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Meetings with Sir James Munby

Lobbying News

Meetings with Sir James Munby
President of the Family Division of the High Court

(In plain language, head of the family courts)

Most people come to FNF in a family crisis. Their children have been stopped from seeing them, or not seeing them enough.

Our first duty, as a social care charity, is to help them. By doing our best to support their excluded parent to get, and then use for the best, enough parenting time.

Most of our publications and work is of this sort.

But this is, of course, like treating cases of cholera when the water supply is polluted. It is what the individuals want and need, but unless the cause is treated at source, there will be a constant supply of people needing help.

So our second duty is to promote social and legal attitudes that will prevent children being denied a full and free relationship with both their parents and their wider family,unless there is a good reason why this should  not be  allowed.

Sir James gave the plenary talk at our Annual General Meeting in 2014. The text of his talk is on this website. We have now started what he has told us will be a continuing dialogue. We are delighted, but he is not offering us any special privilege. His job requires him to listen to all important points of view, and act according to his judgement of their worth.

He is probably the most important single person influencing the relationship children of parents who live apart have with their parents and their wider family.

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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