Just resolved contact dispute by helping client understand where his ex was coming from.They exchanged a couple of texts and contact back on

September 21, 2011 2:01 pm via Twitter for iPhoneReplyRetweetFavorite

@famcourtsupport

John Junk

The background to the above Tweet is that I had a dad call in to see me today who had not seen his child for 3 weeks, and who had convinced himself that he wanted to make an application to court to get to see his son. He was certain that his ex couldn’t be mediated with, and that only an order would do. I wasn’t so sure, as to me it was a bit of a non-dispute, that had it’s root in both of them failing to understanding the difference between clear consent and ambiguity of intent.

I asked him for his phone and started to draft a text to his ex. I let him read it through, and he ok’ed it being sent. Within a minute an encouraging reply came back. I repeated the process twice more, with the result being that he will be seeing his son as before, with contact resuming this Sunday.

If my client had been to a solicitor, he would have been at the beginning, not the end of his journey back to having contact with his son. Litigation would have put that dad on a hamster wheel of letter tennis, adjournments, contact centres, stress, bills and frustration. Many months would have passed and any trust that existed on either side would have long been extinguished.

As someone who normally deals in very high conflict cases; those that are (in my view) incorrectly categorised as ‘intractable’, this is not uncommon. And whilst I don’t want to give my magic secrets away, it isn’t the first time I have made contact happen this way. It is however, the first time I have blogged about it.

My message to the McKenzie friending and lay advice community in family law is NOT to feel compelled to rush to expensive mediation or litigation to resolve a dispute. The great lie that the vocational legal community are loathe to talk about is that consent needs willing parties, not warring lawyers.

My sagely advice is to try to understand the nature of the dispute from both sides first, and don’t fall into the error that solicitors fall into with their ‘my client, my client’ mentality. The parent and his or her children will thank you for it.

Lest anyone get the impression that I am a crane climbing, superhero costume wearing, purple powder throwing, card carrying member of any of the F4J’s; unable to say anything positive about members of the judiciary, this post should go some way to disavow readers of that notion. Regular readers of the blog will recall that I reported on a positive experience involving Master Redpath before, so I feel I have a history of giving credit where it’s due to members of the judiciary.

Our regulars will also recall that I have been  bleating on for over a year about a litigant in person list, so that litigants know when they are on. More like a doctors surgery, and none of this dozens of cases listed for 9.30am nonsense, and the poor self litigant not getting in until all the clever lawyers have finished their machinations around midday.

Whilst that experience some while back with Master Redpath wasn’t totally unpleasurable, it wasn’t anywhere close to how I am used to being treated in England and Wales.  The experience today in front of Master Bell in Belfast was much closer to how it should be done.

Do read on…

I was in front of Master Bell in an Ancillary Relief case that I had been asked to assist in at short notice.  My client had run out of funds, owed their lawyers some money and had to represent themselves.  [ Experienced McKenzie friends and lay advocates with be thinking " WHAT ABOUT THE FILE?? HOW ARE WE GOING TO GET THE FILE IF A LIEN IS EXERCISED ON IT???" Well you lot in the cheap seats can just shut up and let me get  on with my account of this hearing].

I hadn’t perused any of the papers in this long running case, and as my client had very recently parted company with their solicitor, there weren’t any papers to read beyond the usual ragtag shopping bag full of papers that clients seem to accumulate. I didn’t even have time to read them anyhow.

Arriving around 9.20am I knocked on Master Bell’s door and introduced myself to him, and shortly thereafter the other sides solicitor popped their head round the door. Following my submission that I would be grateful if my client could be heard first, Master Bell invited us to find counsel and return anon.

Master Bell listened to everything that my client had to say, and I at least left feeling that we had been heard. I was also impressed that Master Bell also scolded counsel on more than one occasion for attempted point scoring, instead of this faux joint telling off that some Magistrates such as Mr Magill seem predisposed to give.  Master Bell also let me speak on behalf of my client and the hearing had a very collaborative  feel to it. I must also commend counsel for quickly grasping that the case couldn’t proceed. All in all, a relatively stress free introduction for my client to the challenging job of self representation.

