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Government urged to review family law and secret courts

I was invited to attend the a parliamentary meeting regarding family law last week, but was unable to attend. Sam Smith went and has contributed the following report – and concludes that much needs to be done to overcome secrecy regarding family court hearings.

Guests at a meeting of the All Party Parliamentary Group on Family Law last Tuesday were left uninspired after questioning members of the Family Justice Review Panel whose members were appointed by the last Labour government and whose remit does not include key issues.

The new parliamentary group chaired by John Hemming MP brings much need for scrutiny to the controversial area of family law and this second meeting demonstrated just how badly it is needed.

The Family Justice Review was ordered by the outgoing Labour government earlier this year in response to widespread concern in the public and the media. Members of the panel attended the parliamentary group to answer questions from members of the public, representatives of stakeholder groups, family law practitioners and journalists.

As one might expect from a panel set up by a government containing Harriet Harman and Jack Straw, the review panel is composed of four civil servants (including three ‘government representatives’), two local government worthies, a judge, the chair of a charity and David Norgrove the Chair of the Pensions Regulator. Notable for their absence are representatives of families whose lives have been touched by the courts or any of the charities campaigning for reform of the system.

The meeting began with a presentation from John Coughlan CBE, Director of Children’s Services at Hampshire County Council. Mr Coughlan opened by explaining the panel’s view that the welfare of children should remain paramount (who thinks otherwise?) and went on to cover a number of themes including the desirability of ‘greater efficiency’ (who is for inefficiency?) and ‘simplicity’ (who is for complexity?)

The meeting was opened to the floor to give the opportunity to ask questions and to raise comment. The first question was to ask the panel about their views on transparency in the family courts, where hearings are held in secret and families are ordered not to disclose their suffering to their members of parliament or the media. The answer? “Not in our remit”. The panel’s terms of reference are a sparse one-and-a-half pages of new Labour waffle. Needless to say the term ‘transparency’ does not feature once.

Other questions followed in similar vein with representatives of several charities focusing on issues of real injustice touched on only in passing by the review, if at all. What was plain was a disjunction between the concerns of the public and the media and the priorities of the panel. The audience at the meeting, including myself, were left with the impression that the review would provide little in the way of reform. Mr Hemmings is to be commended for shining a light on this difficult area but sadly he has his work cut out for him.

I asked Tim Loughton, the Minister for Children and Families, where he stood. It is clear that the he and the Minister for Justice Jonathan Djanogly are far keener on transparency than his Labour predecessors. The government have suspended implementation of Part 2 of the Children, Schools and Families Act which would have potentially further restricted reporting. Certainly there are good reasons to open up the family courts. Such a policy would cost nothing, would enable better assessment of the real situation in the system and would make a sympathetic minister popular with the media.

Reforming the family justice system is a long term, complex project. However, the coalition government has the people and attitudes to finally bring change to this neglected area.The review panel is due to issue an interim report in April 2011 to coincide with the Munro Review of Child Protection. It is to be hoped that the government will then take the necessary measures to restore confidence in the system by allowing all Family Court judgements to be published, albeit anonymising the parties. In the interim Mr Loughton and Mr Djanogly could do worse than look again at the panel’s membership and terms of reference.

*Sam Smith is a former Labour Councillor and member of Labour Party Staff. He is now a member of the Conservative Party. He has joined the campaign to for reform of the family courts in light of a relative’s difficult experiences.

*I was invited to attend this hearing because of my post about the Court of Protection which continues to arouse considerable interest, with many frustrated people describing their heartfelt personal stories in the comments.


7 Comments

  1. Mr BD

    I have written to Sir Nicholas Wall, President of the Family Division, Sir David Norgrove, Chairman of the Family Justice Review and Lord McNally at the Ministry of Justice. Their responses indicate very clearly that none of them is willing to implement much-needed reform in Family Law.

    In Re W (Children) [2011] EWCA Civ 345 the President of the Family Division, Sir Nicholas Wall, said that “too much weight” and “undue prominence” have been accorded to his pronouncements in Re D (Children) [2010] EWCA Civ 50.

