Sir James Munby addresses the Families Need Fathers 2017 Annual Conference
This is a talk given by Sir James Munby, President of the Family Division of the High Court of England and Wales at the 2017 Annual Conference of Families Need Fathers – because both parents matter.
The conference took place in Bristol’s Engineers House Conference Centre on 18th March 2017. In it, Sir James addresses some of the key issues many “Non-Resident” Parents (NRPs) struggle with: Case management delays and errors, the lack of enforcement of Child Arrangement Orders, unfounded allegations of abuse used to delay or eliminate contact and other obstacles which so often lead to children being denied a proper relationship with the NRP - who is in most cases by far, the dad.
Sir James was introduced by Jerry Karlin, FNF’s Chair and Managing Trustee and Paul Apreda, also a Trustee of FNF.
Acknowledgements and our grateful thanks to Sir James Munby and all those who attended and/or assisted with the conference and to Josh Karlin for transcribing the address with a little help from some clever software.
Other talks were given at the conference on and will be available on our site www.fnf.org.uk.
MUNBY: You’re brave people, you invited me to this event two and a half years ago and you asked me back again. I'm very pleased, I'm very honoured, thank you very much. And my approach, as probably most of you know, is to be pretty blunt and plain-speaking, and when we have the Q and A, which for me is the more important part of this, don't hesitate to ask searching questions, don't hesitate to make robust points and I'll do my best to answer them frankly and honestly - that's my style. I think, was it Paul in an e-mail said to me that I was here today to be accountable for my tenure as President…
…so that's fine by me!
Now, can I first of all begin with a few things which I know will not be particularly close to your heart, but they’re are an important part of the basic terrain at present and not least they’re taking up immense amounts of my time. The first thing is you probably heard there's an enormous process of court reform. It is revolutionary. The idea is to drag the 19th century courts into the 21st century. The basis of it is IT. We're going to work towards a digital court where everything is electronic, where there's no paper and where, for example, when you make an application to the court, you don't fill in some incomprehensible court form as you do at present, you answer online an intuitive questionnaire asking the relevant questions. Now, that is a massive project. There is a large amount, about a billion pounds of government money being put into this. We’re [at] about the end of the first year through a 5 year process, the consequence is there’s not very much yet to see but an immense amount is going on behind the scenes. One visible manifestation, one of the very early projects is online divorce. That started being piloted a couple of months ago. It's an important test bed for other work. That's one thing which is taking up an immense amount of my time because, as well as being president of the Family Division, I'm part of the senior judiciary and all members of the senior judiciary have to involve themselves in non-jurisdictional general matters and it takes up an immense amount of time.
Coming slightly closer to home, what is taking up an enormous amount of my time and concern at present, is the crisis in the care system. You may or may not be aware of this but in the last couple of years or so, the number of care cases have been going up per annum by something like 15-20% - that is unsustainable. We simply don't have the resources to deal with that, when I say we, we don't have enough court staff, enough judges, enough CAFCASS officers, and it is a major problem. I have said, I described this last autumn as a “looming crisis”. I’m glad I used the “crisis” word although I qualified it because I suspect without that, it wouldn’t have been taken quite as seriously as it is now. I've now dropped the word looming, we have a current crisis there. An immense amount of work is going on trying to solve that problem and I’m afraid, there are only so many hours in the day, I’ve been having to focus more in recent months than I'd like on public law compared to private law.
Now, coming to private law. Although I say it myself, I don't think that very much has changed in the way of my thinking since a judgement you may be familiar with, which I gave on All Fool's Day in 2004. And one of the tragedies of the family justice system is that we've long known what the problems are and what the remedies are, we have great difficulty in actually making the remedies work and implementing them.
There was a big advance in 2014, when as you will remember we got the huge Child Arrangements Programme in place. Now that marked a tremendous advance on what had gone before. It's not gone far enough and improvement is needed and it's taking far longer than it should, because priorities both, I'm afraid, as I've explained from my perspective and also from government's perspective is elsewhere. Now we've got to move forward on this, that’s easy to say and you'll probably say well I haven't delivered and I'll meet that as and when you say it. We've got to move forward, there are two levels in the sense of which we can move forward. One view is that we can nibble little bits of the problem, try and solve little bits of the problem here or there and hope that eventually decades into the future process a little nibbling eventually gets us to where we should be. The other approach is to say the system needs radical reform, we're going to embark upon a vast process of trying to design a new architecture. The trouble with that is it takes an awful long time, if one ever gets there, and in the meantime nothing very much happens. My own view is we actually need both approaches. We have got, as soon as we can, to keep on picking away at specific things which will improve the system but at the same time we have got to recognise, it seems to me, that the system needs more fundamental and radical reform.
Now when I say important things where we need to pick away at them, in the early part of this year, I think in January of this year, I issued the revised guidance on ex parte applications. That I think was important, the previous guidance which I’d issued on the same topic a couple of years before, had become a dead letter, there was in fact open defiance. It wasn't quite right, it needed some fairly radical retuning and we've now issued that, and that is very important because the vice of the system so often is that an applicant, alleging domestic violence of some sort, goes to court without giving notice, gets an order some would say for the asking, a lot then happens, answer: nothing! The court doesn't give the respondent a date. If the respondent gets a hearing the thing is just rolled over and is very unsatisfactory to say the least and as we all know, too often the ex-parte injunction grant at the outset sets the entire tone of the whole of the subsequent proceedings, and I'll come back to that in a wider context shortly, but that particular bit of guidance was very specific, very nuts and bolts, very detailed, practical stuff, was an attempt to try and get to grips with that problem. It's early days, whether it'll succeed, whether it's made that much difference, I don't know. One thing you have to appreciate, I may be the boss in the sense that I have a fancy title - I'm in that sense responsible, I can't actually tell judges what to do, because judicial independence means that judges are independent not merely of dictation by politicians but also of dictation from other judges. All I can do, apart from exhortation and leadership in that sense, if I sit in the Court of Appeal I can say a judge has got it wrong. Otherwise I'm limited to issuing practice actions, practice guidance and so on and so forth, and there are no very obvious enforcement mechanisms there and I can't, simply because I'm the president, embark upon enforcement mechanisms, so I do my best but I hope you understand that even my best doesn't necessarily translate into the kind of activity on the ground you would always want. A second thing we're currently working on is the revision of PD12J. I imagine I'd have to remind you all that is. There was a great kerfuffle last year. Mr Justice Cobb, who was the architect of the revised child arrangements program, my invitation thought about appropriate amendments to PD12J. I published those and I've had some very helpful feedback, not least from your officers, a very detailed presentation has come back to me suggesting things which are wrong in the current draft, things which are not right, things which are wrong in the Cobb proposals and things which need to be done about it.
AUDIENCE MEMBER: Can you remind us what that was, Practice Direction 12J?
MUNBY: Domestic violence. It's domestic violence and similar problems, in the context of private law proceedings.
Now, there's been quite a lot of feedback. I've had very important, very detailed, very helpful feedback from Families Need Fathers. I've had other feedback and if there were 30 hours in a day, 8 days in the week, 5 weeks in the month and 13 months in the year, I would have had time to do it by now but I'm afraid I haven't. It is an important part, I suspect, of my holiday homework for the Easter vacation. It is in hand, I want to push forward on it as quickly as possible and as I say the input from this organization has been of immense assistance. I cannot promise, because in the nature of things it's impossible to please everybody all the time, I can't promise each and every one of your suggestions and recommendations will bear fruit but some I'm sure will do so.
So we are plugging away on important things trying to improve the system as it is. We need a much bigger view about this. And we've really got to go back, I believe, to basics. The entire family justice system, like all aspects of the justice system, has been created down the years and centuries on the assumption that people have lawyers. And one of the consequences of that is that it's based upon rules vast tomes of rules which are never read by lawyers and as I said before are unintelligible to laymen. That's not a criticism of laymen, it's a question of the lawyers who drafted the stuff. Some of you may be familiar with a thing called the red book, which is the family lawyer’s bible. It's a vast tome of over 2500 pages. It has everything in it you need to know, and a vast amount of stuff you don't want to know. It is as I said on other occasions a masterpiece of legal publishing, technically it is a splendid volume. In the modern world the post-LASPO world, the world where litigants don't have lawyers it is fit only for the bonfire. We’ve got to start again.
The reality is, post-LASPO, that private law family cases in the Family Division are effectively, for all practical purposes, a lawyer-free zone. I exaggerate of course, there are cases where there are lawyers but typically in the vast run of private law cases there are no lawyers and we've got to redesign the system from the bottom up, which is actually a system designed on the assumption, on the footing, that it’s a system designed for use by litigants in person, who are not lawyers and will not have access to legal advice. That involves a fundamental change to our whole attitude about the processes and the rules.
Now, I gather that government is currently thinking about issuing, some time later this year perhaps, a consultation paper or green paper on family justice. They have not shared with me any of their thinking on private law matters at all. No doubt in due course they will but at present I'm completely in the dark as to what their thinking on private law reform may be. I'm not particularly holding my breath because they're still somewhat shell-shocked, I think, in the realisation that post-LASPO, mediation, which was seen as the solution, has disappeared. And they have a sort of, or at one time had a sort of fond belief that the remedy was to embrace the private sector, get the private sector or the third sector, the advice organizations, as it were, to step into the breach and assist the LIPs. The thinking was pretty basic when I last heard it. It presupposed online web-based advice services which simply don't exist at present in an acceptable overall format. So I'm not holding my breath, I hope I'm wrong and in any event we need to look forward to see what it see what it is the government places.
