This is a talk by Sir James Munby (lately President of the Family Division of the High Court of Justice of England and Wales) at the Conference in Edinburgh on 10 February 2020 of Shared Parenting Scotland

It is good of you to invite me to this important Conference. But first, if you will allow me, a health warning in relation to what I am about to say. My experience is in England and Wales, and I confine myself to the situation there. There are others here today much better qualified to talk about what is happening in Scotland, and on such matters I defer unreservedly to them.

But my experience some years ago as Chairman of the English Law Commission taught me one important thing. Our legal arrangements in the United Kingdom mean that we can all learn from what our other jurisdictions are doing. Let me be clear: this is NOT a plea that you follow the example of England. Quite the contrary. Much of what I have to say is very critical of the English system, and I set it out so that you may avoid our failings.

The background for you today is the progress through the Scottish Parliament of the Children (Scotland) Bill. To put what I have to say in context, can I very briefly sketch out the basis upon which the English family court operates. Disputes between parents in relation to the upbringing of their children – what we call private law disputes – are dealt with in accordance with Part II of the Children Act 1989. Claims by one partner for protection from violent or abusive behaviour by the other are dealt with in accordance with Part IV of the Family Law Act 1996.

Section 1(1)(a) of the Children Act 1989, replacing provisions that have been part of our statute law since 1925, provides that:

“When a court determines any question with respect to … the upbringing of a child … the child’s welfare shall be the court’s paramount consideration.”

Sections 1(2A) and (2B), introduced by way of amendment in 2014, provide that:

“(2A)    A court … is as respects each parent … to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B)       In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”

This amendment generated much controversy during its passage through Parliament. Some saw it as an unnecessary and potentially damaging gloss on the paramountcy principle. Others saw it as wholly inadequate, as it contains no presumption in relation to either shared parenting, or the equal sharing of time, or even any direct involvement with the child. That debate, as we shall see, has now transferred into an equally controversial debate as to how the amendment operates in practice.

It is now getting on for 16 years since, in April 2004, I delivered a judgment (Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam), [2004] 1 FLR 1226) which attracted much notice at the time and which, sadly, given its contents, continues to be referred to far too often. My judgment in Re D, was an analysis and excoriation of the defects in the private family law system.[1]

How far have things changed since then? Nothing like as much as I would have hoped. And, whatever the state of the law, current practice is profoundly unsatisfactory.

There have been important developments. Some have been positive, like the up-dated Practice Direction 12B: Child Arrangements Programme, and, most important, the significantly revised and up-dated Practice Direction 12J: Child Arrangements and Contact Orders: Domestic Abuse and Harm and the revised President’s Practice Guidance, 18 January 2017: Family Court – Duration of Ex Parte (Without Notice) Orders. Some have been decidedly negative, in particular the baleful and, one fears, all too predictable, and indeed actually predicted, effects of LASPO, the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The effect of LASPO, with its withdrawal of legal aid from most private law disputes, has been to make the family court an increasingly lawyer-free zone, with ever-increasing numbers of litigants having to appear unrepresented and without legal advice.

It is little wonder that, anecdotally, and on the basis of the day-to-day realities, there is very real concern, to put the point no more starkly, on the part of most family justice professionals.      

Looking at matters in the round, there are two major problems. One concerns cases where the issues are such as to make one wonder whether the court should be involved at all. The other, and a very much graver problem, on which I propose to focus, concerns the court’s handling of cases towards the other end of the spectrum, where a judicial determination is plainly required, often against the background of serious allegations and counter-allegations of domestic violence or other forms of domestic abuse.

Here the reality is of a system under heavy and sustained attack from two very different viewpoints:

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

One perspective is of complaints:

• that judges do not comply with the President’s Guidance of 2017;
• that in the orders they make (or decline to make) judges are not applying section 1(2A) of the 1989 Act as they should and are failing to give effect to the statutory policy;
• that judges are not sufficiently alert to the behaviour of women who are alienating their children from their fathers;
• that judges are not sufficiently robust in ensuring that their orders are actually complied with by recalcitrant mothers;
• and that judges are feeble and flabby in their responses to defiant mothers.

