Feckless Judges

By Oliver Kaye

Have you ever been so incensed by injustice and prejudice that you just had to do something about it? I wish I had been warned of the futility of fighting to see my son in the English Family courts and the incredible emotional and financial toll I would face.
This book explains what happened to me and how I found the system worked in reality. I never realised how the fecklessness of so many of the professionals involved rendered the system so biased. I have included some passages from my diary as background. As well as criticism I offer ideas to improve the system. For those fathers facing a similarly determined obstructive mother I hope this account will be helpful.

• Language: English
• Publisher: AuthorHouse UK
• Release date: Feb 21, 2012
• ISBN: 9781467884730

Book preview

Contents

Chapter One

Chapter Two

Chapter Three

Chapter Four

Chapter Five

Chapter Six

Chapter Seven

Chapter Eight

Chapter Nine

Chapter One

The Legal System

This book has been written after a very sad painful experience that has led me to believe that the British legal system does not exist per se. Even though there have been considerable reforms over the last thirty years, only England and Wales share common law and procedures. Scotland and Northern Ireland have different systems. The Family Law Division covers divorce and separation and matters concerning children and parenting. In general terms, the bulk of the court’s work is divided between civil and criminal work. There are several other courts in the system such as the Ecclesiastical Court. I became embroiled with both the civil and criminal court system.

In the Magistrates court all civil cases are heard and tried by an officer of the justice system, a lay magistrate, district, circuit or high court judge. There are no juries except in the Criminal Crown Court and the Criminal High Court. The Magistrate’s Court hears minor criminal cases such as my alleged common assault. If, in the system, you are unhappy with a judgement you have to get a more senior judge to hear an appeal. Generally this means going to a higher court, all the way up to the Supreme Court of England and Wales.

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Confusingly following the reorganisation of the system that took place not long ago, some Magistrate’s Courts now have Family Proceedings Courts sitting alongside the normal business of the court. These deal with Public Law cases.

A district judge, then a circuit judge and finally a high court judge hear the bottom tier in the county courts, Family Division. In the High Court there are various circuits. High court judges are based at the Royal Courts of Justice in the Strand in London. They travel to regional jurisdictions to hear cases at the local County Courts. The court that hears your case originally is chosen on the basis that it is the nearest to where your children normally reside. In my case that was in the Thames Valley, so we started at the Newbury Court. When the case was elevated to the High Court, the hearings were arranged where the judge had the first available time slot. That could be at any County Court on his circuit or bench. I had hearings at Newbury and Reading.

Getting Involved with the Court

How do you get involved with the courts? In order to get divorced you have to get a court order from a judge to dissolve the marriage. First, you get a Decree Nisi, when everything is agreed in principle. Then the administrative cogs whirr for several months before you are granted a Decree Absolute. This is the formal dissolution of the marriage. You can apply to represent yourself in court as a Litigant In Person (LIP), or pay a solicitor to represent you. In contested situations where the two sides are at war you will probably require a barrister, sometimes referred to as ‘counsel’, to represent you in the court. You need a solicitor to engage a barrister. In 2001 I was told if I could get an amicable agreement with my wife I could expect the cost of my proceedings to be about £5,000. If I wanted to argue and contest things in court, I was told, it could easily escalate to £20,000 or more. It turned out to cost me more than £200,000. Divorce where children are involved is split into two areas: Child Matters and Ancillary Relief. The latter is basically the financial agreement and boils down to maintenance for one party or a clean break financially and the division of any possessions. Both the financial arrangements and the division of possessions can be very stressful and emotional negotiations. If you cannot agree the judge will impose his judgement. Child maintenance is by negotiation, but is underpinned by legal minimum levels dependant on the number of children involved and the income level of the non-resident parent that contributes. If there are problems over payment then this comes under the management of the Child Support Agency, who have draconian powers to force payments.

Choosing a Solicitor

How do you choose a solicitor? A starting point is to make sure they are either a member of the Solicitors Family Law Association or Association of Lawyers for Children. I know of no reliable way to gauge how good a solicitor is. Personal recommendation is fine if you know a lot about the case involved. Cases like mine involving extreme alienation are thankfully not that common. Most divorces are negotiated relatively amicably, or the disputes are narrowed down, usually to one area. Where, in effect, one partner declares all out war on the other and uses the child or children involved to hurt or humiliate the other, the chances of selecting a brilliant solicitor and barrister are very slim. If you use a large firm, junior staff, overseen by a more experienced solicitor, tend to do most of the work. If you use a small firm you run the risk of dealing with a lack of available experience or skill. My first solicitor and barrister were simply not experienced enough. Making a choice by fee rating is not a sound way to choose a solicitor. I am sceptical of firms that have expensive, swanky offices; their advice will probably be no better than more down to earth firms. My first firm was a small town practise. My second firm were based over 80 miles from my home. My first solicitor used a barrister from chambers in Portsmouth, the second firm used a London chambers. Barristers travel to wherever the hearing is.