My view and I'm sorry if you think I'm just repeating what some of you may have heard me say a couple of years ago and I’m very sorry if you think I’m merely saying that what I said 13 years ago in 2004 is right, well if I may say it myself, as the years have gone by I've become more and more convinced of the problems which I identified in that judgment, which at about the same time Mrs Justice Bracewell identified in another important judgment and which my predecessor Nicholas Wall identified about the same time in three other judgments. I think we got it right and what we need to do is to identify those fundamental concepts and make a reality of them. The task I'm afraid is long.
Let me give you an analogy. I was involved as it happened back in 2002 at the invitation of the then-president to attempt reform of the public law care system. Mr Justice Coleridge and a young Mr Ernest Ryder, Queen's Counsel as he then was, we slaved away and produced a report. When I reread that report 12 years later, it was astonishing because everything we had identified as being the solution was the right solution. It was all in fact embodied in the 2013/2014 reforms of the public law system. The difference was, it's not just a question of identifying the solution, of identifying the problems, I didn't find the solution, not even enough to implement some practice guidance some practice actions, but actually making it work. And I'm afraid the bitter experience of the public law system is that the problems which we correctly identified in 2002, the solutions which we correctly identified in 2002, did not work when they were first introduced in 2003, they did not work when we revamped the system in 2008, they did work when at the third attempt the system was revamped in 2014, and in 2014 we found an effective mechanism for making those recommendations work.
Now I very much hope we won't have that timescale here, the point I'm making in a rather laboured way is that identifying the problems is comparatively easy, identifying the solutions is comparatively easy, particularly if you're prepared to approach it with a blank sheet of paper and escape the chains of the past, actually making it work on the ground is very, very difficult. And that is why I'm not exactly holding my breath to see whether, on the ground, the revised guidance on ex parte applications which I mentioned earlier, actually makes the difference which it should. It ought to make a big difference, in my darker moments I suspect perhaps it will not.
So in a sense I begin where I left off in 2004. One thing which I think has now become the word you now hear uttered in family justice circles and even justice circles, as if it's some new magic word is, triage. Now triage was invented by the military doctors on the battlefields of the Crimean War, what is it, 175 years ago whatever it is, and there are many of us that think that triage is actually essential to a radical reform of the private law system, because on a very rough and ready basis I suspect there are three kinds of case. This assumes you get into court at all and I'll come back to that in a moment. Assuming you’re in court, there are a significant number of cases which with proper input at the outset can be solved fairly quickly. There's another big group of cases which require a bit more effort, which if they can be dealt with promptly - when I say promptly I'm talking weeks, not months, years and decades - can be resolved and then there will be those, a much smaller number, which can be identified at the outset as those which require particular input because they are the cases which have the potential on the present system to become the intractable cases.
So I think we've got to have triage and I think triage has got to work in two ways. Triage, first of all, has got to keep cases out of court altogether, and you may find it, think it odd, a judge saying this. I do not believe that in most cases in the private sector, the judicial process is the best solution and I think if cases can be kept out of court altogether, there are many cases which could be dealt with much more quickly and much more effectively out of court. Now that of course involves other techniques. One of the tragedies one can now see in hindsight, is that when the government's strategy, if it can be dignified with such a title, was thought about in 2012, the strategy was slash legal aid (LASPO) and replace it with mediation, and mediation was the only game in town, and mediation has just disappeared. The number of mediations has plummeted, it's continued to plummet and the tragedy is that they were told this was going to happen, they were warned it was going to happen and because the warning came from the lawyers, they found it rather difficult to believe. My own view is that it was misguided to go for mediation as the solution. There are a wide range of techniques which can be used - there’s mediation, there’s collaborative law, there’s conciliation, there’s arbitration, there’s med-arb which is a mixture of mediation and arbitration - there are a lot of different techniques out there and my own feeling has long been that in relation to these different techniques, what works in one case will not work in another case. We've got therefore, I believe, to maximize the availability of these various techniques, get the resources in, that is going to involve a combination of enlisting the private sector, the third sector with proper funding which will probably be quite cheap, by and large the third sector doesn't cost as much as lawyers, and that way a very significant number of the kind of cases you’re concerned about, which you've been involved in could probably be diverted from the court process altogether.
For those within the process, we need triage, and the fundamental thing we've got to grapple with is that the vices of the present system are very easy to identify. There are fundamentally two of them: one is delay and the second is the product of delay, because if you have delay what happens? The contact which should be taking place doesn't take place, positions get polarized, allegations are made, statements are flung around and when eventually the case gets to court, an immense amount of damage has been done. The family, the father of the child, the mother have been going backwards while the court process doesn't go on. Positions are much more polarized. The law for the mother's been flung and so on and so forth I don’t have to go into this, you know about this. Somehow we've got to stop that and we've got to stop it, it seems to me, by trying to get effective hearings at a very, very much earlier stage, before people become entrenched, before one's built up a new status quo. One of the vices of the system is on the rare occasion when you have a lawyer, mother's counsel soothingly say “Well of course, had you been here nine months ago…” but the status quo today is this, and that is simply the product of the inefficiency of the system.
Now, one of the things we've got to grapple with is, well there are a number of things we’ve got to grapple with. One is we have got to recognise openly and frankly the existence of parental alienation. Now I deliberately used the words parental alienation without the word “syndrome” and if you’ll allow me to put it this way, we've got to recognise “parental alienation”, small p, pa, as distinct from “Parental Alienation Syndrome”, capital P, capital A, capital S. Parental Alienation is a reality; as you've been hearing earlier today it's something which the judges recognise. Where judges have for a long time slightly balked is in accepting that it is a syndrome. Sir Nicholas Wall was one of those who worked, probably more tirelessly than any other judge I can think of, to try and improve the private law system, when he was a judge at first instance, and he did not accept the existence of, capital p, Parental, capital a, Alienation, capital s, Syndrome, because he thought, and I share his view, it's unhelpful to label it as a syndrome. But that does not mean that we should not recognise the reality of parental alienation, recognise its reality, identify it for what it is when it is, and take steps to ameliorate things.
One of the greatest vices of the system, and forgive me I may tell you things you know already but I'm saying now I recognise the problem, is the unfounded allegation which festers around and poisons the process. This ties in, it begins with the ex parte application where some injunction is made. It festers along as the case follows its weary way through the courts, allegations across allegations. And then it becomes a recognised truth, although so often when one explores what's gone on, no judge has ever explored the facts or ever come to a finding. And one of the things we've done in the new ex parte guidance is to make clear that orders which contain ex parte injunctions, if they’re made at all, should spell out on their face the judge has made no findings and should spell out, make explicit, that this is simply an interim order based on allegations not on findings.
The crucial thing we have got to do is to have early findings, so those findings can be made and can then be put to rest whichever way they fall. Mr Justice Wall was saying it back in 2002, I was saying in 2004, we are still not grasping the nettle because so often it's much easier for the hard pressed District Judge, far too many cases in his or her list to say, oh well we'll give directions and somebody else can deal with the next stage of this case in three months’ time.
If there's one single thing we've got to do it seems to me it is, where there are allegations which are being made, the judge has got to come to a view, do these allegations actually matter in the sense are they capable of affecting the outcome? If the answer is no then the judge should say, I’m not going to make findings, what I'm going to say is this doesn't matter because it can't affect the outcome, but if the allegation is one which can in principle affect the outcome, that needs to be identified, isolated and disposed of as quickly as possible at an early fact-finding hearing. And we've become obsessed with the idea, largely borrowed from public law cases, that fact finding hearings take forever, and involve a vast amount of witnesses and evidence. In many private law cases they don't and they shouldn't. In many private law cases I suspect the reality is very simple. The woman on one side says one thing, the man on the other side says something else. Is there anything in the G.P. notes to substantiate the allegations? Were the police ever involved? If so what do the records show? It doesn't take very long if one tackles this problem right at the outset, actually have a fact-finding hearing, and there are many cases, if one gets to go to this on day one rather than after nine months’ time when more and more allegations have been thought up and remembered, you can probably get through, in the typical case, within a day. Why can't we do it? Well we’re under great pressure. A day’s a day. What we’ve got to recognise is that days spent now, quite apart from the good it's doing the parties and the children, is actually saving days and days and days later down the process.
In many, and I've done these myself, even at my sort of level, in many of these cases you'll know there are two versions, sometimes some third party may be there but often it's just A against B. If the complainant hasn't gone to the police, hasn’t gone to the GP and is alleging serious brutality, well that's quite revealing. It doesn't actually take very long to get to the bottom of this; after all, judges are very used to making findings of fact, judges are very used to assessing people in the witness box. Why can't we just get mum and dad into the witness box, hear them both in a couple of hours, that's often enough. So we've got to deal with, get on with that.
The problem of the unfounded allegations - which is a very, very real problem, I don't have to tell you that - is one which, in process and procedure terms, has got to be tackled at the first stage and we try to do this by tightening up the process at the ex parte stage, spelling out that the ex parte does not involve a finding, but that has then got to feed through into prompt fact findings. And the very, very important point Nicholas Wall made in one of those judgments is that once the judge has found the facts, subject to an appeal, everybody has got to accept that finding. You can have a situation where the judge has said that the allegation is true or said the allegation is unfounded and then people carry on as if the judge never said that. And I think we've gotten more robust in holding people to findings and more robust in rejecting attempts to reopen issues which have in truth really been dealt with.
