Wednesday, 16 June 2010

Mr Justice Mostyn - A new judge in old shoes?

In an already noteworthy career and at only 50 years old, Mr Justice Mostyn QC had carved a reputation as the top divorce lawyer in the country, one half of the dream team who represented Paul McCartney; intelligent, widely respected, and a barrister who made his opponents tremble.

Only appointed to the High Court on 20th April, in less than 2 months, the Honourable Mr Justice Mostyn has given a landmark judgment which makes extraordinary reading.

On June 10th 2010, Mostyn gave his judgment in a leave to remove case. I have read many judgments, but none like this. This was remarkable.

Those who have followed my work will know I have been campaigning against the current application of legal precedent in leave to remove cases. The architect of that current 'binding' precedent is Lord Justice Thorpe. I believe Thorpe's reasoning in Payne to be ill-considered, unscientific, lacking in substance, and counter to the principles of the Children Act. I believe it has caused harm to thousands of British children. Sir Bob Geldof, who wrote the foreword in my Parliamentary Briefing Report on Relocation had the same opinion, and went further:

“The court is entirely informed by outdated social engineering models and contemporary attitudes rather than fact, precedent rather than common sense and modish unproven nostrums rather than present day realities. It is a disgraceful mess. A farrago of cod professionalism and faux concern largely predicated on nonsensical social guff, mumbo-jumbo and psycho-babble. Dangling at the other end of this are the lives of thousands of British children.”

You might expect the newly appointed Mr Justice Mostyn to be conservative in his opinions. You might expect him to be a traditionalist, reserved, not wishing to rock the boat. You would be wrong. His judgment, his opinion on Thorpe's guiding precedent in relocation cases was nothing short of ruthless. His reasoning cuts through the social guff and mumbo-jumbo that has beset leave to remove judgments under Thorpe’s guidance.

In 2008 as a QC, Mostyn came before Lord Justice Thorpe in a relocation case arguing against Thorpe’s own precedent with, in his own words ‘no little personal conviction’. The arguments were firmly repelled by Thorpe, and the orthodoxy of Payne v Payne reaffirmed. As any who have come up against Thorpe in a leave to remove case will know, Thatcher-like, the man ‘is not for turning’.

Two years on, with an international convention of judges having met in Washington in March and confirmed a child centred approach to deciding relocation cases, Mr Justice Mostyn went for the jugular. He clearly reasons out why the ideology in Payne v Payne is wrong. He cites the urgent need for the ideology in Payne v Payne to be reviewed in the Supreme Court. He turns the tables on 40 years of precedent, bringing child welfare back to the fore. In a single judgment, a herd of misguided sacred cows are slain. He reaffirms the desirability of shared parenting, questions the need for supervised contact where there is no evidence of risk, he reminds us of the child's Convention Right to Family Life, he reaffirms the paramountcy principle.

With such public criticism by the High Court of the Court of Appeal’s guidance, and that criticism having been so intelligently reasoned through, an urgent review by the Supreme Court has become a necessity.

Popular and controversial, Lord Denning was perhaps the last great judge, prepared to overturn what he considered to be ‘bad law’ in the pursuit of justice. It may be that Denning’s long vacant shoes have a new owner.

Download the full judgment here