The Abolition of Legal Aid in Family Cases in the UK

I read with dismay about the abolition of Legal Aid for most matrimonial cases in the UK.

After my admission as a solicitor in late 1995, and until my departure for Israel in summer 1978, I represented litigants in scores of cases, civil and criminal, under the legal aid scheme. I was among the founder members of the Tottenham Magistrates Court Duty Solicitor scheme, under which solicitors saw defendants who were appearing for first remand hearings, under the Green Form (which allowed us to take instruction as to the means of the defendant and do up to 25 pounds worth of work if satisfied that legal aid was justified, without referring to the law society for approval).

But much of the work was matrimonial. (If my memory of the history serves, legal aid was founded to assist in divorce proceeding for soldiers returning after service abroad in World War II, and only later expanded to cover other areas and replace the dock brief in criminal cases).

Israel has a legal aid scheme, means tested of course, and throughout my career as a lawyer I represented clients under this scheme in hundreds of cases, at all levels, including the Supreme Court. But what I have to say here also reflects my work as a judge of the Family Court, dealing with those comparatively few cases where one or both of the parties were unrepresented.

Legal Aid, if properly administered, has two great advantages in matrimonial proceedings, above and beyond representation in and of itself:

The first is that it enables young lawyers, at the start of their careers, to get valuable experience in interviewing clients and preparing pleadings, and appearing in preliminary applications, and even trials at the County Court and Domestic Proceedings Court and Magistrates Court. For myself, I can say that I learned many lessons in advocacy as a young lawyer, which I would not have learned were it not for the opportunities afforded by legal aid.

But more importantly, it saves court time, at two levels: that of the court secretariat, and that of the judicial officer.

The secretariat is relieved of the need to inspect each document filed for compliance with procedural rules and basic comprehensibility, and to explain basic principles to litigants in person.

Cases involving non-represented litigants are a colossal drain on judge time. The judicial officer is faced with claims which, if  a solicitor had been consulted, would not have been have been filed, as being contrary to the established principles of law, and defences which are clearly untenable.

But even if the case is viable, a judicial officer will have to spend much time and energy explaining each procedural stage and each evidentiary issue (some of them somewhat hard to understand even to an experienced lawyer) to the litigants, and worse than that, to assist in the presentation of the case without knowing all the facts which might have assisted one of the parties if  they had been pleaded, or about potential witnesses. In this regard, the almost impossible task of remaining impartial is exacerbated where one of the parties is represented: the unrepresented party needs even more assistance, particularly if the lawyer is less than scrupulous.

The inevitable result of removal of legal aid is a substantial increase in the workload at the administrative and the judicial level, which results in increased delays in the completion of cases; unresolved cases, especially in the matrimonial field, bring about more interlocutory application and injunction proceedings, and more stress on the minor children, who suffer most from the uncertainty and the preoccupation of the parents with the litigation. This in its train may lead to increased involvement by welfare services, with the costs that this involves. The alternative is the need for substantially increased staffing, with the associated costs. Both of these are undesirable, and increase costs to the state.

All credit is due to the judges, and especially the President of the Family Division, who have done all in their power to mitigate the effects of the cuts.

Legal aid should not be regarded as a welfare benefit that can be granted or removed according to budgetary constraints, especially where, as I point out, the saving in the cost of representation are far outweighed by the increase in cost to the state of expansion of court staffing and/or the excessive delays in finishing cases.

The state has the responsibility to provide a judicial system which answers the needs of the public. This includes representation of those who cannot afford it.

In Israel, Legal Aid is expanding its scope, specifically in the Family Law field. In the past couple of years a decision was taken to give legal aid to minors whose matters are being dealt with in the Family Court. According to set criteria the lawyer appointed decides to act as lawyer for the child (mainly older children) or to represent the child’s best interests. A manager has been appointed to deal with these cases in each district legal aid office.

Just last month, in the course of parliamentary law committee debates which led to a reform of the law regarding guardianship of disabled persons (inter alia requiring more involvement of the individual concerned and restricting the guardianship to the least injury to his autonomy), the legal aid regulations were amended to grant legal aid to these individuals.

The Israel government took these steps in recognition of their necessity in ensuring proper court action in these cases, and of the savings of court time, especially as the lawyer appointed can apply his knowledge and experience to mediation and ADR in these disputes and make of defend applications promptly and professionally.

Democracy in Turkey?

Sir

The article by Turkey’s charge d’affaires (Strength and resilience of Turkish democracy, 3 August) is based on a common misunderstanding – that democracy consists only of the holding of elections.

Many totalitarian regimes hold elections, but where the candidates are pre-selected by the existing regime, or only one party is permitted to run, or voters are intimidated by violence or the threat of it, only the most cynical would call this democracy.