Now that leads me, and I’m going to stop shortly because it’s much more important you ask me questions than I stand here lecturing you, that these go on to the final topic which is enforcement. Now, the real solution to enforcement is if we had a proper system which was working effectively, the cases in which one would be having to enforce would be very many fewer than they are at present. The fact that the present enforcement is such a big issue is actually a demonstration of the system is not working as it should. I make that point because, the reality I fear is that [for] enforcement, it's easy to come up with the solutions in principle, it's actually very difficult in practice. And that is why, if we can get far fewer cases we get to the stage of needing enforcement, we will actually be in a much better position.
The problem about enforcement, well [there are] a number of problems; one is it's got to be proved. Well that's not too difficult. The second, which is more difficult, particularly in the context of contact, it's got to be proved that what, let us say, the mother did not do was something which it was possible for her to do. Let me give an example, if there are problems in contact with, let us say, a 13-year-old, it is very easy for mum to say, “Well I did my best but she simply refused to get dressed” and so on so forth, “I was unable to get her to go to contact.” Now that may be true it may be untrue. It's very difficult for a judge in the real world to come to a finding to the criminal standard that mother could have done all the things she says she’s done, that she did all the things she did, that she did not do the things she said she was doing and more critically that if she had, she could actually have done it. And I'm not apologizing for the law because I think, in this respect, the law’s in the right shape, but we need to recognise that the law of contempt and committal, which is what we're concerned with where we talk about enforcement in its more dramatic forms, does require proof that what was not done was capable of being done, and in the context of contact it is very easy for the defaulting parent to say, well I did my best but I couldn't actually get the child to cooperate and it's quite difficult for a judge to be able to make findings that the mother is speaking untruthfully or that she was able to do what she could do.
We have this problem in other contexts and, as it happens, one of the leading cases on this was a decision of mine a few years ago. It wasn't in the context of private law case, it was in the context of an international abduction case and the mother had been ordered to return the children from Wales to Spain, and there was no argument; that was the order. She said, well the children are, I think, they were 16, 14 and 12, and they simply wouldn't go and I heard a lot of evidence about what actually happened. I heard evidence about the children jumping out of the window and all the rest of it, and at the end of the day I could not find that it was within the power of the mother actually to make her children comply with the order.
So that, I know this goes very, very deep with you and I know that many people think, well if only the judges were tougher and if only the paper tiger actually bared its teeth and did something nasty, mothers would fall into line. It's not that easy I'm afraid. I have said, and I’ve repeated this, I said this back in 2004 and I repeated it not long ago in the Court of Appeal, I think there is a place, if I'm talking about committal, for a very short prison sentences. You don't send the child to contact on the Saturday and you're back in court on the Monday, the judge deals with the case that week and you go to prison for two days the following weekend. I'm afraid it's easier said than done, and that is why the reality, I think, is we want to try and tackle the root problem and try and get a system, where as I’ve said already, we are not so often faced with enforcement.
Now there are other there are other techniques for enforcement. I mean, the Law Commission, in a completely different context, the context of enforcing money orders following divorce, has recently been discussing whether there should be orders which can be made for defaulters there, confiscating their driving licenses, confiscating their passports, other kinds of sanctions which would make life so difficult for them that they might be induced to comply. Views are very divided on that. I don't myself have a strong view one way or the other but one thing which is apparent is that following the, was it the 2004 act, the extra powers were put into the Children Act, in was it 2006, sections 11a-q. Well, have they worked? The answer is no. And I was at a conference recently and I was with a lot of judges and I said, can anyone who's ever been involved in a case where a supervised contact activity order was made, put their hand up? Two hands went up and a third rather hesitantly.
The fact is that a panoply of provisions in that legislation have not had the effect they were intended to have, partly of course because under the legislation, the trigger for making one of those orders is proof to the criminal standard that there's been non-compliance with the underlying order. So I think we need to be more adventurous in thinking about other kinds of sanction or penalty or order, which could induce people, even indirectly rather than directly, to comply.
Now, you may think and I forgive you for thinking, well we've heard him say all this before, have things improved significantly since he was spouting the same stuff two and a half years ago in the autumn of 2014? The answer is that nothing like as much has improved as it should have done and that I would like it done, partly we've been blown off course by the other things I mentioned, partly it is an intractable problem which in significant part, unless we radically reform the system in the ways I suggested, actually depends more about behaviour on the ground than it does in terms of the actual content of the law, practice directions and so on and so forth.
I hope you appreciate I'm not complacent. I think we've got to go back and review CAP and I think, and actually this does intersect with where I began, the court reform process with the concept of the digital court of the future, where everything is electronic, where we can throw away the rule book and start again, if that will be designed on the basis that the litigants are LIPs, that great scheme, which is important in its own right, will actually, I believe, feed through into and become the essential underpinning for the radical reform of the private family justice system we need. I'm afraid a certain politician once said, speaking of prime ministers, “Every prime ministerial career ends in failure.” I'm coming towards the end of my time as president and sometimes people might think the same of me. All I can say is, in so long as I remain president I will keep on battering away as best I can. But there are many people to be persuaded and I'm afraid there are many, many competing demands. But we have got to keep going on at this and I'm just sorry, I'm very sorry that, in a sense, we are so little further forward than we were 10 years ago and so little further forward than we were two and a half years ago.
Now, I've said enough. I'm here for questions, comments, observations but somebody better, is somebody going to…?
PAUL: Right, Sir James, thank you very much.
Now, what I was going to say, And I from. All levels ….was that, what we have done is we've invited people to submit questions. We had, I think, just under 30 questions, specific questions, and the good news is that we're not going to ask you 30 questions, the bad news is what I'm proposing to do is I’ve synthesized some of the key themes. I’ve looked at some of the questions and the questions included quite a lot of reference to individual cases, which I think would be inappropriate to ask the president to comment on those individual cases. So hopefully, with your agreement, what I would propose to do is to invite you to comment or to answer some questions that I brought together from that synthesis of the issues that have emerged.
And the key issues, to give you a little bit of forewarning on this one sir, domestic violence and abuse, allegations and cross-examination, non-molestation orders, enforcement… you can almost imagine the president knew what we would ask!
Dear me. A man a man who understands his audience.
So, enforcement, parental alienation, bias and the future of the family justice system. Now, bear with me guys, if we can get through these then I've got even more(!)
So Sir James, if you don't mind, may I ask you, this is relating to DV and false allegations, so within the context of private law, what is domestic violence and abuse? What are the problems faced by the court in dealing with domestic violence? And how prevalent are false allegations? What can you do to deter them?
MUNBY: Well, what is, for this purpose, domestic violence? That is defined, the definition as you know has been extended recently. I know the reviews, it requires further elaboration and I was hearing earlier today a very interesting proposal that when we revise PD12J, it should be extended. So the suggestion that was made: the making of false allegations should themselves be recognised as a form of abuse.
Now, don't get carried away with your enthusiasm!
First of all, the definitions are in legislation, I can't change the legislation. I'm very attracted by the idea, it needs careful thinking and I'm going to think about in the context of Practice Direction 12J.
It is, as you will imagine, exceedingly controversial, it will be exceedingly controversial in some quarters but that's not a reason to shy away from it and I'm not frightened away by controversy.
PAUL: Good man!
MUNBY: So I think the answer is, it’s a very interesting idea, I’m very glad somebody raised it with me beforehand, I want to think about that.
In terms of how much of it there is, I don't know. One of the problems with the system is that our collection of data is lamentable. We don't collect data on the right things. The data which we collect is often inaccurate, and the consequence often is that the only way of answering that kind of question is by getting academics in to do an academic research by investigating, you know, a thousand court files.
So that is why I don’t know. One of the spinoff benefits of the digital court is that because everything will be online, everything will be digital, everything which is happening in the case will be digital, we will be able to answer these questions in the future much more accurately than we can at present. At present, we capture data for certain purposes, if we don't capture the data the result is we don't know. If everything's online, if everything's digital, if everything's on a server somewhere, we can effectively interrogate that server and we'll be able to answer that kind of question much better in future. I suspect, the other thing is and you have to recognise this, typically, I don't have to tell you this, typically, private law cases of the type which you have all been involved in, which you’re concerned about, are dealt with by those lower down the food chain than me. Ever since I became a judge, High Court judges have tended to deal with private law cases only if they have become intractable and everybody else has found it impossible. One of the great problems of the system was, at the very point when a private law case was finally transferred by the circuit judge to a High Court judge, in the fond belief, the fond delusion, that somehow I’ve a magic wand which the circuit judge didn't have. The truth is that the case was beyond recall.
So one of the problems is that I do not have and never have had the day-to-day, hands-on experience of private law cases, the general private law cases and therefore I don't hazard more than a suspicion, but I suspect there are a significant number of allegations which are untrue. Whether they are false, you may think this is lawyer’s subtlety, whether they're false in the sense that the people making them know they are untrue, it may be a different thing, I suspect there are significant numbers of untrue allegations. I suspect that very few of them are deliberate fabrications, I may be wrong, I suspect most of them which are untrue have some kind of kernel of reality to them which will have become heavily embroidered and become more and embroidered as the years pass. So I suspect there's quite a lot of it and because we don't have the fact-findings which you should, I suspect the very large amount of what is actually going on there, by way of untrue allegations, are not exposed for that, and because of the sort of general atmosphere in the case, because they are peddled out, because there's been an ex parte order at the beginning of the day, no fact-finding, everybody sort of falls into this way of thinking, well there’s no smoke without fire. That is why we need the fact-finding hearings.