The truth is that until you have been in the system a while it is extremely difficult to gauge whether the advice you receive is good, poor or even correct! With my first barrister I found I just could not agree with his strategy or some of his advice. But I assumed that he knew what he was talking about, especially as I was paying a lot for his expertise. My gut feelings turned out to be correct. Later I paid more attention to my gut feelings.

Some of the things I was told by my first solicitor were simply untrue. I was told that I had to use a barrister from certain chambers. In fact you can use any barrister you choose. What is true is that you have to instruct a barrister through a solicitor. It was explained that this has something to do with insurance. It is too expensive for a barrister to insure himself to act directly for you. I was told that whomsoever lost a case was liable to pay all or a proportion of the costs as decided by the judge. As the years went by, no matter how bad my wife’s behaviour got in delaying and frustrating proceedings, I had to continually pay my costs to bring her back to court. I had over 50 hearings, yet I was awarded the costs (reimbursement) from only two small hearings. Recently a Queen’s Counsel (QC) advised me that in private law each side pays their own costs; usually only costs of lost appeals are awarded against you.

Child Matters

Child Matters is the agreement or the apportionment of time spent by the children with each parent and determines who has primary care of them. My parents divorced reasonably civilly. My mother was granted everything unchallenged on the understanding that my father could see us up to half the time in the holidays. Apart from a few niggles, that trust between them and with their children’s best interests at heart, was enough for it to work. When one partner tries to exclude the other, as in my case, over time the legal process gets ever more detailed and complicated. The two main areas of conflict that arise are over residency and contact. In my case these both became subject to court orders. Whether the allegations brought to destroy the other parent’s right to see the children are based on fact or are spurious, the judge will ask for outside agencies to provide background reports to aid in making the right orders.

CAFCASS

The commonest agency in private law is Cafcass: the children and family court advisory and support service. They used to be part of the probationary service, but are now accountable to the Secretary of State for Education. Their role is to safeguard and promote the welfare of the children, give advice to the family court, make provision for the children to be represented, and to provide information, advice and support to children and their families.

To my mind a Cafcass officer is a social worker by another name. They produce reports on a child’s family background, living arrangements, schooling and relationships with both parents. If the case becomes protracted the judge may elevate the officer to the position of Court Guardian for the child. In this role the Cafcass officer now appointed Court Guardian allows the child to have separate legal representation. The Guardian also has more powers to get information and cooperation from other agencies, such as Social Services. In theory the Cafcass officer, and especially in the role of Guardian, is the most influential person for the judge. It is his or her job to advise the judge. The advisors at Families Need Fathers recommend very strongly that you do not cross swords with the Cafcass officer.

Barristers

The law is extremely complicated and there are nasty traps for the unwary. I found, from experience with many barristers that it was almost impossible to find one that was a good all-rounder. For example he or she might be a very good strategist but hopeless at talking in front of the judge. Or they might be good on the primary case but poor at fighting for costs. The annoying thing is that you do not know how good your barrister is until he/she performs in front of the judge. You can actually use a solicitor to represent you in court, in many cases. Unless you negotiate differently with the solicitor they work on an hourly billing system. They have to declare their fees for all the different aspects of their work before you engage them. The barrister operates on a per hearing basis. They quote for representing you for the day in court, whether they go before the judge for a whole day or just 15 minutes. Their quotes include the cost of travel, accommodation, if necessary and preparation time. In my experience they worked out cheaper than the solicitor at court. You can spend hours sitting waiting at the court. The judge will usually have several other cases to attend to on the same day, unless it is booked out as a final hearing and there are no emergency applications to hear. The judge sits from 10 am, has an hour for lunch and usually goes between 4 and 5pm. You may hang around for three hours and then go before the judge for as little as 15 minutes. Most courts have small consulting rooms for private discussion with your legal team. But if there are several cases before the judge you may have to discuss your case in the corridor or general waiting area, sometimes in full view and hearing of the opposition. I always turned up early to make sure I got a consulting room. I think it is an unnecessary expense to have both a solicitor and barrister at court. Usually I refused to allow my solicitor to attend, except for a final hearing.