Although I wouldn’t dream of being so bold as to suggest this formally, if I were Sir Declan Morgan, the Lord Chief Justice of Northern Ireland, I would have no hesitation in appointing Master Bell to any future committee considering how to respond to the increasing numbers of litigants in person in the Northern Ireland family courts. Master Bell did a fantastic job today, and I commend him for his even handed approach; and I have every expectation that we will get a fair hearing in front of him if the case can’t be settled by negotiation.

Regular readers will remember the Mexican stand-off I had with Master Redpath a few weeks back.

Was back in front of him today and had a totally different experience, and in the interests of fairness I thought I should tell you about it.

A very endearing barrister came round and spoke with me. No posturing about ‘I can’t talk with you, as you are only a McKenzie friend’. They spoke with me about the case and we reached a level of agreement about how to proceed.

He then spoke with the Master’s clerk and we got in at the end of the callover. And the extremely busy Master allowed two McKenzie friends in and it was all very civil, as it should be.

I don’t want to name the barrister as they may get ribbed for being so civil, but their name has been noted, and next time a client needs a calm, professional counsel, that person’s name will be foremost in my mind.

The sooner counsel ‘court’ professional McKenzie friends the better it will be for their business.

Been extremely busy recently with both work and family and haven’t had much time to spend on the blog. Apologies for that. Hopefully normal service will resume.

Now that I am back in Belfast, my phone and Inbox are filling up with the ‘same old same old’ of hard done by stories about the Magistrates Courts in Omagh, Belfast, Ards and Ballymena. Nothing new there.

One interesting case involves a person with Post Traumatic Stress Disorder (PTSD) who has been seeing their child in a contact centre for TWO YEARS. Can you imagine that…. TWO YEARS of not being able to take your child out of the building; TWO YEARS of not having them stay over; TWO YEARS in the one place. I really feel for this person and their child.

“Well” you might say, “this person must be a risk to their child to be treated in such a way, and the court is merely acting in the best interests of the child”. Well, you would be wrong. The court is merely showing it’s ignorance of PTSD as it isn’t relying on any thing other than the parent supposedly being at risk of abducting their child DUE to the parent’s PTSD.

As I didn’t know that much about the condition I went along to a conference and really got my eyes open as to who might have PTSD in the community, how they might acquire it and how it might be treated.

It was brought to my attention that as well as the obvious candidates of people involved in car accidents, victims and witnesses of physical or sexual assault, first responders and the military, even people such as secretaries typing up reports of traumatic events might acquire PTSD. Wow, there is a potential lawyer feeding frenzy for you; a circumvention of the nervous shock restrictions…

If only some of the judiciary had been at the seminar to hear a bit more about the condition. There were lots of doctors, nurses and people from the voluntary sector there and there was even a CPD point to be had. One thing there wasn’t was a lawyer in attendance. Or a social worker.

Maybe next time the organisers of such a valuable seminar might deign to have it in Belfast and during working hours so that the protectors of our fundamental freedoms can attend.

Had the old Mexican stand-off with Master Redpath yesterday (Thursday), who was sitting in room 2.21 at the High Court in Belfast.

His list had our client, who was a litigant in person listed for 9.30 with the rest of the mentions at call over. The Master and his office were well aware that I was there to assist my client as the client could not be there due to being out of the jurisdiction. The other side knew this as well.

We were never spoken to until after all the vocational lawyers (solicitors and counsel) had left, and then only by the Master’s clerk who came out asking was there anyone there for Mr X. We said we were there for Mr X and were informed that the matter was adjourned to the 25th February!! I asked whether costs were awarded and the clerk said they weren’t. At least that was something. That was at around 11.30, meaning we waited for over two full hours to hear that, and not once did anyone come out for us.

I accept that a litigant in person should not be in chambers to listen to everyone else’s business, and I also accept that taking the litigant in person in first would only add to the costs of the multitude of other clients.