    In Re D, Sir Nicholas had declared:
    “There has been considerable criticism of Payne v Payne in certain quarters, and there is a perfectly respectable argument for the proposition that it places too great an emphasis on the wishes and feelings of the relocating parent, and… relegates the harm done of children by a permanent breach of the relationship which children have with the left behind parent… As I say, this is a perfectly respectable argument, and would I have no doubt in the right case constitute a compelling reason for an appeal to be heard…”

    Sir Nicholas reserved his judgment in Re D. He gave himself three weeks specifically to “reflect carefully” on the arguments against Payne and to read the plethora of scientific child-welfare research presented (all also appearing in The Custody Minefield Report of December 2009). It is rather disingenuous of Sir Nicholas if he is now attempting to relegate the importance of his “carefully” considered criticisms of Payne by suggesting, as he now puts it, that they were merely “some words of mine spoken in a judgment”.

    Bear in mind, too, that Sir Nicholas specifically released Re D into the public domain, presumably so that the legal community would take due note of his proclamations.
    It did.

    In a speech given on 18 March 2010, Professor Freeman announced that Sir Nicholas had “added his qualified support for a review of Payne v Payne”. Most other legal experts and commentators agreed with Professor Freeman.

    Many other eminent legal professionals viewed this as a direct criticism of Payne v Payne, even the Judicial Studies Board!

    Moreover, when, in an interview on 12 August 2010, Sir Nicholas was questioned about his comments in Re D, he declared that he was “delighted” with the attention that it had received, and he repeated his criticism of Payne.

    On 22 December 2010, Lord McNally, Minister of State at the Ministry of Justice, wrote to me as follows:

    “The President of the Family Division has… signalled that if a suitable… case were to be appealed to the Supreme Court this might well result in a reappraisal of… Payne v Payne.”

    Lord McNally also directed my attention to Sir Nicholas’s criticism of Payne in a second relocation case, Re D (A Child) [2010] EWCA Civ 593, as follows:

    “The President acknowledged that… Payne v Payne… places too great an emphasis on the wishes and feelings of the relocating parent (see Paragraph 4):

    Paragraph 4 of this second judgment reads as follows:

    4. “…there is a powerful body of opinion which takes the view that the traditional English way of dealing with [Relocation cases, as set out in Payne v Payne] pays too little attention to the damage caused to the child by the loss of the relationship which the child has with the left-behind parent and too much attention to the views of the departing parent, who invariably tells the court that she (and it is usually she) will be devastated if she is not allowed to go”.

    Sir Nicholas judged the arguments against Payne to be “powerful”. He also revealed his belief that applicant mothers “invariably” rely upon the so-called “distress argument” (Payne ascribes pivotal importance to this factor).

    Presumably, Sir Nicholas may not be best pleased if “too much weight” and “undue prominence” were now also to be accorded to this judgment?

    In Re W, Sir Nicholas backs Professor Freeman’s call for more research, but he uses this as a reason to leave Payne firmly in place.

    Remarkably, Sir Nicholas appears to deny the very existence of the scientific research presented to him in Re D; research which he spent three weeks reading; research which he described as being “compelling”; research which led him to publicly challenge Payne and to call, in effect, for its reappraisal.

    Does Sir Nicholas need to wait months or years for yet more research, when he has already described the existing research as “compelling”? When there is a significant risk of child harm, does the ‘Precautionary Principle’ not oblige him to act swiftly? How much more scientific research does Sir Nicholas need?

    When it suits him, Sir Nicholas is quite able to make child welfare judgments in the complete absence of scientific research. Where is the scientific research, for example, to support his assertion in Re W that a meaningful, wholesome and loving parent/child relationship can be facilitated by means of email and Skype?

    There appears to be a profound illogicality in Sir Nicholas’s handling of scientific evidence and research.

    Furthermore, in Re W, Sir Nicholas abdicates responsibility for relocation law and ‘passes the buck’ to Parliament:

    “…unless and until Parliament imposes a different test… relocation cases will remain… governed by Payne v Payne.”

    In contrast, in his December letter, Lord McNally of The Ministry of Justice states:

    “The Children Act 1989 already provides statutory protection to safeguard the welfare of children in cases of Relocation…the Act clearly requires the court to make the welfare of the child its paramount consideration…”

    In other words, Lord McNally ‘passes the buck’ back to the judiciary. Lord McNally also stated that it was for David Norgrove of the Family Justice Review to make recommendations regarding relocation law. However, in his recent Interim Report, Mr Norgrove declined to make any recommendations concerning the issue of relocation.

    So we have gone full circle. No one person in a position of power appears willing to act. Each passes responsibility to another. Meanwhile, hundreds of children continue to be removed from their fathers, their extended families, their schools, their friends, and from the familiarity and stability of their environment. Our judiciary expects these children to show steely mental resilience in the face of such tremendous personal upheaval. In utter contrast, adult mothers are not expected to have any fortitude, were their relocation applications to be refused.

