Crisis in private family law: As I mentioned here on Friday, the former President of the Family Division Sir James Munby has warned about a ‘crisis in private family law’, in a speech that he prepared for a conference on shared parenting in Edinburgh (in the event he did not deliver the speech, as he was unable to attend the conference).
Sir James has never been a man to mince his words, and this speech is no exception. In it, he is extremely critical of the private family law system (i.e. cases between individuals, rather than involving the State, such as care proceedings), and he expresses considerable doubts as to the ‘health’ of the system, fearing that it may be getting things seriously wrong.
Whether Sir James is justified in his concerns I could not say, not having had any direct experience of the system for the last ten years. However, I thought it would be instructive to look a little more closely at what he had to say.
In a sense Sir James criticised the system vicariously, by telling us that it is “under heavy and sustained attack from two very different viewpoints:
- One is the viewpoint of those who have experience of the system as litigants: here, much of the debate is polarised and largely gender-based.
- The other viewpoint is that of many experienced and, I emphasise, responsible journalists, and of increasing numbers of legally qualified family practitioners, whose experiences and opinions feature both in the print and broadcast media and on the blogosphere and other online social media.”
So what exactly are the complaints?
I’m not going to list them all here, but he says that those in the first viewpoint include that judges are failing to give effect to the statutory presumption that, unless the contrary is shown, involvement of both parents in the life of their child will further the child’s welfare; that judges are not sufficiently alert to the behaviour of women who are alienating their children from their fathers; and that judges are not sufficiently robust in ensuring that their orders are actually complied with by recalcitrant mothers.
As to the second viewpoint, complaints include that judges are not sufficiently alert to and understanding of the problem of domestic abuse; that judges are too accepting of some supposedly expert evidence in support of allegations of parental alienation; and that many applicants find the entire process so daunting and demoralising that they simply ‘give up’.
Getting it wrong
But what struck me about the speech was the direct criticism and the words that Sir James used.
He gives a flavour of this early in the speech when he warns that:
“Much of what I have to say is very critical of the English system, and I set it out so that you [i.e. the Scottish system] may avoid our failings.”
Referring to the complaints raised under the two viewpoints mentioned above, Sir James says:
“It will be noted that, on many of these topics, the system is criticised – is under attack – from those on both sides of the debate. But there is no room for the complacent assumption that if you are criticised by both sides you are probably getting it right. On the contrary, it surely suggests that we are getting it very wrong.”
Referring to a recent case in which His Honour Judge Tolson QC was heavily criticised for finding that a woman was not raped because she took ‘no physical steps’ to stop the man, Sir James said:
“Some will say that this particular judgment is not typical, that it is an outlier. Others no doubt will say that it is no more than the very small tip of the proverbial iceberg. Without research, we simply do not know, but I fear that the latter view is probably very much closer to the truth.”
I should mention that in a footnote to the speech Sir James points out that, according to a question put by Louise Haigh MP in the House of Commons on the 6th of February 2020, Judge Tolson “made the same ruling again” in another case on the 3rd of February 2020.
As I said on Friday, what Sir James says is strong stuff.
Obviously, if a particular judge has ‘gone astray’ then it is right that they are criticised. But Sir James’ criticisms appear to be of the system more generally. I don’t know if I’m getting the wrong end of the stick, but he seems to be suggesting that the problems are deep and systemic. Just how many judges does he think are getting things so wrong? One of the problems he identifies is that private law cases are heard in large part by either Magistrates or District Judges or Deputy District Judges, from whom appeals do not, by and large, ever reach either the Family Division or the Court of Appeal:
“The senior and appellate judiciary do not, therefore, have the same exposure to the prevailing practice in private law as they do, in contrast, to practice in public law (care) cases.”
I can’t think that the criticisms will have done much for judicial morale, which I would imagine is already somewhat frail, following years of cutbacks, including to legal aid (with the resulting problems caused by a deluge of litigants in person). Sir James will, of course, be aware of this, and the fact that he has gone ahead with publicly expressing the criticisms in this way surely says something about how strongly he feels about them.
You can find the full speech here.