Sir James Munby, President of the Family Division
Keynote speech at Families Need Fathers Conference 16th November 2014
It’s a great privilege and honour to me to be invited to come and speak to you this morning. I think it’s one of the most important parts of my responsibility as President of the Family Division to get out and meet as many people as possible who are tied up – often typically unwillingly – in the family justice system.
It enables me to do my job better if I can hear directly what people have to say. It is also very important that as many people as possible should have the opportunity of seeing and hearing in the flesh as it were, the person who for good or ill has been put in charge of the system.
It is a particular privilege if I may say so to be here on your 40th anniversary. You as an organisation have been doing invaluable work for far too many years. The fact that there is still so much to be done is no criticism of you but is, if anything, a commentary on the system. All I can say is keep up the good work. We all have a very long way to go.
You will not, I hope, accuse me of complacency. I tend to speak my mind. And down the years and long before I became President I have spoken my mind in judgements which have reverberated at the time. It saddens me considerably that it is over 10 years now that I gave a judgement on the 1st of April 2004 which was critical and was thought at the time to be strikingly critical coming from a judge about the deficiencies of the private law system.
I recently reread that judgement. There is not a word in that judgement which I have resiled from. The diagnosis of the problems seems to be as accurate now as it was then. And in very large measure the necessary remedies are as I suggested in that judgement. It was as I observed earlier this year that almost ten years after I gave that judgement Lord Justice McFarlane had occasion to condemn in a court of appeal case towards the end of last year in the strongest possible language private law proceedings that had gone on for 12 years or so and had become an exercise - taking a phrase I had used ten years ago - in complete futility.
I said publicly as President earlier this year that we had come so far but in a sense so little distance.
Switching if I may briefly to public law you may all be aware of a decision of the court of appeal last year in the case of Re B-S [http://www.bailii.org/ew/cases/EWCA/Civ/2013/1146.html] where we expressed in deliberately strong language very considerable concerns about what we said was the recurrent inadequacy of the analysis in cases where the state was seeking to take away people’s children and have them adopted. We did not mince our words. We were commenting on the work of social workers, the work of ‘guardians’ and, I emphasise, the work of judges. So I am not complacent and I speak my mind when it needs to be spoken.
None of us can achieve in the short time we have all that we want to achieve. I have five and a half years as President of which I have already spent two and I am determined to do the best I can. My ambition when I step down in three and a half years time is to leave the system in better shape than it was when I became President two years ago and in very much better shape than it was when I became a family judge in 2000.
And I have an open mind. I will listen to anybody who has anything to say. That doesn’t mean I will agree with what everybody says. Views differ. Views on some matters are very polarised. The best I can do, I suggest, is to keep an open mind, listen without preconceptions and give my best consideration.
What are the really fundamental principles of family law?
There are two I suggest. The first is very clear and I state it uncompromisingly. It is simply this - that men and women, husbands and wives, fathers and mothers come before the courts on a basis of equality. The mother’s voice does not have more weight because she is the mother. The father’s does not prevail because he is the father.
Now I see heads shaking. Obviously the system is not perfect. There will be occasions when individuals have experiences that lead them to believe that is not what happens. I want to hear of your experiences later on. But the principle is clear and unequivocal and that is it. And if cases come before me in the Court of Appeal where that has not been adopted as a principle then I will speak out and I will reverse the judgement.
The second great principle of course is that the child’s interests are paramount. And in the final analysis parental claim, whether it is the claim of the father or the mother or the grandparent or any other member of the family, has to take second place to the paramount interests of the child.
Now that of course simply raises another question. How do we determine what are the paramount interests of the child? We have to keep the principles always in mind and what we mean by the best interests of the child has to have regard to the views and opinions of ordinary men and women – and I emphasise - in the year 2014.
If I had been speaking here 6 years ago I’d have phrased that as the views and opinions of ordinary men and women in the year 2008.
That principle is nothing new. It was laid down by a judge in the House of Lords in 1970. One only has to contrast the realities of 1970 with those of 2014 to see that public opinion and judicial opinion and expert opinion have moved dramatically and would regard the thinking of 1970 as a very treacherous guide indeed to what is understood to be the welfare of the child in 2014.
I emphasise the point because society is moving incredibly rapidly in some aspects of family law. Ten years ago it would have been inconceivable that we would have same sex marriage by today. The point I make is simply this. It was unforeseeable and unpredictable and happened very, very quickly.
There are all sorts of things going on in public opinion and in the world of politics and in judicial understanding which mean that family law moves on sometimes in fits and starts and sometimes remarkably quickly.
Let me give an example: one of the projects I have on hand - and in my view it is one of the biggest remaining areas of reform we must grapple with - is dealing with a whole collection of issues concerning how the family courts deal with vulnerable witnesses, children giving evidence and children speaking to judges. The Guidance on that is only 2 or 3 years old but I am not persuaded that it is up to date enough. I have set up a review. I had an interim report in July and I’m expecting a full report in January. If the Guidance is found to be out of date then I will push a revision through.
Of course, as you are all aware, we are in the middle of the greatest reform the family justice system has ever seen certainly, I suspect, since 1857 when what is now the family court was first set up.
I believe passionately that it is the biggest set of reforms that even the youngest in the room will ever see in our lifetimes. We have got to make it work and thus far, up to a point it is working. There’s a long way to go.
The first reform of course has been a massive institutional overhaul of the family court system. Forty years after it was first recommended we now have a single family court dealing with all family cases and embracing within that court judges at all levels whether they be High Court judges, circuit judges, district judges, or magistrates.
That was designed to improve efficiency and I believe is having some success.