The other perspective is of complaints:

• that judges are not sufficiently alert to and understanding of the very serious problem of domestic abuse in all its forms (largely, though not always, a problem where the perpetrators are men) and its effects on both the parent and the children, especially when the allegation is of coercive and controlling behaviour;
• that judges are not sufficiently aware of what coercive and controlling behaviour is, and how it manifests itself (for example, in preventing victims giving their best evidence in court), and do not treat it as seriously as they should – minimising, for instance the significance and consequences of stalking and harassment;
• that, despite PD 12J, and misinterpreting the meaning of section 1(2A), there is an increasing tendency to revert to a culture of ‘contact at all costs’;
• that judges are unwilling to order risk assessments for proven or admitted abusers;
• that judges are unwilling to accept evidence from domestic abuse experts;
• that judges are too accepting of some supposedly expert evidence in support of allegations of parental alienation;
• that judges are not conducting fact-finding hearings when they should in order to get to the bottom of what has been going on;
• that in some cases where there has been a fact-finding hearing the findings have been skewed by judicial attitudes which are uninformed, lacking in understanding,[2] out-of-date or even misogynistic; 
• that judges are frequently failing to comply with the requirements of the relevant Practice Directions, in particular PD 12J;
• that judges are not doing enough to prevent the process itself becoming abusive:
  • judges failing to control and if need be to prevent abusive repeat applications;
  • judges allowing or even facilitating abuse during court hearings, for example, by not making proper use of such ‘special measures’ as are available and by not controlling, and where permissible preventing, inappropriate cross-examination of complainants by their alleged perpetrators; and
• generally, that many applicants find the entire process so daunting and demoralising that they simply ‘give up’, preferring, for example, not to pursue even serious allegations of domestic abuse.

There are other, more generally shared, complaints, for example that there can be long delays and huge backlogs in obtaining police disclosure, leading to hearings being delayed and cases stood out.

It will be noted that, on many of these topics, the system is criticised – is under attack – from those on both sides of the debate. But there is no room for the complacent assumption that if you are criticised by both sides you are probably getting it right. On the contrary, it surely suggests that we are getting it very wrong.

Occasionally, a searchlight is suddenly focused on a particular case, thus revealing, in painful detail and with profoundly distressing clarity, just what is going on. Let me give just one recent example which provides an illuminating peep into the world of the family court: the judgment of Russell J (in JH v MF [2020] EWHC 86 (Fam)) allowing an appeal against the decision of His Honour Judge Tolson QC in a fact-finding case where a woman’s allegations of rape by her partner were the central issue.

The case illustrates in microcosm just what is wrong:

• the entire case was inevitably distorted by the fact that the woman had legal aid and the man did not;[3]
• for reasons which, even if explained by him, are inexplicable, given the relevant Practice Directions and Guidance, the judge decided not to allow the woman the use of screens;[4]
• the judge failed to stop the man’s McKenzie Friend prompting him while he was giving evidence;[5] and, far and away worst of all,
• the judge’s whole approach to the issue of consent in the context of a history of coercive and controlling behaviour was astonishing.[6]

Understandably the case has raised a storm of protest. Very much to the point, and to be read and pondered by anyone with a concern for the system, are four articles to which I draw particular attention.[7] It is a fact, as it happens, that each of these authors is a woman and that the three newspapers referred to are both at the liberal (some, I suppose, might even say the left-wing) end of the spectrum. Anyone tempted to think that this could be a reason for doubting the message – shooting the messenger is always more comfortable than engaging with an extremely challenging message – is a blinkered, complacent fool. As anyone who has taken the trouble to read (or, better, watch) the debates on these issues in the House of Commons over the last few years will know, these are matters on which there is a high degree of consensus on both sides, indeed, in all corners, of the House and on the part of both male and female Members of Parliament.

No doubt some will say that this particular judgment is not typical, that it is an ‘outlier’. Others, no doubt, will say that it is no more than the very small tip of the proverbial iceberg. Without research we simply do not know, but I fear that the latter view is probably very much closer to the truth.[8]

I emphasise that exactly the same goes for those judgments relied upon in support of their complaints from those on the other side of the debate.  

