7 Courts |
208. Case management refers to the approach taken
by the judiciary to progressing cases. A well-managed case will
be resolved with the fewest possible hearings consistent with
justice. The judiciary have not, in the past, viewed themselves,
as case managers. Sir Nicholas Wall, President of the Family
Division, told us that the need for case management in the family
courts had necessitated a culture change: "historically,
the English judge has seen him or herself as the arbiter who sits
back and waits, decides the issue and then goes away. In family
law that has completely changed. We are now case managers and
we are in charge. We have a quasi-investigative inquisitorial
Justice Pauffley, a High Court judge specialising in family law,
agreed: "It is the judge's job to case-manage proactively
right from the off and to try to ensure that the case is dealt
with in the most expedient way possible."
209. Case management powers are contained in
Part 4 of the Family Procedure Rules 2010. The process by which
case management is carried out, however, varies between courts.
Sir Nicholas identified this as a problem, telling us: "In
some places where you have a very proactive designated family
judge...you will find that cases go through speedily. In other
cases...because of the number of players in the system and the
need to fulfil article 6which is an important factor in
the equationcases do slip."
Evidence that different courts conclude similar cases in different
timeframes is subject to the concerns over the quality of the
data we have noted elsewhere; however, a recent Ministry of Justice
study on reducing delay suggested that some courts were completing
care and supervision cases up to five months quicker than the
210. We heard evidence of multiple problems with
case management, including judicial continuity, poor identification
of issues at the beginning of a case, excessive use of expert
evidence, the failure of parties to file statements or evidence
as directed, and consequent repeated adjournments because cases
were not ready for determination. On judicial continuity, Craig
Pickering of Families Need Fathers told us "we've got members
who've had nine or 10 judges in the course of several years".
One of the elements within effective case management is judicial
continuity. Sir Nicholas agreed there was a problem:
What tends to happen, particularly amongst the circuit
judiciary, is that they sit in crime, civil and family, and often
the case has to wait for a judge rather than the judge going to
do the case when the case is ready. One of the things we are
very keen to address is judicial continuity and management of
cases, which means that the judge can hear the case when the case
is ready to be heard rather than the case having to wait for the
211. Judicial continuity not
only allows for effective case management and efficient use of
judicial time but is also an important signal to parties, above
all children, that their case is being treated with the respect
it deserves. We welcome the President of the Family Division's
recognition of this issue, and willingness to reconsider the current
approach to assigning the judiciary to cases. Further, we welcome
the senior judiciary's commitment to improving case management
in the family courts more generally.
212. In evidence to us, the judiciary themselves
identified similar problems with case management to those that
we had heard complaints about from other witnesses. Mrs Justice
Pauffley told us: "There is sometimes an insufficient focus
on issues so that cases are given too long a time estimate"
The wait for reports [...] sometimes causes more
delay than any of us would want, but then it is for the judge,
I would say, to reject an expert's time frame that is outside
the child's time frame. The case has to be brought within something
that is acceptable from the perspective of everyone. Sometimes
cases are listed with a fact-finding that is perhaps unnecessary,
so it is for the robust judge to case-manage that litigation so
that the fact-finding is dispensed with and you get on with the
process of deciding the child's future.
Mr Justice Ryder, who was the author of the Public
Law Outline (PLO), identified further issues with case management
and the challenges posed by changes in family law:
a fairly well demonstrated increase in complexity,
for example, caused by international cases, multiple interpretation
being required and new problems. Children in asylum circumstances
present assessors and courts with quite interesting and diverse
problems...the delay caused by sometimes too many experts, but
certainly lack of expert availability, and also the lack of appropriate
assessments at the time when we need them. They take too long
and they are not always of the quality that one would want the
first time round. That causes a delay...[and] poor issue analysis...You
need both the advocates and the judge to get together with one
mindset, which is to problem-solve a case, not to allow it to
become over-sophisticated [...]
213. It was clear from the recommendations of
the Family Justice Panel and the evidence we heard from the judiciary
that there is broad agreement as to the way forward, both with
case management and the wider challenges posed by a multi-party
and resource-stretched system where decisions are intrinsically
time-sensitive. The Panel recommended that the judiciary working
for the new Family Justice Service must have a greater focus on
Justice Ryder (from whom we heard evidence before the publication
of the Family Justice Panel Interim Report) told us:
you need a local understanding which is very strong,
with local leadership of the family justice system which is strong.
