled the voice of the child crying out to remain with the only parents she has ever known and replaced it with their own – all at taxpayers expense, and in their name, at a time of raging austerity and swingeing cuts in public services. Clause 39 of the Magna Carta says as much since time immemorial. Root and branch reform of family law is long overdue and starts by weeding out the systemic corruption first, which is seeping through its every pore.
    “I hate victims who respect their executioners.” – Jean-Paul Sartre.
    “People cannot endure inexplicable worthlessness” – John D. MacDonald
    “Adoption Loss is the only trauma in the world where the victims are expected by the whole of society to be grateful” – The Reverend Keith C. Griffith, MBE

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