What family lawyers were talking about this week… by John Bolch

The week began with the news that John Hemming MP had told BBC Panorama that parents who are suspected of child abuse should flee the country, rather than face justice in the family courts. Needless to say, this advice was not accepted by others involved or interested in the family justice system. Court advisory service Cafcass said that going abroad did not solve the problem for most parents, and charity the Family Rights Group was rather more forceful. Their Chief Executive Cathy Ashley said in a press release: “This is crass, ignorant and potentially dangerous advice. It could seriously backfire on any parent who follows it. It could put a child at risk in serious danger.”

The Family Rights Group advises families whose children are involved with or need children’s services.

I will make no comment, leaving it to the reader to decide upon the merits of Mr Hemming’s advice.

Meanwhile, the Law Society Gazette reported that figures obtained from the Ministry of Justice under a freedom of information request show that since private family cases were largely taken out of scope for legal aid last April, the take-up of public funding for advice to support mediation has been non-existent in many parts of the country. As I have said before, mediation is the Government’s flagship policy for ‘replacing’ legal aid, but this particular ship appears to be in danger of sinking without a trace.

Meanwhile, family lawyers have welcomed new guidance given by the President of the Family Division Sir James Munby. This concerns the proper approach of the courts to applications for the approval of consent orders related to arbitration. In the case S v S he upheld a financial/property settlement awarded by a arbitrator. The judgment made clear that there was “no conceptual difference between the parties making an agreement and agreeing to give an arbitrator the power to make the decision for them.” Family lawyers group Resolution said that this “means that family arbitration awards effectively hold the same weight as agreements made between parties through mediation or collaborative law”.

In another ‘landmark’ judgment, the Supreme Court has ruled that a child can have an habitual residence separate from that of the parent with whom he or she is living. This was the case In the matter of LC (Children), in which the mother applied to the court for the children to be returned to Spain, where she and they had lived for some five months, despite the children not wanting to return. In deciding the case, the court had to rule upon where the children were habitually residing. The Supreme Court said that this did not have to be in the same country as the mother, and that the views of the oldest child (aged 13) were relevant to deciding whether her residence in Spain was ‘habitual’. The case will go back to the High Court for further consideration on whether any or all of the children were habitually resident in Spain during the period they resided there with their mother.

Lastly, not content with delivering important judgments, the President has been continuing his campaign to open up the family courts, in order to counter the charge that they operate a system of secret and unaccountable justice. He has issued guidance specifying the publication of more judgments in both the family courts and the Court of Protection. Of course, whether this will do anything to satisfy those who criticise the family justice system will remain to be seen.

Have a good weekend.