President of Family Division suggests courts should cover costs where legal aid cuts may impact access to justice

Rachael Rowley-Fox explores the suggestion made by Sir James Munby, the President of the Family Division, that courts should spend money to ensure that justice is done in the wake of the legal aid cuts.

Sir James Munby, President of the Family Division has declared in a joint judgment that the court service may have to pay for legal representation when legal aid has been refused. Munby LJ examined three separate cases – Q v Q, Re B, and Re C. He stated that:

“Each is a private law case in which a father is seeking to play a role in the life of his child, who lives with the mother. In each case the problems with which I am faced derive from the fact that whereas the mother has public funding the father does not.” Continue reading

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Problem Judges ‘should have real life lessons’?

Problem Judges should have real life lessons was the headline I read last week, although what it actually said was, “ Problem Parents ‘should have contraception lessons’ “ (Independent 11th June 2014).

In context this was one of many comments reportedly made by the current president of the Family Division, James Munby. He was talking more globally about the effective role of courts that are taking a more inquisitorial role in family cases which are heard in the Family Drug and Alcohol Court (“FDAC”). He reportedly said that in FDAC courts, “The judge is able to built up a personal rapport with the mother and father.” – “as they meet with the parents sometimes on a fortnightly basis without their lawyers”. And he went on to the reported comment about “contraception lessons” for “problem parents”.

What the article spoke to me about was the acute need for judicial diversity for the legal system to have integrity and effectiveness within our democracy. His comments highlighted the need for judges from different backgrounds from the top to bottom of our judiciary. For those not well versed in who makes up our judiciary – Munby shares the typical characteristics. ‘Sir James Lawrence Munby (born 27 July 1948) is a British judge who is President of the Family Division of the High Court of England and Wales. Munby was an undergraduate at Wadham College, Oxford, where he is now an Honorary Fellow’ (wikipedia). He does of course have the other essential attributes – a white male judge.

Imagine the worlds apart, the potential for rapport with someone who has had such an elite beginning of life for the ‘problem parent’. Is it contraception lessons?, or lessons on dealing with the pain in life of poverty, hopelessness and despair that are needed? Losing a baby and desperately wanting/needing one: is there a lesson out there in that?

It was striking to me that the comment was even made because the case where it’s a lesson in contraception that is needed must be so very very rare. But maybe if I was also of the world of the white, privileged male and an oxbridge graduate with the chums I have I too would share that view and make that comment publicly. (A fuller version of the article can be found here Rebekah Wilson (views of this author alone)

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Children giving evidence in family courts

While over 1000 children under the age of 10 give evidence to the courts in England and Wales each year, very few do so in the family courts. Ian Peddie QC argues that the interests of justice would be well-served if more did so.

The presumption against children giving evidence in the family courts was removed by the Supreme Court in March 2010 in Re W (Children) [2010] UKSC 12. This led to the Family Justice Council producing its Guidelines in relation to children giving evidence in family proceedings. Continue reading

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Protected: Dad to be deported

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‘Agreed Facts and Reasons’ post NL

Re NL (A Child) (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) is a recent case in which Mrs Justice Pauffley is critical of a practice which had developed in a Family Proceedings Court of the Local Authority being expected to provide draft facts and reasons for use at hearings.
“Equally and just as importantly, it is difficult to view the Justices as having been independent and impartial if, as happened here, they simply adopted the local authority’s analysis of what their Findings and Reasons might comprise. The Court of Appeal has recently made clear that the wholesale incorporation of such a draft is impermissible: see Crinion and anor v IG Markets Ltd [2013] EWCA Civ 587. As Sir Stephen Sedley observed,

“Unequivocal acceptance of one party’s case has always posed a problem for judges. To simply adopt that party’s submissions, however cogent they are, is to overlook what is arguably the principal function of a reasoned judgment, which is to explain to the unsuccessful party why they have lost…. (T)he possibility of something approaching electronic plagiarism is new, and it needs to be said and understood that it is unacceptable. Even if it reflects no more than the judge’s true thinking, it reflects poorly on the administration of justice: for … appearances matter.”

69. Just because there may be tacit acceptance on the part of many professionals within the family justice system that the practice which operated here exists, that does not mean it is right. It is patently wrong, must stop at once and never happen again.”

A query arose in a recent case of a colleague as to whether or not a direction to provide Facts and Reasons in a case where an agreed private law order was to be made. In discussion we thought NL applied equally to agreed orders. The Family Proceedings Court agreed although it slows down the Court list, it must be right that all orders are properly justified by the Court.

What now for agreed threshold criteria?

Amina Ahmed

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Stop Child Trafficking | Our Campaigns | UNICEF UK

Stop Child Trafficking | Our Campaigns | UNICEF UK.

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“Beyond Argument” – Siblings Should Be Kept Together In Their “daily life” Blog by Rebekah Wilson

Within a space of 2 weeks I’ve been involved in 2 cases where a Local Authority sought to separate siblings in questionable circumstances. Thankfully robust Judges (in my view) helped the relevant Local Authorities back to sensible thinking. But it got me thinking about the rights of siblings to reside together, its import and how to protect it within difficult care and private law proceedings. So here is a short run down including some helpful obiter dicta in the groundbreaking case concerning habitual residence, in the matter of LC (Children) (No 2), 2014 UKSC. But we can start in 1988 (the year the Iran – Iraq war ended, the winter Olympics were hosted in Canada and the movie Twins was one of the must see),

“it really is beyond argument that unless there are strong features indicating a contrary arrangement that brothers and sister should, wherever possible, be brought up together, so that they are an emotional support to each other in the stormy waters of the destruction of their family..”

So LJ Purchas stated so eloquently in, C v C (MINORS:CUSTODY) 1988 2 FLR 291 at page 302. A private law case, this remains good authority and sets out the clear starting point.

Few waters could be more stormy for siblings than the removal from their natural parent or parents. Section 22C(8) of the Children Act 1989 provides that there is a specific duty upon the Local Authority when looking after a child (whether or not in care), when also looking after a sibling (whether or not in care) to accommodate them together so far as is reasonably practicable and consistent with their welfare. To place siblings together is a duty, and a failure to comply with this requirement, without good reason, may leave that failure open to challenge by way of judicial review ( Hershman and McFarlane Children Law and Practice F-48).

The recent Supreme Court Judgment, in the matter of LC (Children) (No 2), 2014 UKSC 1 provides some powerful dicta which helps underline the import of the sibling relationship in that case. The case of course concerned the habitual residence of four children (‘T’ a girl aged 13), ‘L’ ( a boy aged 11), ‘A’ (a boy aged 9) and ‘N’ (a boy aged 5) whose mother brought a case against the father for their return to Spain. They had moved to and resided in Spain for some months in 2012. The Supreme Court found that ( the older sisters) T’s assertions about her state of mind during her residence in Spain in 2012 were relevant to a determination whether her residence there was habitual and set aside the finding of habitual residence in respect of all 4 children.

Giving the leading Judgment Lord Wilson says;

“ But there is another feature in play: it is the presence of their older sister, T, in the daily life of all three of the boys. Ms Vivian described the four children as a very close sibling group. There was a solidarity in the presentation of the three older children to her.” (Para. 43)

And concludes,

“By a narrow margin, I find myself persuaded that the proper course is to set aside the finding of habitual residence in respect also of the three boys so that the issue can be reconsidered in relation to all four children.” (In the matter of LC (Children) (No 2), 2014 UKSC 1 at Para.43) .

Lets hope , that where they should, all siblings get to enjoy each other in their daily lives.

Rebekah Wilson
Garden Court Chambers
11th February 2014

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