So my answer to the question is, my suspicion is there's probably quite a lot of it, I simply don't know and in truth nobody knows because we don't have the data.
PAUL: So if I may just pick up on that before I move on, what can you do to deter the making of false allegations?
MUNBY: Well the best way to deter is to expose it. I mean, the best way is actually to have fact-finding hearings. If you have fact-finding hearings which lead to a finding, no those allegations are not true, that in itself will be a sanction, that in itself will make it a less attractive option because at present there are so few fact-finding hearings, except in egregious cases, I suspect people think they can get away with it. And they do get away with it and I think probably the most effective sanction is the knowledge that there will be a fact-finding hearing as a matter of routine. If the allegation is found to be untrue, that's going to affect the future of the case. And then in really shocking cases, there's always the prospect of criminal sanctions.
If people set out, quite flagrantly, to manufacture a completely bogus case and just perjure themselves, that is perjury, there's no reason why they shouldn’t be punished accordingly. As I say it will be difficult proving that and I suspect in many cases there's some small kernel of truth which has been blown up out of all proportion. So the lawyers’ point, which is not a semantic point, was a real point; the difference between something which is untrue and something which is false or a lie, is actually quite important, but the real remedy I'm sure is speedy fact-finding hearings in a much larger number of cases.
PAUL: Right, ok. I’m conscious that there’s a number of themes and thank you for your answer. I’m sure that we can come back and forth on that point. But I'm going to move on to a slightly related one which is cross-examination of witnesses.
So you’ve spoken out against the cross-examination of victims of domestic violence by their abusers. Your colleague Steven Cobb brought forward proposals, as you mentioned, for a revision of Practice Direction 12J, partly based on discussions with Women’s Aid, who stated that 25% of women had been cross-examined by their abusers and that 39% of women had been physically assaulted on court property. So in light of the above, can you tell us a little about the thinking behind the decisions to prevent cross-examination of victims of abuse?
MUNBY: Can I make 2 points? I have no means of verifying the statistics produced by Women's Aid, which are based, as I recall, on a very small sample and a self-selecting sample, so the figures they bandy about have not formed any part in my thinking about what we need to do.
The other point is that although this has had a lot of publicity of late for obvious reasons, it is actually part of a much bigger point. For three years now, I've been trying to persuade government of the need for the family courts to be much more receptive to the need to provide proper support facilities for anybody in court who is vulnerable or who is a child, and vulnerability comes in many, many forms. One form of vulnerability and I've had this myself which affects men and women equally, are things like learning disability, mental health problems, which means they simply cannot function in a courtroom without support and assistance. I've said this repeatedly. We are shamefully behind in the family justice system, the criminal justice system, and what the lawyers call “special measures,” which are the various measures and facilities made available in the criminal courts to make the court experience tolerable for those who are disadvantaged, those who are vulnerable, are very much lacking in the family courts, and that's a much bigger agenda of this particular topic. Essentially I’ve got nowhere on that, and the cynic can work out why. Providing special measures providing for the appropriate in-court support requires resources, it requires money. And is the money available? Not yet.
So I've been campaigning quite vigorously and repeatedly over recent years on this much more general and very important topic and I pulled it all together in January of this year, I published my latest View from the President’s Chambers which was quite deliberately a remorseless, forensic analysis of all the times I’d spoken on these topics over the last three years.
Now, as it happened, the particular thing which you've raised with me, came to a head – nothing to do with me - came to a head in December and it was triggered, as you know, by an article in The Guardian, which built on previous things; one, the research by Women's Aid, and more importantly, a very important debate in the House of Commons in September of last year and it made very uncomfortable reading. It was very largely based upon what Women's Aid said in their research, but MP after MP from both sides of the house, all sides of the house, stood up to condemn the family justice system for its failure to treat people fairly and properly in court. Now, the focus was on the particular thing about cross-examination but the complaints went far beyond that. For example, Keir Starmer, who's now a leading light in the Labour front bench, former DPP, made have a very powerful intervention saying that, well, we solved this problem in the criminal justice years ago, why can’t the family justice system do the same? And it seemed to me, and one of the things I've been going on about as part of the much more general need to get to grips with this problem, was this particular problem about cross-examination of victims, and it cuts both ways. I have never accepted the thesis that all perpetrators are men and all victims are women. We know there are plenty the other way around. When I talk about the need to protect perpetrators being cross-examined by victims, as far as I'm concerned it's gender-neutral, it applies across the board.
And it seemed to me that it was the time to intervene, at that point, because that was the best chance, given what was going on in the background, by a well-timed intervention, to get something actually happening, and the consequence is we have unblocked this and the first unblocking has been in relation to the cross-examination point, but it's also the feeding into the general unblocking and moving forward in the much wider and, in a sense, much more important agenda about special measures and protection for the in-court experience of the vulnerable women, men and children.
I'm unapologetic about having taken… Wasn't it Churchill who said, “If the devil was prepared to join the coalition against Germany he'd make a favourable reference to the devil”? I mean, if somebody is saying the right thing at the right time then it’s foolish not to associate oneself with it. It is a problem which was identified in 2006 by a high court judge and government simply ignored this for 10 years.
Now, I asked Mr Justice Cobb to look into it because he'd done the CAP. As you know, I published his report, the whole thing so everybody could see it, what he said, and there's been a lot of comments about it and a lot of criticism about it and, as I’ve already mentioned, very helpful. Paul was it you who wrote the letter? Very helpful letter and I’m still thinking about it but I'm unapologetic about the fact that I took that point up. It's important for its own self. It is not in my book an anti-men or pro-women point. Women’s Aid may think it is but, you know, that's their viewpoint, but it is part of a much bigger agenda, which is the need to drag the family court into a setting where people can feel relaxed in court, where people with vulnerabilities, whatever they may be, [feel relaxed]. And that focus just on one kind of vulnerability - being a victim of domestic violence - there are all sorts of other vulnerabilities which are important, which is a terribly, terribly important agenda. It has had the effect of getting this wider issue back onto the political agenda, there was a very… When the government announced its U-turn early in January. There was another very striking debate in the Commons where MP after MP again stood up to condemn the family justice system and very interesting there was a lot of pressure from MPs to the Minister, well when are you going to do something? And the ministers will say, well, as you all know, these things take time. When you're going to do something? So I think we've got a parliamentary head of steam building up there which in terms of the bigger picture, the wider picture, the longer term picture is terribly, terribly valuable.
PAUL: Just before we move on I just wanted to say that the difficulty, I think, is that the devil is in the detail, and there is a danger that by seeking to prevent something dreadful, what you’re doing is that you’re creating the conditions for people to, my terminology, game the scenario, and I think that, for me, that’s a huge problem that maybe you’re simply going to be encouraging more allegations.
MUNBY: Well we know that people game the system, and the classic example of that is one of the bits of LASPO is you do get legal aid if there’s an allegation of domestic violence…
[Cries of HEAR HEAR]
…and therefore there's a premium on putting forward some kind of plausible case as well because you get legal aid. That itself skews the system because you get legal aid, the other side doesn't, so we know that people game the system, we know that the legal aid system, in all sorts of contexts, has perverse incentives and perverse disincentives, and that is one of them. As you know there's been, as a result a great public pressure, the criteria for getting domestic violence-based legal aid in private law cases being relaxed recently so domestic violence doesn’t have to be within the last two years and so on and so forth, but, I mean, people do game the system, either deliberately or in some cases subconsciously.
You've got to recognise that reality and we've got to be alert to it. We’ve got to be very astute as judges in particular cases to ask ourselves, well is this the truth or is this simply something being manufactured for gaming purposes? And the bill has now, I think, been published very recently, the bill which contains all the provisions on this. It is pretty heavy going as most legislation is but that said, it's not particularly long, this particular bit of the bill, and it would be very interesting to have your views on the, picking up your point on the devil being in the detail, it’d be very interesting to have your views on whether the detail of the bill is right or wrong, and whether there are provisions in the bill which will increase the risk of people gaming the system. So I would very much value specific input, now the bill’s been published, on your views as to whether the bill, allowing that in substance it's there, whether the detail can and should be improved.
PAUL: If I may let me move on. You set out at our AGM in 2014 the two fundamental principles of family law, and I quote, “The first is very clear and I state it, may I say, characteristically, uncompromisingly, men and women come before the courts on the basis of equality. The mother’s voice does not have more weight because she is the mother.” Now let me share with you an extract from a letter I received recently from a man who said, “There is a perception of bias against fathers in the system.” The man in question is Sir Oliver Heald, the minister of state for justice. Do you still believe what you said in 2014? How would you convince the tens of thousands of men who make up more than 70% of the applicants in private law each year that you were right and everyone else is wrong?
