Families Need Fathers have issued a press release, welcoming ideas put forward by Sir Andrew McFarlane, the incoming President of the Family Division, in a keynote address at their conference on the theme of restoring confidence in family justice, held on 23 June. The text of the speech is available on the Judiciary website. We highlight some points in this post.
Interestingly, Sir Andrew said that having spent the last seven years in the Court of Appeal, he did not feel he had a good sense of the detailed operation of the reforms in private law that were developed in response to the recommendations of the Family Justice Review in 2011, of which he was a panel member. These are captured procedurally in the Child Arrangements Programme and associated rule changes, but most significantly in a drive toward alternative dispute resolution, and the former ‘contact’ and ‘residence’ orders being replaced by ‘child arrangements’ orders, which are meant to be more flexible. He therefore intends to spend the next few months visiting judges, practitioners and stakeholder groups in all family court areas (about 40), to gather views on how the private law programme is working on the ground for the families and professionals involved.
Regarding the lack of confidence cited by FNF, special emphasis was placed by Sir Andrew on the court fixing early hearings for findings of fact in cases where there are allegations or disputed facts about domestic abuse that are clouding decision making in children’s welfare. Similarly to his speech at the Nagalro conference in March this year, he drew attention to his judgment in Re J (Children) [2018] EWCA Civ 115, where unjustifiable delays in the lower courts had led to a situation where it was too late, in the interests of the children of the family, for any investigation into the claims and counter claims, going back six years.
The speech touched on domestic abuse and the recent report published by Women’s Aid, “What about my right not to be abused?” Domestic Abuse, Human Rights and the Family Courts, described as required reading for active members of FNF (and others in the system). Sir Andrew mentioned that the research describes accusations of parental alienation being used against women who raise concerns about domestic abuse to the extent that allegations of abuse are “obscured by allegations of parental alienation against the non-abusive parent.”
Another theme built on from the Nagalro speech was the idea of the judiciary publishing guidance on the range of outcomes that are regularly considered to be the ‘norm’ in the majority of cases about child arrangements orders:
‘Whether or not this is an idea that is taken forward and developed must be entirely a matter for the Family judiciary. For it to be authoritative, it would need to be developed and ‘owned’ by all levels of the judiciary, particularly the lay justices and district judges who hear the majority of these cases. The process of development would take time, but it is, in my view, a proposal that should now be given serious consideration by Family judges.’
This guidance, if agreed, could apparently take the form of ‘standing temporary orders’ which would aim to maintain reasonable amounts of safe contact while issues were being resolved. Such an idea will no doubt raise many questions about the individuality of cases and the welfare of each child, so it sounds like a very useful exercise to consult widely across these topics. If the lower courts are reluctant to follow PD12J and make findings – why is this? And what are the potential effects of new Cafcass guidance sending its practitioners down ‘abuse’ or ‘alienation’ ‘pathways’ before any determination of the facts has been made by a court.
It will be interesting to see if the idea of the new normal can achieve the confidence that FNF – and other groups with quite different viewpoints – are seeking. The outgoing President is on record as being positive about the diversity of family formation, but however differently a family may be formed, it should never be ‘normal’ to have to live within an abusive, coercive or manipulative relationship.
Thanks Julie – I have added this to my own considerations on CPR, as it is worthy of note. I have said this
“I welcome any initiative to promote more consistent and coherent decision making in the family courts, so that parents can have a better idea of likely outcomes. However, it will be very interesting to see the results of consultation about this because certainly at first blush it appears to offend against the other important consideration – of early decisions about the actual FACTS in each case, to inform a welfare decision about what is best for each individual child. If anyone can identify the ‘one size fits all’ – I would be interested to know what that is!”
Yes, it is difficult to see how a default arrangement can be put in place when the court is obliged to consider the child’s welfare on the facts. One might say we already have a default position in the legislation. I think he is very exercised by the court evasions and delays in the J case and wants to try to tackle problems like that in a constructive way. He has been saying the same thing for some time now about FOFs and also Munby has been pushing PD12J – so let’s hope his consultations move that on.
