Privacy, mediation and more

Family Law|January 27th 2017

A week in family law

The debate over publicity and privacy in financial remedy cases may be about to be clarified. An application for a reporting restriction order by a former wife involved in financial remedy proceedings has been rejected by the Court of Appeal. Tina Norman had claimed that her financial affairs were “private business”, and that there was no public interest in the disclosure of her identity. However, editors at a number of media organisations objected to Ms Norman’s application, saying that the principle of open justice should prevail. The Court of Appeal agreed and ordered that journalists could name Ms Norman and her ex-husband in reports of the case. The judgment will be published at a later date, and no doubt many family lawyers will be eagerly awaiting it.

Changes to the court rules that apply in cases concerning arrangements for a child in which it is alleged or admitted, or there is other reason to believe, that the child or a party has experienced domestic violence or abuse perpetrated by another party, or that there is a risk of such violence or abuse, have been recommended Mr Justice Cobb. The changes include: displacing the presumption that involvement of both parents in the life of the child concerned will further the child’s welfare where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse; amending the rules to include a requirement for the court to ensure that the court process is not being used as a means in itself to perpetuate coercion, control or harassment by an abusive parent; and amending the rules to afford further protection for the alleged victim of abuse from cross-examination by an alleged unrepresented perpetrator. I hope that these changes will, if implemented, have the desired effect of protecting victims of domestic abuse, although I’m not sure that they will actually make a lot of difference.

This has been ‘Family Mediation Week’, a campaign aiming to raise awareness of out-of-court options for families going through divorce or separation. To mark it, the charity the Family Mediation Association has said that the public need to be better informed of the availability and benefits of mediation. For my part, I am all in favour of the use of mediation in appropriate cases, although it is not, of course, a panacea for resolving all family disputes.

In a worrying piece of news the BBC has reported that a victim of domestic violence was assaulted after a social worker twice disclosed the address of her safe house to her abusive ex-husband. It was apparently claimed that the social worker believed it was the husband’s “parental right” to know where his children were. The social services department involved has apparently apologised, but this really is not good enough. Safe houses, or refuges, are vital for the safety of victims of serious domestic abuse, and it is essential that their addresses are not disclosed – all professionals involved in domestic abuse cases should know this.

A new Family Procedure Rules Practice Direction has been published to facilitate the launch of the first small online divorce pilot. The location and timing of the pilot is not yet known, but this does confirm that we are at last moving towards a virtual divorce system.

The Court of Appeal has set aside a number of orders made in a financial remedies case, after finding a series of procedural errors with how the case was handled. In Iqbal v Iqbal the husband appealed against various orders, including an interim periodical payments (maintenance) order, judgment summonses and the final financial remedies order. Giving the leading judgment of the Court of Appeal Sir Ernest Ryder said that the husband was not given the ‘elementary procedural protections’ he had a right to expect, as orders were made against him without him being given the opportunity to respond. He went on to say that ‘on any numbers of bases’ the decision made at the conclusion of the final hearing was procedurally unfair, to the extent that it should be set aside. He directed that the application for a financial remedy order be re-heard.

And finally, the big story of the week was the one about the Nigerian couple whose 18 year marriage broke down over an argument about a mobile phone battery. Apparently, the husband took exception when the wife tried to remove the battery from his phone, an argument ensued and the wife then went straight to the divorce court. Personally, if someone removed the battery from my mobile phone, thereby disconnecting me from unsolicited calls and messages and all the other junk I receive on it, I would think they were doing me a favour…

Have a good weekend.

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.

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  1. Paul Apreda says:

