FNF has Worked with Sir James Munby
Former President of the Family Division of the High Court
Our duty, as a social care charity, is to help separated families. This is the aim of most of our publications and work. However, to do this alone would of course be like treating cases of cholera while the water supply remains polluted. It is what the individuals want and need, but unless the cause is treated, the problems remain.
So our other duty is to promote social and legal attitudes that will enable children to benefit from a full and empowering relationship with both their parents as well as their wider family. We work with a number of key figures and agencies in order to improve the life of separated families. Sir James Munby, President of the Family Division for England and Wales (PFD) is one of the most respected figures we deal with.
Sir James, in effect the head of the family court, and who sits regularly in the Court of Appeal, gave the plenary talk at our Annual Conference in 2014. Since then we have continued to be involved in a working dialogue with Sir James. As a result we believe that we see eye to eye with him on many issues - including the fact that major reforms are required to the Family Justice system.
Sir James has addressed two of our annual conferences so far and transcripts of these can be seen on our site:
FNF Annual Conference Nov 2014 - Speech transcript
FNF Annual Conference March 2017 - Speech transcript
In addition to our transcripts of Sir James's words, we are collecting quotations he has made in other places such as in judgements, etc. They highlight how justice should be done and be seen to be done. Unfortunately for so many, this is not the case in practice.
The following are from Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912, para 47, as follows:
| Contact between parent and child is a fundamental element of family life and is almost always in the interests of the child. | Contact between parent and child is to be terminated only in exceptional circumstances, where there are cogent reasons for doing so and when there is no alternative. Contact is to be terminated only if it will be detrimental to the child's welfare. |
| There is a positive obligation on the State, and therefore on the judge, to take measures to maintain and to reconstitute the relationship between parent and child, in short, to maintain or restore contact. The judge has a positive duty to attempt to promote contact. The judge must grapple with all the available alternatives before abandoning hope of achieving some contact. He must be careful not to come to a premature decision, for contact is to be stopped only as a last resort and only once it has become clear that the child will not benefit from continuing the attempt. | The court should take both a medium-term and long-term view and not accord excessive weight to what appear likely to be short-term or transient problems. |
| The key question, which requires 'stricter scrutiny', is whether the judge has taken all necessary steps to facilitate contact as can reasonably be demanded in the circumstances of the particular case. | All that said, at the end of the day the welfare of the child is paramount; 'the child's interest must have precedence over any other consideration. |
Further Notes on Ongoing Meetings with the PFD (to be updated)
Judges are required to administer the Laws passed by Parliament. But those Laws concerning children are very vague, mainly saying that judges should do what is best for children. They are not tied down to anything specific. As a result of FNF lobbying a new Law has stated that children have the right to have both their parents involved in their lives unless there is a contrary reason. Most people were probably surprised that this was not the Law already. But it was not. But it is still hardly specific. Judges and magistrates can still do pretty well what they like, provided they feel it's right and they say it's for the best for the children.
Which makes how the Courts interpret the law the key issue. Of course it is not only the children one of whose parents have sought a legal ruling that are affected. While some parents make their own arrangements without any reference to legal decisions, many do so 'in the shadow of the Law', that is, knowing what Judges and magistrates will do if the parents fail to agree and have to go to court. And of course what 'The Law' says is a symbolic statement that states what 'Society' - or at least those that make the Law - think is acceptable. The fact that denying a child a relationship with both parents is now clearly labelled as wrong will, we hope, have the same effect as the Laws against sex or race discrimination. It will not solve the problem instantly or totally, but will signal those who continue with unacceptable behaviour that they are out of order.
The boss of the family courts becomes a key figure, for he (or she when is was Dame Butler-Sloss) has key, but limited authority. He decides the top level of appeals. Now decisions made by lower courts are supposed to apply the principles set by the higher courts. In theory therefore, the decisions he and his colleagues make should direct those made by others. It does not work quite like that, for two reasons.
First, the barriers to making an appeal - making a higher authority review whether a decision made by a lower one is correct - are so high, in cost, trouble, stress and delay - that lots of bad decisions don't get challenged. The second is that the law is so flexible (to allow judges and magistrates to fit their decisions on very varied circumstances) that it is hard to say whether a 'precedent' has been broken.
But there is some influence all the same.
The President can also say how issues should be handled. While these are called 'directions', there is actually no effective way of policing them. So the better judges and courts will observe them, but many simply carry on as before, particularly if they believe what they do is 'right'.
One thinks of the remark of former United States President Truman on handing over power to his successor, Field Marshall Eisenhower. 'Poor Ike, it will not be like the army at all. He will say, 'do this, do that' and nothing will happen. I sit here trying to persuade people....'
Our first meeting with 'The President' was a success. He listened to us courteously and attentively. The issue we took to him was the frequent ineffectiveness of contact or child arrangements (as they are now called thanks to the new Law) court orders. So often courts say 'this will happen', and nothing does. The parent who is trying to get the best for his or her child has to hurl themselves constantly against more and more barriers, and while most make some progress, some fail. The paper we put to him - written for us by Michael Robinson of The Custody Minefield - and warm thanks to him - is available below. Sir James promised to read it and to respond to the suggestions in it. The second meeting is in February (2016) at which we trust he will give his reaction.
We will then look at the next issue, which is the division of parenting time between the parents and on how litigants in person (LIPs) can be supported. This paper will also be published on our website. It promotes the idea that those making parenting arrangements for children should have a set of tests in mind which will promote the best for the children by ensuring the full involvement of both parents.
Getting shared parenting, like ending sex or race discrimination, will be slow work. But over time we can look forward to more progress.
January 2016
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