Hearings

There are different types of hearings. After the initial hearing the judge may order a review hearing to see how things are progressing. There may be a Directions hearing when an issue is to be aired, possibly being resolved with an order. These will eventually lead to a trial or final hearing. There may be a pre-trial review beforehand to iron out any procedural problems, so being unprepared does not waste the trial time. You do not have to attend these, unless you are LIP. You attend all other hearings, but you are unlikely to be called upon to speak. In general you do not speak in court, your barrister does. Sometimes you are required to produce a position statement. This is outlining, sometimes detailed, what you want or how you want things to proceed. It should be short, no more than a few pages. The judge will read these before the hearing so that he has an idea of what is to be considered on the day. Before substantive hearings such as the final hearing you will be asked to produce a written statement or affidavit, along with the same for any witnesses you intend to use. These are signed under oath. They have to be lodged with the court within set procedural deadlines; so the other parties have time to read and study them. A frequent dirty trick my wife’s legal team employed was to hand these over late, sometimes at the hearing itself. This left little time to respond effectively. If you are LIP there are web sites you can pay to access for all the procedural details.

At a trial or final hearing you will be asked to take the stand and swear an oath. Your barrister or counsel will ask you questions, then the other counsels will question you. Sometimes the judge may ask questions too. The same applies to the experts in the case, if called to report, and any witnesses to be heard. You may be cross-examined again if the judge feels the situation warrants it and if there is time. Generally speaking you will be questioned on the details in your statement. For their part, the opposition will attempt to find discrepancies or cast doubt on what you say.

When you are in court, and in legal documents, you will be referred to as the applicant or (co) respondent. Although my wife started the divorce proceedings, they were in go-slow mode to delay a hearing to discuss contact. So in an effort to kick-start the proceedings, I sued for divorce. As I had brought the action I was called the applicant. My wife was the respondent, and my son later joined as co or joint respondent. The applicant’s legal team has the management of the case before the court. They handle all the filing of statements, documents and the hearing bundle before the judge. They are responsible for organising the case outline chronology, and the bundle, which is the file or files available with copies to everyone in court so that the judge can refer to a document and everyone can find it at the same place in the bundle of documents. My last final hearing bundle consisted of two arch files containing over 800 pages. This places extra costs on the applicant. There has to be a level of consensus on what goes into the bundle, so more letters fly around. When my ex-wife and myself were both LIP, the judge ordered my son’s solicitor to take control of the case as the only professional remaining. As a minor my son was legally aided.

Charges and Legal Aid

My wife was on a publicly funded certificate, i.e. legal aid. Legally aided cases seem to be the preserve of the big firms now. Fewer firms offer to act for legally aided clients, as there is so little profit for them. As a result very junior staff do most of the work. There are irritating little tricks they use to boost profitability. Letters are charged at a fixed rate. So whilst my solicitor may ask several questions or raise different issues in one letter, the legal aid firm will only address one issue or question per letter; so requiring several letters. All of these required my solicitor to answer, increasing my costs too. If you have fixed assets such as a house, the legal aid board will put a charge on the property. In the event that the house is sold the legal aid board will have first call on any money owed, even before a bank. The legal aid is in effect deferred; in the meantime you pay interest on the money owed. If you have no assets, then legal aid is, in effect, free. In my experience legal aid is open to abuse. There are rules governing who is eligible to claim. In a separate case involving a neighbour and a right of way dispute I complained that he should not be eligible for legal aid. I provided a detailed submission as to why. The legal aid board’s response was that the amount involved did not warrant investigation. Even though it amounted to tens of thousands of pounds. As my solicitor put it, if you falsify your application, nobody checks up. My wife inexplicably got legal aid till she lost her appeal: when the legal aid board said it was no longer in the public interest to support her case.

The Expert Witness

If you are unlucky enough to have to progress through the system, there will probably come a point when you will encounter an expert witness, or indeed have to call on one. It seems to me that once a professional has advised the court in any way, when giving evidence on future occasions, they can then attach the moniker expert. But this is not a declaration of knowledge or experience as such. When perusing the C.V.s of these professionals you will probably encounter descriptions like experienced in Public Law cases. Within Family Law there are Public and Private Law cases. Public law cases are where the State is involved, usually through Social Services. These are often cases that involve emergency protection, care and supervision, secure accommodation etc. Private law cases like mine are conducted between individuals and are about residence (custody), contact and parental responsibility.

When I went before senior judges I was surprised to find that they required expert’s advice. I expected their level of experience to lessen the need for such experts. I also assumed a degree of training in child psychology or at least a thorough understanding gained over the years. What I found was that there seems to be an unnecessary level of extra cost imposed on the system, bringing in these so called experts, rather than a reliance on a judge’s own experience or expertise in Child Matters. Maybe senior judges should be better trained?

The English and Welsh do not have a Bill of Rights or a written constitution. Our laws have evolved out of and with common law—new ones being crafted in Parliament. In our adversarial system laws are interpreted, adapted or amended through the very slow process of appeals up to the highest level, where if successful, they become precedent.

In the modern era, as society changes at an ever-increasing pace, the law and its interpretation lag far behind. The nation is now a signatory to the European Convention