Why not have a list for litigants in person that actually says the time they will get their chance to go in and see the judge or master? If the list had’ve said Mr and Mrs X at 1130 we would not have turned up at 9.30. Same goes if one of the parties is represented and one is a litigant in person.

You guys and girls in England and Wales will say that court attendances are timed. I know that, as we do a lot of work there. Hearings are rarely timed in family cases in Northern Ireland, meaning that people are turning up at court on time and because of the lawyers jostling for position, and the courts lack of concern about a personal litigant, personal litigants and their McKenzie friends are kicking their heels for hours. Personal litigants are losing money from lost hours at work and having to pay their McKenzie friends.

Who would be a personal litigant! More and more people it would seem…

Just thought I would share the following letter with our readers that was sent to both Lady Silvia Hermon MP and Nigel Dodds MP seeking clarification on the law on Northern Ireland in relation to ‘communications’ of documents and other information on Children Order and Matrimonial Causes Order cases.

From: John Junk [mailto:belfast@familycourtsupport.co.uk]
Sent: 22 January 2010 14:59
To: Lady Sylvia Hermon MP for North Down
Cc: ‘Nigel Dodds’
Subject: Family Court ‘communications’ Northern Ireland

Dear Lady Sylvia

Thank you for seeing both myself and your constituent at your Bangor constituency office on Friday 15th January 2010.

You mentioned that you would consider seeking clarification on a number of matters raised during that meeting by way of Parliamentary questions. I suggested that a more expedited way to deal with the matter would be to write to the Head of the Family Division in Northern Ireland Mr Justice Weir, and to copy Sir Declan Morgan, the Lord Chief Justice in to the correspondence as an information addressee. Regardless of which method you chose to staff this matter, I thought it might be helpful for you if I were to formalise the issues I raised with you around ‘communication’ of documents under the Children (NI) Order 1995 and the Matrimonial Causes (Northern Ireland) Order 1978.

Firstly I made the point that I was unsure whether a Member of Parliament in Northern Ireland (and their staff?) required leave to see any documents from either a current or historical Children Order or Matrimonial Causes case. I believe that both yourself and your staff would be aided in your work if this matter was clarified and communicated to you by either the Northern Ireland Court Service or from the senior judiciary. A similar issue arose today when I was called to the office of Nigel Dodds MP to speak to a constituent of his who had attended at his office with a live Children Order matter, currently being heard by District Judge Alcorn at Antrim. I advised Mr Dodds’ office and the constituent that as I had not been granted leave to see the papers I felt unable to assist, and cautioned them on what I believed the law to be on communication. I have coped Mr Dodds’ office into this email.

Secondly, I pointed out that as a lay adviser and McKenzie friend who assists in divorce, ancillary relief and private law matters under the 1978 and 1995 Orders, it is my experience that unlike England and Wales, there is no formal direction (for from example the Family Proceeding Rules Committee) that states that litigants in person do not require leave to show papers to their McKenzie friends and lay advisers. I cannot speak for others in the lay advice sector such as Women’s Aid or the Citizen Advice Bureau, but I can say with confidence that there either is no accepted procedure for lay advisers seeing documents in cases under either the 1978 or 1995 Orders, or alternatively if any global guidance does exist it is not being followed throughout the court system in Northern Ireland. In support of this assertion, and by way of example I will set out a number of situations I have experienced in local courts.

On one occasion I had to give an oral undertaking under oath in the High Court in front of Mr Justice McLaughlin to be granted leave to see papers; whilst on another occasion I had to be given leave to see case papers by a Master that I had already seen; and had admitted to having seen. I have had to apply for, and been given leave to see papers by a range of magistrates after the court made the issue justiciable, by the magistrate raising the matter of their own motion. On numerous other occasions jurists have made no issue about my seeing the papers, and leave was neither sought nor given, and I was granted a discretionary right of audience to advocate my client’s case. I count Mr Justice Weir and the current Lord Chief Justice in the latter category.