The second great reform was the reform of the care system. I hope you don’t think I’m spending too much time stating my credentials but I was one of the judges in the comparative stone-age of 2002 who were appalled by the way care proceedings were conducted. Under the Presidency of Elizabeth Butler-Sloss along with Sir Paul Coleridge and the young Mr Ernest Ryder QC, we set out to remedy the failings in the care system and we produced something called the Protocol which is the early ancestor of the PLO. I was surprised when I reread the Protocol a few months ago for the first time in several years that the problems we identified were precisely the same problems identified by the Family Justice Review – the need for judicial continuity, getting rid of the appalling delays and robust case management.
When the Norgrove Review was set up in the spring of 2010 the average care case was taking 50 or 60 weeks. Shocking. What was even more shocking was that by the time the Norgrove review reported the figure had got even worse. That showed that in the little bubble in which people were operating they couldn’t even see the writing on the wall.
For a whole raft of reasons we have brought that figure down colossally and the national figure is now less than 30 weeks and that has transformed the system.
I would not have gone public supporting the statutory 26 week deadline if I did not conscientiously believe that it was right and workable and not incompatible with justice. There is as yet no evidence at all that that necessary reduction in the time that care cases take to come to court has led to any skewing of the outcomes, to any cutting of corners or to any miscarriages of justice. On the contrary, it is a remarkable fact I believe we have achieved a remarkable transformation of the system without compromising the end product and in fact improving the end product. Please forgive my lapse into management babblespeak. I spend too much of my life with people who do not speak English but prefer management babblespeak.
The Court of Appeal has been keeping a very close eye as to whether the outcomes are being adversely affected by the reforms. There will always be cases where the court of appeal has to intervene. As long as there are not too many that is a sign that the system is working well. It is well known among lawyers that any idiot can make himself or herself appeal proof by always being cautious, taking the easy route in any case. The fact that there are some appeals that are successful shows that we have robust judges who aren’t taking the easy route, who are prepared to make bold decisions. The necessary price is that sometimes they will be reversed. If there were huge numbers of successful appeals I would be concerned but there are not.
And of course we have to have appeals. It is only in the Court of Appeal that we can ensure the law is kept on its proper track and the principles that the senior judiciary are laying down is actually filtering down to decisions in the lower courts. I make no apologies to my superiors in the UK Supreme Court that it is of course the Court of Appeal that is more important – not in moving the earth as sometimes the Supreme Court does but in making sure that day in day out circuit judges, district judges and High Court judges are not just going through the motions of applying the law but are applying the law actively and conscientiously.
My final word in this area of public law, there is still much to be done. There are still cases that take too long and in which the reasoning and explanation given to justify drastic orders are too flimsy. But what we have achieved is a massive change in culture. In large part the family justice reforms are not just about changing the law but changing the culture. There is a more questioning mindset among guardians, among advocates and amongst judges to the previously anodyne materials put forward to justify very drastic orders.
Can I move on to private law. When I became a judge private law was in many ways even more of a shambles, even more of a disgrace than public law. I don’t have to tell you what the problems were. The whole system took far too long. It is shocking, shocking that any legal case can take 12 years. It is appalling that any case involving a child can take 12 years. A child who was say 6 months at the beginning is a teenager at the end. It is indefensible.
Until Norgrove came along we were running a private law system that was uncontrolled in the sense that there were no effective controls on how long a case could take. The case that goes on and on for years is productive of injustice and is making matters worse.
I have constantly been worried when I have had private law cases in front of me that have been going on for years. It is the unhappy reality that when a private law case reaches a High Court judge it is generally well past the point of no return. It has become intractable even if it wasn’t at the outset.
What I spotted constantly – I’m not a psychiatrist and not a psychologist but my perception was that the parents - both parents – had been completely disempowered by the court process. They had got to the stage where they couldn’t decide anything without running back to the wise man or woman in the wig. It is appalling. It robs the parents of their function. It sends a very damaging message to children and it doesn’t produce justice for the parents and doesn’t produce the right answer for the children.
One of the problems was in each case it had become established that every problem had to be resolved by a judge however long it took or however trivial the problem.
If you will permit me an anecdote, fairly early on in my time in the family division I had a contact case. It was fairly straightforward and there were no apparent issues of law. There was no dispute that the basis arrangements that had been set down were satisfactory. Father, as I recall, had staying contact over the weekend. There were two issues that were being put to me. The first was a decision as to whether the handover should take place at 5pm or 6pm on the Sunday and the second was whether the handover should be - I forget the exact locations – at the Happy Eater at Junction 25 of the motorway or the Little Chef at Junction 27.
I thought at the time it was absurd that this was being put to a High Court judge. In fact it was absurd it was being put to a judge at all. This is something I said quite recently in a judgement which went up on Bailii not long ago, we have got as judges we have got to have courage to take a tougher line and say that we are not going to decide some of these questions. We have to tell parents that parental responsibility for their children is a duty to make these decisions in the interests of their children.
I would value your views on this.
Where we had got to under the previous regime, the old days, was that the judge had to decide everything, no matter how long it took. The longer the case went on the more trivial the decisions that were coming to court and the more disempowered both parents became and I find it very hard to believe that that leads to decisions that are in the interests of children.
What have we done about it?
You may remember there was a thing called the private law programme which was created about 2008. It didn’t work.
It seemed to me a completely fresh start was needed and the remedy I adopted was to set up a working party under Mr Justice Cobb. He was only recently arrived from the bar and so had a good sense of what was actually going on in the courts. He and his team put together what we now call the Child Arrangements Programme, CAP.
It is early days and I’ll be interested to hear from you how it is working. The philosophy is that the case comes to court, the court grapples with it, the court manages it robustly with a timetable. It then decides. Unless, in the interests of the child or for other specific reasons, the case stops then and there. We do not have an endless succession of review hearings.
