We have to engage with the legal system as we find it, both better and worse
‘“To every subject of this land, however powerful, I would use Thomas Fuller’s words over three hundred years ago”, ‘Be ye never so high, the law is above you.’”
— Lord Denning in a High Court ruling against the Attorney-General, January 1977
When recently reading the American Declaration of Independence, what struck me was how the complaints started with the British interfering with the passing of laws and the functioning of the judiciary. Freedom is not the absence of rules that restrain us, but the presence of agreed boundaries, that align to natural law, and apply equally to all. A key challenge for the modern patriotic movement is to engage with the reality of the courts that we have, since we cannot declare independence from ourselves and move on to start again in another land! Daily life has its dramas and conflicts, and we have to find a means to resolve them using the tools we actually have.
Most of our courts are constitutionally sound, so we will put aside for a moment the contentious issue of administrative courts operating outside of the law. The majority are still implementing perfectly valid rules based on authentic wisdom, and issuing morally sound judgments that help to keep the peace — even if their technical quality can sometimes fall short due to being overburdened. I recently met with Sarah Foulds, who is a lay advocate who works in family law. Sarah helped me to see more clearly the good, bad, and indifferent in what exists. I hope this summary of our encounter shines some light on the kind of pragmatic reforms that are needed, without a risky wholesale rejection of the status quo.
Sarah has been working in the family court system directly for 7 years, and in various capacities for 27 years in the care sector, all to help protect children and vulnerable adults. As a lay advocate, Sarah occupies an interesting middle space, having a qualifying law degree, but not being a registered solicitor (or barrister), so lacks the automatic right of audience. That said, everyone has a right to reasonable assistance, which predates formation of the legal profession, and she fills that need based on modest donations from her clients. She has previously been nominated as a “McKenzie friend of the year”, which is slightly misleading in terms of branding, as a McKenzie friend is a court supporter who can be completely unqualified.
“I am a disabled woman, as I was beaten so much in my 30s. I have nose, elbow, rib, oesophagus, pubic bone, toe, finger, and head injuries. As I get older I decline where the weak points are. I was kicked a lot in the stomach, and damaged, which still affects me. My goal is to defend people in their own right, whether a judge or a milkman. Everyone has the right to be left alone in peace.”
To give you a sense of the “piranha pool” that Sarah works in, let’s start with a story of how she has been persecuted, one that illustrates the wider kind of practical problems we face. The legal system is not only the formal apparatus of legislative law, police, courts, lawyers, and judges. It is also a wider set of semi-formal institutions (like quasi-legal lay advocates) and informal ones (like review websites).
Her details and image were scraped by one website without her permission, which then lets people publish false reviews of lay advocates like herself. This system can easily be weaponised for nefarious ends — that affect her, her clients, and innocent children as a result. She has been suffering enormous distress from deliberate character assassination on this review website. It is a form of blackmail, as you have to register and pay in order to challenge reviews. In this case, absolutely nothing has happened, despite coughing up, and issuing multiple cease and desist notices to deal with the libel.
The website is run by someone who purports to be a solicitor, but is not, although they do work for a law firm. That itself is a crime, in contravention of the Legal Services Act. The site is also funded by GoDaddy, who have offices in the UK, which pitches different commercial and “official” interests against each other. The police have shown no interest in the law being broken, nor has the Solicitors’ Regulatory Authority. Yet it is not only Sarah who is being targeted. Judges are also being picked out and false accusations of racism (and other wrongs) are being made.
This prejudices justice, as these false reviews can be used as a pretext to eject advocates or discredit judges. Institutions like the Law Society and HM Tribunals and Courts Service are actively allowing the harvesting of the Master of the Rolls data, feeding into new failure modes of our judicial system that did not exist before. The legal system is a complex ecosystem, and every part needs checks and balances. In this case we are missing a right of reply. It may seem like a small detail, but it isn’t to those who are victimised, which can include senior and honest judges. It makes all the hard work of getting your qualifications and establishing a professional standing meaningless.
“I deal with high level toxic cases. I understand how, due to the order of court, all cases are ‘sub rosa’ and sealed so you cannot identify the child in public, either directly or ‘jigsaw’ piecemeal. That means I cannot talk about my cases, some of which are 5-6 years long.”
If we are to rebuild our society and protect children, then we need to understand how the nuts and bolts of the system actually work, and the causes of it seizing up, which lets the children down. More people are litigating in person in courts, and taxpayer costs are rising as a result. Every court case costs time and thousands of pounds, taking the economy’s resources. The system is overheating as it strains with high demand. People like Sarah help to lubricate the engine of justice, being appropriately insured, registered with a legal body, and with a law degree. This all assists the smooth flow of the judicial process, if allowed to do so.
Judges in family courts have a thankless task, and don’t deserve abuse or frustration. They deal with many people needing psychiatric help, as well as distressing victim stories, so it is a gruelling job as a result. His truth, her truth, the truth: it is a fine line the judge has to tread. Judges are not the problem, in general. Nor are the individual family lawyers, who are typically people of integrity. It is far more systemic in nature, because our courts in Britain are structured around an adversarial (as opposed to inquisitorial) model.
To get promoted to being a partner, a family lawyer needs cases that are lengthy, complex, and contested. The interest of the child at the heart of the case can be opposed to that of the legal representatives. No matter how honourable they are as individuals, the system pitches them against one another, and it is the child that loses out. For instance, before any hearing, there is meant to be a peaceful discussion between both sides, to shrink the contested space. The lawyers are not commercially incentivised to minimise the matter being fought over, so this part tends to be skimped or skipped. They can also object to having a peacemaker like Sarah involved, as this doesn’t help their revenue goals.