Your designated family judge, your Family Division liaison judge,
is key to making this work. You have to have, and should have,
business committees with each of the agencies represented on them
where they discuss just the problems that you are identifying.
214. The Minister told us that:
One of the immediate problems that we saw when we
came into Government was the lack of joined-up thinking between
Departments and, indeed, with the judiciary. We have immediately
acted to rectify that. At the highest level, we now hold quarterly
meetings between myself, Mr Loughton and Sir Nicholas Wall, President
of the Family Division. Those have proved to be very helpful
and hopefully are providing a degree of leadership at the highest
level that did not exist previously.
215. The Family Justice Panel also recommended:
"Judges with leadership responsibilities should have clearer
management responsibilities. There should be stronger job descriptions,
detailing clear expectations of management responsibilities and
Mr Justice Ryder explained stronger performance management and
multi-agency communication had recently been introduced to ask
the questions crucial to reducing delay:
recently, we have had local performance implementation
groups and a national performance body as well, with the object
of saying, "Look, is listing working in your area? Is local
authority assessment process working in your area? Have we a
shortage of guardians? Are they taking too long? Are we using
too many experts? Are the police co-operating?" You put
together each of the agencies in an interdisciplinary environment.
It has to be a public, transparent environment where people can
actually hear what the arguments are for and against improvements.
216. He noted, however, that some areas were
working better than others:
in areas where you do not have that interdisciplinary
co-operation, which can be for all sorts of local strategic reasonsquite
often funding but not necessarily so; it may be lack of leadership
in one or more of those organisationsthe designated judge
and the liaison judge will find difficulty trying to get the improvement
that you will see elsewhere. That should not stop them trying.
217. Earlier attempts to tackle case management
problems and inter-agency working provide evidence of how reform
can work but must be applied consistently across the system. Introduced
in 2008, the PLO
was a key reform arising from the 2006 Review of the Child Care
Proceedings System in England and Wales, issued jointly by the
Department for Constitutional Affairs (now the MoJ), the Department
for Education and Skills (now the Department for Education) and
the Welsh Assembly Government. The PLO introduced a more streamlined
process intended to minimise unnecessary delay, with greater emphasis
on case management and preparation by advocates. The timetable
for each case would be focused around the needs of the individual
child involved. The PLO sought to shift the balance in public
law cases from an emphasis on a specific target time for completion
of cases, to a more flexible requirement for cases to proceed
at a speed appropriate to meet the needs of the individual child,
known as the 'Timetable for the Child' whilst maintaining the
overall objective of completing cases within 40 weeks.
Mr Justice Ryder, one of the authors of the PLO, told us that
the PLO had "has fundamentally changed the landscape because
we are talking about a problem-solving culture under the PLO which
was not the level playing field, the judge referee system, that
we case-managed cases with before."
218. In 2009, the MoJ commissioned an early evaluation
of the PLO. This concluded that, when implemented appropriately
to the needs of the case, the PLO provides a clear structure for
care and supervision cases. However, it also found that there
was inconsistency in compliance with the PLO requirements.
This was reflected in a recent study by our specialist advisor,
Professor Judith Masson, and Julia Pearce, which found little
evidence of case management in compliance with the PLO in three
of the four areas they studied.
219. Poor compliance with the PLO creates more
work for other parties in the family justice system. In November
2010, the Committee of Public Accounts found that the issue of
sub-standard work by local authorities in care proceedings leading
directly to an increase in the workload for Cafcass, which we
noted above, is a result of not adhering to the PLO:
The quality of assessments on care cases by local
authority social workers varies. Poor quality assessments place
an additional burden on Cafcass as the courts must request a new
assessment from Cafcass family court advisers if they cannot rely
on the work of local authority social workers. The Department
should work with local authorities to ensure that they are fulfilling
their responsibility under the Public Law Outline to undertake
appropriate pre-action work with the family, and to produce good
assessments so that cases can proceed without requiring extra
interventions or investigations by Cafcass.