The concept of robust case management and the timetable is to eradicate the vice in the old days that a succession of procedures had allowed us to come close to achieving the concept of perpetual motion that saw lots of activity but that meant the case never came to court at all. The only way to stop that is to enforce in the private law system the rigorous timetabling and robust judicial case management that have transformed the public law system.
Crucially, even if we can’t completely stop we can at least reduce the process under which the longer the litigation goes on the more extreme the allegations on both sides become and the more resentments are built up by the process itself.
CAP is designed to have a revolutionary impact on the process. These are early days and I welcome your experience.
As with so much of this it is a matter of ensuring that what comes down from on high is affecting practice at the local level. There is a limit to what I can do. Judges are independent and not subject to a line management in the way others in the system are. I cannot tell them what to do.
There are only two ways I can influence their practice in reaching decisions. The first is through decisions that we make in the appeal court and the second is by exhortation. Both those processes take time.
Being human, some judges more readily and speedily respond to such messages from on high than others.
Of course at the very time that CAP was being introduced we began to notice the predicable – indeed the predicted – impact of LASPO, the legal aid problem. I don’t want to get into that but it would be idle to imagine that the process in private law cases has not been affected by the fact that legal aid is simply not available unless there is an allegation of domestic violence.
And that of course produces another problem because the consequence of that is - and we have seen it in number of cases and I have given judgements on this – we are increasingly seeing cases where the woman – usually but not always the woman - who alleges domestic violence has legal aid and her partner does not. That simply produces further problems. It produces problems for the partner, typically the man. It produces problems for the judge. Most importantly of all, it produces problems for the child because, as I repeatedly say, unless both parents have a fair process then the child is not having a fair process and if the parents don’t have a fair process and the child doesn’t have a fair process then the risk one is running is not only injustice to the parent but injustice and worse to the child.
There is a very real problem and I don’t shrink from that. Of course legal aid is a matter of political decision. It is a matter of public policy - an area in which judges can tread only with great care. Where we can tread and I don’t shrink from this is if it is impacting on the fairness of the proceedings in front of us it is our duty to make sure the proceedings in front of us are fair. If that requires representation we must say so and if the absence of representation means the proceedings are not fair and because they are not fair are potentially prejudicial to the interests of the child then we must say so.
Where that stands at present – ask your MPs.
A big problem in the family courts are, of course – I shouldn’t use the word problem … that gives completely the wrong impression. Another big issue is McKenzie Friends. Don’t get me wrong. I have long said that McKenzie Friends are vital. They fulfil a very important role in the courts and particularly the family courts.
I think I’m right in saying it was a judgment of mine 5 or 6 years ago that led to the practice direction being changed in a way which made it easier for McKenzie Friends actually to address the court. I have never been an opponent of the McKenzie Friend. On the contrary my experience is the McKenzie Friend is often an invaluable resource. And there have been many cases I’ve had in front of me, particularly in the Court of Appeal where the McKenzie Friend who is articulate and can explain what the case is about is the difference between a completely inarticulate litigant getting justice on the basis of what the judge thinks the case is about and getting justice on the basis of what a sensible and articulate McKenzie Friend can assist.
You may be surprised but I think I’m right in saying if you ask the question in the family justice system which kind of judge has the greatest experience of the McKenzie Friend and greatest experience of litigants in person and the greatest exposure to the problems, the answer may surprise you but it is judges in the Court of Appeal.
In the Court of Appeal there’s no legal aid for application for permission to appeal, the applications for permission to appeal are in a high percentage litigants in person, many of whom are inarticulate, many of who are in a desperate state, many of whom need the assistance of McKenzie Friends. So funnily enough it’s the judges at the top of the system in many ways who have the biggest exposure to this problem. And we are very alert to this.
I make no secret of the fact my personal practice has always been to take a more relaxed view of McKenzie Friends addressing me than other judges do. I always allow a McKenzie Friend – unless and until he or she shouldn’t be allowed to address me - to address me. I never say to the litigant it’s your choice but if the McKenzie Friend speaks, you can’t. I always let each speak. I think that’s very important.
I always say don’t use this as a precedent because other judges may take a different view.
So I’m unhesitatingly of the view that McKenzie Friends are a good thing. And there have been many cases I have heard where a sensible McKenzie Friend who actually understands the law – and a lot of them do. Some of them have a very fine understanding of the law and the rules - many many cases where it has been absolutely invaluable both in terms of enabling me to come with greater confidence to what I believe is the right decision, and also enabling me to do so in a sensible timescale. So I’m all in favour of the system.
Of course the consequence of the legal aid changes – and this applies in civil as well as family – has been a great increase in the number of LiPs in all the courts. And that has led to questions about McKenzie Friends.
There was a report, was it last year, by the consumers panel of the Legal Aid agency suggesting that McKenzie Friends should be regulated and this spurred a debate. My difficulty is because the problem, the issue – and there are real issues of principle here – because the issues spread across the family system and the civil system I cannot just plough my own furrow. These are problems that have to be dealt with on a cross-jurisdictional basis. There’s a working party. It has to address the problems, the issues, and how we grapple with them in both the civil system and the family court system. And it’s taking time. It’s unsatisfactory but all I can say – and I’m always open and frank about these things – there’s a lot of work to be done on McKenzie Friends. It is being done. It’s not moving forward as fast as I would like but it’s moving forward as fast as in the circumstances is feasible.
All I can say is watch this space.
Linked in with all those problems, all those issues, all those things you have to grapple with is of course the need for proper guidance –trying to make the family justice system accessible to ordinary people.
