Transparency, cross-examination and more

Family Law|May 26th 2017

A week in family law

A Norwich man has demanded that Judges publish details of his long-running dispute over contact with his daughter. He claims to have run up costs of half a million pounds, and says that dozens of hearings have taken place before numerous judges, but every hearing has been held in private and not one judge’s ruling has been published, despite the President of the Family Division launching a drive for family court transparency. He called for the judgments to be published as “people should be given some idea of what happens so that lessons are learned”. Instead of going to the papers, he could probably apply to the court for an order permitting publication of recent judgments, but appears not to have done so. He also asked Sir James Munby to review his case “to see if he thinks the process has been fair and transparent”. However, Sir James has no power to review cases in this way.

The issue of allowing alleged perpetrators of domestic violence to cross-examine their victims in court has been raised again. In the case A (A Minor : Fact Finding; Unrepresented Party) Mr Justice Hayden had some strong words on the subject at the end of his judgment. The hearing concerned the mother’s allegations of violence against the father. Hayden J explained that it was necessary to allow the father, who was not represented, to cross-examine the mother. However, he said:

“It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.”

He concluded:

“No victim of abuse should ever again be required to be cross examined by their abuser in any Court, let alone in a Family Court where protection of children and the vulnerable is central to its ethos.”

Hopefully, after the election the new government will proceed with the old government’s plans to deal with the issue, that were contained in the Prisons and Courts Bill, which was dropped after the election was called.

In one of the most blatant international child abduction cases I have come across, a mother has been ordered by the High Court to return her children to the United States. In H v K (Return Order) the mother had obtained an order from the court in Hawaii allowing her to take her two children to London to attend a memorial service for their maternal grandmother. However, Mr Justice MacDonald said that it was “difficult to avoid the conclusion that the mother applied to the court in Hawaii for permission to remove the children temporarily to England as part of her plan to abduct the children, thereby using the court to further her unlawful conduct.” He also found that the mother had tried to alienate the children against the father, so that they would object to being returned, and that she had moved the children between several countries to avoid detection, and to keep the children from their father.

The Ministry of Justice (MoJ) has been reprimanded by the Information Commissioner’s Office (ICO) for failing to provide a response to a family law data request. The ICO’s decision notice states that on 15 December last the unnamed complainant requested information relating to statistical data about court orders made in the Family Court, together with information about domestic violence and child protection matters. The ICO added that by the date of its notice, 9 March 2017, the MoJ had yet to provide a substantive response to this request.  As a result, the Commissioner’s decision was that the MoJ has breached section 10(1) of the Freedom of Information Act, in that it failed to provide a response to the request within the statutory timeframe of 20 working days. OK, but I do have some sympathy for the MoJ. As will be seen from the notice, the request sought a considerable amount of information. I’m not sure that it is fair to expect the MoJ which, like most government departments, is no doubt under considerable pressure of work already, to provide all that information in so short a time (alright, perhaps they should have done by 9 March).

The Court of Appeal has rejected the parents’ appeal in the Charlie Gard case. I just hope that this decision is not going to be used by the ignorati as another stick with which to beat the ‘heartless’ family courts. At the time of writing this the Court of Appeal judgment does not appear to have been published. However, the previous judgment of Mr Justice Francis indicated that there were good reasons for coming to this difficult decision. Meanwhile, our thoughts must be with Charlie and his parents at this awful time.

And finally, in a week without much light relief, news reaches us from the subcontinent that an Indian court has struck a blow against equality by ruling that spousal maintenance for husbands would make them lazy (as ‘spinner’ inevitably comments, at least they are open about their anti-male bias). The Justices said that only husbands have a duty to support their wives, although quite why this does not make wives lazy was not explained…

Have a good weekend and Spring bank holiday.

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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