MUNBY: I was setting out the legal position. On which I am compromising. I do not myself accept that there is widespread bias either intentional or unintentional. I can well understand there's a widespread perception of that but, I mean, one of the aspects of my job is I have a huge postbag, huge postbag, from dissatisfied, disgruntled litigants, not just in private law cases, in public law cases. And there are at least as many people writing letters who are mothers and grandmothers as there are fathers and grandfathers in both the private law and the public law system who are effectively saying the system is biased, the system is unfair what have you. There will be occasions, after we are all human, there will be occasions where a judge falls short of the highest standards, but I do not accept that there is an institutional bias. I do not accept there’s widespread bias of any sort. What I do think, and I'm not criticizing people, this is just human reality, people who have, as they see it, lost out in the system, people who have not got the order they want, people who have not got the order which they passionately believe is the order they should have had, look around to try and explain it. And the one thing, and Hamish is a man who’d be able to answer this as well, but I'm speaking as, for this purpose, a complete layman as I’m not a psychiatrist or a psychologist, I suspect it's part of human nature that it's much easier putting the blame somewhere else than putting the blame on yourself, and if you’ve come off worse in the court system, there are only a comparably small cast of characters as to whom you can blame; there’s the judge, there’s your worse half, there’s your worse half’s evil barrister, there's the CAFCASS officer, or even dare I say there’s Hamish.
Because ultimately the solution is that of the judge, I suspect there are many people who attribute the failure as that of the judge, people do not accept that perhaps the judge got it right and they don't have a complaint at all, and I'm afraid it’s characteristic of the mailbag, even if one excludes what one colloquially refers to as the green ink letters, I mean, there's a recognised kind of letter that comes in 50 pages of manuscript in green ink, but, I mean, excluding that, it's a very characteristic aspect of letters, often of deep anguish. The letters are not as well letters of complaint, they’re letters of deep anguish saying, “You are my last hope, you do something” and of course I can't so I can't interfere, but it's a characteristic feature of many, many of those letters that people, desperately searching around for an explanation of what they believe to be a wrong decision, a great injustice, do tend to use extravagant language and you find them talking about the biased judge or the biased CAFCASS officer or the expert who’s in the pocket of the local authority.
So I have no doubt that Sir Oliver’s right that there's a widespread perception. That belief, but the extent to which that perception is actually grounded in objective reality, I think is a very different question and I simply can't believe, you may say I'm deluded but I do not myself believe that the problem in the real world is anything like as large, anything remotely as large as the popular perception would have it.
PAUL: I’m going to take Jerry.
JERRY: Can I just ask one tiny clarification which is, you talked earlier of vulnerability and I think it’s central in terms of assessment of whether there’s a bias anywhere. Would you say that the vulnerability of mothers and of fathers are assessed differently?
MUNBY: Well it depends what the vulnerability is, if the vulnerability is said to be learning disability then I can't answer the question, it’s a question for the psychologists. If the vulnerability is deafness, profound deafness, we’re very bad in the family court, we just assume everyone in the court can see and hear and understand and in fact what we've learned, once you actually start asking questions, there’s a huge number of people in front of us who can't hear, may be visually impaired. On that, those are scientific matters as it were.
In terms of the kind of the kind of vulnerability which I suspect you have in mind, the answer is no they shouldn't be and I don't believe they are, certainly not consciously, unless, which I find hard to believe, some very reputable psychiatrist or psychologist is prepared to go in the box and say, well actually men and women are different. I mean, that said, I mean, we're all creatures of our upbringing and our upbringing is partly societal, it's partly one of age. Somebody brought up in the days when I was brought up, where it was treated as common sense and good manners, you always stood up if a woman came in, you always opened the door for a woman, you stood up and gave the woman a seat on the tube train whether or not she was pregnant, and that is dangerous to do nowadays because I mean sometimes I mean…
…I'm not I'm not trying to trivialise the point. These things are, up to a point, generational and in that sense there will be some subconscious biases at work. Put it this way, on occasions when judges do say inappropriate, unfortunate things, they are picked up and mercilessly attacked in the press, particularly in the crown court. It doesn't happen as often as popular perception would have it happen because where it happens it's reported.
PAUL: Can I, sorry, can I come to Dr Sue Whitcombe?
SUE: I’ve never been to a court as a respondent or as an applicant...
MUNBY: You’re a very lucky person!
SUE: …and in some senses though I go to court as an independent expert, am appointed as an independent expert. My experience is overwhelmingly that maybe the judges themselves are not biased but certainly the services that feed into that process are systemically biased.
MUNBY: Which services in particular?
SUE: They treat men and women very differently. They treat a father very differently to a mother, investigations of abuse or domestic violence are treated very differently…
MUNBY: And is this CAFCASS England or CAFCASS Cymru?
SUE: And that’s my opinion as an independent.
MUNBY: Well that's very interesting, I mean, sorry that sounds awful. It is interesting but it's very concerning.
SUE: Yes, I find it very concerning, yes.
MUNBY: And is that something you have articulated? Have you ever said that to CAFCASS?
SUE: I say it in my reports, my reports for the court.
MUNBY: Have you ever taken it up with, as well, the CAFCASS top brass?
PAUL: Well there we are! I think I think if I may just sum up on this one. The chief executive, the no-longer chief executive of CAFCASS Cymru once said to me, in terms of court service users and their satisfaction with the service from the court, “Well 50% of people aren’t gonna be happy about it.” and I said, “Crikey do you think you do that well?”
Now I’m not sure necessarily that the idea that there isn’t any bias because, you know, it’s dealt with in an open and transparent way. I have to share with some of you, I read a report which was commissioned and paid for by the Welsh government called, ‘Are you listening and am I being heard?’ and it’s an examination; it pulls together the experience of survivors of domestic violence and abuse. 66 of them brought together, very representative of the diversity of wales. 43% were from black and minority ethnic communities. Sadly Welsh Women’s Aid, who produced this document for Welsh government, could only find 1 man. Now, the view that was put forward of survivors of domestic violence and abuse was, I mean, pretty universally negative, their experience of the family court. So I think although we’re more used to understanding the perspective of fathers, who see it as profoundly biased and problematic, I think actually the family justice system has a much, much greater problem than that, which is that everybody thinks that it’s a problem, that there are difficulties, that there are biases, there are huge issues and I, you know, dare I say, I feel for you sir as the person who’s in charge and I would like you to say how we’re going to deal with it.
MUNBY: I would be surprised… let me start again. I'm not at all surprised to think, and this is of course my view, that the very large majority of users of the family courts do not find it an appropriate experience - nothing to do with the outcome - the process, the experience is simply not what it ought to be. The problem starts even before you get in through the front door of the court, the actual state of some of our courts is shocking. You come in through the front door, the building is tired and falling down, you’re assailed by an entrance lobby with security guards and security arches, festooned with notices, ‘Do not smoke!’, ‘If you assault the staff you’ll go to prison!’, ‘No cameras you will go to prison!’, it's a very negative experience. The corridors and the physical experience of the building starts us off on the wrong footing, the courts are not well laid out, and that's before you actually start getting to grips with the people in the system, the people running the system, and anybody who says there's a 50% customer satisfaction, I would say, well, was it a self-selecting group? Were you were asking people face to face? Was it the result of a secret ballot? If you say to people as they come out, “Was that a good experience or bad experience?” more people like to say good than bad, they don’t want to upset, you know, the nice lady asking the question.
So I'd be very sceptical about customer satisfaction surveys. The point that well, 50% are going to be dissatisfied, that gets over the fact that dissatisfaction with the outcome is not same thing as dissatisfaction with the process, and nobody should be dissatisfied with the process, and everybody should go away think they've been treated fairly, properly, with humanity by a judge who understands, they've not been belittled, they’ve not been insulted by counsel, their concerns have been taken on board by CAFCASS and all the rest of it. We ought to have a system, in an ideal world, where everybody goes away and says, “Well, alright, I lost but I had a fair crack of the whip and I’ve got no complaints about the way anybody treated me in court.” Now, that's an ideal we'll never have, but to sort of say, oh well, 50% of the customers are going to be dissatisfied, doesn't actually grapple with the problem; that may be said in relation to the outcome, not so in relation to the process.
PAUL: Can I come to Wayne?
WAYNE: Sir James, I’m not going to ask you anything but offer you a solution here. You talked about Practice Direction 12J. Now, domestic violence or abuse is going on within the home. All the families where domestic abuse happens should be dealt with through the criminal justice system, be that breach of contact [orders], assaults, etc… We were on about Practice Direction 12J, a parent should be able to live without fear of repeated domestic abuse. That can be at the start of, in the middle or after family proceedings conclude. When contact is denied, that is emotional abuse of the parent not receiving that contact time. That is not something your court can deal with. You can only deal with the breach of the contact order in relation to the welfare of the child.
So, if you try to report this to the police, the police say, “Take that to the civil courts, it’s a civil matter.” If there’s an assault, they don’t say, “Take that to the civil court” so perhaps if you write and communicate with ACPO asking them to deal with breaches of court ordered contact as emotional abuse appropriately, the same as they do with the other bits of abuse, because one of the reasons people don’t continue with assaults is fear of going into the criminal justice system and that would be the same with a parent denying access, going into the criminal justice system. Is this something you’ve considered? And if not, could you write to ACPO asking them to deal with this as they deal with all other domestic abuse? [UNCLEAR IN RECORDING/CORRECTED]
MUNBY: Thank you, that's a very interesting suggestion. I'm not holding my breath. I've been in the law so long I can remember 1976, when the first domestic violence act was introduced, and that was going to be the beginning of a new era. We were no longer going to have the police saying it's only a domestic. And here we are forty years later and a lot of things have improved but there's a long way to go, and it's unsurprisingly, very recently as I recall, both the home secretary and the prime minister said that there was going to be a new campaign in relation to domestic violence.
So it's an interesting idea, I'll take it away and think about it. Given how long it's taken, how difficult it still is to actually get police engaged - I'm not criticising the police but the reality of how difficult it is to get engagement - I'm not sure it's going to be the wonder working solution on the ground in the real world.
