Advocacy in Family Proceedings

Theory and Practice

Advocacy in Family Proceedings

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Advocacy in Family Proceedings (2nd Edition) ePub

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Published:
February 2013
Edition:
2nd
Format:
Paperback
ISBN:
978 1 84661 298 5
Author:
David Bedingfield
Category:
Family

 

Formats

Advocacy in Family Proceedings: Theory and Practice restates the theory and established rules of good advocacy and refines them in the light of the specific needs of family lawyers. This fully updated new edition, reflecting all recent developments, explores the writing on this subject generally and then applies it to the various types of family proceedings, including applications under the Children Act 1989 (private and public law); adoption; child abduction; ancillary relief; domestic violence; same sex families and appeals.

It provides an invaluable guide for the student and the beginning advocate toward understanding the theory and practice of presenting cases to judges involving issues surrounding the breakdown of families.  No area of law rests so firmly on the advice and evidence of experts, and the author therefore provides a background of the research available in each of the most contentious areas of family law.

David Bedingfield, Barrister,
4 Paper Buildings, Temple, London

 

Contents

 

  • Introduction
  • General Principles of Persuasion
  • The Advocate’s Craft
  • Private Law Applications Regarding Children
  • Child Protection Litigation
  • Ancillary Relief
  • The Ever Expanding Nature of the Nuclear Family and “Family Law”
  • Appeals
  • Appendices

 

"Always a complex, contentious and emotionally charged area of law -- and not for the faint hearted -- family law has actually become more complicated in the wake of a tsunami of social change, including a number of variants in the basic nuclear family structure that have emerged in recent years.

Especially when under pressure, family lawyers need the reassurance of knowledgeable and authoritative guidance from time to time and here it is: the new second edition of ‘Advocacy in Family Proceedings’...

The new edition is especially timely in that the Coalition government will shortly enact the Crime and Courts Act 2012 which will establish a single family court for England and Wales. Although this development will bring about a number of changes within a continually evolving landscape, the fundamental necessity of good advocacy remains.

Author David Bedingfield is careful to point out that while family law advocates are responsible for certain duties that differ slightly from those of other advocates, certain basic rules of advocacy remain: know your audience… know the theory of the case… know that courtesy never lost a case… and so forth.

Constructing a convincing ‘theory of the case’ in the skeleton argument is particularly important. It should ‘do no less than settle the dispute,’ says the author. Fundamentally it should explain why the court should decide that ‘your client is right and the other side is wrong’. So simple you might say, yet in the realities of family law, so complex.

If you are involved professionally in family law issues, from adoption, ancillary relief and same sex families to child abduction, domestic violence, applications under the Children Act 1989 and appeals, this useful reference work offers practical guidance in helping you enhance your competence as well as your confidence under fire. And unlike many other legal texts, this book, with its practical, commonsense approach is as accessible to the novice and student advocate as it is to the experienced practitioner.

This is an erudite, yet readable volume in which research resources abound. Note the extensive tables of cases, statutes, statutory instruments and practice directions, as well as the handy table of abbreviations and the wealth of footnotes throughout. The detailed table of contents and index at the back aid navigation, especially when time is short. And if your family law practice extends to immigration issues, check out another Jordans Family Law title: ‘Immigration Practice and Procedure in Family Proceedings’. Both volumes are available as ebooks. "
Phillip Taylor MBE and Elizabeth Taylor, Richmond Green Chambers (Review of current edition)

 


"equally at home on the shelf of an established practitioner ... or a general advocate faced for the first time with a more specialised subset of work ... highly recommended"
New Law Journal (Review from previous edition)

 

"David Bedingfield has now produced a 2nd edition of his 2005 book ‘Advocacy in Family Proceedings: Theory and Practice'. There is a great deal of material which has immense value in this book, which is significantly revised and updated from the first edition published in 2005. Of particular value are the opening two chapters on advocacy in general. To the newly qualified advocate, the chapters provide a useful reinforcement of advocacy skills only recently learnt. More established practitioners will also benefit from the opportunity to examine their advocacy habits, and question (as I did) the way in which they go about their craft, usually without consciously considering why they go about a case in the way that they do. There is also a very helpful chapter on appellate advocacy. The author weaves into his narrative a review of the literature on advocacy and how judicial tribunals make their decisions, together with anecdotes and direct quotations from members of the judiciary, to provide practical guidance on all aspects of advocacy in family law.