Litigants in person
220. Aside from a small 2005 study carried out
by Professor Richard Moorhead for the then Department of Constitutional
Affairs, there is very little evidence on either the impact of
litigants in person appearing in the court system, the experience
of such litigants or the number of people who currently represent
themselves. The Minster told us that while the Ministry of Justice
believed the number of unrepresented litigants in the family courts
was "significant", the Department did not know how many
there were. We
can only repeat what we have said elsewhere, in this Report and
during other inquiries, that without robust data evidence-based
policy making becomes impossible, and the potential for unintentional
consequences arising from reform increases exponentially.
221. During the course of our inquiry into the
operation of the family courts, the Government consulted on proposals
to end legal aid for most family law cases, except those where
there was evidence of domestic violence, or where mediation was
to be facilitated. The Ministry of Justice estimates that at
least 210,000 people pursuing cases in the family courts will
no longer be eligible for legal aid.
The Government believes that removal of legal aid will force
more litigants into alternative dispute resolution. The Minister,
Jonathan Djanogly MP, told us that, while the MoJ agreed that
there would be an increase in the number of litigants in person
in the courts: "Given that we think the overall numbers [of
litigants] going to court will reduce, we do not see the additional
pressures on the court being significant."
222. During our legal aid inquiry Sir Nicholas
Wall told us: "if public funding is removed from private
law applications...then there will be a massive increase in litigants
in person. If you want maintenance or to be maintained, or you
want to have contact with or look after your children, you are
not going to be prevented from doing so by an absence of public
funding." When he appeared before us in this inquiry, the
President told us he in fact feared an increase in the numbers
of private law applications: "Unlike other areas of the law,
people will not give up simply because they do not have public
funding. There are other areas of the law such as immigration
and so on where, no doubt, swathes of work may be cut out because
there is no public funding. But, in family work, there is no
doubt at all that...there will not be a diminution; there will
be an increase, if anything, in the people who litigate."
Sir Nicholas told us that, without legal advice on the strength
of their case at an early stage, parents would simply refuse to
compromise outside court.
223. The Family Justice Panel agreed that "greater
numbers of people" would be representing themselves in the
family justice system. It also noted that implementing a policy
which sought to put parents off from pursuing a dispute meant
that some children, who would otherwise enjoy a relationship with
their parent would simply lose contact.
224. The removal of legal aid
from applicants in most private family law cases will increase
the number of litigants in person in the family courts. It is
self-evident that parents are unlikely to give up applications
for contact, residence or maintenance for their children simply
because they have no access to public funding. We are concerned
that the Ministry of Justice does not appear to have appreciated
that this is the inevitable outcome of the legal aid reforms.
225. Mr Djanogly also told us: "We do not
necessarily see there being an increase in time taken in all types
of case because of an increase in the litigants in person. The
evidence actually shows that, in some types of case, having litigants
in person on both sides may reduce the time taken in court. We
cannot take these things for granted."
We asked the Ministry of Justice for the evidence to which the
Minister referred. The Department supplied us with a copy of
a written parliamentary answer showing the average time taken
for family proceedings:
|Average duration of cases completed in county courts or the High Court in England and Wales between 1 April 2009 and 31 March 2010, by legal representation
||Mean duration (weeks)
||Number of decrees absolute
||Mean duration (weeks)
||Number of orders
||Mean duration (weeks)
||Number of orders
|Both applicant and respondent
|Neither applicant nor respondent
Figures are given where the applicant/respondent's representative has been recorded or left blank. Therefore, it should be noted that parties without a recorded representative are not necessarily litigants in person.
1. Figures include dissolutions of marriage or civil partnership and annulments of marriage or civil partnership.
2. The duration is calculated from the earliest recorded petition date to the earliest recorded decree absolute date.
3. Figures exclude cases where there is no record of a petition and cases where the decree absolute date is before the petition
4. Time from petition to decree absolute may be affected by the time it takes the applicant to apply for the decree absolute once the decree nisi (first order) has been issued. In normal circumstances the applicant may apply for the decree absolute six weeks after the decree nisi has been issued, but (s)he may choose to wait longer than this.