All this said, our understanding of the private law system – I leave on one side international cases and focus exclusively on ordinary, run of the mill, cases as they feature, day in day out in the family court – is hindered by six pervasive realities:

• First, private law cases, both under the 1989 Act and the 1996 Act, are heard in large part by either Magistrates or District Judges or Deputy District Judges, from whom appeals do not, by and large, ever reach either the Family Division or the Court of Appeal. The senior and appellate judiciary do not therefore have the same exposure to the prevailing practice in private law as they do, in contrast, to practice in public law (care) cases.
• Secondly, because, post-LASPO, the private law family court is, as I have said, increasingly a lawyer-free zone, there is
  • less advice to prospective appellants and therefore, one fears, fewer appeals being brought which might be successful, and  
  • less knowledge within and feedback from the professions as to what is a truly going on.
• Thirdly, very few first instance judgments in private law cases are ever published on BAILII, and published judgments by District Judges in such cases are vanishingly few.[9]
• Fourthly, the comparative rarety of published judgments in private law cases has another, particularly serious, consequence. The restrictive provisions of the now elderly and hopelessly obsolescent section 12 of the Administration of justice Act 1960 mean that, absent a published judgment, there is very little that a journalist who has exercised the statutory right to attend a family court hearing can actually publish about the case.[10]
• Fifthly, officially collected statistics are based on criteria which have not always been applied uniformly and which do not in fact measure anything like all the things that ought to be measured. They do not therefore necessarily disclose the full reality. In fact, in the context with which we are here concerned, the published Ministry of Justice (MoJ) statistics are useless.
• Sixthly, there has been far too little research into what is actually happening in private family law cases. There is virtually no accessible data as to what is going on in the courts, or as to the orders being made (or not made), let alone as to outcomes more generally. Not merely is the private law family court an increasingly lawyer-free zone, it is, to all intents and purposes, a black hole in relation to data and researchers.

On the other hand, it is absolutely clear that there is still too much – far too much – wrong with the system. What the truth is amongst all this is not easy to determine, not least because of the striking lack of any rigorous, independent, research. But there is a vast and ever-increasing mountain of anecdotal material suggesting, beyond all serious argument, that there are very serious problems which cannot sensibly be ignored by any reasonable person. There is no room for complacency.

The reality is that responsible voices in large numbers and from far too many quarters – journalists, legal commentators, practising family lawyers, Members of Parliament and others – are raised in often severe criticism and in some instances all too justifiable denunciation of our private law system.[11] And what is also very clear, despite the suffocating effect of section 12, is that these issues feature prominently in the mail boxes of both Members of Parliament and journalists, many of whom receive desperate pleas from litigants detailing their distress (to use no stronger word) at the experiences they have suffered at the hands of the private law family justice system.

Both the President of the Family Division[12] and the MoJ[13] have established inquiries tasked with investigation and recommendation, though it is to be noted that the former, chaired by Cobb J, is not tasked to consider PD 12J. But unless these invaluable initiatives are coupled with a serious programme of really independent research, they will not be able to expand their recommendations beyond the purely anecdotal base.[14]

What, then, is to be done? Only a fool would pretend to know the answer. All I can do is suggest a few ideas.

Some things are outside the control of the judges, and thus, in the final analysis, dependent upon political will and commitment and, crucially, a willingness – seemingly lacking at present – to increase, drastically, the financial and other resources necessary if these problems are to be tackled effectively. But given the lack of compassion and political will in our society, how likely of achievement is this in contemporary Britain?

What do I have in mind?

• Legislation to prevent the cross-examination by alleged perpetrators of their alleged victims; draft legislation in the form of the Domestic Abuse Bill will, if enacted, go some way to addressing this long-running scandal but, as has been pointed out, the Bill does not go far enough.
• Legal aid should be made available (subject to means testing) for the respondent in every case where there are allegations of domestic abuse and the applicant has been granted legal aid.
• Additional judicial resources must be made available.
• Further and better special measures must be incorporated in every family court building and made available to all vulnerable witnesses, including, for example, the provision of separate entrances, separate waiting areas, video link facilities and better screens.