One of the problems is that lawyers recognise that ordinary people don’t speak Latin. They realise that ordinary people don’t use what they think of as “lawyers’ law”. What lawyers are very bad at realising is that a lot of what they think of as the ordinary English which they the lawyers use is not the English that people in the street use at all. They keep on spouting away in what we think of as ordinary English – well it is in a sense, it’s all in the OED – but it’s not the kind of people that ordinary people use whether educated or not in the real world. We have been very slow to recognise that reality.
As an aside, before I became President I was chairing a committee to revise the probate rules. Now if you want to look at a set of rule which has more Latin in them and more absurd English words that even would have difficulty explaining then look no further than the probate rules.
We had no difficulty in stripping out the Latin. We could tell what was Latin and what was English. We had no difficulty stripping out some of the more absurd expressions that we all had to run to our dictionaries to understand before we could do them. We were left with a draft that we thought was in plain English. But one of the members of the committee had an inspiration. He gave the draft to his 15 year old son who I think was a bright child, probably on the way to university and said can you understand all this. Mark up everything that isn’t clear. It was rather chastening because very large parts of the draft came back marked up “it’s not clear” simply because the words weren’t clear.
So there’s a big, big problem there. Part of the problem I’m afraid is that lawyers whose entire life after all is words and using words – some would say misusing words – have great difficulty in understanding the language they speak is simply not the language that ordinary people speak.
If you put all these problems together then we have a massive problem in the family justice system that holds back the speed of reform.
We have got to get material out there explaining processes that are inevitably rather complicated, explain them in a user-friendly way, in a way that unrepresented litigants can actually understand what’s going on.
That task was identified as a big task by the Cobb working party and they did quite a lot to ensure that the Child Arrangements Programme is written in plain English. They thought they did quite a good job on the first draft. Then the plain English people got to grips with it and a lot more old fashioned English was cut out. We’ve tried to make the Child Arrangements Programme plain English. We have provided useful definitions. For example “consent order”. If a lawyer drafted a definition of consent order he would say “an order made by consent”. Well that’s useless.
So what the CAP does is provide a glossary that attempts sensible definitions that actually explain what some of these things means.
There are two reasons why we haven’t got as far as we need to get. One is, as I say, these are cross jurisdictional issues and it takes more time to get consensus.
The other problem and I’m afraid it is a very very real problem has two linked aspects.
One is that the world now doesn’t use books, it goes online. If you go online – I did this recently because I was concerned at complacent views expressed by certain people in Whitehall – I went online and googled “legal separation”.
Now bear in mind that government policy in relation to what we would all call legal separation is that you don’t go to court at all. You mediate. If you go on line and google legal separation the first thing that comes up is an MoJ website that is talking about legal separation in the sense of judicial separation as opposed to divorce and begins by saying you have to apply to the court. It exemplifies the fat that the system – the judiciary, the profession, the MoJ – haven’t got to grips yet with the fact that most people want their information online. And therefore the critical thing – I’m probably in the technological stone age when I talk about google – but in terms of my generation the difficult thing is having information that pops up on line on google.
If you type in divorce the first thing is pages of advertisement for divorce lawyers. There’s a big, big problem. It’s a technological problem. How do you make the information that is out there is actually accessible. That is actually in my belief how we make search engines more effective.
There’s another problem and forgive me this is the word I would use if I were a civil servant in Whitehall. There is no proper “comms strategy”. Comms being the abbreviation for communications. Everybody is doing good things. The web is awash – the bookshops are awash with do it yourself guides to family law. Do it yourself guides to being an LiP put out by publishers, barristers, chambers, the bar council, the FLBA, solicitors, Resolution – you name it somebody’s got something out there.
There are two problems of course, how does the poor litigant even if he or she can identify all these things decide which one to use and, more significantly perhaps, how is the litigant in person who goes on the search engine to discover that these things exist. It is a major major problem.
It is something I keep raising with officials. They say after all we must have a comms strategy. They say we have a comms strategy. Well my view is that we need one. We don’t have one.
Now let me finally and I’ll then throw myself to the lions as it were so I’m not shirking it, deal with the burning issue as far as you are concerned – shared parenting or rather the fact the recent statute did not provide for shared parenting.
The law is very simple and has been for a long time. It is underpinned by Strasbourg jurisprudence and is spelled out in English jurisprudence. Unless there is powerful reason in the interests of the child that the child should not have a relationship with the child’s family then the starting point is that the child must have a proper relationship with everybody in the family. And I put it that way quite deliberately. Obviously the focus tends to be on parents but it applies equally to aunts, for example, and grandparents. I have long been troubled by the, as it were, institutional barriers, the technical barriers put in the way of grandparents.
But the principle is absolutely clear. There is a judgement by Lord Justice McFarlane and a judgement of mine that makes it clear the starting point has got to be a proper relationship with all members of the family unless the imperative needs of the child show that it should not be.
That is the principle. The problem is - and your perception probably is - that it is not a principle that is properly applied in the real world on a day to day basis.
The statute. If you’ll forgive me, I’m not get into a debate on the rights and wrongs of this. As you know, Norgrove changed view half way through. If you compare what the interim report said on this it was suggesting something very different from the final report.
It is as you know a topic that was debated in Parliament and the final version that worked its way into statute was the result of debate and adjustment and compromise in parliament. Under our system Parliament lays down the law. It is for judges to explain, construe and enforce the law as laid down by Parliament. Parliament is the democratic voice. And on this topic the democratic process and it was debated – it wasn’t something that went through in the small hours of the morning – it was debated and Parliament has decided.
All I’m going to say and I hope you will understand that I can’t go further than this – I can well understand the disappointment of some who felt Parliament should have gone further.
I think it is important because in one view what is now in the statute doesn’t add to what the law always was. But I think it’s very important because it is now on the face of the statute so instead of having to take the district judge or the magistrate reams of Strasbourg case law or long judicial judgements one can say “look, that’s what the statute says”.
