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Sir James apologises for his ‘failures’ in ‘Voice of the child’ speech… because it is the right thing to do

Amongst the many activities carried out by Sir James Munby during his extremely busy last week as President of the Family Division was the giving of a speech to the 6th Annual ‘Voice of the child’ Family Justice Young People’s Board (‘FJYPB’) Conference in Manchester. As we will see, it was sadly rather depressing, and not just because it was one of Sir James’ last speeches as President.

Before I proceed I should probably explain exactly what the FJYPB is, as it is obviously relevant to what Sir James had to say.

As stated on the GOV.UK website, the FJYPB “is a group of over 40 children and young people aged between 8 and 25 years old who live across England. All members have either had direct experience of the family justice system or have an interest in children’s rights and the family courts.” The Board’s purpose is to ensure that the family justice system and particularly the Family Justice Board remain child-centred and child inclusive.

The sad tone of the speech is set in the very first paragraphs, when Sir James apologises for failing to deal with the issue of “how the family justice system can meet the aspirations and accommodate the needs of children who want to come to court, perhaps just to see the court, perhaps to give evidence or perhaps to meet the judge.” Not that it is entirely his fault (or his fault at all). He explains that he had recently received a letter from a Government Minister informing him that the Government had decided that the proposals which he and others had been pressing for cannot be implemented.

Sir James doesn’t explain in his speech what was being proposed. If you are interested, that is to be found in the Final report of the Children and Vulnerable Witnesses Working Group (‘CVWWG’), which was published back in March 2015.

And why exactly did the Government decide that the proposals could not be implemented? Sir James explains:

“The letter made clear that approval was not going to be given because (and I quote):

“these proposals cannot be implemented at the current time given their assessed operational impacts.”

You may be wondering, said Sir James, what is meant by “assessed operational impacts.” In plain English, he said, it means it would all cost too much. The usual ‘excuse’.

The Minister acknowledged that this decision would be “disappointing.” Sir James, however, said he

“would use a rather blunter word.” “Let me spell out the reality.”

He said.

“The FPRC [Family Procedure Rule Committee] has proposed rule changes. Why? Because it is the right thing to do. I wish to issue a practice direction. Why? Because it is the right thing to do. The Minister refuses to approve what the FPRC and the President propose. Why? Because of the cost.”

Otherwise, the speech dealt with the related issues of vulnerable witnesses and the cross-examination of an alleged victim by an alleged perpetrator.

As to the former, we have the Rules in Part 3A and the new Practice Direction 3AA, which implemented in part the recommendations of the CVWWG but, said Sir James, the new arrangements could, and, in his view, should have gone further. The giveaway, he said, is to be found in Rule 3A.8(4): “Nothing in these rules gives the court power to direct that public funding must be available to provide a [special] measure.” The inclusion of this, said Sir James, reflected the Government’s concern that proper implementation of what in the view of the FPRC was desirable would cost more than the Government was prepared to commit. Money again.

As to cross-examination of an alleged victim by an alleged perpetrator, we know that the Government had intended to deal with this in the Prisons and Courts Bill, but that Bill was lost in the run-up to the General Election last year. Rather cuttingly, Sir James had this to say about the subsequent failure of the Government to resurrect the proposals:

“Commentators have, unsurprisingly, picked up the fact that the relevant clauses previously contained in the Prisons and Courts Bill 2016–17 have not been included in the Courts and Tribunals (Judiciary and Functions of Staff) Bill. No doubt clause 2 of this Bill deals with a matter of importance to some, but whether a person hearing bankruptcy cases should be called a Registrar or a Judge is surely of much less pressing concern and infinitely less priority that putting an end to this long-standing abuse in the family courts.”

I will leave it there. Meanwhile, you can read the full speech here.

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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