Birmingham divorce barrister Louise McCabe brokers a financial settlement while her colleagues in family law investigate a case of a child with a fractured skull.
And the hard-up students have their first interviews for pupillage – an apprenticeship in a set of barrister’s chambers.
What do you think?
This week, we'd like to hear your thoughts on this question:
If you wanted to make the way the courts deal with family problems fairer, how would you do it?
Share your thoughts through the discussion thread below.
First broadcast: Friday 21 Nov 2008 on BBC TWO England & Northern Ireland
The Barristers in more depth:
OU on the BBC: The Barristers - About the series
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We follow a group of students embarking on a career in a profession adapting to a new world. Find out more about the series. Read more : OU on the BBC: The Barristers - About the series
OU on the BBC: The Barristers - Programme 1
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Just one in five students succeed in becoming a barrister and having their day in court – explore the glamorous and competitive world of The... Read more : OU on the BBC: The Barristers - Programme 1
OU on the BBC: The Barristers - Programme 2
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This week, the focus is on family law - and at the foot of this page, we'd like to know what you think about some... Read more : OU on the BBC: The Barristers - Programme 2
OU on the BBC: The Barristers - Programme 3
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Amongst the stories featured this week, there's a look at barristers who are paid by the state - and at the foot of this page,... Read more : OU on the BBC: The Barristers - Programme 3
OU on the BBC: The Barristers - Programme 4
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As we reach the end of our time with The Barristers, our thoughts turn to the future. This week, we'd like to know what you... Read more : OU on the BBC: The Barristers - Programme 4
Five questions, five perspectives
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Professor Gary Slapper introduces our videos exploring barristers and their roles Read more : Five questions, five perspectives
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The Barristers: Family courts
The Barristers - a series from The Open University and the BBC - follows the stories of real barristers working in real courts. But what do you think of the work being done by the courts?
This week, we'd like to know your thoughts on this question:
If you wanted to make the way the courts deal with family problems fairer, how would you do it?
Kim and Charles will again be joining us in the forums to share their expert perspectives.
Re: The Barristers: Family courts
My response to the question, 'How would you do it', in other words make it more fair, in relation to family law, would be to go back to the proposals set out by the Conservative government in the mid 1990s. These would involve ending the current 'quick' divorce, except for those without children, replacing the current system by mandatory mediation, with no legal involvement, payed for by both parties making equal contributions, with the focus exclusively on ensuring proper access of both parties to the children with an equitable splitting of property based entirely on the needs of the children. With regard to the allocation of property between couples without children, or couples with children who have a surplus of property once the children's needs have been dealt with then a straight 50-50 division with legal costs paid equally by both parties. The proceedings would be entirely confidential but the final result would be published.
Re: The Barristers: Family courts
The problem is that trying to be civilised about a natural catstrophe is all the law is up to.
The only justice is where the child is brought up in a harmonious nuclear family.
The knee jerk response is to patronise the above and avoid it.
Too few parents want to work at staying in a relationship "for the sake of the children" (the most abused and corrupted phrase in the English language).
"For the sake of the children" has been twisted to the benefit of the state and commerce and parents in a sickeningly cynical interpretation that ruins the children involved and leads to an irrevocable errosion of society.
The pervasive unquestioned self needs to be gratified at the cost of all including any progeny.
Don't encourage that which is unhealthy to all.
Walk away from the monet to be made in family court by finding a real solution or be brave enough to admit that one should be found.
Re: The Barristers: Family courts
sorry about the "monet" ...what sort of Impressionism I must have made
Re: The Barristers: Family courts
Dear Charles,
Thanks for the response
David
Re: The Barristers: Family courts
Dear David
I am glad that you found the response useful but, given the controversy attached to those suggestions when proposed in the 1990s, which ensured that they were not implemented, I am sure that there must be people out there who would like to take issue with my, highly personal and, I suspect, to some tastes, unacceptable approach to this problem.
Charles
Re: The Barristers: Family courts
Dear Charles
I did not say that I found the response useful. This is an example of how academics assume that students hang to every word. Sorry if this offends
David
What is fairness. Is it the fairness of justice, fairness toward the parties fairness of representation or fairness in financial cost.
Fairness of justice: Though the system appears to require client/solicitor, solicitor/barrister, and at some stage all three I am uncertain that the full expression of the client is actually served. The proximity of the parties in the divorce case was obviously stressful for the client(s). Being bombarded with the expertise of advocacy at such close proximity would be distressing for the majority of people. As stated by the Barrister the material possessions had not even been listed or fully discussed. The court result was equal division, should that not be the rule and avoid such stress, having taken into account the position prior to the marriage.
In the child 'accident' case the archical system was prevalent leaving the client(s) on the perimeter and subject to the correct conveyance of client comment and in the right context. This situation throughout the preparatory period of the case probably made the father feel isolated and disconnected increasing his initial reluctance to convey the truth of the incident. Five Barristers were involved in this case. I presume the others were representing social services or child agency.
Fairness toward the Parties: In all family cases identifying the family in the press should be prohibited. All we do here is to set the gossips and jungle law in motion at great expense to the public purse, and simply for the entertainment of it. Justice may seem to be done or not in the court room and the journalistic choice of perspective generates public outcry. The public should at all times be in full trust of the judicial process. The judicial process needs to be more convivial.