I think it will be of some use. I recognise it doesn’t go anything like as far as some people would like it to go. But can I end up on this point.
As I said earlier, society is moving very fast. Society’s view on many things to do with family law is moving very fast. Family Law is probably the area of law where there are more differences of view than any other. It is the area where differences of view are very great and where differences of view are unbridgeable.
For example, you will probably be aware I am currently trying to increase transparency, increase access to and reporting of family law proceedings. I’ve currently go a consultation out. The responses I have received are very, very strongly polarised. There are some who say I have gone too far already. Some who say even if that’s not right then not an inch further. There are some who say your approach is been pathetic. Get on and move forward.
I use that as an example. These are issues on which there will never be a consensus. One can’t in a sense find a form of words that a diplomat might come up with to say everyone agrees.
Parliament determines what the law should be. The judges then interpret and apply the law. Where the law is not covered by what Parliament has said then the judges have the timeless responsibility of saying what the law should be and, I emphasise, moving the law forward.
I suspect if you were to lay a judgement of Sir Jack Simon who was President in the 1960s side by side with one of Elizabeth Butler-Sloss you would be astonished at how things have moved. And there will undoubtedly areas where if you were to lay one of my judgements beside one of Elizabeth Butler-Sloss’s again there has been movement because, simply, society has moved forward.
The judge’s job is not to bow to public opinion. The function of a judge is to do justice according to law. It’s a very simple principle, encapsulated in the judicial oath, to do justice without fear or favour, affection or ill will, according to the laws and customs of England.
I’m not saying that the Family Division as is popularly said of the US Supreme Court follows the voting returns. But obviously family judges in an area where the public is very engaged, where the principles we are applying, as I said, have to be tied to the common sense views of ordinary people the judges have to be receptive to what is going on in the outside world. We have to have regard to public opinion, not in the YouGov poll sense but to the views and opinions of the ordinary man or woman in the street. We’ve got to do that. Inevitably the consequence is that some of what we do will be thought to be moving faster than some people will approve of but aren’t as fast as other people wish.
All I can do is tell you is that I am acutely sensitive to the fact the family justice system – albeit it has improved and is improving - has got to improve a lot more. I am determined to do that. I came into this job unexpectedly when my predecessor unfortunately ha to retire through ill health. I never anticipated becoming President. But it seemed to me if I was prepared to do the job I had to put my back into it. I am determined to leave the system when I am finished in a better place than it was when I began. I’d like to think that however imperfect the system is and however much you may think we haven’t achieved as much as we should have done yet it is better than it was a few years ago.
Now I have spoken for longer than I intended. Over to you.
John Denby: Sir James, Article 9.3 of the UN Convention on the Rights of the Child provides that parties shall respect the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis except if that is contrary to the child’s best interests. It seems clear that the word “involvement” in S11 of the new Children and Families Act does not meet the requirements of Article 9.3. Can you give us any assurance that the fundamental right of the child to direct contact set out in Article 9.3 will be applied with any consistency across the courts.
Munby: I’m not going to give legal advice as to whether or not there is consistency or inconsistency between the UN Convention and the statute.
What I can say is three things. First of all the UN Convention is not actually part of our law.
But, and this is the second point, although it is not strictly speaking part of domestic law its principles are increasingly recognised and enforced by a whole string of judgements in the superior courts. And as a rough working tool I would assume I would proceed on the footing that something like Article 9.3 is actually part of our law, not being technical because it is in that Convention but because actually I see no difference in substance between what Article 9.3 is saying and what Strasbourg case law that I have already referred to says. And I see no difficulty with that being a principle that ought to be applied.
Of course, there are two points. One is it is all subject to the child’s best interests and there will be cases unhappily where the level of contact to use the old word which is appropriate is for the time being indirect rather than direct because that is what the child’s interests demand. I put it like that – it seems to me unless the child’s interests demand, necessitate – I don’t want to be tied down to particular words but it’s a tough test – then there should be to use the language of that regular personal relations and direct contact.
The third question is is that actually happening in the courts. I suspect your view is that it’s not. This may be an unsatisfactory answer but it is the best I can give: if the relevant principles are not being applied in specific cases in specific courts the remedy is an appeal. And if the appellate is satisfied the judge got it wrong then the court will say so.
For my own part I would not shrink from, indeed I would welcome an early opportunity for the Court of Appeal to look at these matters again following the enactment of S11 and following the increased recognition of the importance of the UN Convention, give us the appropriate case and we will deal with it.
You will appreciate the Court of Appeal cannot dip down and say we want to deal with this. The Court of Appeal can only deal with the case that is put before it. I can exhort but on this topic I would much prefer to be able to give a decision that is definitive rather than to exhort.
Ian Tenby [?]: Would you consider the enforced separation of a child from one of its parents as emotional abuse? And where do you stand on the increasing use of Non Molestation Orders and unenforced contact orders by one parent which in effect formalises this enforced separation?
Munby: Well I apologised in advance if I use a lawyer’s quibble buy I am not sure I know what you mean by “forced separation”.
If it is separation that is judicially determined to be in the interests of the child then it is appropriate. If it is separation that is brought about in a way the judge would not approve of it can’t be accepted.
In relation to Non Mol Orders only a couple of weeks ago I put out guidance on the practice [unclear word phrase at 65’40”] – forgive me if I focus again on practice but it is by getting the practice right and ensuring the practice is followed that we can get rid of some of the difficulties. You may remember that about the same time last autumn that Lord Justice McFarlane was giving that excoriating judgement about the private law case that lasted 12 years, there was a very strong judgement by Lord justice Ryder in the Court of Appeal denouncing what had gone on in a Non Mol case that at the end of the day neither the Court of Appeal nor the father actually could discover the basis on which the Non Mol injunction had been granted. The court record was invisible.
