Shifting trends in family advocacy

The introduction of the Family Advocacy Scheme (FAS), which provides for a single regime of payment for advocates in publicly funded family cases, whether solicitor or barrister, seems to have encouraged many family solicitors to conduct more court hearings in relatively complex litigation than in the past. Although no official statistics are available as yet to support the notion that there has been a shift in the pattern of usage of the Bar in publicly funded family cases, many practitioners detect a clear economic pressure on family solicitors to undertake as much of their own advocacy as possible, only instructing a barrister for contested hearings involving substantial evidential challenge.

Preliminary case management hearings in public and private law applications, which inevitably dictate the evidence available at later stages of a case, are now routinely covered by a solicitor advocate who will not conduct the substantive hearing, but whose decisions and advocacy in those preparatory stages will dictate many of the options available to whoever does. Because early hearings seldom require the advocate to challenge evidence or make oral submissions of any complexity to the court, it is tempting to assume that they can be more efficiently covered by the well prepared solicitor who has the advantage of already knowing his or her client than by any one else, even if the solicitor has little experience of conducting contested hearings.

The disadvantage to this trend is that it can be easier for a busy practitioner to miss lacunae in the preparation of the evidence and planning for the smooth running of any fact finding, issue resolution hearing (IRH) or final hearing if he or she does not routinely conduct such hearings. If the trial advocate, often a barrister, only receives instructions just before that final hearing, mistakes in case planning that impact on the proper representation of the client can lead to a waste of court time while missing documents are found, witnesses brought to court or other issues ironed out. At the very least this leads to judicial displeasure and, at worst, adjournments with potential cost implications.

Many solicitor advocates, of course, have as much, if not more, experience of preparing for and conducting trials in the family courts as family law barristers, particularly junior ones. They are likely only to instruct another advocate to take over a discrete hearing when other commitments prevent them from being in two places at the same time and the basic examples of case management offered here will be obvious to them.

Standard procedure

The starting point for ensuring good case management decisions is the Public Law Outline and especially the checklists for the various types of hearings. Although as family practitioners we all should be familiar with its contents, several years on from its introduction that familiarity has bred, if not contempt, a degree of complacency. The checklists remain an indispensable tool for the practitioner to formulate an outline of all the potential issues that should be addressed at each hearing '“ use it to focus your preparation as you apply it to the issues in your case.

Taking, for example, a case involving an allegation of sexual or serious physical abuse, it is likely that a fact-finding hearing separate from and before any welfare stage will be required, and time tabling of gathering the evidence necessary for that hearing will take place at allocation and case management conference (CMC) hearings. Timely disclosure of police and medical evidence into the proceedings will be needed using local protocols. If the police are still investigating an alleged offence, their routine blanket objection to disclosure before conclusion of police interviews should be anticipated and, if necessary, an early hearing with their attendance provided for, so that material that can be disclosed without prejudice to the investigation can be seen as soon as possible.

The crucial follow-up here, which is often missed by those who are too busy or not focused on how allegations are challenged in cross-examination, is that disclosure provided by police, social services or medical records needs to be read at an early stage in proceedings and follow-up requests for more specific disclosure made, and, if necessary, orders sought

Typically, the local authority may rely on the police interview of a child complainant in a case of alleged sexual abuse, but the circumstances surrounding the disclosure are simply summarised in a chronology or social worker's statement. What you will be looking for in order for the account to be properly challenged will vary from case to case but, in very general terms, the words and circumstances of the first account (which is never the interview) are highly relevant and you will be looking for notes from the police/social worker of their conversations with the child and his carer or the person to whom the allegation was first made. Always query whether there have, to the knowledge of the local authority, been earlier allegations made by the child or others with whom he has contact. Ask for and watch the contents of earlier interviews where 'no disclosure' was made '“ what was said to the child, and how, may be highly significant. Make sure, where relevant, any police interviews are transcribed and not simply summarised.

Consider at an early stage what witnesses will be required. What evidence from police material does the local authority rely on and do those witnesses need to make further statements? It may seem trite, but make it clear which you challenge, and, if you are unsure, ask advice from the advocate you intend will conduct the trial in good time, not the night before. Do you need to make an application for a young complainant to give evidence and be cross-examined? It remains unusual for such applications to succeed but, particularly in the case of teenage complainants, I would regard it as potentially negligent not to make a considered decision with the lay client who has specific challenges to that evidence not to make an application '“ which, of course, needs to occur well in advance of trial.

Specific considerations

Similarly, thought needs to be given to applications for independent experts to be instructed to challenge medical evidence at an early stage. Are there issues within the child's medical records (GP, hospital, health visitor, child and adolescent mental health services) that need following up? Expert instruction may be necessary to determine issues of capacity in relation to the lay client, given the difficulties in cognitive function and expressive ability many of those we represent suffer. While practitioners are usually alert to the need in appropriate cases to consider capacity to litigate, there is sometimes less consideration given to other issues of capacity (or incapacity) such as ability to give evidence (which may or may not follow capacity to litigate) and the measures needed to make that experience more manageable and the evidence given more reliable. Are there cultural issues relating to the facts to be decided on which expert advice is needed?

The mundane but practical arrangements for the smooth running of the trial need to be discussed and preferably recorded in an order. Have interpreters or video links or other special measures for receiving the evidence been set up for specific times? When will the witness template be agreed? It is a surprisingly frequent occurrence that I am sent a list of witnesses and asked to complete my time estimates for cross-examination before the papers have actually arrived, which does not make for sensible case management.

All family practitioners, in my experience, from whichever side of the profession, are motivated by a strong interest in the type of work we have chosen to do with a great desire to see that our clients receive high-quality legal services at the most stressful time in their lives. New and demanding working practices in economically difficult times demand that we all work collaboratively, sharing our experience to achieve fair and expeditious outcomes by focusing on efficient case management and proactive case planning.