WAYNE: We have to view that now as controlling, coercive behaviour… [UNCLEAR IN RECORDING]
WAYNE: A reasonable person, and I appreciate some of you might not agree with me when I say a judge is a reasonable person, [needs] to make a decision that this is the level of contact, it’s already been decided, it’s controlling and coercive not to allow it. The police now have the legislation to work to and if you work in cooperation with them asking them to deal with that, it might keep people out of your courts.
MUNBY: Well it might, I mean, we have this in all sorts of situations, where we come into contact with the police. If there's an outburst in court, should we deal with that as contempt? Should it be dealt with by the criminal justice system? One knows from bitter experience, with the police under tremendous stress, they’ve got enormous caseloads, numbers are being cut all the time - they have to prioritize. From their point of view, some of these things don't have the same priorities as some of the other things. Experience in the real world would caution me about being too optimistic. In an ideal world, yes, it ought to work but I'm just hesitant.
12J is being looked at again, specifically in the context of the offence of coercive, controlling behaviour. That itself is very important because we've moved, I mean, 40 years ago domestic violence was black eyes and nothing else. In reality, we've moved a long, long way from that; we now understand that violence takes many, many forms, not necessarily physical at all, and coercive, controlling behaviour is the latest example of that and it may be that the justice systems generally haven't caught up with that quite as fast as they should.
PAUL: Thank you.
DAVID: You’re saying that the problem start at the front door of the court. [INCOMPREHENSIBLE WORDS] My view as a man on the street, my problems started when my wife said, “I would like a divorce and by the way, you can see the children when I tell you.” That is the problem nowadays and that’s why you are there and why most people are going to the family court, because a mom, or the resident parent, says “I’m the boss.”
PAUL: That’s a very good point and before you answer it, Sir James, let me ask…
When I was saying that… The things I was saying about the front door of the court, I wasn't ignoring the fact that the real problems start long before you get to court at all, of course, and that's why it seems to me one has got to think about stopping people, I mean, looking to see if there are non-court solutions. We should be thinking about those, we should be thinking about triage. What happens to a person that does nothing? You arrive at the court, what you do you do? You go into a system which is a tramline and much more needs to be done to give people access to advice, to information, to helplines, to resources before they ever get into court.
What we ought to have is… We live in a world ruled by Google. You may have different views but my vision would be that the word which most people would use to capture the problem, the relationship has broken down, what are they going to put into Google? And whatever it is, on the very front page of Google, top half of the page, that should take them to a website which has lots and lots of information, lots of hyperlinks, so that people can understand what the options are, what's out there, sending the message that perhaps the court isn't always the obvious solution, we don't have that. I've been banging my head against a brick wall, as indeed has David Norgrove, the architect of family justice reform, for over two years now of government, trying to sell this message - we need a proper online facility which enables people, ordinary people, to know what to do. I tried this out when I raised this two years ago and remember this was a time when the whole concept was you couldn’t go to court at all, and there should be mediated first of all. And I thought well let's try separation, so I googled separation. Second thing that came up on the front page of Google was a ministry of justice thing about separation. And it started off saying, “You will have to go to court to make an application.”
…because what they were talking about was something called judicial separation which is, as it were, divorce without a divorce. And this just demonstrates the complete poverty of thinking and the fact that in the Google world we don't enable people to have access to proper information. What I'd like to see is a web-based venture which is comprehensive, which anybody can access, and which gives you information and if you don't understand something it gives you a hyperlink. Here, for example, government talks about mediation, “Why has mediation not taken off?” Well, one thing is people don't know that the relevant thing is called mediation, so unless you know that the thing is mediation, you don't google the right thing and we need a system under which, “Have you thought about mediation?” “Yes/No.” “Have you heard about mediation?” “Do you want to know what mediation is?” “Yes” and then something would come up and explain it. “What are your remedies?” We haven't begun to grapple with this and there's a desperate need for it, particularly in the world of non-represented LIPs. If this is really properly done, this would be something which you could go into as soon as it happens and you’d have your options, it would all be explained, you'd be in a much better position to take an informed view as to the way forward than any of us can be at present.
PAUL: Question from Michaela.
MICHAELA: Hi, I just wanted to say that I actually support what you’re saying … working as a McKenzie Friend … as I do, I find there’s simply not enough hours in the day to assist absolutely everybody, and I tend to find that if the information was more readily available I think that would be a great support to all people.
MUNBY: I mean the trouble as a President… I mean, huge numbers of organizations, yours is one of them for example, have websites which are tremendously informative, but you’ve got to know, as it were, to look at your website and there's no comprehensive independent thing. I am not talking about something which is the MOJ website, I mean, that's not sensible marketing…
…and I keep on telling them, the government logo is a killer on this. It's got to be independent of government and one needs, in a sense - and I’m not saying you shouldn’t have all the other websites - one needs some central website, the content of which could be in large parts the product of sensible discussion between all these charities, all the third sector organisations, all the private sector organisations, to provide this basic stuff so that you wouldn't be spending all the time you’re spending telling people stuff, you’d simply say, “Well, go on the web!”
But I'm afraid. What's the problem? Well, one is imagination and the other is resources. I'm afraid both are rather lacking in both Whitehall and Westminster.
PAUL: I think if I may, Sir James, part of the difficulty, we will see more difficult cases. There are very few times when we are running our support meetings and somebody turns up and says, “Just wanted to come along and say everything was fine!”
But I would encourage anybody who is that situation to come along to one of our meetings
JERRY: As long as they become a member.
PAUL: Oh absolutely. Good point, good point. But I think the difference is that so much of the information out there is what I’m gonna describe as, oh yeah I will, “motherhood and apple pie.” Now who would disagree with this, “Let’s all be nice and let’s mediate” but you raised the point which is, “Which part of mediation do I need? I’ve got the kids, you haven’t, and if you come round my house I’ll have you arrested.”
Now, that’s the reality.
MUNBY: If that is the stance then unless you’re a very skilled mediator, mediation is very unlikely to succeed, and if that is the stance then on any sensible triage system, you fast track to court and the court has then got to move fast. There isn't a fast track court at present because of the MIAMs arrangements, and the court doesn't move fast enough when you get through the front door.
This is why I just used the word triage - private law cases are not all the same. I think one of the great failings of the system is we have a system which assumes that a private law case is a private law case, and that's not so. That's why I think one needs triage. Let me illustrate the point. I'm often asked, “Well in care cases, public law cases, there’s a 26 week rule. Why don’t we have a similar rule in private law cases?” Now, my answer to that is, in principle I think it's a good thing, we can't have a single time limit, because if I'm right on triage then we need three different timescales with three different indicative timetables. If we say, taking the average, let's say 3 months, 3 months is far too long for some of the cases. So I'm in favour of timescales, we need to think about them, but, I'm illustrating the other point, I think we've got to recognise [that] cases are different and we've got the differences established [UNCLEAR IN RECORDING] right at the outset and we’ve got to use different techniques for different cases. That's pre-court as well because, in the case you’re mentioning, mediation is going to get nowhere, so the initial triage has got to be straight into court because there will be many other cases where one should try some long court battle.
PAUL: But I did draw to your attention previously, for example, the exercise of parental responsibility. If people were educated about, “What are the requirements with parental responsibility?” that may assist them to have better outcomes that they find for themselves, but of course the gov.uk website - that comes up first if you google parental responsibility - tells you that if you have parental responsibility for a child who you do not live with, you do not necessarily have a right to contact with them. Now, I’ve asked the Ministry of Justice if they could share with us the legislative underpinning for that statement and they seem somewhat reluctant. So I’m wondering whether you might be able to ask them that question with a view to possibly working with us on a public legal education programme that tells parents, “Actually these are the rules” and it’s very important to have your buy-in, sir, because it’s all well and good us telling people “These are the rules,” that has to then be borne out by their experience in the family court.
MUNBY: One of the great problems in this country is, when anybody discovers you're in the law, they assume you’re in the criminal law. The only kind of law people know about is the criminal law and when you say, “No, there’s something called civil law” they just blank, and unless they've actually been involved or had relatives involved or friends been involved in the family justice system, most people think of the justice system as criminal justice, so the level of general understanding is unbelievably low. We have no education in our school system about anything to do, as far as I’m aware, with the legal system, with the way society is organized, with the basic constitutional principles, with the welfare state, nothing like that is dealt with in schools at all. So the people who suddenly find themselves in a situation, like the one that’s been described, are completely adrift; they've got no sort of understanding of where they're coming from. And then, you can give an example, I can give an example, you go on and you google and you get some stuff from MOJ which, to put it politely, is not particularly informative or accurate.
PAUL: Can I quote you on that, Sir?
Better not, ok.
MUNBY: It's true! I mean, it's true. There's a desperate need, I believe, for much more general public education - that actually means in the schools - but also, and in the modern world this has got to be web based, a much better web presence which has got to be, in a sense impartially vetted. What I’m talking about is not something which is sort of the ex's view of life or the wife’s view of life or the government's view of what life ought to be, but something which everybody is prepared to sign up to, and which is, can therefore be treated by everybody who goes onto it as being accurate, honest, fair and impartial. Now, it's a very big task, but after all, in the modern world, we live our lives completely dominated by the web, what’s on the web. Is it really beyond the wit of everybody to do that? I fear it probably is, but there’s a desperate need for both education and easy accessibility to accurate information.
PAUL: I'm going to have to give way to our Patron, Dr Hamish Cameron.