We have sought to deal with that in a variety of ways and one of the ways - and I know that they haven’t worked as they should and I’m having them looked at again – one of the ways is to introduce a concept that orders, particularly in private law papers, contain narrative so that the next judge who reads the Order can see what it was that went on last time and why. And that’s a very important thing.
The second thing is more recently the guidance I have given that you must not make Non Mol orders for lengthy periods of time, you must not make ex parte orders without return dates and so on and so forth.
If you put these two together the intention is to have a process where if there really is a need for a Non Mol order ex-parte – and there is another strand of work which is to emphasise that ex parte orders are not just to be doled out for the asking – if we get to a situation where the Guidance on when to issue a without notice order is complied with, when the orders are in a proper form and when the order if it is ex parte without notice is given for a short time in accordance with the rules then things will improve dramatically.
Again, I’m afraid it is early days. I’m afraid I don’t know what is happening on the ground. In my darker moments I suspect that what is happening on the ground is what I am sure you are telling me is happening on the ground.
[voice from the floor]: Sir James a big concern is unenforced contact orders.
Munby: I am going to deal with this by shorthand if I may. This is a problem that I dealt with 10 years ago in that judgement. What I denounced on that occasion was what I called a “flabby” judicial response. I used that word quite deliberately. The passage of years has not persuaded me that it was wrong. My approach today would be again to denounce a flabby judicial response. The response too often is flabby.
My own view expressed in that judgement and has been expressed by other judges is that there may be a need in the right for a much tougher response at a much earlier stage even if it is only one or two days inside. We have got to take a tougher line.
I think myself in fact – and you may say this is too little and too slow – if we can speed up private law cases in accordance with the Child Arrangements Programme there’ll be less scope for the kind of problem that has characterised the non enforcement of orders in the past to arise at all. With a much more robust process leading quickly to a definitive judgement there’ll be less scope for the problems to arise at all.
One of the difficulties of course is that you can only gaol somebody for contempt if you can prove beyond reasonable doubt that they are guilty of contempt. We had a case on this a couple of years ago in the court of Appeal it can sometimes be rather difficult to prove contempt if the defaulting parent - and on this occasion it was a father rather than a mother – can say the child is now 12 and is completely as he might say “pissed off with mother”. “There’s no way he’s going to comply. Am I supposed to carry him struggling out into the car. I can’t do that”.
Sometimes the question is whether the parent has the capacity to obey the order. If, as I believe the law is, the law does not require in relation to a teenager for example the use of physical force then in a long case that has been going on for a long time it is very difficult to disprove the parent’s assertion that I have done everything in my power but I cannot persuade my bolshie 12 year old to go and see his father stroke mother.
What I do think we could make much more use of is the various forms of order first introduced in was it 2006 and now in Section 11 of the Act. They have not been used nearly as much as they should have been.
One particular form of order which I think will be more used, particularly in the light of CAP, are what I shall call in shorthand the CAFCASS Monitoring Orders. An important part of the philosophy is that the court must cease its general monitoring role – come back every three months, come back every six months. There needs to be a monitoring role but the mechanism for that is an order under one of the subsections of Section 11.
What I can say is this, wind the clock back 40 years. The dominant voice in family law was Lord Justice Ormerod and he was absolutely fixed on the concept that gaoling defaulting parents was not the solution. The Court of Appeal has made it absolutely clear in recent years that that is not so. I made it absolutely clear a couple of years ago in the Court of Appeal a couple of years ago that defaulting parents in appropriate cases must be sent to gaol. Even if the consequence is the child is deprived of that carer for a short time.
It is an area where the law has moved on. If you put side by side a typical Ormerod judgement from the 1970s and 80s with I think a judgement of Harold Ward [?] a couple of years ago and another one of Lord Wilson as he now is – complete sea change.
The problem of course as you will perceive it is that the fine words don’t actually work through to the result on the ground. The remedy has got to be appeals.
[?] 1’13” Lying in Court
Vincent McGovern: In view of the fact that the family courts work so closely with agencies that discriminate on grounds of gender in supplying their service – example: Cafcass’s own domestic violence intervention programme, most local authority domestic violence agencies and particularly the MARAC process which are so influential in the final outcome of court orders and, according to Hansard, nearly zero enforcement of court orders in 2011, how can the family courts state that they always act in the best interests of the child?
Munby: Don’t get me wrong. I’d be very stupid top say that we always succeed in acting in the best interests of the children. That is our objective in every case but there will be cases where we get it wrong. That is inherent in any judicial system. I can’t guarantee that in every case the decision is always in fact in the best interests of the child. Sometimes judges get it wrong. Sometimes the Court of Appeal gets it wrong. And, I take my life in my hands, sometimes the Supreme Court gets it wrong. That is because the system is a system of fallible human beings.
What I think I can say is that the courts are adopting a much more sceptical approach to the reports and the recommendations of agencies such as Cafcass and the local authorities.
B-S is the demonstration of that. I was sitting with the Master of the Rolls and Lady Justice Black, about the autumn of last year. We were scathing in our comments on what I recall we called the recurrent inadequacies of the reports being put before the court by guardians, by cafcass and by social workers; the recurrent inadequacies in the analysis of the issues by the lawyers and also by the judges. We were pretty unsparing in our criticism and it was across the board.
The fact is the courts are getting much, much more sceptical, much more searching, less blindly accepting of reports. One of the striking things in the B-S case was in, I think, the last 10 days of July last year, there were 5 cases in the Court of Appeal where the Copurt had been condemning of these problems and in B-S we pulled it all together.
If you read those 5 cases and B-S they show awareness that things are not as they should be and a determination to improve practice on the ground. People who come to court with sloppy things, not properly thought out, are told to go away.