    The gravamen of the case against Payne is actually very simple. In determining the ‘paramount interests’ of the child, should the judiciary base its judgments upon readily-available, extensive, irrefragable, independent and corroborating contemporary scientific evidence and research, or, instead, upon un-scientific and plainly out-of-date 1970’s ‘common sense’ assumptions concerning the emotional fragility of the ‘weaker sex’, and the un-importance of a father in the development of a child? The colloquial term, ‘no-brainer’ springs immediately to mind!

    Furthermore, it cannot be enough for our judiciary simply to declare that it has acted in a child’s ‘paramount interests’. When considering a child’s paramount interests – in other words, its psychological, developmental and educational welfare – the judiciary must be made to give full weight and consideration to the plethora of contemporary psychological and sociological scientific evidence and research.

    In June 2010, Sir Nicholas Mostyn of the High Court recommended that relocation law should “bring into full account” the “emerging body of significant research in various jurisdictions” (Re AR (A Child: Relocation) [2010] EWHC 1346). Can Sir Nicholas Wall argue against Sir Nicholas Mostyn’s urgent recommendation?

    In 2010, Sir Nicholas Wall had “no doubt” that there was a “compelling reason” for Payne to be reappraised by the Supreme Court. In 2011, he goes back to reaffirming the importance of Poel and Payne. At the very least, the public deserves a full explanation for his volte-face.

    Any further delay in a reappraisal of Payne would be an abominable indictment, both of our Government and particularly of our judiciary.

    Where the President of the Family Division has stated that there is a powerful case that current relocation law may be relegating the harm done to children, it is an utter disgrace that he has not acted in any inquisitorial manner to address this danger. If the President of the British Medical Association had voiced similar child welfare concerns over food additive X, and had waited 2 years before acting, he would be in prison. Wall remains immune.

    Yours most sincerely
    Mr BD (litigant-in-person father in Re D (Children) [2010] EWCA Civ 50)

  2. I agree with your point about the lack of families effected being on the panel. But then that’s typical of governments (whoever is in power) and authorities in this country. Decisions are never made by anyone who can actually understand how it will be for the people who are effected.

  3. Kenton Mann

    You can read my updated blog here http://familylawreview-mannintheknow.blogspot.com/ with all the live links on it as above, it also addresses the problem of HAP ( Hostile aggressive parenting ) in its worst and extreme form. Please read the links. Thanks

  4. Kenton Mann

    Ministry of Justice Family Law Review

    Family Law Review

    Monday, 22 November 2010

    For the attention of the ministry of justice family law review board and Lord Justice Sir Nicholas Wall. Under the present dis-functional system l was systematically dismantled and destroyed for my children as their Father by the experts, the family law system and by its delays. These so called experts and system work primarily for the mothers interest and not for the children. This is most defiantly not in the best interest of the child. The system is utterly unfair and inhumane for children as it stands. Here is what Sir Bob Geldof has to say about the current family law system Sir Bob Geldof in the Telegraph
    My proposals for Lord Justice Sir Nicholas Wall’s and the ministry of justice family law review boards consideration under the UK family law review and savings to be made by my proposals. They are devised from my experience of the present system, which is only objective as l see it.

    1 …That direction hearings are abolished, as this could be undertaken by the courts office, ie. court papers (evidence), statements, people to attend, disclosures. All of this could be done as a tick box paper exercise by the two opposing barristers and solicitors. Then signed off by the Judge making it a binding order. This would save a vast amount of court time and stream line the system. Call it an ” Administered Order ”

    2…..Opposing barristers should not come from the same chambers by a new law or written into there code of professional conduct, as the plaintiff would not use the same solicitors as the defendant, but this is common practice at present and is rather questionable at best.

    3….. Experts should always by law come to court to give verbal evidence at the first hearing, after there expert report has been provided. This gives the Judge cogent justification in a decision that Judge may wish to make against the reports findings, that is if the Judge chooses to do so. This would avoid many appeal hearings saving court time, leading to quicker resolution for the families involved, plus avoiding costs against the family in high court proceedings. This also if considered would stop the continuation of proceedings at county court level after an appeal which if it had to be conceded at the high court of appeal on this technicality or fought and lost.