5. The mean is the total of all of the durations, divided by the number of decrees absolute.
Public and Private Law:
1. Private law refers to cases brought under the Children Act 1989 where two or more individuals, usually separated parents, are trying to resolve a private dispute about their child(ren). Public law refers to child welfare cases where a local authority, or other authorised person, is stepping in to protect a child from harm or neglect.
2. Private law includes cases where a section 8 order (contact, residence, prohibited steps, specific issue) was made or where a parental responsibility order was made. Public law includes cases where a care order or a supervision order was made. This does not necessarily mean that these were the orders applied for.
3. The durations in both case types are calculated from the earliest application date (or the date the case was transferred in to the court if that is earlier) to the date of the order event.
4. A case is defined as applicant represented if at least one applicant in the case has a recorded representative. Similarly with respondents.
5. The mean is the total of all of the durations, divided by the number of orders.
Source: HMCS FamilyMan system
226. A true picture of the impact on the courts
of unrepresented litigants only appears when cases involving "active"
parties are considered. Cases where a party either does not appear
or does not oppose the application, for example an uncontested
divorce, unsurprisingly take less time. Family cases involving
unrepresented parties who take an active part in proceedings took
longer, parties being less likely to settle.
227. In addition to our grave concerns over the
quality of the data on which the Ministry of Justice relies, the
assertion that cases may take a shorter time when parties are
unrepresented conflicts with all the other evidence we have heard
about the experience of all parties in cases involving a litigant
in person. The consensus was that litigants in person create
delays, in some cases simply through lack of experience and awareness
of procedure, and in others due to mental health, literacy and
substance abuse problems. Sir Nicholas Wall told us:
my experience of people who are not represented by
lawyers is that they come in all shapes and sizes. Obviously
some of them are very good; some of them are very nervous; some
of them are very upset; and some of them are disturbed. But they
do undoubtedly slow the system down.
228. When we put the Ministry of Justice's assertion
that cases in which a litigant in person appears may actually
take less time to Mr Justice Ryder, a High Court judge specialising
in family law, he told us "I cannot think of a single case
where that would be correct in the time that I have been sitting."
He also pointed out that a high number of cases that get to court
are settled at the first hearing:
at this first appointment in private law about 70%
of all casesit varies across the countryare conciliated
by the district judge or, in those areas where the family proceedings
court does this, by the legal adviser with or without the magistrates.
That is an extraordinary percentage of cases that don't fight
in a traditional way through the courts. If we are then going
to remove legal aid from those cases that need some legal assistance,
the inevitable effect is going to be significant upon the judges.
229. Mrs Justice Pauffley described the difficulties
the judiciary face in conducting hearings involving a litigant
in person effectively and efficiently:
It is extraordinarily difficult to manage a litigant
in person. We all have a duty to listen to the arguments that
they present. It would be rude and offensive, and, frankly, one
might say, a denial of justice, to say, "I'm not interested
in this; move on." There is only a limited amount of that
in our armoury. In most cases a litigant in person will add enormously
to the length of time a case will take, not least because most
of them will want to litigate every last little issue.
230. The judiciary's evidence that litigants
in person cause delays in the family courts received support from
other witnesses. Fiona Weir of Gingerbread told us "litigants
in person are often one of the main causes of delays within the
court system because the fact that they don't understand what
is going on leads to a lot of delays."
The National Association of Child Contact Centres observed: "Timetables
set out to aid the parties are rarely complied with [when litigants
represent themselves] and LIPs lack the detachment and experience
to drop untenable, weak or irrelevant arguments and to accept
unpalatable decisions rather than pursuing doomed appeals leading
to delay, increased costs and frustration for the represented
party as well as the judge which may of itself hinder compromise."
Stephen Cobb, of the Family Law Bar Association, responding to
the charge that lawyers could be expected to say that litigants
in person caused delays in the system, said:
Professor Richard Moorhead's 2005 research for the
then Department for Constitutional Affairs concluded that the
working of the family court was significantly impaired by the
involvement of litigants in person in the courts. So it is not
the Family Bar that is saying this: it is Professor Richard Moorhead
and...probably anyone you ask who works in the family courts.