CAMERON: Sir James, thank you very much for the speech. The thing I want to put you on the spot with is the cultural change that is needed in society and in particular in the palace of Westminster. The judges, on the whole, are well ahead of the thinking of our political friends.
In Florida, in the 1990s, a statute was passed which allowed a Standing Temporary Order to be issued to all litigants who went to court and said they were applying for a Children’s Order under divorce proceedings. That Standing Temporary Order could only be varied by application to the judge. The Standing Temporary Order says that the child is compelled to have contact alternate weekends and half the holidays; it compels the payment of suitable payments - by the man usually - but by the parent who’s the non-resident parent and it restricts the resident parent from moving outside the county in which they live. That Standing Temporary Order has been extremely powerful in changing attitudes amongst the American people. I understand that the judges are well up to speed with this and we know from the [UNCLEAR IN RECORDING] guidelines, that that has been taken on board. Whenever I try and speak to politicians or others of my like, we find that their minds are totally closed and they are quite unable to comprehend the concept of the state containing and helping the child of divorce right from the start, and it certainly transformed attitudes amongst the people who lived in Florida. Standing Temporary Order - it’s on the FNF website. So is there any chance of our politicians coming to that stage of belief?
MUNBY: I'd like to think about whether there's any possibility of introducing something along those lines without legislative change. Otherwise one will be waiting forever.
I mean you and I will be dead before that happens if it's a question of legislation but…
CAMERON: If this was a practice direction, obviously I would welcome it…
MUNBY: Well, Hamish, could you let me have details of this? One can sometimes change the cultures from within by practice guides or practice guidance. The subtle difference is, a practice direction I can't issue unless the Lord Chancellor agrees with it, practice guidance I can issue without referring to anybody.
So, two points if I may, one is that we have been far too insular in this country and there's been, for a long time in the legal system, a prejudice against things which come from abroad and in particular prejudice with things invented in America. It is simply stupid. There's something called FDAC, the Family Drug and Alcohol Court, which you may have heard about - that was invented in America. It was introduced in this country only as a result of years and years and years of efforts by a particular judge. It's been a triumphant success and it's now recognised as a very important component of the family justice system.
In a sense, well, America's bad enough. Florida, what happens in Florida? It's all alligators and Disney World.
And we've been very, very short-sighted, there are very good… I mean, we need to go across the world. My approach has always been, we need to get the best thinking, wherever it comes from, if it is good thinking, the best thinking, we adopt it and I couldn't care less where it comes from. Just because it comes from some remote part of America, it's either good or bad or insane but it's not where it comes from.
The other part of the problem is simply that this kind of thing takes an enormous amount of time if it involves shifting thinking in either Westminster or Whitehall. And it is a fact, and it’s not just my analysis, it is a fact that the present government and its major predecessor - and this is what underlay LASPO and mediation - has a profound view that actually the private family lawsuits are not part of government and should be, as it were, people should sort out their own lives. Now, they won't use the “privatisation” word of course, but there is quite a strong thinking there that these are matters which ought to be resolved by people without involving the court system, without involving the state and that's at least in part the justification for the withdrawal of legal aid. I only mention that because if that is, sort of, the background thinking of government at present, there are likely to be attracted by proposals which, as it were, reposition the courts in a more central position.
But Hamish if you would let me have details of that and send me an email, remind me. I'd like to think about whether it’d be possible to deal with that by practice guidance.
[BRIEF CHAT ABOUT REMAINING TIME AVAILABLE…]
CHRIS: I’m going to say my question hypothetically speaking. When the gentleman spoke he said that when parents break up, the resident parent has control of the child. We’ve heard before that it is difficult to enforce a situation where a child is transferred from one parent to another and, hypothetically speaking, I wondered, if there was a law in place to say that if the resident parent did not comply to their duty of care to provide the other parent with contact, then residence would be transferred over. And if that law was in place, would the parents not always remember to find the shoes, always remember to, etc…
PAUL: Forgive me, that’s a really good point, and you touched on that, Sir James, in your speech…
MUNBY: Well, the answer to that is that there’s a recognised technique which the courts use. It’s not in the statute, as it were, but there are cases where the courts say, the only solution to this problem, because the residential parent will not comply, the residential parent is not doing his or her duty, is to switch the residence of the child. Mr Justice Coleridge was one of the early proponents of this and what he invented was a provisional order which effectively said, “Unless, within the next 3 months, you start doing what you’re supposed to be doing, you provide the contact you’re supposed to provide,” and so on and so forth, “you’ve got three months. If you don’t, in three months’ time I’m going to switch residence of the child.” And that was used in 1 or 2 cases and was used very effectively. I’m not sure to what extent it’s being used today but the only problem with that, as with all these things, if you make a threat you’ve got to be prepared to carry through on it and the one thing you cannot do is [say], “If you don’t obey this order you’ll go to jail” and then not send the person to jail. The Coleridge technique, which was to say, “Unless you start doing what you should do, unless you start exercising parental responsibility properly, unless you start doing the contact” and so on and so forth, “then in 3 months’ time I’m going to switch the child.” It's a high risk strategy because if the mother, let’s say it’s the mother, doesn't comply, then you’ve got to carry through on it because there's nothing worse, in my book, than making a threat and not carrying through on it because that simply reinforces the position of the person who’s not complying.
CAMERON: I was involved in the case and one of the points that the president is implementation. The order can be made to transfer but actually transferring an 11-year-old and 9-year-old boy, both of whom were deeply alienated against their father and their paternal family, involved a guardian, [UNCLEAR IN RECORDING] and me, and the police, in quite a lot of vigorous activity. The children settled eventually but it would require competent, skilled people to implement the order of the court and that’s a factor that…
MUNBY: Yes, indeed. I mean, that is why, for example, in that kind of situation the involvement of NYAS can be so important because NYAS does provide, as it were, social services, social worker support for that kind of thing which CAFCASS doesn't.
CAMERON: It was a NYAS job. [National Youth Advocacy Service]
MUNBY: Yes. So one of the difficulties in the system is that often what you actually need is not merely the order but some appropriate professional person there on the Saturday morning, facilitating the process and that is the thing which NYAS does provide, it's not something which is part of the CAFCASS remit. I think I'm right in saying that?
CAMERON: Yes it’s true.
PAUL: Right, sorry, you asked the question, sir.
CHRIS: Hypothetically speaking if the mother was under that threat to do so from day one and an order was made say, instead of saying that if you breach this order you are in contempt of court - if you breach this order automatically the child will go to the non-resident parent and automatically you are on the other side of the court. Wouldn’t it help our children to be more disciplined? The mother brought them on time. They wouldn’t worry about losing residence with their mother because…
MUNBY: Well the answer is yes it might, but I mean there's my point, there’s Hamish’s point: this is a high risk strategy, you’ve got to carry through on this and actually implementing it, it is very easy for a judge to make an order, you know, “At ten o'clock on Saturday morning this child is going to be transferred from mother to father.” How you actually make that happen at 10 o’clock on Saturday morning? That’s Hamish’s point. So, these techniques have their place but they're very high risk and they are very complicated.
PAUL: I've got so many people who want to want to…. I'm going to go to Chris.
CHRIS: Just two quick things. One, satisfaction with how fathers feel in court. It’s the result of a few thousand pounds worth of activity and it’s done on the reports from 284 fathers, saying how good they feel with CAFCASS, the courts, whether they’ve felt believed and similar which is in a presentation format for light reading on your Easter holidays.
And the second thing, what Hamish said, with regard to Florida and I understand that in Norway, parents can’t move out of the same town if they split up because the child’s parent wouldn’t be a good mother wouldn’t be a good father; and I also understand that in a number of other states out in America, they brought in a ruling whereby the maximum distance a parent can move away from the non-resident parent is actually 50 miles.
PAUL: Can I…
CHRIS: I was, shall we say, run down when I put that in my website because people said “Don’t be bloody stupid, nobody’s telling me where I’m going to live.”
PAUL: Can I kind of…
MUNBY: I mean, it is a problem. One of the extraordinary things in this country - the law’s been made a bit more sensible recently - was that if it was an international relocation there was one set of rules, if it was not an international relocation there was a different set of rules. So if dad or mum wanted to relocate from Dover to Calais, which is not impossible in the modern world, it was one set of rules. If the same mum or dad wanted to relocate from Dover to Holyhead, there was a different set of rules. I mean, effectively Dover to Calais, you couldn’t do without the judge saying yes, Dover to Holyhead you could do without asking anybody. It’s an extreme example but, I mean, the journey from Ashford to Paris is much easier than the journey from Dover to Holyhead.
PAUL: Very true, and on that opportunity, I’m going to go to my colleague, John Forsyth from FNF Scotland.
JOHN: Right, I can say that we have a considerable amount of casework which involves going even further than Holyhead, with people moving between jurisdictions. We have people, and I’ve spoken to several today, whose kids are now resident in Scotland and we have a number of people in Scotland whose ex-partner has taken their kids down to England or Wales, even when there is a court order in place. On the google interpretation of the law, it suggests that there should be a simple solution between these jurisdictions for registering a court order but I have to inform you that news of this simple procedure has not yet reached most of the judges that we’ve actually been in touch with over the last number of years. Is there any movement that you’re aware of that could simplify it and speed it up?
