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Change is in the air by John Bolch

Since he became President of the Family Division in January, Sir James Munby has published a series of ‘reports’ upon the process of reform of the family courts, entitled View from the President’s Chambers.

The seventh View from the President’s Chambers has just been published. In it, Sir James looks at the “changes in the cultures and practices of the family courts” which we need to embrace as the reform goes forward.

Referring to the words of Lord Scarman, he said that “the task is to identify and preserve from the past what is of enduring value whilst ruthlessly jettisoning what no longer accords with modern thinking”.

He continued by explaining that “the guiding principles of modern practice in the family courts are judicial continuity and robust and vigorous judicial case management.”

As these become an ever more familiar reality, he said, we will “begin to see the old distinction between the adversarial and the inquisitorial systems increasingly breaking down.” Whilst much of the process will inevitably remain adversarial (after all, that is only human nature), the adversarial process will take place under the “watchful and vigilant eye of a judge who, as part of her inquisitorial responsibilities, will be responsible for ‘setting the agenda’, policing the orders she has made, and ensuring that the case proceeds in accordance with the timetable and directions she has given”.

Moving on, Sir James considered some of the things that he considers need to change, including dealing with delay and the attitude towards court orders.

As to delay, he referred again to the need for judicial continuity (i.e. that if possible cases should be dealt with by the same judge throughout) and robust case management by judges, aimed at ensuring that cases are dealt with as speedily as possible. However, he said that it was also important that court offices dealt with paperwork quickly and efficiently, although in my view much of the problem here is lack of resources.

As to court orders, Sir James referred to what he called the “slapdash, lackadaisical and on occasions almost contumelious attitude” towards orders made by family courts, for which there was “simply no excuse”. He said that orders were not “preferences, requests or mere indications” – they must be obeyed and complied with to the letter and on time. Referring to his recent decision in Re W (A Child), he said that non-compliance with orders should be expected to have and will usually have a consequence. It is a few years since I was practising, but I can recall many frustrating occasions of non-compliance with orders by the other party, as I’m sure can all family lawyers. All too often, the party at fault ‘got away with it’, which was always difficult to explain to my client. The message now is clear: you won’t get away with it. Let us hope that Sir James’s words are put into practice.

Sir James concluded by looking at recent successful attempts to improve both the process and the outcomes for those involved in care proceedings, such as the Family Drug and Alcohol Court, which ‘specialises’ in cases involving parental substance misuse, and aims to help to keep families together, where possible.

Change is in the air. Let us hope that it brings real improvement.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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  1. Tulsa Divorce Lawyer Matt Ingham says:

    In my opinion it sounds like Sir James Munby is moving the family courts in the right direction.

  2. Stitchedup says:

    I have mixed views on this particularly regarding the subject of court orders.

    Firstly Munby referred to what he called the “slapdash, lackadaisical and on occasions almost contumelious attitude” towards orders made by family courts, for which there was “simply no excuse”. If orders are to be respected the Family courts should refrain form issuing orders that are of a “contumelious attitude” towards parents. Respect is a two way thing, if the courts are issuing draconian orders based on nothing but unproven allegations and bias towards one parent, they are behaving more like a school yard bully than a fair and morally just institution.

    He said that orders were not “preferences, requests or mere indications” – they must be obeyed and complied with to the letter and on time. Referring to his recent decision in Re W (A Child), he said that non-compliance with orders should be expected to have and will usually have a consequence.

    I sincerely hope that he’s referring to Women and Men and those that make false allegations and/or do not obey contact orders etc.

    I note that the behaviour of advocates was also picked-up and rightly so. Bull*ӣ$ hearsay and personal comments of the advocate should not be admissible or indeed tolerated in the family courts РKEEP TO THE FACTS AND PROVE THEM PREFERABLY BEYOND ANY DOUBT BEFORE ASSERTIONS ARE MADE.

    “Skilled advocacy has a vital role to play in the family courts as elsewhere. I stand by everything I said in Re TG (A Cgild) [2013] EWCA Civ 5. May I, however, draw to the attention of advocates in the family courts, for it is surely as applicable in family courts as in criminal courts, a point made by Lord Judge CJ in his very last judgment: R v Farooqi and others [2013] EWCA Crim 1649, para 113:
    “What ought to be avoided is the increasing modern habit of assertion, (often in tendentious terms or incorporating comment), which is not true cross- examination. This is unfair to the witness and blurs the line from a jury’s perspective between evidence from the witness and inadmissible comment from the advocate. We withhold criticism of [counsel] on this particular aspect of his cross-examination because he was following a developing habit of practice which even the most experienced judges are beginning to tolerate, perhaps because to interfere might create difficulties for the advocate who has been nurtured in this way of cross-examination. Nevertheless we deprecate the increasing habit of comment or assertion whether in examination in chief, but more particularly in cross-examination. The place for comment or assertion, provided a proper foundation has been laid or fairly arises from the evidence, is during closing submissions”.

  3. Tulsa Divorce Lawyer Matt Ingham says:

    It sounds like stitchedup has a lot to say about court orders.

  4. Stitchedup says:

    I have an opinion Matt.

  5. Stitchedup says:

    take a look at this article from the Law Gazette:

    It’s common knowledge that the use of ex-parte orders is being abused both in the UK and the USA. (I’ve come across countless articles on US websites).

    For me the article doesn’t go far enough. We know that judges take a very relaxed approach to issuing these orders and the full hearing is usually a farce…. as the judge said to me “it isn’t a high hurdle for the applicant to get over”, the order “doesn’t stop me doing something I should be doing anyway” ……like talking??!!…….and “it doesn’t affect me as long as I don’t break it”. I’m sorry Matt this is pure BS talk from judges that should know better. It’s the easy safe option for the judge to issue the order, it saves their arse if anything was to happen; but they don’t actually stop anything, apart from talking, that a person couldn’t get arrested for anyway.

  6. JamesB says:

    They do have those stock phrases like – ““doesn’t stop me doing something I should be doing anyway” I had that from a Judge also.

    Wrt this article and the Judge in question, talk is cheap, let’s see if he walks the walk wrt the institutional unfairness of these (family law) courts.

  7. Stitchedup says:

    The point I’m making above is that these orders basically amount to gagging orders or orders that restrict your right to enter your property if issued as part of an occupation order.

    It is draconian to gag somebody, it violates their right to free speech and such draconian orders should only be issued in EXTREME CIRCUMSTANCES e.g. inciting murder, racial hatred etc, and then they should only be ordered when evidence has been provided that allows beyond reasonable doubt not a balance of probability decision.

    It is perfectly natural to speak to a person, indeed we are normally encouraged to talk through problems/disagreements and the silent treatment is normally regarded as domestic abuse. These orders rubber stamp the silent treatment/domestic abuse and criminalises the person that breaks the silence, it is abhorrent. Couples going through divorce and separation will disagree and emotions run high, peoples lives being ruined, changed forever. Why on earth do the courts seek to criminalise a person (usually the man) for talking or showing emotion in the face of one life’s most stressful events, for many akin to bereavement.

  8. Anonymous says:

    I think you’d have to be very naive to suggest that persons in positions of authority are interested in change. This not only contradicts all the lessons of history, but rings thoroughly untrue for anyone with their eyes open.

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