Former President calls for action to address crisis in family justice

Former President calls for action to address crisis in family justice

The former President of the Family Division Sir James Munby has warned about a “crisis in private family law”, as a result of sustained criticism of the system.

 

Heavy and sustained attackfamily law

In a speech that he prepared for a conference on shared parenting in Edinburgh he said that the system was under “heavy and sustained attack” from two very different viewpoints:

  • One is the viewpoint of those who have experience of the system as litigants: here, he said, much of the debate is “polarised and largely gender-based”.
  • The other viewpoint is that of many experienced and responsible journalists, and of increasing numbers of legally qualified family practitioners, whose experiences and opinions feature both in the print and broadcast media and on the blogosphere and other online social media.

 

Complaints under the first viewpoint included:

  • That judges are failing to give effect to the statutory presumption that, unless the contrary is shown, involvement of both parents in the life of their child will further the child’s welfare;
  • That judges are not sufficiently alert to the behaviour of women who are alienating their children from their fathers; and
  • That judges are not sufficiently robust in ensuring that their orders are actually complied with by recalcitrant mothers.

 

Complaints under the other viewpoint included:

  • That judges are not sufficiently alert to and understanding of the very serious problem of domestic abuse in all its forms, and its effects on both the parent and the children, especially when the allegation is of coercive and controlling behaviour;
  • That there is an increasing tendency to revert to a culture of ‘contact at all costs’;
  • That judges are too accepting of some supposedly expert evidence in support of allegations of parental alienation;
  • That judges are not doing enough to prevent the process itself becoming abusive; and
  • Generally, that many applicants find the entire process so daunting and demoralising that they simply ‘give up’, preferring, for example, not to pursue even serious allegations of domestic abuse.

 

On many topics, Sir James said, the system is criticised from those on both sides of the debate. However, he continued: “there is no room for the complacent assumption that if you are criticised by both sides you are probably getting it right. On the contrary, it surely suggests that we are getting it very wrong.”

As an example of this, he referred to a recent case in which a family judge was heavily criticised for finding that a woman was not raped because she took ‘no physical steps’ to stop the man. Sir James said: “Some will say that this particular judgment is not typical, that it is an outlier. Others no doubt will say that it is no more than the very small tip of the proverbial iceberg. Without research, we simply do not know, but I fear that the latter view is probably very much closer to the truth.”

 

Addressing the crisismother and child - family law

Sir James suggested a number of ideas to address the crisis, including:

  • Diverting many more private law cases away from the family court before they ever get there, for example into mediation;
  • Urging judges to publish more judgments, however seemingly mundane, in private law cases, especially in cases where there are allegations (whether substantiated or not) of any form of domestic abuse;
  • Enhanced judicial training;
  • Repealing the restrictions on reporting family cases, and replacing them with “much less restrictive, more narrowly drawn and more focused legislation better suited to the modern world”; and
  • A detailed programme of rigorous, independent research by suitably qualified academics, including research into the existence, causes, and consequences, and means of identifying, parental alienation and domestic abuse, in all its forms.

 

Sir James concluded:

“These criticisms are immensely damaging and, unless addressed, and seen to be addressed, with vigour, and with a complete lack of either complacency or sentimental self-protection, will sooner rather later, I fear, bring the system to its knees. Confidence in the system is at an all-time low, and unless drastic steps are taken, it will sink even lower.”

You can read the full speech here.