    4…. Mediation would only work with parties who would accept the mediation. All my experience of proceedings is that the Mother, who is the sole custodial parent is overtly hostile to the other parent the Father. Mediation would not work in a majority of cases and only be another huddle in already lengthy process adding to the delays, which would work for the hostile Mothers favour of trying to separate and alienate the father from the children by time delays (this is not the answer in my view)
    5…… There needs to be an early assessment of whether HAP (hostile aggressive parenting) is present and is the most likely cause of the problems being encountered by the family. See this very useful site with many useful diagnoses and resolutions to the very real problem that the courts, experts and social services do not understand or even recognise .
    http://www.hostile-aggressive-parenting.com/what_is_Hostile_Aggressive_Parenting.asp

    6….. Both parties mother and father could fill in the form or something similar, here http://www.hostile-aggressive-parenting.com/evaluating_HAP_step1.asp Once comparing the answers would help the court to understand what was going on in the family and identify HAPs presence early. (l will refer how to deal with this later). My problem as with many Fathers is the constant false allegations made by the Mother and any siblings she can enlist, this is dealt with in the HAP links above because again the false allegations are part of HAP. Once the allegations are proved false at a fact and finding hearing, this would start the the sanctions for that parent engaging in HAP as l suggest in 8 below. The current system only deals with the symptoms and not the cause, it needs to deal with the issues. Lord Justice Ward acknowledges the issues of false allegations and the inability of the present system to deal with HAP. Lord Justice Ward’s interview here with the Sunday Times showing what happens when HAP is not dealt with and left to ravage a family, my story is hauntingly similar. Lord Justice Wards Interview With The Sunday Times

    7……. Proceedings should have a time limit of no longer than six months because ALL the damage is done with DELAYS, delay tactics by the opposing barrister should not be tolerated by family courts and punitive punishments for them doing so be made law.

    8…….Sanctions for parents who disobey court orders, these should not be custodial. It can be dealt with in 3 phases of increasing parenting course lengths. During this time of parent retraining and understanding of what that parent is doing to the children, the children would reside with the other parent until the course is completed. If this does not work after the third course of increased intensity and time apart, then a change of residency should be considered as the HAP parent will not refrain from the mental abuse of there children. If this is designed well it will stop a majority of trouble before it starts.
    9 …. Why does the government charge VAT on legal bills when they are not a VAT chargeable commodity, an EU treaty is to blame, but why can’t we set our own rate lower ?. It is not right that tax profits are made from these most terrible problems, it is just unacceptable in a modern democracy. This policy should be adopted by a political party as it would be a vote winner and show some political interest, which these problems need if anything is going to change.

    10…..That the UK government should move towards as in Europe the principle of “50/50 parenting”, this does not mean cutting the children in half or there time with each parent. The label should be “responsible 50/50 parenting”. Both parents putting the child needs and the now separated family first. As a duty of care as the parents they must set aside there own negativity toward each other. May be a ” Children’s Parenting Charter of Care” can be signed by both parents at the divorce or separation stage, this would set out there responsibilities and conduct to there children as divorcing or separating parents, which the courts would be able to refer to if future problems are encountered.

    Due to the continuing hostility of my ex wife and interrogation of our children, even though l have a full contact order which had to be conceded before l went to the high court of appeal due to the technicality above of the Judge not hearing verbal evidence from the expert. We had to return to the county court level to try to get the order ratified. Only for me to face a final onslaught from the expert who l am sure knew of the above HAP presence in my ex wife (or he was purely incompetent) and failed in his duty. So l have had to abandon my long legal battle of 2.5 years to keep contact for our children because it is appropriate and in there best interest for me to do so now, stopping the pressure on them to please all, which is very sad for them and for me. My children are 13 and 15 both girls and we have had many happy times together, my divorce was 10 years ago, this trouble started shortly afterwards. I have no contact with either now, even though l have had full contact with them at a level where l would have them every weekend from Friday night to Monday morning, half the school holidays and mid week after school for 7.5 years after divorce.
    May be this blog could be passed to Lord Justice Sir Nicholas Wall or the ministry of justice family law review board, l would be very happy to meet him or them, if only l could just change one thing my efforts would not be wasted. Thanks for reading my views

    • My deepest sympathies. As a Scandinavian going through this family law hell in England for several years now with similar results as your own, I cannot understand how a whole judicial system has gotten themselves into this mess. “Best interest of the child” in England = State Sponsored Child Abuse. No wonder UK comes at the bottom of child well fare in OECD(UN report)

  5. The whole biz needs sweeping away and rewriting.

  6. it’s very interesting that what you write about. thanks for information.

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