Munby pushing 12J doesn’t assist if Judges can view it as discretionary. I cited this as party litigant in person and it was ignored by an abusive judge despite findings years before. Fathers are claiming parental alienation and DOMESTIC ABUSE is not being addressed by the family court who are supposed to put the best interests of the CHILD first. It is a joke
Thanks Julie and of course Sarah for covering this important speech. This is of course a well rehearsed argument following the lines of ‘every case is different’ and the best interests of the child are paramount’ etc. The logic for that approach would be that every case should properly be brought before the Family Court as parents and children have no frame of reference to determine the ‘best interests of the child’ for themselves. Naturally just because some parents can ‘agree’ on what contact arrangements should apply does not of itself constitute an assessment of the ‘best interests’. Parents and children are crying out for some form of guidance within which they can operate. As we have strong evidence that conflict damages children it is clearly in their best interests to provide their parents with such guidance to reduce conflict. What we currently have is a ‘wild west’ family justice system in which possession is 9 / 10th of the law and parents – overwhelmingly mothers – issue edicts about whether and if so what contact is ‘permitted’. A question that we asked the current President was ‘What is the lawful basis on which one person with PR prevents or interferes with the child’s Article 9 (UNCRC) right to direct contact and a meaningful relationship with another holder of PR without a Court Order to that effect’? Sadly Sir James wasnt able to answer that question – from which we can only conclude that there is no such right (despite what the MoJ says about the exercise of PR here https://www.gov.uk/parental-rights-responsibilities. We desperately need a much better system. I do appreciate that this will be problematic for those professionals whose livelihood rests upon representing their clients in Court – but after all it is the best interests of the child that are paramount – not those of lawyers. You may also find this document a useful starting point for understanding what will need to be set out as guidance on the shared care of children https://www.mass.gov/files/documents/2016/08/tx/afccsharedparenting.pdf
An answer to the question about Article 9 is that adults interfere with children’s rights as set out in the UNCRC all the time, and it is not an enforceable convention in the UK. We do however have very specific legislation and guidance. If it’s not working well, let’s hope the incoming President will gather evidence as to why, when he asks locally, as he plans to do.
Julie – that’s a very pessimistic view of the UNCRC – particularly as it is specifically included in Welsh legislation that organisations such as Cafcass Cymru should be complying with, as I think you refer to. We are certainly looking forward to engaging with incoming President as he undertakes his ‘drains-up’ tour of England and Wales.
Hi Julie
I think it is worthwhile reminding ourselves what the MINIMUM requirements are for a justice system to conform with the rule of law. Lord Bingham described them thus:
1. The law must be accessible, intelligible, clear and predictable.
2. Questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion.
3. Laws should apply equally to all.
4. Ministers and public officials must exercise the powers conferred in good faith, fairly, for the purposes for which they were conferred — reasonably and without exceeding the limits of such powers.
5. The law must afford adequate protection of fundamental Human Rights.
6. The state must provide a way of resolving disputes which the parties cannot themselves resolve.
7. The adjudicative procedures provided by the state should be fair.
8. The rule of law requires compliance by the state with its obligations in international as well as national laws.
It is difficult to think of a single respect in which the family justice system conforms confidently and unambiguously with a single one of these minimum requirements.
Intelligibility, accessibility, predictability and clarity are not niceties. They are FUNDAMENTAL and our family justice system fails miserably to comply with any of them.
The discretion which the system currently protects jealously is arbitrary justice to anyone that is not a beneficiary. Most people rightly worry about giving the discretion to decide whether a litigant has their relationship with their children severed by a judge who is not even obliged to read the case papers.
The differing degrees of rigour Sir Andrew highlighted in his NAGALRO speech are evidence of an inequality of application where public law and private law are concerned.
Cafcass frequently exceed their powers and judges also frequently fail to appreciate the enormous and deeply resonating consequences of the orders they make.
The popularity of mediation continues to decline in popularity as a universal mechanism for dispute resolution and the judicial system routinely fails to apply and enforce its orders.
The different approaches in public and private law beg serious questions about the relative fairness of the procedures provided by the state.
Despite the fact that the UK are signatories to the UNCRC it is incapable of enforcement in the courts.
The introduction of norms would be a welcomed first step towards overcoming some of these root problems.
In virtually every other part of the justice system ‘norms’ are an everyday fact of life.
In criminal law we have tariffs, sentencing guidelines and guidance on fines.
In employment law the sizes of awards for given circumstances are known beforehand.
In tort there are scales for personal injuries, there are scales for damages and there are also scales for compensation etc , etc.
The family justice system now lags so hopelessly behind its neighbours, in virtually every conceivable respect, that we should not be consulting on changes but rather we should be asking whether there is any reason why it should not be dragged kicking and screaming out of the dark ages.
Exactly this. Family court operates totally outside of uk justice framework like a rogue state