    Interesting comments as ever John. It seems that the Paramountcy Principle is no longer paramount and that Practice Directions can overturn statute law.
    Let’s just examine what you say on Practice Direction 12J.
    ‘……displacing the presumption that involvement of both parents in the life of the child concerned will further the child’s welfare where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse’
    We know that Domestic Violence and Abuse can include physical, emotional, psychological and also financial abuse. What the draft wording appears to suggest is that if for example the mother felt that it would be so traumatic TO HER that the Court should allow her beautiful child to see that horrible evil swine of a father then the Court would need to act to circumvent the will of Parliament set out in statute law – i.e the presumption that involvement will further the child’s welfare. S11 (2) of the 2014 Act.
    Clearly it is insufficient to be able to prove that the involvement of the ‘other parent’ would not further the welfare of the child as the 2014 Act requires. Merely the risk of the mother (sorry, controlling parent) suffering some form of domestic abuse is sufficient to overturn the provisions of statute. Either the ‘best interests of the child’ are paramount or they aren’t. Which one is it?
    In his ‘review’ of PD12J Stephen Cobb has obviously applied the same rigour that he does in his ‘day job’ in the Family Court. He tells us in paragraph 4 of his report that he consulted with ……………..…..Women’s Aid, oh and Rights of Women. He also mentions a number of feminist academics including Professor Rosemary Hunter – who is currently the academic representative on the FJC plus a few others – all of whom are likely to have argued from substantially the same position. Did he consider that perhaps Women’s Aid and Rights of Women are not the best qualified to represent the perspective of male victims of abuse? Did he consult with anyone about the extent to which false and spurious allegations of abuse are a characteristic of Private Law proceedings? We can but speculate.
    Justice Cobb may be able to evidence that he consulted with a range of perspectives on this issue – personally I see no indication that he did. However, let’s look at the next question of the extent to which he tested the evidence? Again this is a pretty standard task for a Family Court Judge one would suppose.
    In his report he mentions that he looked at the Women’s Aid Nineteen Child Homicides report, yet he seems unaware of the 330 Child Homicides report ( drawn from a much wider sample of cases that were subject to Serious Case Review from 2009-2015 that mothers are more likely to be culpable for child deaths than fathers. He also seems unaware of cases such as that of Samira Lupidi who killed her two children while living in a refuge. It is reported that:
    One week after killing their children, Lupidi was reported as telling the prison medical staff that the most important thing was that Carl Weaver (her ex) was suffering
    Furthermore he repeats the evidence produced by Women’s Aid that asserts that 39% of women were physically abused by their former partner in the Family Court!!
    Unlike Justice Cobb, Lucy Reed – Chair of the Transparency Project, has asked questions about the reliability of the data. It seems that the figures were produced from a self-selected sample of Women’s Aid service users amounting to 90 individuals.
    Finally another assertion from Women’s Aid is also taken on board by Cobb J. The much repeated problem of men continuing their abuse of women by making applications to the Family Court. Let’s just analyse that for a moment. How many applications are deemed to be an abuse in this way? Ah, we have no figures for that. Also, what criteria will be applied to determine whether these men’s applications are motivated by a desire to control, coerce or harass? Again – no information on this. What we end up with is the following in the draft Practice Direction that Courts must:
    ensure that the court process is not used as a means to perpetuate coercion, control or harassment by an abusive parent.
    Men who turn to the Family Court as their last hope of ever seeing their children again are now ‘presumed’ to be perpetrators of abuse! Clearly the existing provisions of s91(14) of the Children Act 1989 are wholly inadequate to prevent these wicked men from wasting their £215 application fee and presumably tens of thousands of pounds worth of legal fees simply to continue this terrible pattern of abuse involving having the absolute cheek to expect to maintain a relationship with their own children.
    Key questions then that remain unanswered:
    Is the Paramountcy Principle now subordinate to the ‘risk of harm’ to the controlling parent?
    Can a Practice Direction overturn statute law?
    What’s your answer John?

    • alain williams says:

      I do a lot of work helping parents (mainly, but not all, dads) keep in touch with their kids following separation. It is very common for mothers to make allegations about violence that are later found to be false – but by then they have care and control of the kids, so: game over. They are helped a lot in this by those involved (court, CAFCASS, SS) willingly believing that men are abusers and that women are victims.
      Even when a woman is shown to be violent, she is often forgiven. Two weeks ago someone who I help reported that his wife had a row with their son and hit him. Action from social services was “build the relationship with son and mother” – if it had been father who hit the child he would have been out of the house and lucky if his son saw him in a contact center.

  2. John Denbigh says:

    It is quite remarkable that it is considered that a Practice Direction can be put in place to displace a legislative presumption, thus usurping the will of Parliament. Surely the job of the judiciary is to interpret and enforce legislation not to reinterpret it or invest it with a new meaning that Parliament clearly never intended. Given that the PD proposals are apparently based solely on a survey of 90 members of Women’s Aid and totally ignore the high propensity of false allegations that feature in Children Act cases, this is especially worrying.