That, I know is in public law but the same attitude must apply across the board. We have got to question everything wherever it comes from.
That I think is the best I can do in answer to your question. We are pretty unsparing.
Jenny Cuttriss: Have you seen an increase in the number of non molestation orders and harassment orders being applied for by mothers since the legal aid cuts. Do you think there should be a higher level of scrutiny of these applications knowing that they are now the gateway to legal aid.
The answer to your first question is I don’t know.
The answer to your second question is there should be proper scrutiny.
In the family justice system we have lots and lots of statistics. Very often they measure things that don’t need to be measured and very often they don’t measure the things that need to be measured. That is particularly so in private law. We know the global statistics of cases coming in and out of the system but very often we don’t have the basic statistical data to answer your question. All I can say is I don’t know.
I entirely accept that there has to be proper scrutiny, particularly of without notice applications. I’m afraid this has been as much a failing in some contexts of the senior judiciary in the past as the more junior judiciary. Judges have been far too willing in the recent past to make ex parte without notice orders when they shouldn’t do so.
Your interest will probably be with district judges and circuit judges in private law cases with Non Mol injunctions. My concern is equally for example with High Court judges in very big money cases where people just came along to court, made an allegation and got an ex parte order which set the whole thing off on a wrong trend.
I think one thing we have got to recognise and did not recognise institutionally until too recently is that a wrongly granted without notice order sets the tone of proceedings thereafter.
The purpose of a without notice order is to give immediate protection over a very short period. That is the only justification for it.
There are only two justifications for a without notice order. One is that it is so urgent that there simply isn’t time to notify the other side. Now that in the modern world of modern technology will be a pretty rare case. You can usually give somebody half an hour’s notice.
The other context is where there is a real reason why you cannot safely give notice to the other side because they may do something irreparable in the gap between giving them notice and the hearing. One of the problems id that we’ve been far too willing in the past not to apply that principle rigorously.
Obviously your focus is on the private law sphere – Non Mols Part 4. Another area is EPOs, Emergency Protection Orders, in public law cases. They were typically asked for by local authorities without notice often in cases where there was no urgency or justification and we’re beginning to roll that back.
We’ve changed the judicial culture there. Judges are getting much more questioning of without notice EPN applications. They are saying why is this urgent. What is the real risk to this child if you give the parents notice. There’s a much more questioning attitude there.
I would hope that questioning attitude would extend – as it must – into the fields where you are particularly concerned.
The basic point is that a without notice order is an exceptional remedy to be used only in exceptional cases and not doled out for the asking.
Emlyn Jones: I am going to say here and now there is an increase in Non Molestation Orders because I see them every day. I have also heard one solicitor advise another solicitor how to circumvent the legal aid cuts by applying for a Non Molestation Order. I accept that you don’t want to take it on board …
Munby: No. No. I’m not saying that. I don’t know what the answer is. If the answer is that there is in fact a significant increase that would concern me and I would investigate it.
Let me make this point. I have identified and railed against the problem of what I have called perverse incentives and perverse disincentives created by the legal aid system. There are all sorts of examples of that. It is something that concerns me very greatly. And if what you are saying as a matter of fact is correct – if as a matter of fact the current legal aid structure gives a premium on making a n allegation of domestic violence and if that is skewing the system then it is a perverse incentive that needs to be identified and grappled with.
Emlyn Jones: What then happens is that one party gets legal aid, the other doesn’t. One gets a barrister the other doesn’t. They go to a finding of fact which tends to go with the case argued by the barrister. The Litigant in Person in some courts won’t get a right of audience for his McKenzie Friend because of the Guidance. The whole hearing is skewed one way. And when those findings of fact are made, usually against the father, the child can lose contact with that father. And when that happens the finding of fact is not appealable because of the authorities that say the judge of fiurst instance was in the best position to make the decision. That is a whole problem in findings of fact. It is unfair because only one party has a barrister. It’s unfair because the McKenzie Friend hasn’t got a right of audience. Have you any suggestions of how you can address that?
Munby: You are correct of course that it is very difficult, almost impossible to appeal against a finding of fact. What you are describing is a process which is on the kind of case you describe unfair. And an unfair process is appealable.
In the scandalous 12 year case McFarlane dealt with last year, the actual decision of the court of appeal was that the whole process was so unfair, there was systematic breach of Article 6 – denial of fair hearing – that the whole case was sent back on that basis.
I’m not giving advice. I’m not encouraging you. Just bear in mind that if the real complaint is that the process was unfair for whatever reason that can in principle be grounds of appeal.
The fundamental thing is that you are entitled to a fair trial. And if you don’t get a fair trial the fact the answer may be right is neither here nor there.
??: Why don’t the courts make more use of community orders in enforcement of their own contact orders.
Munby: Well I think I’ve already answered some of that. The Children Act as amended in 2006 in partial response to what some of us had been saying for some years and in partial response to the advice of the now disbanded Children’s Act Advisory Committee did increase the list of items on what I might call the menu. If a particular thing is not on the menu the judge can’t invent it. I have said for some time that more use should be made of some of the options that are on the menu than has been the case. It is another example I think that you can change the law but you also have to change people’s thinking. And that goes back to what I referred to as the need to change the culture – a cultural revolution – it’s the need to get people’s mindsets changed.
But again, in a sense, it depends on the parties. I know the judge in a family case is not bound by what the parties say. The judge has got to do what she or he thinks is appropriate. I suspect part of the problem here is that too infrequently do the parties raise the suitability of orders of this sort.
About a year ago there was a meeting of family judges – about 60 judges in the room – and someone asked how many of you have ever made a monitoring order and I think 4 hands went up. That’s not satisfactory. I’m not hiding behind the advocates and I accept of course the judges have got to be proactive. The judge knows the menu and could ask “why aren’t you asking for this?” but if I may say so there is at least some responsibility on the parties to raise this sort of thing for consideration by the judge.