Democracy requires three more elements, all of which should be safeguarded by constitutional provisions: freedom of association, including the liberty to form political parties; freedom of expression, including a free press; and above all, an independent judiciary, whose powers should include supervision of elections.

The independence of judges requires a process of selection of judges on the basis of their legal acumen and personal integrity alone, and without regard for their politics, together with tenure and a constitutionally protected ban on removal of judges (subject only to dismissal after due process, by a tribunal within the judicial system, for disciplinary infractions).

Any regime which closes newspapers and television stations, because they oppose the government, and which arrests or dismisses judges for political reasons only, has no business calling itself democratic.

 

Philip Marcus

Why are American Jews and Israel Drifting Apart?

In response to a recent article in Mosaic magazine, entitled “If American Jews and Israel are Drifting Apart, What’s the Reason?“, I wrote the following contribution:

The distinguished participants in this debate propose similar reasons for the divide between Israel and what is now, unfortunately, a majority of American Jews. They point to the extent to which Jews in America now identify more with their Americanism than with their Judaism, resulting in an attenuation of Jewish self-esteem, leading to a loss of Jewish identity, manifested both by intermarriage and by a lack of understanding of what Israel means as a Jewish state.

America has been very good for the Jews. The generations who arrived in the late 19th and early 20th centuries found a land of great opportunities, and their offspring benefited from access to higher education and the booming economy, such that there are few areas of life in which American Jews have failed to excel.

But the State of Israel represents the specialness of the Jewish people, which started with the patriarchs and the matriarchs, and has continued through the enslavement in Egypt and the Exodus, the giving of the Torah at Sinai, and the conquest of the Land of Israel, and the Temple service.  Despite millennia of exile from the Land and of antisemitism, Jewish specialness persists to this day. Despite attrition, not only by attempts at genocide, forced conversion but also by assimilation and intermarriage, the Jewish nation has survived and flourished. None of the efforts of nation after nation have succeeded in erasing the underlying identity of the Jews, which is based on the self-esteem of each Jew and the communal self-esteem of the Jewish people.

Throughout the generations and in all the places in which they lived, in the Land of Israel and around the globe, the Jews preserved and continue to preserve their particularity, by means of the use of the Hebrew language for prayer and learning, and, for the last century or so, in Israel, as the vernacular.

Authentic Judaism requires that Jews respect and draw inspiration from the past, that they live in the present and use their abilities for the benefit of mankind, and plan for the future age of the ingathering of all Jews to the Land of Israel and the restoration of the Holy Temple in Jerusalem. In this way they kept their particularistic national identity in all those centuries in which the vast majority of Jews lived outside the Land.

Authentic Judaism requires devotion of time and energy to learning and performing mitzvoth. It also requires Hebrew literacy, stable family life, and an understanding of the links between Jews of the current generation with those of all past generations and their obligations to the future and to the world. Self-esteem is created and preserved by the strong family, communal and national connections, which are ensured by common identification with the Torah. Authentic Judaism rejects postmodernism, with its distrust and deconstruction of any ideology which is clear and lasting.

In the absence of one or other of these features of Jewish identity and self-esteem, the road to assimilation and the disappearance of a connection with the State of Israel and its Jews is wide open.

Modern movements in Judaism base their content on selected ideas which are taken from parts of the Jewish sources (“prophetic Judaism”) and, translated into terms which purport to be universal, appear to be consistent with values which are deemed to be politically correct: equality, human rights, non-discrimination, internationalism and Tikkun Olam (a misrepresentation of a complicated halachic concept, by which the Rabbis of the Talmud preferred certain rabbinical interpretations over others in the light of specific exigencies).

By doing so, the adherents of these movements are deprived of exposure to the texts and ideology of Judaism, in all their depth and breadth, their dynamism and the interrelationship between each part of the Torah (in the broadest sense) and each other part. In this way, these movements deprive Jews of their self-esteem, their distinctiveness, and ultimately their identity.

Those who identify Judaism only as a national liberation movement, with Israel at the center, may become disenchanted with this or that policy of the Israel government, and their Jewish identity reveals itself only in a hubristic attempt to dictate to Israel how it should behave, usually without sufficient knowledge of or regard for the history, geography or the exigencies of daily life in Israel.

Those whose Jewish identity is centered on commemoration of the Holocaust and antisemitism have chosen a negative narrative in which a specific period of Jewish victimhood is central and Jewish self-esteem is absent. The specific antisemitism of the Nazi exterminations is often subsumed into a general universalization of racism, without a specific Jewish context.

Those whose Jewish identity is manifested only by attendance at occasional Barmitzvahs and weddings, and visiting houses of prayer once or twice a year, or eating “jewish” foods, or having a particular sense of humor, or even donating large sums to Jewish institutions, which are at most nostalgic expressions of loyalty to past generations, are unable to pass a love of Judaism and the Jewish people to their children.