I feel that the position in Northern Ireland is unsatisfactory in that litigants in person are unnecessarily being prevented from obtaining assistance as urgently as they require it. On a personal level I am potentially placing myself in an contemptuous position as the law stands in Northern Ireland by seeing papers without leave being granted. It is impractical to expect anyone to assist in a case if they cannot see the papers at the earliest possible opportunity, normally when a client attends a lay adviser.

This position is to be contrasted with the position in England and Wales where Statutory Instrument 2005 No. 1976 (L. 18 ) The Family Proceedings (Amendment No 4) Rules 2005, and subsequent primary and secondary legislation applies, sanctioning McKenzie friends and lay advisors to see the entirety of the papers without seeking leave.

Some authoritative interim guidance setting out the position in Northern Ireland would be helpful until such times as the matter can be considered by whichever legislature ends up dealing with the substantive issue.

Yours sincerely
John Junk
For www.familycourtsupport.co.uk

By their own account RFFJ NI had a successful meeting with the SDLP at Stormont yesterday. I haven’t seen any press release from the SDLP, setting out their commitments but I may just have missed that.

Other groups such as Families need Fathers and Fathers for Justice in Northern Ireland need to take a leaf out of RFFJ’s book and publicise these meetings on their respective websites ahead of time and blog a report after the meeting. It may also be helpful to make the briefing documents available online so that other supporters can see what research was being relied on.

Having taken some time out to concentrate on political developments in Northern Ireland, most of our original readers will be glad to hear that I am going back to my specialist subject, family law reform. Of course I would like our new readers to stay, but unless the issues I normally blog on affect them or their family or friends they have my permission to blog off!

On Friday past I was with a politician whose name has been mooted as a potential new Minister of Justice in Northern Ireland. To comply with the draconian laws governing communication of family court cases in Northern Ireland, I do not feel comfortable naming them.  Of course it goes without saying that I am also potentially in contempt for being in receipt of such communications without leave; as is my client for disclosing such information in his legitimate quest for assistance.

The law on communicating and being in receipt of documents from the family court is much more realistic in England and Wales and the anachronistic position in Northern Ireland is apparent when one contrasts my personal liability during two similar cases on the same day, in two different jurisdictions within the UK.

Imagine if you will I am assisting a client in England and Wales in the morning under the Children Act 1989. I need no permission from the court to see any documents in the case due to Statutory Instrument 2005 No. 1976 (L. 18 ) The Family Proceedings (Amendment No 4) Rules 2005 and subsequent primary and secondary legislation.

However, when I fly back to Belfast in the afternoon for a Contact application under the virtually identical Children (NI) Order 1995 I am put through the mill, having to go into the witness box to give a verbal undertaking not to disclose any information I glean in court, and then having to be given leave by the jurist to see the papers, that I may or may not have already seen. How does the court in Northern Ireland expect me to have gotten this far with the client without seeing the papers!!!

This charade is similar to the ‘Silent Movie McKenzie Friend Game’ whereby it is ok for me to whisper what to say into a litigant in persons ear and for him to repeat it, but I am not allowed to address the court on his or her behalf. This certainly helps to speed things up doesn’t it Mr Magill and Mr Alcorn?

Currently these matters are within the competence of the Westminster parliament, but if and when Policing and Justice is devolved to the Northern Ireland Assembly such matters will be under the purview of local politicians.

I can’t wait….

BBC Panorama must be under huge financial constraints given that they pushed out a largely re-badged version of the original BBC Spotlight investigation. (For UK readers BBC iPlayer version of Iris Robinson ‘Spotlight Special’ here, Panorama’s ‘The MP and the Whistleblower’ here and for rest of world YouTube chopped up version starting here .

The original program on Iris Robinson caused the collective jaw of the people of Northern Ireland to rebound off the floor.

The Spotlight programme also caused a lot of 50 something Northern Ireland women to jettison their anti depressants, and get into ‘cougar’ mode to treat their depression.

All attempts at humour aside, this scandal is starting to intrigue me on a number of different levels; not least of which are the legal and political aspects of the case, and what findings may be made after evidence is taken, as well as who will give evidence and what that evidence is worth.