I would welcome an increased raising of this form of order by advocates or unrepresented parents. What about section l(o) or l(r). Please don’t ask me what o and r are but the section is there for you to look at.
??: Indirect contact orders are often made in intractable contact disputes to leave a line of communication open between child and parent that can be built upon to get back to direct contact. Does the judiciary have any evidence or statistics that show how often indirect contact does lead to direct contact being resumed?
Munby: The short order is no. One of the problems we have is there are no longitudinal studies showing what happens. There is no mechanism within the system to feed back to the individual judge what the outcome of the order has been. Sometimes one discovers if by chance the case comes back to you a couple of years later or sometimes one hears but there’s no mechanism. So the short answer is no.
But I would add this comment. I think in the situation you describe the reality is that by the time the judge is making that order the thing is beyond the point of no return. Typically, it has got to that stage because it has been going on for so long. And it is an order made in something approaching desperation. It sends a message that there’s something there.
I think the real point is that we solve this problem - I’m sorry to come back to process – we solve this problem by having a much more effective process the number of cases that become intractable simply because the process is so long, so convoluted and so spun out.
My own practice has always been to say to parents, look, you know your children better than I will ever do. I know more about children than you do because I spend my life dealing with them. You may think he is an absolute monster. You may think she is an absolute ‘blanket blank’. The risk you are running is that if you carry on like this your child suddenly one day will realise what went wrong. And when the child is old enough he may walk out He may say a plague on both your houses. You’ve ruined my life. You’ve done what Larkin famously said, you’ve “fucked me up”. I’m off. You’re both as bad as each other.
I ask them, “do you want to spend your declining years alone, hated by your child. It may take 5 years, it may take 20 years but for god’s sake think about that.
The reality is that sooner or later the child is going to want to seek out that monster or that bitch. The child will then discover she or he is not as bad as you made out. That will have two effects. One is that there’ll be an increased wish of the child to see the other parent. The other is that the child in that circumstance will condemn you for giving a false impression. You are running a terrible, terrible risk”.
Whether that has any effect I don’t know. I’d like to think it does. But the reality I’m afraid when you get to the point underlying your scenario there is probably little that can be done.
Miracles sometimes do happen.
I had the most intractable case. In fact it involved a father who was a member of an organisation and not long before the hearing had been up some sort of building wearing some sort of outfit.
It wa absolutely intractable.
A very good Cafcass officer got into the witness box and for 20 minutes ignored me and spoke directly to the parents across the courtroom. The mother’s counsel wanted to cross examine. I said hang on a minute. Your client wants to say something. Take instructions which he did with some ill grace – “But I’m entitled to cross examine” … I said just to sit down.
The mother stood up and said words to the effect of “I hadn’t realised before what this was all about. I hadn’t realised where this was heading. I’ve now realised because of Miss Thing in the box what this is all about.”
She turned to the father and said, “You pick her up from school on Friday for the weekend and take her to school on Monday morning and that’s how we’ll do it from now on.”
Father was gobsmacked as you might imagine. But let’s not run before we’re sure we can walk. This is wonderful but something can go wrong. Come back in a fortnight and tell me what’s happening. They did that and it had been fine. I said something may still go wrong. Send me a report in three months time. It was still going swimmingly. I said a final report in six months and that was it.
So miracles do happen and in that case the miracle worker was the exceptionally astute Cafcass worker who had understood the psychology of it, understood the dynamics of it, who understood her best chance was to ignore me and ignore the lawyers and speak directly to the parents.
From the floor: Make her chief executive of Cafcass!
Munby: I don’t know if it is still working but 6 months later it was. And you will not overlooked part of my anecdote was the reaction of the advocate.
The way the courts are laid out means the only person who can see everything in the room is the judge. A lot of advocates don’t realise is that they can’t see what’s going on behind them. And what is going on behind them in terms of body language is often immensely revealing. In this case I could see from the mother’s body language that she was bursting to say something.
You have to keep an eye on what’s going on. Nobody would have put any money on that case becoming anything other than intractable.
Alan Williams: You said at the beginning of your talk that you are willing to talk and want to find out what is going on on the ground. I am asking if you would accept an ongoing channel between yourself and FNF, not to cover individual cases, but more for general matters.
Munby: The answer is unequivocal yes. It is vital that I talk to everybody who has a sensible interest in and stake in the family justice system. You have not disappointed me. I have learned a tremendous amount this morning. The process which we have so helpfully had this morning, by all means carry it on. You’ll understand I cannot get into individual cases. My postbag is full of letters from parents at the end of the end of their tether at the end of the process begging me to do something. And I can’t.
But anything you want to pass on from your general experience will be helpful. Please don’t expect me to agree with everything but I’m often asked that question and I say yes, and rather strangely, I don’t hear any more.
?? When somebody breaks the speed limit they get 3 points on their licence. And if they do it again, their points are added on and if they keep doing it they lose their driving licence. Why can’t we have a system where orders that are made in the interests of children are frustrated over and over again that there is some sort of automatic sanction that can be imposed and a record made available for example to employers. The reason that many of the cases you have mentioned have taken years is that there has been no enforcement of orders. Meanwhile parental alienation happens and the children are poisoned. That’s a tragedy of its own.
Munby: Of course, I agree. That is an interesting idea. We are near the end of questions and I’m going to throw it back to you. Would you like to develop it as an idea and send it to me. I’m not saying I agree with it. I’m not saying I will necessarily implement. It’s an interesting idea and not one I’ve heard before. Work it up and come to me and I will give it proper consideration.
Chair: Thanks and STANDING OVATION.
What do you think?
Send us feedback!