Those for whom the history and authentic ethos of the Jews mean nothing will act and think no differently from the gentiles with whom they mingle, and are at risk of becoming indistinguishable from them (except to anti-Semites).

So I agree that the repair of the distancing of American Jewry from Israel requires rigorous rethinking of the relationship between each Jew and his heritage, and between him and his American identity. Reestablishment of Jewish self-esteem is the key to this.

 

 

 

 

 

 

Civility in the Courtroom and the Role of the Judge

Discussion on LinkedIn Family Law Professionals, October 3, 2013

Eileen Fein:
Does anyone else think that as the lack of reason, civility, truth and ethics in our political discourse escalate that those traits filter into our culture generally and show up more in family court?

Philip Marcus:
The attitude and conduct of the judge is crucial. Not all judges are cut out for the high tension and emotional intensity of family cases, and every effort should be made to select for family court those who have some judicial experience and some knowledge, not only of family law but also of the associated fields – mental health and dispute resolution, as well as the necessary emotional balance. A judge who is unwillingly thrust into family court work may get frustrated and may express this by inappropriate behaviour.

The judge can usually calm things down. In my experience, it is useful for the judge to comment, at the first inappropriate outburst, that the court takes into account the conduct of the parties in the courtroom, and specifically point out that conduct under stressful conditions, in the formal framework of a court hearing, is a possible predictor of that party’s ability to cope with the stresses of parenthood.

As to the lawyer, sometimes it is enough to indicate that in this judge’s courtroom, uncollegial behaviour, shouting and abuse by lawyers will not be tolerated. (I have commented in various places that aggressiveness is not an appropriate attribute for lawyers in family proceedings).

When things get out of hand because of a lawyer’s conduct or that of both lawyers, rather than entering the fray  the judge can adjourn the hearing for a few minutes; if all else fails, inviting the lawyers for a talk in chambers is the setting best adapted for a warning that unprofessional behaviour can be the subject of a report by the judge to the Bar Association or other disciplinary authority.

Underlying all this is the power, which should be used sparingly, to commit to prison for contempt in the face of the court; in the case of a party, the threat is usually enough, and for lawyers, such a committal should always be accompanied by a report to the disciplinary body.

The deterioration of respect and increase in verbal violence is a subject for sociological research, but a wise judge will make it clear that the courtroom is a place (maybe the only place, apart perhaps from houses of worship) where civility and politeness are compulsory, not optional.

Continuing Education for Lawyers

“Should Lawyers Be Required to Take Continuing Education Courses on Human Mental Processes?”
Should Lawyers Be Required to Take Continuing Education Courses on… huffingtonpost.com

Discussion on Linked In Association of Family and Conciliation Courts, October 2013

Mark B. Baer:

I really think that everything is a matter of perspective. I am licensed to practice law in California and have always lived here. “California has one of the lowest MCLE hour requirements in the country. Only Alaska and Hawaii, which require three hours a year, are lower,” (http://www.calbarjournal.com/August2013/TopHeadlines/TH3.aspx ). It has been found that the decrease in MCLE requirements as a result of lawyer lobbying was detrimental to everyone. Thus, the Bar has decided to increase the requirement to the level that existed before lawyers successfully had it reduced. Live and learn!

Herbert Buetow:

In Illinois attorneys who practice family mediation are first required to take a one-week course before becoming certified by the respective counties. As an attorney and former psychiatric social worker/family therapist, I believe the course to be very educating and most helpful. However, It is only a beginning and any responsible professional needs to continue to educate themselves in their area of practice.

Philip Marcus: 

While I accept that imposing requirements for continuing education courses on lawyers may be seen as restricting their autonomy, they have become accepted practice in many jurisdictions, The reason is usually dissatisfaction with the level of functioning of lawyers in a particular field.

But I think that the point Mark and others make is valid: lawyers (and judges) dealing with family matters are duty-bound to keep themselves up to date with the social and behavioural sciences, in the same way as family therapists or developmental psychologists, for example, should know about the legal framework in which they practice. This does not mean that we should each be experts in all the relevant fields, but in does ensure that a lawyer will not think that a person with borderline personality disorder lives near the frontier between the US and Mexico, or that a mental health professional will think that a motion is connected with the lower digestive tract.

One warning, however: the mental health and therapy fields are notorious for the manifold schools of thought and often contradictory ideas. Thus anyone putting on a training course or lecture, or anyone who wants to inform himself, should make sure that the material studied is close to the mainstream,

Claims for Equal Time

In your opinion, how young is too young for week-about access?