Family law is the result of many decades of practical experience, and embodies the harsh lessons of the past. Modernisation has moved focus from institutional care to community care, and the law has to reflect these changes in societal goals, which continue to evolve. The statutes and treaties are not to be lightly discarded or denigrated; the system is not fundamentally broken, but needs maintenance and upgrades.
For instance, in the UK we have had a progression of various legislation, such as the Children Act 1989, Human Rights Act 1998, Care Standards Act 2000, Care Act 2014/15 — as well as the UN Convention on the rights of the child, plus the “red book” practise directions for judges. These are fundamentally a solid foundation. There are seams where problems can occur, and it may be possible improve, like merging the Care Act and the Children Act to deal with handoffs.
That all said, we do have real problems to tackle. It is desirable to have more “open adoption”, where the child retains some sort of relationship with their birth parent(s). However, this lacks legal precedents, and is rarely granted, despite being in the interest of the child. Instead, parental responsibility is taken away completely, denying the child time with their family of origin. This is partly driven by the financial incentives of social care, as maintaining “legacy” contact is a cost that gets bartered away. With a “closed adoption” the parents(s) who lose their child are left grieving, but with no support, leading to more challenges. There is a lack of transparency to the financial side, so unhealthy incentives like this are obfuscated.
Parental alienation is a widespread problem, but the system is not configured to deal with it. It cannot be seen or measured easily, so it is the “elephant in the room” of childrens’ proceedings. Professionals have a duty to probe behind the tainted views of a child, and there is a legal principle of “no stone unturned” to protect this policy. Instead, courts take the word of the government agency Cafcass (Children and Family Court Advisory and Support Service) at face value, as well as social workers, so don’t probe what is behind them. None of the participants in the legal process are trained in parental alienation. The relevant expertise is child psychology, not clinical psychology, and there are only a handful of practitioners in the country, who are costly to employ.
In principle both parents are equal, but there are feminist groups on social media who promote hateful attitudes towards men, and instruct women on how to get solo access to their children — while crucifying the father of their offspring in the process. Men are by default considered domestic abuse perpetrators, but there are few courses that deal with male victims, whereas there are lots to help women. Men are tarnished with these horrific perpetrating names like “the alienator”, which would never be done in reverse. Battered women have aid programmes, whereas abused men may have nothing.
Those men are often in dire circumstances, sofa surfing, living in the backs of cars, and having to join a gym for a shower. Sometimes they have to walk out of their house, leave everything behind, with nowhere to go, at minute’s notice. They are falsely accused of rape, when it cannot be properly proven. In a criminal court the allegation would be thrown out for no evidence, but in a civil court the mud sticks, because of the caution to protect children. Legal Aid thrives on such false allegations, and the shrinking of financial help has had predictable unintended consequences: limiting legal aid to domestic violence encourages more false allegations.
Protecting children (and their parents) involves more than just resolving cases quickly. There is a welfare aspect to the work that is seen as lower in status and importance compared to the legal side. The lay advocacy project that Sarah works for has a 24 hour helpline, but there is no funding for it. Bringing peace to fraught family situations has a strong spiritual component too, but this is not something you can easily charge for. It is a bit like how we raise our own children, yet don’t give them an invoice when they turn 18 or 21!
A priority is keeping families together, but that said, some of the worst situations for children occur in homes that don’t break up, where hideous crimes are perpetrated against the children, but are never found out. The official system only tends to come into contact with children in situations where there is a broken home scenario. To get the help needed, it can paradoxically encourage bad behaviour, moving the former situation towards the latter. One parent may have smoked weed for ten years in the evening, and it was never a problem, but now it is used against them because the system rewards adversarial contests.
A lot of the system notionally revolves around the child, but in reality social workers are effectively maintaining the value of their “junior citizen” to society. They naturally respond to the incentives of the tax and benefit system — although it may be impolite to say so. As a result, parents think the social worker is on their side, and is their friend, but they are not. Consequently, the rights of the parents are often lost in this process, for instance when a domestic abuse allegation is made, as there is nobody to support them.
Covid has brought a surge of applications and cases, as people were locked up together, creating discord that has escalated since. Covid has also accentuated poor behaviour from professionals, who often do not stick to the rules and procedures laid down. The high demand means very vulnerable litigants in person enter the system in growing numbers, unaware of how whoever controls the bundle of documents controls the flow of evidence. Everything from each party should be there, but isn’t.
There are layers to justice that a litigant in person will know nothing about. It is not sinister, just the way the system works; there are conversations they will not be privy to. Courts are bursting at the door, and we have serious challenges in how to protect and scale the right to justice. Lay advocates like Sarah have a role to play, but have a status of the “lowest of the low” in the system, so are forced to study and work harder than the “professionals” to gain the same recognition.
In the family law system we have today, the interests of tickbox process adherance are often more paramount than those of the child. Ultimately, everyone in the system is venerating either God’s children or Mammon’s billable hour, and our job is to tilt it more towards the former. Without the right spiritual foundations, there is no tinkering with legislation or court procedures that will make everything better. People like Sarah do non-profit or voluntary work to repair families, like you might take your car into a service after a prang. Yet it is poorly rewarded compared to a full-scale “crash” paid for by an insurance company.
Maybe we need to prioritise things differently as a society?
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