Limits on Evidence in Family Proceedings: Changes

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So many changes, it's easy to miss one or two, and today's blog relates to changes to rules on evidence which require the court's consent before filing.

In April, a new practice direction, Practice Direction 27A - Family Proceedings: Court Bundles came in. The bundle is essentially a compilation (within a folder or folders) of documents which relate to a court case.

Our guides take account of the changes, but it's worth bringing some to your attention.

The main changes are:

• Limits on Evidence: There are limits on documentary evidence being filed with the court without the court's consent. Certain documents should not be to statements otherwise included within the court bundle without the court's consent (such as correspondence, notes relating to contact visits and medical records). Again, this isn't to say that such evidence can't be filed, but permission must be sought first. It also doesn't preclude the content of letters, emails, reports etc being mentioned within a statement or oral evidence (but the supporting documentary evidence should only be filed if the judge deems sight of it necessary).
• The Requirement for a Bundle: Where neither party is represented by a solicitor, a bundle need only be filed if requested by the judge. Where one of the parties (or both) are represented, a bundle should be filed for every hearing (previously, the bundle need only be filed for hearings of an hour or more).
• Size Limits: From July 2014, the bundle should be limited to a single lever arch folder and 350 pages (unless this limit would prejudice the proper administration of justice).

Why the changes?

Underpinning the changes are a number of factors, and are welcome common sense.

Limiting evidence to only necessary documents and scaling back the volume of evidence to manageable proportions is a clear goal. A failing of some (both represented parties and litigants-in-person) is throwing the kitchen sink at arguments... including raising frivolous matters (I remember scott schedules complaining of an out-of-date crisp packet in a lunchbox) which results in so much information being filed that key points and strong points get lost. Can a judge reasonably be expected to read through, digest and retain several lever arch folders of 'fluff'. Impractical and often self-defeating, there needed to be court rules to guide the emotionally involved to a more common-sense approach.

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Hopefully the days of long, rambling statements with telephone directory thick submissions of evidence are gone (or at least this is the start). I've argued before that court proceedings too often become a circus. I remember applauding Mostyn (threatening to appear outside his court with a vuvuzela as my comments were at the time of the SA World Cup), when he gave judgment commenting that it's hardly surprising that separating parents sometimes behave badly and too much is made of spats. After all, as Mostyn said, if both were behaving well, they'd still be together. Long winded and unnecessary hearings chew up limited court resources, which causes delays for everyone else. Fast, surgical, and practical resolution is much preferred!

We've argued many times that succinct, pointed and targeted evidence should be the goal, and have seen even seemingly complex cases resolved by brief statements where the important points are responded to, in place of every single contested matter being argued in detail. When we help people prepare evidence, a large part of our work is cutting back evidence so key points and child welfare related arguments don't become lost or obscured. Will a judge really read through, and digest, 200 pages of a statement before they get to the important bits. The old acronym KISS should always be at the fore... KEEP IT SIMPLE. Complex arguments more often fall apart.

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Personally, we're seeing more instances of courts not calling for finding of fact hearings regarding allegations. On the whole, we applaud! Parents are often unhappy at this because they want to prove their ex-partner is lying after hearing hurtful allegations, but many allegations are irrelevant to decisions about the children. The motive for 'lies' may be as much about parental anxiety as hatred, but when the legal process stirs the pot parental spats, it can quickly boil over and cement antagonism. How is that in children's best interests? Too often, the circus of contested hearings has done nothing for child welfare other than to lay the foundations for years of antipathy which harms children and both parents. As my own Dad says "If you want revenge, dig two graves."

Presumption of Contact, Evidence and the Law Society

The Government, it seems, are to push ahead with their proposals for a presumption of contact with the usual caveats concerning safety. Hoorah... and so say... well not quite all of us.

Alan Beith,  the Liberal Democrat chairman of the Parliamentary Justice committee, wrote to the Prime Minister over the summer warning that the proposal would “simply lead to confusion” and risked “undermining the central principal that the welfare of the child is paramount.”

Neither statement is true, and nor is the Law Society's view that “...the case against a legislative presumption is underpinned by experience, expertise and evidence which are absent from the case for legislative change.”1

The Government has had evidence from both sides. We ourselves have put forward a wealth of evidence confirming that children fare best when subject to shared care arrangements.

I see no evidence! The Law Society and Alan Beith must accept, as the Government has, that evidence points to child welfare being underpinned by a presumption of contact. Children's charities and academics have been as vocal on this point as any fathers' group. Most surprising was the Law Society's claim that evidence and expertise is absent from the case for legislative change... and this may be why the Government has ignored their opposition.

A thought for Alan Beith... and Gingerbread... and the Law Society... and bit of evidence (and not from us, but from the 'impartial' Children's Society... and where the sample size used is greater than woeful double figures which has historically shaped social policy!).

Based on the experiences of 30,000 children, the research found that 'a child's performance at secondary school, self-esteem and well being as an adult is linked especially to the father's input' and 'children are 40% more likely to suffer mental health problems when separated from their fathers' and 'on average, children are less likely to fail at school or suffer depression the more they see their separated father.' ‘A Good Childhood: Searching for Values in a Competitive Age’. Richard Layard and Judy Dunn.The Children’s Society (2009)

So you see... there is evidence, and we've lots more.

Family law is in flux, and the industry is faced with the greatest changes in its lifetime. Legal aid cuts will leave many firms struggling for work, and we hear talk of up to half of firms ceasing to trade as the legal aid cuts bite. The Government estimates that 45,000 private family law cases will lose their legal aid funding.

Estimates are that only 10% of separating parents approach the court... and the charity Gingerbread have claimed that of the remaining 90%, a third fail to agree direct contact.2

A productive and member-centric approach for the Law Society might be to work on how its industry could engage with a staggering 75% of their potential untapped market. Something which would benefit both children and the legal profession. A presumption of contact might encourage more separated parents into mediation, and give them some confidence to approach the courts. Of course... there would need to be enforcement measures to ensure contact goes ahead... but the Government is proposing these too.

1. Absent fathers to get legal right to spend time with their children. Daily Telegraph. November 2012 

2. Family Justice Review Submission of evidence from Gingerbread