Other things require changes to the practice and procedure of the family court:

• We need to divert many more private law cases away from the family court before they ever get there. That is the Government’s policy and it is, in principle, something I have always believed is necessary. It is something at the heart of the Private Law Working Group’s thinking. Plainly, there are cases where a judicial resolution in the family court is essential, for example, cases where there are significant issues in relation to domestic abuse, mental health, or drug or alcohol abuse. But there are many cases which do not require the involvement of a judge and where, to be blunt, exposure of the parties to the court process can sometimes only make matters worse. Moving forward on this front necessitates two things:
  • The first is the provision of mediation, arbitration and all the other out-of-court services that such cases need if they are to be kept out of court.
  • The other is a much more rigorous allocation process, with triage as an essential element.
• There is a pressing need for the introduction of triage at the very outset of the proceedings and before any directions have been given, so as to ensure that cases are allocated to the most appropriate ‘track’. Triage has been familiar to clinicians for a very long time indeed – I believe that it was first applied on the battlefields of the Crimean War over 160 years ago – but it is a concept whose utility seems little appreciated in our justice systems. What do I have in mind?
  • First, the court must decide whether the proceedings should be allowed to continue or whether the matter should be dealt with out of court, either
    • because the parents should be required to exercise their parental responsibility and resolve matters themselves,[15] or
    • because the parents should be diverted into some form of non-court dispute resolution, for example, mediation, arbitration or whatever.
  • Secondly, the court must decide whether or not there needs to be a fact-finding hearing and, if so, give appropriate directions for a focused fact-finding hearing at the earliest possible opportunity.
  • Thirdly, and if the case is to remain in court without an immediate fact-finding hearing, the court must decide which ‘track’ the case should follow.[16]
• Early action is vital to implement the recommendations, once they are published, of the President’s Private Law Working Group and the MoJ’s Spotlight review.

Other things require much better and much more rigorous compliance by the judiciary with the letter and the spirit of existing requirements:

• First, there is an imperative need to make a reality, across the board and without exceptions, of the well-established principles of proper timetabling, fair but robust case management, and, most important of all, judicial continuity.
• Secondly, although this should go without saying, there must be strict compliance in every detail with both the letter and the spirit of PD 12B and, crucially, with the letter and the spirit of PD 12J and the President’s Guidance of 2017.
• Thirdly, judges, including District Judges and Deputy District Judges should be urged to publish more judgments, however seemingly mundane, in private law cases and, especially, in cases where there are allegations (whether substantiated or not) of any form of domestic abuse.

Unhappily, all this will only go so far. What is needed, and it is apparent that this is now urgent if the family court is not to suffer further damage to its already gravely diminished standing, is:

• Enhanced training for judges at all levels in relation to all aspects – legal, procedural and psychological – of domestic abuse, including, in particular, sexual abuse and parental alienation.
• Serious consideration to be given to limiting the trial of domestic abuse cases where there are allegations of sexual abuse to those judges who, having received appropriate training, have been given a ‘ticket’ by the President of the Family Division analogous to the ‘ticket’ authorising judges who have undergone appropriate training to try Serious Sexual Offences in the Crown Court. Is it not beyond time for the family courts to demonstrate that serious sexual assault is to be considered seriously by adequately trained judges, as it is in the criminal jurisdiction?
• The preparation, based on, and distilling the essence of what emerges from, the research referred to below, and covering every aspect of domestic abuse, legal, procedural and psychological, including parental alienation, of both:
  • training materials for the judges and
  • published Guidance.

Finally, there are two other important matters demanding attention:

• First, there is an urgent need to address the problems associated with section 12. It has become increasingly clear that section 12 should be repealed, to be replaced, no doubt, with much less restrictive, more narrowly drawn and more focused legislation better suited to the modern world.
• Secondly, and a matter for immediate action, there needs to be a detailed programme of rigorous, independent research by suitably qualified academics. What I have in mind is, at least to start off with:
  • A comprehensive international literature review of all the existing non-legal research into the existence, causes, and consequences, and means of identifying:
    • Parental alienation
    • Domestic abuse in all its forms.
  • A comprehensive review, including all cases on BAILII as well as in law reports, of all the publicly available English case-law, focusing in particular on first-instance decisions at all levels, relating to:
    • Parental alienation
    • Domestic abuse in all its forms.
  • A time-limited survey, extending for (say) 6 months and recording, in every case during the survey period, enough of the key information to enable one to see what is going on at all levels of the family court in cases under:
    • Part II of the Children Act 1989
    • Part IV of the Family Law Act 1996.
  • This survey would be based on a pro-forma, carefully crafted by practitioners and academic researchers to ensure capture of the relevant data, which would be completed by the judge (or, where the case was heard by magistrates, by their legal adviser) at the end of every hearing in every case during the survey period. To minimise the burden on judges, and maximise the level of compliance, the pro-forma should consist mainly of purely factual questions to which the answer is Yes or No, or which can be answered with the minimum of text (eg, a date, a case number, and so on). There should be a facility to enable judges to provide additional comments, but only if they wish. The data would be transferred to an electronic database to facilitate analysis and the framing of conclusions. Much careful thought would need to go into the planning of this exercise, but the benefits would be enormous in terms of getting, for the first time, a clear view of what is going on in the family court.[17]

Some important research has already been published on some of this, but too much still remains to be done.

