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Transparency Project: Family Court Reporting Watch – Weekly Round-Up No. 20

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The purpose of this update is to correct, clarify and comment on media reports of family court cases, to explain and comment on published Judgments of family cases and to highlight other transparency news.

Media Reports of Family Courts Case and Family Justice Issues

Mr Bookers report A brave bid to clean up the family courts will soon be over (paywall) was a reaction to comments McFarlane LJ made to the Inaugural Bridget Lindley Annual Memorial Lecture: Holding the Risk – the Balance between Child Protection and the Right to Family Life, in which he expressed concern for the possible consequences for some children and families, of both mis-advice and also ill-informed, or even intentionally partial press reporting.

Mr Booker offered the view that non-engagement of families with the child protection system in fact stems from parents finding experts and lawyers biased; that the family courts regularly remove children from their parents for nothing more than failure to co- operate with professionals; and that as such, McFarlane LJ’s expressed concern about risk of unnecessarily poor outcomes for children and families encouraged not to engage with the child protection system, simply show that if he succeeds Munby LJ as President of the Family Courts next year (as many anticipate) he will be:

…just another “party line” defender of a system which has no more frequent and telltale excuse for removing children from their parents than that they “failed to co-operate with the professionals”

Mr Booker is of course simply offering a view. But it is one built in part at least, on a misrepresentation of how care proceedings operate (and what McFarlane J actually said). Leaving aside (for now) the allegations of biased lawyers and experts, which are not new  – parental non co-operation alone is not a lawful basis for removing children. While he may be right to say it can happen (wrongfully), there’s no evidence it happens frequently as claimed; and it can and should be challenged firmly where it does occur. See ‘the Darlington case’ (at para 12) where the President sent out a firm reminder that it must not, in the course of setting right an individual decision that had gone wrong in just this way. Nor of course is evidence of significant harm (or risk of it) alone a lawful basis for removal. Where judges are satisfied that evidence shows things have changed or could change in time, say with the right support, in a time frame realistic for the child (eg. new parental insight, parenting changes or capacity to accept support), they regularly find permanent removal unnecessary and some other option best. The apparent growing problem McFarlane LJ referred to was that of parents who follow advise not to engage with assessments by experts, depriving themselves (without proper understanding if they have also refused lawyers), of the very evidence that could potentially form the basis of a successful case for their children to remain or return home, despite harm having occurred.

It’s not for the Transparency Project to speculate as to whether this is ill informed or deliberately partial press commentary but either way it’s inaccurate.

Mr Booker then speculates that McFarlane LJ’s remarks about regular ill-informed and deliberately incorrect press commentary that encourages such distrust of the system must refer to him; notes that for a senior judge to claim that what one writes is not just “incorrect” but “deliberately incorrect” is a pretty strong charge; and concludes therefore that McFarlane LJ has shown himself nothing more than an apologist for a malfunctioning child protection system.

McFarlane didn’t mention inaccurate media reporting but partial media reporting. He actually said : Regular ill-informed and deliberately partial press commentary must have an impact on the public at large but targeted so-called advice by some semi-professional McKenzie Friends or other lay organisations to vulnerable individuals who find themselves the subject of care proceedings, has the effect in some cases of moving those individuals directly away from engaging effectively in the court process and achieving access to the system, which I believe would respect their rights to a fair process and family life, were they to engage. 

We agree entirely with Lord Justice McFarlane as is also discussed in this new piece by Lucy Reed at the Justice Gap:

The Times reported (in the Brief) under the headline Senior judge backs lifetime meal tickets for ex-wives.  The Family Law Bar Association responded speedily on twitter with:

We’ve set out what Lord Wilson ACTUALLY said, in the context of a lengthy exposition of the history of financial relief on divorce, below.  The words “meal ticket” do not appear anywhere in the speech, and Lord Wilson’s view is entirely consistent with the law as it presently stands, which requires judges to take into account all the circumstances before deciding on whether or not maintenance should continue and for how long / at what level:

Another hot potato is the possibility under our current law for periodical payments to continue to be made by the husband to the wife for many years following the divorce, sometimes (unless she remarries) even until one of them dies. I well understand that it is a running sore for husbands to have to continue payments long after the divorce; and my experience is that their new wives are often even angrier about it than they are! The obligation can eat into their married life in more ways than one. The trouble is that it is usually unrealistic to tell a wife, left on her own perhaps at age 60 after a long marriage, that, following payments for say three years, she must fend for herself. So we judges have to strike a difficult balance. In my view it betrayed a lack of insight when, last month, one of these peers suggested that, when we do decide to award long-term maintenance, we are motivated by antiquated notions of chivalry.

Media reports we found notably balanced, accurate or otherwise helpful to transparency this week

Newly Published Cases for Explanation or Comment

This is the published judgment of Mr Justice Peter Jacksons decision (upon re-hearing) to allow a father to take his son for holidays to the non Hague Convention country where he (the father) had been born and the child’s paternal grandparents and other relatives continued to live.

The judgment is interesting for the extent of the judicial redaction of facts for publication, to ensure the family could not be identified. In particular since the grandparents were well known figures in non Hague Convention country.

Mr Justice Peter Jackson carefully retains the analysis to explain his reasoning, while stripping the judgment of all potentially identifying detail, including the countries of origin of both parents, one of which was the non Hague Convention country falling for consideration in the application. (He also flagged up a failure to allocate the case initially to the right level within the family court).

See our recent blog on this case below:

In other Transparency News

The Attending and reporting family law cases guide sits within a new media page at the Transparency Project website.

Other reports on the research include:

The Times in the Brief with Family judges failing to open courts to scrutiny and:

https://twitter.com/marilynstowe/status/844824931900669952

Feature image courtesy of Flickr with thanks to Lauri Heikkinen

This post originally appeared on the Transparency Project blog and is reproduced with permission and thanks.

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