The section on examination in chief is particularly good – it never ceases to surprise me how few advocates know what a leading question is – and there is also a useful section on child witnesses, which sets out in accessible form the report of the Family Justice Council working party, the NSPCC guidance, and subsequent research. In these days of skeleton arguments and reduced oral advocacy, the section on opening a case is nevertheless still very relevant and contains essential guidance. Not all advocates would agree that a barrister should never express any emotion by a look – sometimes a little outrage can go a long way – and he fails to mention the well-known rule ‘Never throw your pen in the air, no matter how inane your opponent's question' (I confess to having simultaneously both invented and broken this rule). In addition, as a pupil I had been taught that the three rules of re-examination were: ‘Never re-examine. Never re-examine. Never re-examine.' I therefore found the section on re-examination to be a particularly informative guide as to when it might be a good idea to disobey those three rules.

There may be a lack of emphasis, across the board, on Practice Direction documents. These are often hurried or even neglected in practice but a case summary and position statement are golden opportunities for the advocate to frame the issues at the outset of the hearing, and are just as much advocacy as written closing submissions. The author rightly emphasises the importance of the concise statement of issues for a financial remedies FDA (quoting two judges' views of poor examples of these documents) when these comments are just as applicable across all types of family work."

MICHAEL HORTON MCIArb Barrister and Arbitrator, Coram Chambers
Family Law journal

 

Writing about the family justice system in England and Wales in 2012 is a bit like describing an earthquake while the tectonic plates are still shifting. Have we stopped moving yet? Not likely. The Coalition government is set to enact the Crime and Courts Bill 2012 (cl 17), which will establish a single family court for England and Wales.  This court, we are informed, will be a ‘judicially managed’ court. ‘The allocation of work, its case management, case progression and the measurement of the success of that judicial process will be for the judiciary,’ Mr Justice Ryder informed us in March 2012.  Judges will be expected to use a Case Management System that will be in use throughout England and Wales by the end of 2013. It will not be a ‘quasi-inquisitorial’ system, Ryder J tells us: it will instead in some instances become ‘fully inquisitorial.’  New practice directions will be issued that will further instruct us regarding the correct approach to disputes after family breakdown.

And this new court, according to Ryder J, will have a ‘new emphasis’ on evidence-based good practice. These ‘pathways’ in public law cases will show how cases should be managed and contained within the 26-week limits set out for public law cases. This will require a reduction in the number of experts instructed, and will require a reduction in the number of contested hearings.

Private law applications after the breakdown of families will also be restructured, though a complete understanding of the changed legal landscape must await further government decisions. But it is clear that litigants will be expected to submit to some form of mediation prior to having their matter heard at court. At present (31 December 2012), litigants seeking orders under the Children Act 1989 or the Matrimonial Causes Act 1973 are ‘expected’ to see a mediator, but it is not yet mandatory. The mediators must now sign forms for litigants, indicating whether the litigants were willing to submit. And exceptions will no doubt be carved out for domestic violence or for ex parte applications in financial matters.

Where does a manual regarding advocacy techniques fit into this ever-changing landscape? It is my contention, as the following several hundred pages make clear, that so long as there are legal disputes there will be a need for effective legal advocacy. This does not mean that advocacy techniques should not evolve. Of course it is right that the advocate must advise the client (as the best advocates always have) that it is ordinarily in the client’s best interest to avoid litigation, to look to settle on reasonable terms, to seek the best possible agreement that will permit the litigants to get on with their respective lives after the breakdown of the family unit. But reasonable people will continue to disagree. They will continue to seek legal advice regarding how to achieve what they perceive to be in their best interests. Those disputes will continue to be placed before judges. And good advocates will continue to be necessary to enable those judges to reach just results.

David Bedingfield

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