Fairness in Cost: In health care we visit our GP and if needed we are moved on to a specialist. Should this not be the case in legal practice rather than the continued rapport from client to solicitor to barrister and back down the line in a game of ping pong with both legal professionals waiving their fee note. I am aware of the public access scheme, but more needs to be done on expanding this. We now have the situation of Solicitors edging out the Barrister under the relaxed court representation. This initially subjects the client to the ego of the Solicitor which could prove extremely costly.
Re: The Barristers: Family courts
You might want to think about the secrecy which surrounds many family court proceedings. Does this protect the privacy of those involved, particularly children, or does it mean that the process is shrouded in mystery so that the average person does not understand how the court reaches decisions in some of the most sensitive cases of all? We'd like to hear your views on this.
Kim
Re: The Barristers: Family courts
QUOTE - 'The family courts do tend to be a closed door shop particularly biased in the main towards favouring mothers and not actually really taking into consideration the emotional truama that can effect the children and their fathers!' UNQUOTE.
Re: The Barristers: Family courts
I'm just bemused at the whole privacy question anyway - surely a lot of the privacy is designed to stop newspapers reporting the details, but is it really the case that that protects privacy? People generally know what's going on down their street - you can keep it out the papers but can you keep it out of the gossip stream?
Re: The Barristers: Family courts
There are two aspects to Privacy as a legal concept.
In the first place there is the equitable doctrine of confidentiality whereby information which has the quality of confidence, in other words, information that needs to be protected to safeguard important interests - for example that which is acquired within a marriage or relationship, with regard to children, or with regard to commercial sensitivity - can be protected by the courts.
Secondly, since 2000, following the passing of the Human Rights Act 1998, Article 8 of the European Convention of Human Rights has developed, and somewhat modified, the existing common law protection of confidentiality. Article 8 is set out as follows:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
As you will see, the Article is in two parts. The first part sets out a statement of the Right; the second part qualifies that Right in very significant respects. The court applies a test of proportionality, balancing the Right of the aggrieved individual against the potentially justifiable interference, on the basis of the interests defined in the second part of the Article, with that Right.
The Human Rights Act includes a clause which requires the judiciary, in interpreting Article 8, to pay particular attention to the importance, in a modern democracy, of Freedom of the Press:
Human Rights Act 1998 [1998 c42] S. 12 [4]
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(a) the extent to which—
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
Eady J has performed this difficult task, conferred on the Judiciary by Parliament, to scrupulous effect, most notably in the Mosley case.
The untutored, and frankly asinine, comments by Mr Paul Dacre of the Daily Mail, which acquired public notoriety recently, are typical of those who have no grasp of legal principle. It pains me that the Editor of such an important publication should be so manifestly uninstructed in the principles of the law. Perhaps Mr Dacre should apply to be a student on W100. I should be happy to instruct him.
Re: The Barristers: Family courts
I don't see any answer to the question posed in this text, "How would YOU do it"
Re: The Barristers: Family courts
Family law is a common speciality for barristers. This week’s programme showed us how a family practitioner tried to act on behalf of her client, suggesting an approach which he did not really want to adopt. In family law, the most intimate aspects of a person’s life are involved. Consider how this must affect the barrister who is trying to help the client resolve the problem. How does one remain professional without losing one’s humanity? Of course, one way of thinking about family law from the point of view of the barrister is to remember that, unlike the solicitor, who is entirely focused on the needs of the client, the barrister is also the servant of the court and therefore of justice. Perhaps one could therefore think about what justice means in the context of family life. What is the relationship between justice and traditional understandings of the nature of the family?
Another thing to consider is the way in which society’s understanding of the nature of the family, as expressed in the legislation regulating family life, has changed since the 1950s. What is the modern family, as understood by the law and how can justice be provided for that family?
Something else worth thinking about, and this came to the fore in the programme last night in relation to criminal law, concerns the role of the barrister in defending someone charged with a criminal offence. As we all know, in the English legal system, one is innocent until proven guilty - Woolmington v. DPP [1935] AC 462. When this case was heard before the House of Lords, Lord Sankey made this observation:
Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt ….. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. When dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused.
The implication of this principle is that, if justice is to be done, all defendants are entitled to a defence. The question, which will be looked at as the television series develops, is whether that right to a defence can be sustained if there is a State Defence service, an innovation proposed by our current government. Last night, I was watching the HBO series John Adams. John Adams was the Second President of the United States [1797-1801] who served two terms as George Washington’s Vice-President. Adams was a barrister. The series begins with his defence of an English officer accused of murder in the infamous episode of the Boston Massacre of 1770. Adams defends the English officer despite the intense unpopularity of such an action in Boston at that time. He does so because, despite being a critic of the British government, he believes that there can be no civilised society without the rule of law; if the rule of law is to be upheld then all defendants, even those who are manifestly unpopular, must be provided with the best defence available. When the government in London decided that English officers could not get a fair trial in Massachusets and consequently transferred their trials to London, Adams was outraged. It was the lack of respect for the rule of law on the part of the British government, rather than radicalism, which turned John Adams into a revolutionary. The independent Bar provided a guarantee that an adequate defence would be available to all defendants thereby upholding the rule of law. Would a State defence really be consistent with the demands of justice? This is a problem to consider over the next few weeks as we see the issue explored in forthcoming programmes.