MUNBY: Well there is actually. It's not arisen primarily, recently, in the private law context, but the problem of Anglo-Scottish cross-border issues has become very lively over last year. What has been discovered is that the legislation is very defective. This arose, first of all, in the public law context, it arose in the context of English children being put in secure accommodation in Scotland. That turned out to be a legal nightmare. There are cases the other way around where Scottish children have been placed in England for adoption, that's another legal nightmare. I've been giving a lot of thought and attention to this and what’s become apparent is that the law is very defective. The only relevant piece of statute law is something called the Family Law Act 1986, which has registration provisions. I suspect they’re little understood, little used. The statute is not at all easy to understand and I recently gave a judgement, an elaborate judgement, explaining what it did and didn't mean in one particular respect, so it is not a good piece of legislation and it's the only relevant piece of legislation.
This is a topic which is gravely concerning me and actually a lot is being done at present. What would be of great assistance to me was if you or colleagues could give me, anonymously as it were, examples of the kind of problems which arise, I mean, in the real world. I think I understand the problems on a sort of high level of generality but it would be very, very helpful if I could have short case examples, illustrating the kind of problem that arises. One of the problems, of course, is that although we speak the same language on both sides of the border, just about, the Scottish legal system is very different from our legal system. Its terminology is very different - I should say, our terminology is very different from theirs. There are very few lawyers on either side of the border who understand the other system. In many respects, their legislation is the same as ours but across the whole area of family law, they have their own legislation, always have had, and it has significant differences between the Scottish legislation and the English legislation on both public and private law. One of the practical consequences is, if a judge makes an order in England making a prohibitive steps order in England, what does that mean in Scotland, because they don’t have PSOs in Scotland?
So it's something I'm actually looking at very intently at present and I'm glad you raised it because if you could let me have, as I say, some pen-portrait examples of practical problems, that will very much assist the investigations I'm carrying on at present.
PAUL: Now we've got we've got three minutes so there's no pressure. But there are two topics that I want to try and cover in three minutes and I'm going to try doing it this way which is, parental alienation. You actually answered the first question: in your view does it exist? So that's helpful. What specific measures will you agree to take to ensure children are protected and that the family justice system deals with the matter in a consistent and robust way? Here’s the great opportunity, will you implement our call for a practice direction on parental alienation?
MUNBY: Well my answer is simple. I'm very conscious I have had sitting on my desk for too long a very helpful letter you sent me raising that very question. I'm afraid in the pressurized, prioritised world in which I live, I simply haven't had the opportunity yet to answer it. I've actually got it in my bag with me, so my answer is, as soon as I possibly can I'm going to get back to you with an answer.
PAUL: Fantastic. Excellent. Excellent.
MUNBY: But what the answer will be I can’t say.
PAUL: Oh Sir James, you had to ruin it right at the end I can’t believe you’ve done that. So, very quickly…
MUNBY: The short point, if you haven’t had a response by the end of the Easter break, write me a chaser.
PAUL: Very good sir, we’ll be happy to do that. Now I’m gonna attempt to cover non-molestation orders, how are we gonna do that in 2 minutes? Right. We drew your attention to the increase in non-mols at the AGM in 2014. You said and I quote, “If there is in fact a significant increase, that would concern me. I would investigate it.” You went on to say, “If, as a matter of fact, the current legal aid structure gives a premium on making an 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” and I think you’ve touched on that already.
So, MOJ data has shown that the commencement of LASPO saw the split of legal aid change from roughly 60:40 in favour of women, to the current position which is 85:15, women to men. Why do you think that non molestation orders have increased significantly since LASPO, and is there a connection with legal aid?
MUNBY: What are the figures on the increase of non-mols?
PAUL: Since LASPO non-mols have gone up threefold. A solicitor said to me…
MUNBY: Is that MOJ stats?
PAUL: Yes. So, a solicitor said to me, when I was saying I was going to be delivering a workshop on domestic violence and pathways for legal aid, they pointed out to me that the non-molestation order is the only pathway that is within the power of solicitors to obtain…
MUNBY: Legal aid.
PAUL: Absolutely. And everything else depends on somebody else who the solicitor has to check.
MUNBY: I’m not ducking the issue. Can you send me the chapter and verse on, first of all, the increase in number of non-mols, and then point me to the stats which show the legal aid balance has shifted? And then remind me of the point that the solicitor made? I wasn’t aware, I’m afraid, that the number had gone up threefold.
PAUL: Right sorry, a separate entry I think on that from Lori from mankind.
LORI: I’ll try and be correct. We have, I have a concern that non-mols now are … which I don’t know if that is also, I wasn’t aware of the significance… statistics of them. But what I’m concerned about is that people who genuinely need non-mols are finding it extremely difficult to go through that process. …for example, this was a case of extremely violent, she was extremely violent, she was arrested, she was charged with GBH. He went for a non-mol last September, then the state had him in October. They granted it for 30 days while they did an investigation. Never mind that she’s already been charged. So he had to come back again in October. In October, they then asked for a psychiatric assessment - postponed again for November. Finally in January, he ended up in front of a district judge, thank goodness for that, and he got the non-mol, which is now only good until next September because he’s already lost the six months of time going through all of this! So I’m very concerned that the process is no longer what it is intended to be which is to protect genuine victims.
MUNBY: Which part of the country was this in?
LORI: It was in Somerset. Ok and then we go to the fact that she breached it and the Somerset police said they weren’t gonna mark it down as a breach, they were only gonna mark it as just a domestic even though they hadn’t heard [UNCLEAR IN RECORDING] version yet. I have a real concern that non-mols are not being applied as they should be with the latest changes. I just wanted to flag that up with you because, not that that particular case is going to encompass it, but it’s not unusual for what we’re hearing about on the helpline.
MUNBY: You see this is interesting because it exemplifies something one gets very frequently. One heard-of complaint is that non-mols are doled out like smarties, … Your concern is completely the other way around.
LORI: For a genuine victim. Apart from being handed out like smarties [UNCLEAR IN RECORDING] but we know that as well.
MUNBY: This, I’m afraid, is the reality. No human system is ever perfect and there will always be mistakes. I mean, it’s slightly surprising that that case was still being dealt with by magistrates if they were ordering psychiatric reports. It’s very difficult to really comment based on the points of a particular case. All I can say is that one body of opinion is my parody of a point that they’re doled out like smarties for the asking; another viewpoint another experience is the one you’ve given.
LORI: Is that why there’s only 15% of male non-mols being granted now versus 85%….
MUNBY: Well, that’s the interesting feature in your case: the fact that the applicant was a man, not a woman.
PAUL: There couldn’t possibly be the hint of a bias(!)
[UNCLEAR IN RECORDING]
MUNBY: The simple honest answer is, the problem of domestic violence has been around as long as there have been human beings, and until 40 years ago, nothing was done about it unless it was grotesque, and even then only often if it lead to death. The first attempt was made in 1976 and it is still very much work in progress, we have come a long way but there’s a long way still to go and I suspect that popular understanding which feeds into non-trained understanding of politicians, on the part of police officers, is an assumption that domestic violence is something that men do to women. And that I suspect will be a deeply ingrained view. If you stop the first [UNCLEAR IN RECORDING] the pavements outside … and we know it’s not right and we now it’s not correct but we’ve come a long way, there’s an awful long way still to go. One of the illustrations of that was a point that was made before that the recognition of coercive and controlling behaviour as domestic violence and as domestic abuse, has only come about legislatively this year, or last year. Probably, in a sense, the last great taboo, or one of the last great taboos, is that men can’t be the victims of domestic violence. It’s like, well I suspect Hamish knows better than me, that men can’t be the victims of sexual assaults and we know that’s not right but it’s a deeply ingrained cultural view across society at large, and which I suspect still has far too much traction with far too many people.
PAUL: Can I just say that I suspect that’s not been the only issue in terms of magistrates, but that’s, we can [leave that].
So, tying it up, thank you all very much for coming, but mostly, Sir James, thank you very, very much indeed. You said you would be honest, open, robust, and a number of other words which I can’t remember off the top of my head. I think you’ve certainly lived up to your words.
I would just like to leave with one more question, which has come from Mr Jerry Karlin of York.
ALAIN: No, no it’s me. Shall I ask it?
PAUL: Please ask it. Go on.
ALAIN: You will be retiring from president. You are 68. If you get to the Lords, what would you do there and what title would you have?
MUNBY: There’s been a lot of what I think in some quarters is called “fake news”. The effect that I have announce my retirement – I have not. It’s even being said on a well-known website that I’ve decided to retire in despair at the system, which is not so. This point has only emerged because some journalist with nothing better to do has rung up the judicial office and was told by the judicial office, “Sir James reaches the age of 70 in July 2018. He is required by statute to retire at his 70th birthday.” Which has become this very non-story. I have no particular ambitions, although my ability to remain silent from the side-lines, freed from the fetters of judicial responsibility I suspect may be limited. I suspect I am thought of, in too many quarters, as too plain speaking and the price you pay for speaking truth to power, which is what I’ve done, I suspect I wouldn’t be welcome in certain places. Not that I have any particular wish to go there.
The trouble with the House of Lords as an institution, if I can be flippant for a moment, is it’s the only place I can go to which makes me feel really young!
Hamish you’d have the same experience! I mean, it is absolutely full of people who can hardly move, who look as if they are as old as Methuselah so it’s very, very good for me to go there, very occasionally, to make me feel very young.
Thank you for your vote of confidence, somehow I think not.
PAUL: Can I, in that case, exceed my authority, and take this opportunity to invite you to consider becoming a patron for Families Need Fathers?
[APPLAUSE & LAUGHTER]
MUNBY: Ask me again in due course.