Time is running out to address all these problems. These continuing attacks on the private law system pose a particular threat to the reputation and standing not merely of the family justice system but also, crucially, of the family judges.

Our public law system is under considerable scrutiny and attack, but most of that is directed either to those parts of the legislation which, for example, permit a care order to be made where there is no more than a risk of future emotional harm or which enable the court to make an adoption order against parental opposition, or to the actions of local authorities and guardians; there is much less direct criticism of the judges. In stark contrast, the attacks on our private law system have much less to do with the law and are much more focused on the alleged failing of the judges.

The point is brought out very starkly when considering PD 12J. Although, there is, I do not doubt, room for improvement to PD 12J, the criticism in very large measure is not that PD 12J is defective but rather that the judges are simply not complying with it. That is a damning indictment.

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

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[1]             I said (para 4): “Those who are critical of our family justice system may well see this case as exemplifying everything that is wrong with the system. I can understand such a view. The melancholy truth is that this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact and to face up to it.”

[2]             For example, a judge who had allowed rape allegations to be included in the schedule of complaints but excluded all the coercive control as being “irrelevant”, when on the contrary it was essential to contextualise the rape by hearing evidence of what might be a long list of incidents.

[3]             As Russell J said (para 1), “This case is yet another example of the difficulties encountered by litigants when public funding is not available to the party against whom complaints are made; and of the way in which justice or a fair trial is compromised when the judge is required to enter the arena.”

[4]             As Russell J said (para 15), “The Appellant … is a vulnerable witness … and had applied for screens to be made available in the court room … as a measure to be put in place to assist her in giving her best evidence: to enable her to do so is the court’s duty … The judge took the inexplicable step, contrary to the expressed view and request of the Appellant, and contrary to the rules of procedure, of ordering that the Appellant give evidence from counsel’s row as “better” than using the witness box and screens. In doing this he had not only decided not to follow Part 3A of the FPR 2010, but he also completely failed to give any or adequate reasons for doing so … These are serious procedural irregularities which would allow for an appeal to be granted …”

[5]             See the astonishing account of events set out by Russell J (para 16).

[6]             As Russell J put it: “… the judge’s approach towards the issue of consent is manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct (para 33). This is a senior judge, a Designated Family Judge, a leadership judge in the Family Court, expressing a view that, in his judgment, it is not only permissible but also acceptable for penetration to continue after the complainant has said no (by asking the perpetrator to stop) but also that a complainant must and should physically resist penetration, in order to establish a lack of consent (para 37). The logical conclusion of this judge’s approach is that it is both lawful and acceptable for a man to have sex with his partner regardless of their enjoyment or willingness to participate (para 45).”

[7]             One is an article by the experienced and much respected journalist Louise Tickle published in the Guardian newspaper of 6 January 2020 entitled In our secret family courts, judges still don’t understand what rape means; the strapline was It’s a scandal. Away from scrutiny, courtrooms are failing mothers by not taking evidence of sexual assault seriously. The next is a blog by the well-known family law barrister and blogger Lucy Reed posted on 25 January 2020 on her Pink Tape blog, entitled starkly System Error. The third is an article  by the human rights and family law barrister Charlotte Proudman published in the Independent newspaper of 25 January 2020 entitled The courts’ outdated views on domestic violence are putting vulnerable children at risk of harm; the strapline was A shocking family court judgment expressed an alarming view of sexual consent, but the problem may be a lot wider than one judge. So what should be done? The fourth is an article by the equally experienced and much respected journalist Sonia Sodha published in the Observer newspaper of 26 January 2020 entitled When judges don’t know the meaning of rape, there is little hope of justice; the strapline was As we watch the Harvey Weinstein trial unfold, other horror stories emerge in our own courts. The third of these concludes with this pungent observation: “Meanwhile, family courts’ outdated attitudes towards domestic violence put children at risk of further harm – sanctioned by the very institutions that are supposed to protect them.”

