Sir James talks to Families Need Fathers

I have been reading the speech that the President of the Family Division Sir James Munby gave to fathers’ rights group Families Need Fathers on the 16^th of November. I did not find anything new or particularly profound in the speech, but there were some things of note. I don’t propose here to summarise the entire speech; instead, the following is my personal selection from the numerous points he made.

Obviously, given his audience the primary subject of the speech was private law children proceedings. Sir James began on a somewhat discouraging note by recalling his 2004 judgment in Re D (intractable contact dispute: publicity), in which he was critical of the deficiencies of the private law system. He said that he had recently re-read the judgment and that:

“There is not a word in that judgment which I have resiled from [abandoned]. The diagnosis of the problems seems to be as accurate now as it was then. And in very large measure the necessary remedies are as I suggested in that judgment.”

He went on:

“I said publicly as President earlier this year that we had come so far but in a sense so little distance.”

Moving on, he set out what he called the two ‘really fundamental principles of family law’:

Firstly, “that men and women, husbands and wives, fathers and mothers come before the courts on a basis of equality.” Unsurprisingly, he saw a few heads in his audience shaking at that, but he pressed on:

“Obviously the system is not perfect. There will be occasions when individuals have experiences that lead them to believe that is not what happens … But the principle is clear and unequivocal and that is it. And if cases come before me in the Court of Appeal where that has not been adopted as a principle then I will speak out and I will reverse the judgment.”

The second principle was, of course, that the child’s interests are paramount. “In the final analysis”, he said, “parental claim, whether it is the claim of the father or the mother or the grandparent or any other member of the family, has to take second place to the paramount interests of the child.” He went on to explain that what is understood to be the welfare of the child does, of course change with time and opinion – the principle was laid down in 1970, but what was considered to be the welfare of the child then was very different from present thinking.

Moving on again, Sir James said that what he spotted constantly in the private law cases he dealt with was that the parents “had been completely disempowered by the court process”. He said:

“They had got to the stage where they couldn’t decide anything without running back to the wise man or woman in the wig. It is appalling. It robs the parents of their function. It sends a very damaging message to children and it doesn’t produce justice for the parents and doesn’t produce the right answer for the children.”

He gave an example of a contact case that went before him early in his time in the Family Division in which the two issues were “whether the handover should take place at 5pm or 6pm on the Sunday and the second was whether the handover should be … the Happy Eater at Junction 25 of the motorway or the Little Chef at Junction 27.” Needless to say, he found it absurd that such questions were being put to a judge, let alone a High Court judge. As he said in a recent judgment (I’m afraid I can’t recall which), judges have got to have courage to take a tougher line and say that they are not going to decide some of these questions: “We have to tell parents that parental responsibility for their children is a duty to make these decisions in the interests of their children.” Quite where this leaves the parent whose opposite number refuses to discuss such questions, Sir James did not explain.

Sir James said that he didn’t want to get into the issue of the impact of the legal aid cuts in his speech. Nevertheless, he did have the following to say:

“…we are increasingly seeing cases where the woman – usually but not always the woman – who alleges domestic violence has legal aid and her partner does not. That simply produces further problems. It produces problems for the partner, typically the man. It produces problems for the judge. Most importantly of all, it produces problems for the child because, as I repeatedly say, unless both parents have a fair process then the child is not having a fair process and if the parents don’t have a fair process and the child doesn’t have a fair process then the risk one is running is not only injustice to the parent but injustice and worse to the child.”

The only answer he could give was to raise the matter of legal aid with your MP, but I if you do I recommend that you don’t hold your breath expecting a positive reply.

Sir James concluded his speech by discussing the issue of shared parenting, or rather the fact that the Children and Families Act did not provide for shared parenting – a brave decision given his audience! I thought what he said was interesting:

“I think it is important [i.e. the presumption of parental involvement] because in one view what is now in the statute doesn’t add to what the law always was. But I think it’s very important because it is now on the face of the statute so instead of having to take the district judge or the magistrate reams of Strasbourg case law or long judicial judgments one can say “look, that’s what the statute says”. I think it will be of some use. I recognise it doesn’t go anything like as far as some people would like it to go.”

Whether it will be of some use, only time will tell – I am one of those who believes it will not.

I won’t detail it here, but after the speech there was a lively and interesting question and answer session, which is well worth a read as well.