    As to the proposal to amend the rules to include a requirement for the court to ensure that the court process is not being used as a means in itself to perpetuate coercion, control or harassment by an abusive parent, whilst such an amendment is highly questionable as an objective, not least because it would be so difficult to determine, it must be hoped that if adopted it will applied to parents seeking to unjustifiably exclude the other from a relationship with the child as a form of control and coercive behaviour.

    With regard to the proposals to amend the rules to afford further protection for the alleged victim of abuse from cross- examination by an alleged unrepresented perpetrator, clearly if an alleged perpetrator unable to afford legal representation is denied that the right to test evidence in cross-examination, then he/she is denied his/her right to a fair hearing. If that right is to be denied then the “overriding objective” which requires ensuring that the parties are on an equal footing, must also require that the alleged perpetrator should benefit from legal aid to support his case in the same that the alleged victim does. Only allowing legal aid to an accuser and not to accused is wholly inconsistent with the overriding objective and the court’s duty to promote it.

  3. Rob Cheyne says:

    I am astounded that these proposals have come in so quickly without any proper thought, research or consultation. I know of over 100 cases in detail where men have allegations of serious DV including alcohol/drug abuse and physical assault over a pro-longed period of time. Not one of these Fathers have gone to commit any crime. Indeed, as time goes on in the vast majority the court becomes frustrated with the mother who fails to abide court orders, fails to act in the best interests of the child and nearly always goes to make further unsubstantiated allegations. Yet nothing seems to happen – there’s no cost to making false allegations and yet they add to the “weight” of domestic violence allegations which clearly sway some social workers and judges. It is truly frightening.

    There have been several pieces of legislation (coercive control) and procedures (PINs) all to address domestic violence issues. Many encroach on the innocent until proven guilty principle. Yet the figures of their use are woefully low.

    The fact that this rule significant rule change – which should be legislative change – has come in on the back of politically motivated is quite upsetting. If someone has been convicted of domestic violence I could understand. Many of the cases I know of the women doesn’t like to give evidence (even when the father is represented) because she knows she’s lying and it usually comes out.

    I wouldn’t support any man who I thought had been violent towards a women.

    The Family Court may as well be renamed “Mother’s Court”.

    When will the government (if not the MoJ via directions!) introduce crimes for making False Allegations, Parental Alienation and Coercive Control of children in Family Separation.

  4. stuart young says:

    “Personally, if someone removed the battery from my mobile phone, thereby disconnecting me from unsolicited calls and messages and all the other junk I receive on it, I would think they were doing me a favour…” I agree with you this point 100%

  5. Margaret Ellis says:

    The ‘justice’ system is abused by mothers who play victim constantly to remove a father from a child’s life. Mothers introduce other men, who they barely know, to their children yet fathers that have been a good parent to their child are refused contact. A mother can choose to take her child into a prison to see its father who may be a murderer but a father, who very often suffers with mental health issues following a breakdown of a relationship, has to pay and beg and plead to see his own flesh and blood. There is no equality in the family justice system, fathers are refused contact but legally forced to provide, while mother does what she wants and the children continue to suffer. How many new dads will the children have who nobody checks on? Nobody cares about mums new boyfriends because she is the mother!!! Its an absolutely disgusting set up and all children should have contact with their fathers until they are old enough,16, to decide that they do not wish to have contact or there is a serious life or death situation if contact is maintained.

    • Brian says:

      It’s almost unfathomable to read a post such as yours, see the authors name and believe that a person of the opposite gender can be so perceptive that I find myself saying “You have got it spot on” (on every point from first hand experience and a close observer to a sibling). Rally your troops, it’ll take an army of women saying the same thing to change things because until then, no one will ever listen to a man! “Margaret Ellis for President of the family court of England and Wales” I say. I bow my head with the greatest and most sincerest of respect to you as a person. Wish there were many more people like you – I wish there were judges out there who experienced first hand what it’s really like at the broken end of the family court bottle – empathy for the non resident usually male parent would go a long way to swiftly ensuring the best welfare interests of children instead of years upon years of prolonged emotional torture they are subjected to caused by parental alienation unhelped by the indifference and apathy shown by the family court.
      (*Comment edited – please see our moderation policy here).

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