[8]             According to a question put by Louise Haigh MP in the House of Commons on 6 February 2020 (Hansard, Vol 671, col 472) Judge Tolson “made the same ruling again” in another case on 3 February 2020.

[9]             Commenting about a rare exception (the powerful and illuminating judgment of District Judge Bailey in Re B & C (Children: Child Arrangements Order) [2018] EWFC B100), Lucy Reed, in a blog on the Transparency Project website posted on 31 January 2020, observed that: “If you want to see what the Family Court looks like, if you want a picture of what it’s like at the coal face, of what a ‘typical’ case looks like, of what sorts of issues are cropping up in the Family Court and of how well or badly they are being dealt with – look to the District Bench. Even if all circuit judges stuck to the 2014 guidance [President’s Practice Guidance 16 January 2014: Transparency in the Family Courts: Publication of Judgments] and published their judgments when they were supposed to, it would not give us a real overview of the work of the family court and its performance. It wouldn’t tell us how widespread the problems highlighted in the Tolson judgment really are.” Precisely so.

[10]            Consider, for example, the article by Louise Tickle published in the Guardian newspaper of 6 January 2020 to which I have already referred. Most of the article was about Russell J’s damning decision on appeal from Judge Tolson’s judgment in JH v MF, but the article included this necessarily Delphic passage: “I recently sat through days of evidence in a family court case involving claims of domestic abuse and a dispute around child contact arrangements. The judge in that case made it clear he is unlikely to publish a judgment, and it is therefore unlikely at this stage that he will agree to allow the media to publish any part of what went on in court. But I can say that I emerged from that courtroom astonished, dismayed and alarmed for very similar reasons to those that prompted the woman described above to appeal against a different judge’s findings about what constitutes rape.” We would all properly like to know more about this case, but we cannot.

[11]            Consider Professor Jo Delahunty QC’s Gresham College lecture on 30 January 2020, Can the Law Keep Up with Changes in Society? which includes a challenging discussion of the extent of domestic abuse in our society and of the family court’s inadequate handling of the issue.  

[12]            The President reconvened the Private Law Working Group and asked it to review the Child Arrangements Programme [PD 12B]. It produced an interim report in June 2019. The final report is awaited. It is important to note that (interim report, para 90) “Review of the operation of PD 12J is outwith the specific remit of the Private Law Working Group’s terms of reference.”

[13]            The MoJ’s ‘Spotlight’ review was announced on 21 May 2019, when we were told, unbelievably, that it would report back in three months. Unsurprisingly, it has not yet done so. In response to its public ‘Call for Evidence’, it has apparently received something like 2,000 responses. These have not yet been published and I have no idea what they say, but I would be astonished if they do not contain large numbers of harrowing accounts. Louise Haigh MP has published the Memorandum she submitted to the review (https://www.louisehaigh.org.uk/wp-content/uploads/sites/74/2019/08/Family-Court-Consultation.pdf). It is a powerfully illuminating description and analysis of the issues and is, understandably, severely critical, as are others, of the limitations of the review.

[14]            As Louise Haigh MP commented in her Memorandum, “whilst this review is incredibly welcome from the Government, and it is hoped that it makes strong recommendations for improvements in the treatment of domestic abuse in the family courts, much more authoritative, independent research and analysis is required to get to the heart of the issues.”

[15]            See T v S [2013] EWHC 2521 (Fam), [2014] Fam Law 1664, and, for an elaboration, my lecture, A Matter for the Parents? A Matter for the Judge? Thoughts on 30 years of the Children Act and the revival of the inherent jurisdiction, [2019] Fam Law 264.

[16]            One might have three tracks: (i) the ‘in and out track, where it is realistic to imagine that the case can be resolved at the First Hearing Dispute Resolution Appointment (FHDRA); or (ii) the ‘ordinary’ track, where although it is not realistic to anticipate resolution at the FHDRA there is nothing to suggest that the case is or will become intractable; or (iii) the ‘special’ track for the potentially more complex cases.

[17]            I would hope that the recently established Nuffield Foundation Family Justice Observatory, of whose Board I am the Chair and whose raison d’etre is to improve the outcomes for children by undertaking and commissioning data collection and research, can play a central role in this project.