231. The Family Justice Panel agreed that litigants
in person cause delays in the system "We share these concerns,
both as to the ability of litigants in person to conduct their
case effectively and as to the inevitable increased burden in
terms of time and resources this will place on the court."
232. Catherine Lee, Director of Access to Justice
at the Ministry of Justice, told us:
we did promise in the Legal Aid Reform consultation
paper that we would be doing a post-implementation review specifically
to look at the impact of litigants in person. We will be doing
that. It will be a question of looking at the backlog, looking
at the actual length of cases taken involving litigants in person
and seeing whether there is a connection. As the Minister said,
the evidence so far is not clear cut on the subject.
233. When we repeated the Minister's evidence
that cases with unrepresented litigants could take a shorter time
to the President of the Family Division he issued an invitation:
"I think he ought to come and sit with one of my colleagues
or myself for a day with a litigant in person and then he might
not give that evidence."
234. Procedures and terminology in the family
courts do not vary depending on whether a person is represented
or not. As we heard from the judiciary and others, this is one
of the factors that create delays when one or both parties are
litigants in person. It also means the experience of court for
many litigants in person is highly stressful. Fiona Weir, CEO
of single parents' charity Gingerbread, told us a survey conducted
by her organisation found that 78% of litigants in person found
it "either difficult or very difficult to represent themselves
in the court system."
The National Youth Advocacy Service told us that the experience
of litigants in person led to a diminution in their confidence
in the family justice system:
The lack of understanding of court processes and
the lack of legal advice results in unrealistic expectations of
children's representatives, and protracted proceedings. This
further increases delay and cost to public purse. This causes
a lack of confidence in the system on the part of litigants, and
has contributed to public and misguided campaigning, of which
NYAS has direct experience. Children involved in the proceedings
experience further trauma and uncertainty.
235. We heard evidence about the experience of
court for litigants in general, which we believe is applicable
to the experience of litigants in person. Nicola Harwin, of Women's
Aid, a charity supporting victims of domestic violence, told us
that many of those using Women's Aid's services:
feel very intimidated by the process of going to
court and they don't really understand what's going on. They often
feel very isolated...people feel that there's a pressure to agree.
Indeed Lord Justice Wall said, as one of his conclusions from
looking at the 29 Homicides report, that it was very important
that people were able to give their consent freely and without
pressure. I don't think it's very easy to do that. There's also
the particular problem of having separate waiting rooms. Despite
there being recommendations about this a number of years ago,
there are still many courts where there aren't separate waiting
spaces so that, if you are going to a hearing and are frightened
of someone who is the applicant or the respondent, you are put
in a position that's even more intimidating.
Craig Pickering, of Families Need Fathers, agreed
that the experience was intimidating, and said terminology such
as "contact" and "residence" was alienating.
Both Mr Pickering and Lynn Chesterman of the Grandparents' Association
described involvement in the court process as akin to the feeling
of being on trial, Ms Chesterman summing the experience up as
"if somebody is making a decision: are you a good person
or are you a bad person?"
Families Need Fathers had also found the Courts Service unhelpful
The Courts Service, I have to say, is not great at
communicating what is going to happen to you. If you look at
their website, it is not what I would call user-friendly. A lot
of courts around the country refuse to put up our posters saying
"Come along to one of our self-help sessions. You can talk
to people who have gone through similar experiences. We might
even be able to ensure you don't have to come back to this court."
They just won't let us put up the poster, which seems very strange.
236. The Family Rights Group told us it provided
"DIY information sheets" for litigants in person and
the Family Justice Council Parents and Relatives sub-group was
developing a leaflet setting out sources of specialist advice,
although this support was vulnerable in the current funding climate.
The Government's response to the legal aid consultation stated
that "the Government recognises that further examination
of the system to support litigants in person is required and we
intend to review this issue".
237. It is evident that non-lawyers
accessing the family courts can find it a confusing and frustrating
experience. While we accept that some steps have been taken by
voluntary organisations to assist litigants in person, more clearly
needs to be done and we welcome the fact that the Government is
reviewing the available support system. We believe that the family
court will need to become more attuned to dealing with parties
representing themselves; and this will require procedures and
guidance developed to accommodate the challenges posed by larger
numbers of litigants in person.