Anything that Iris Robinson says in her defence that isn’t corroborated by other real evidence such as documents texts etc, is likely to be given little if any weight. Any uncorroborated documents such as ones that noone else has previously seen and will attest to will be viewed with suspicion.

This is not going to happen as Iris Robinson is unlikely to ever give oral evidence to any tribunal of fact chaired by a judge. If she does she will do so because she wants to be heard, not because her lawyers think it is a good idea. If that happens she will likely ride into court on a Unicorn with Centaurs and Griffins as her security detail.

Iris Robinson’s medical history will be examined in minute detail and it will be a feeding frenzy. I am not saying that to be hurtful to anyone with mental health or personality issues, merely to reflect that one’s mental health background is fair game in assessing the reliability and accuracy of anyone’s evidence. It is likely that expert witnesses would be required to give evidence as well.

She may give written evidence of course but this will have the dead hand of a solicitor on it, and will be as is normal, highly sanitised. She is unlikely to be believed over Dr Selwyn Black, and has no chance of being believed over Peter Robinson if it comes to a ‘he says she says’ situation.

If push comes to shove there is only one person who she may be believed over, and that is Kirk McCambley.

A story was doing the rounds at the end of last week in the blogosphere about how the Kirk McCambley Iris Robinson relationship ended. There was chatter that, ‘allegedly’ Kirk McCambley may have had to advance a medical related explanation as to why he wished the relationship to end. That allegation has resurfaced today in the print media, but I wont do it the justice of linking to it as I just don’t know whether the reporting (from an unnamed reporter) was merely reflecting what had already been doing the rounds last week.

The only interest I have in the article is that if true, it opens up a route to damage Kirk McCambley’s evidence in cross examination. I am not saying ‘will’, only that it ‘might’ damage his credibility. If true, any advocate cross examining Kirk McCambley will pick at that festering sore, trying to prove that Kirk’s evidence is all about ‘means to an end’.

Turning to the political, I feel that based on the evidence thus far available Peter Robinson has little to fear from any investigation. It is just wishful thinking on the part of his political opponents that he will forced to stand down. If he stands down it will be because he has decided that his  flawed wife is preferred over his political career, not because the DUP are minded to bury their wounded.

Thought I would go and visit the Lockkeepers Inn today in Belfast to see if I could catch a glimpse of Kirk McCambley and sample some of his Iris Irish Stew.

We got fresh Belfast baps with our stew, but the table behind us got two withered dried up baps.

Business was so good in the soft drink department I had to take a latte, as there was no Fanta to be had anywhere. Someone suggested that it was because it was orange and goes down well with teenagers?

Lockkeepers Inn Jeep

Enough of the satire and far from original jokes…

Kirk McCambley was there in all his glory, jeans hanging off his slim figure and mucking in on the barista side of the business. He shot me a rather sheepish look and I gave him a sympathetic look back, an older man to a young turk, feeling his embarrassment that he was in a media snowball.

Having scoped him out for about 20 mins it’s hard to believe that he took the lead in any of this. Just doesn’t seem the type. During the time I was there, a goose got in to the cafe and he had to get someone else to chase it out. A couple I spoke to who said they were regular customers opined that Kirk was ‘sound’.

The Lockkeepers Inn was packed to the rafters. That isn’t really that hard as it’s quite small inside. On a business front I would say it would be quite hard to turn a profit on that site with the limited space available. Rent would need to be quite low I would guess?

Lockkeepers Inn and River Lagan Sign

Lockkeepers Inn and Cycle Network Sign

Overheard a conversation that questioned how a complete novice like Kirk McCambley could make a success of a low footfall business in such a difficult sector. My sources tell me that he did the Start a Business Programme at East Belfast Enterprise so he wasn’t a total virgin business novice.

If any lazy or time poor journalists want to use these photos they can use them ONE TIME only if they donate £50 per photo to Northern Ireland Chest Heart and Stroke, Charity Reg No XN 47338, Company No NI 18889, and mail me at help@mckenziefriend.com Otherwise I will pursue you through the courts for breach of copyright, and it will cost you a shedful of dosh, and I will give it to charity.