Question posted by Gary Direnfeld, Social Worker, Guest Expert – Radio/TV (family life, marriage, divorce), Media Personality, Writer/Author, Columnist

Discussion on LinkedIn Family Law Professionals, August – September 2013

Linda Hammerschmid:
Not sure what you mean by week-about access, but in my humble opinion, unless contra-indicated, children are NEVER too young! Why? Because intact couples take their newborns out, in numerous cases, the day after the birth—visiting family and sundry. If it is OK then it’s OK anytime for either parent to take THEIR child out and about. The child belongs to NEITHER one of them exclusively.

Philip Marcus:
The answer, of course, is: It depends.
The starting point is the concept of Parental Responsibilities – see my article: Parental Responsibilities: Formulating the New Paradigm for Parent-Child Relationships 

There has to be an assessment of the needs of the individual child, and also of the ability and availability of each parent to supply each of those needs. I agree with Linda, that neither parent has exclusivity, and a few years ago there were some articles in Family Court Review, including one by Richard Warshak, about Blanket Restrictions.

Farley Tolpen
As a mediator and family lawyer, my understanding of an infant is that the infant has no understanding of time. Therefore, the infant should spend the majority of the time with the primary carer and have lots of quality time (4-5 visits/week for 1-3 hours). The reason is that there will be a loss of contact with the primary care-taking parent as well as a loss of a familiar and comfortable environment. Overnights are not recommended with the non-primary carer. After that or around 2-2-1/2, you can start introducing overnights and build to shared care around 4-5 years old. That is the way the Australian law is generally applied with a presumption of shared care with certain requirements. I do not believe shared care works or should be applied for infants and studies at least in Australia shows negative results if tried

Susan Cook:
So here’s the question I’m left with, what do we do about all of the parents who are living together intact and trading nights of work to save on daycare costs. If parents can share custody and get along and be appropriate, what is the difference, or are we telling parents who shuffled their time that they are damaging their children? do we ban intact parents from shuffling their work hours to accommodate the financial savings?

Philip Marcus:
The Norgrove Final Report (at para. 4.40) was very clear that: “Government should find means of strengthening the importance of a good understanding of parental responsibility in information it gives to parents. No legislation should be introduced that creates or risks creating the perception that there is a parental right to substantially shared or equal time for both parents”. So I am worried that if the provision in the recommendation is left out of the legislation, Judges will have a hard time fending off claims for equal time.

As I point out in my paper Parental Responsibilities: Formulating the New Paradigm for Parent-Child Relationships  there is no room for formulae which appear to release the parents and the court from a full investigation of the needs of the individual child and the abilities and availability of each parent. Shortcuts, including the assumption that shared parenting means equal time regardless of quality, and the approximation rule, which tries to copy the pre-parental split time divisions, may be attractive to lawyers and busy judges. But they subvert the duty to decide, on the basis of the facts of the individual case, including, as I have pointed out, the personality and sensitivities of the individual child, in the best interests of the child.

So legislation and court judgments must be drafted with great care.

Respect for a Child’s Welfare After Parents Separate

A vegetarian mother who stopped her five year-old son from seeing his father because she feared he might feed him meat must let him see the child or lose custody, a judge ruled.
Source: Vegetarian mother stopped father seeing son in case he fed him meat – Telegraph telegraph.co.uk

Discussion on LinkedIn Family Law Jurisdictional Comparisons, September 2013

Diego Horton:
It’s amazing to see how she got away with it for so long (more than a year). Impeding parental contact in Argentina is a criminal offence, apart from the unrepairable damage caused both to the child and his father.

Philip Marcus:
I like the title Hazel gives to this post. The central issue is the child’s needs, and the obligations and responsibilities of on both parents is to comply with the order of the court relating to those needs when they have not been able to reach agreement.

This does indeed boil down to respect for the child’s welfare.

Bill Eddy’s work seems to indicate that many of the perpetrators in this area have personality disorders, and in my experience, only tough action by the courts will bring them into line.

Diego – is it possible to get a translation into English of the relevant provisions of Argentinian law, and some idea of the penalties usually imposed?

In Israel the matter is sometimes dealt with by imposing a fine, to be paid to the parent whose visit is denied (although where the denying parent is not wealthy, the child may lose out), or imprisonment under the Contempt of Court Ordinance. The threat of imprisonment is in many cases sufficient to ensure compliance.

Justice James R. Williams of the Supreme Court of Nova Scotia, Canada, spoke about his method – on the day following a scheduled visit, the parents are ordered to appear in court at 8:30 a.m., and the denying parent is warned to come with all his/her needs for a week in prison, if the visit did not take place.

I also agree that a year is a long time for a child to be out of contact, and that “flipping”custody needs careful preparation and follow up by mental health professionals, not least so that the parent responsible will not be viewed by the child as a martyr, or, on the other hand, rejected entirely