238. It appears the Ministry of Justice may be
underestimating the difficulties for litigants in person in sourcing
appropriate specialist advice. Mr Djanogly told us:
On 6 April, the new Family Procedure Rules came into
effect. These have been worked on for a long time. They have
pulled together all the family legislation into one coherent set
of rules. They will simplify those rules. They will simplify
the application procedures. They significantly simplify the terminology
involved within the system. All of these will greatly go to help
litigants in person.
239. The Family Procedure Rules 2010 constitute
almost 300 pages of secondary legislation. While, as the Minister
told us, they consolidate the procedural rules applying to cases
in the family courts from the previous five sources, they are
by no means written for litigants in person. Lucy Reed, a family
law barrister and author of Family Courts without a Lawyer:
a handbook for litigants in person, has commented that while
"many large chunks of the rules are...expressed in less lawyerly
style...I still don't think the rules will win any Plain English
240. The Family Justice Panel made a number of
recommendations on court procedure, including the creation of
a two-track system in the family courts for complex and simple
cases, where simple cases on a single narrow issue could be dealt
with in a two-hour tightly managed hearing.
The Panel also suggests that the terms "contact" and
"residence" no longer be used. It heard from an Australian
judge that the move away from using these terms in 2006 had been
241. We welcome the Family Justice
Panel's recommendations on the creation of a two-track system
in the family courts for simple and complex cases. We urge the
Panel, however, to develop these proposals with unrepresented
litigants in mind. In our view, this is the only realistic approach
for robust reform of the family courts given the pending changes
to legal aid in private law cases.
CROSS-EXAMINATION BY LITIGANTS IN
PERSON WHERE THERE ARE ALLEGATIONS OF SEXUAL ABUSE
242. There are currently no rules to prevent
litigants in person cross-examining victims of alleged abuse,
whether children or adults. Sir Nicholas Wall told us: "It
is a real difficulty because in the criminal sphere there is a
statutory intervention...A potential abuser cannot cross-examine
a victim. In family law there is no such provision. It is enormously
The evidence we heard from the judiciary is that the courts have
to operate an ad hoc approach to such cases. Mrs Justice
Pauffley described possible routes to obtain representation for
the alleged abuser:
If a stepfather is accused by his adolescent step-children
of having sexually abused them very seriously and over a number
of years, you cannot have a man in that category cross-examining
those young witnesses himself. It would be a denial of justice,
and it would be emotionally the most upsetting of spectacles for
any court to encounter. So you send them off to the Bar pro bono
unit. You ring up chambers with whom you have perhaps a slight
connection and you say, "Could you possibly send somebody
along to represent this poor unfortunate?" But it is calling
in favours, which is really outrageous in a civilised society.
Mrs Justice Pauffley further stated that "The
only other way I have seen it managed is for the guardian or the
child's representative to shoulder the burden of cross-examining
the young person with a list of questions provided by the accused,
but that is less than satisfactory."
243. The Government's response to the legal
aid consultation changed the proposals to include the provision
of legal aid for the victims of domestic violence and the non-perpetrating
parent in cases of abuse. We note, however, that this does not
address the problem of cross-examinations by alleged perpetrators.
244. The increase in litigants
in person will give rise to more cases in which an alleged abuser
cross-examines the person he or she is alleged to have abused.
We recommend the Ministry of Justice considers allowing the court
to recommend that legal aid be granted to provide a lawyer to
conduct the cross-examination in such cases.
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Q 163 Back
Q 167 Back
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Q 165 Back
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Q 166 Back
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Q 166 Back
Following revision in April 2010, now known as the Practice
Direction Guide to Case Management in Public Law Proceedings,
but commonly known, and referred to here, as the Public Law
Outline (PLO). Back
The 2010 revision to the PLO now requires cases to be completed
in 30, 50 and 80 weeks. Back
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Just Following Instructions? The representation of parents
in care proceedings.(2011) J. Masson and J. Pearce Back
HC (2010-11) 439 Back
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and Wales, Cm 7967, 2011, Ministry of Justice Back
Q 339 Back
Q 183 Back
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Q 345 Back
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Q 182 Back
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Ev w72 Back
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Ev w88 Back
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Ev w103 Back
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Q 341 Back
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Q 189 Back
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