Thursday, 6 September 2012

Reshuffles, Reform and Predictions

It seems at first glance that Sir Humphrey Appleby is alive and well at the Palace of Westminster. Sir Humphrey, a senior civil servant, is a natural opponent of shared parenting. He shares the view of Lord Justice Ormrod that it is unnatural for men to want to involve themselves in child care. To accept that the current system is wrong, is to question his own spartan involvement in his children's upbringing, which ne'er interfered with club, profession or glorious 12th. Besides which, those jolly chaps in the legal profession, who happen to be a member of his club, don't want the great unwashed to challenge judicial discretion.

You may remember an episode (if you are of a certain age) when he discussed the need to 'move' a Minister who was too genned up on a situation. This week, at first glance, Sir Humphrey has achieved more moves than Pickfords.

A sigh of gloom came as Tim Loughton was removed from his position as Minister for Children. Why? Sir Humphrey surely. Tim is liked, respected, principled and the responses on twitter universally praise him. Tim is a long term advocate of shared parenting. Ahha... the first scalp. So far, there are articles saying Liz Truss and Edward Timpson have replaced Tim. Liz is focused on child care reform, while Edward Timpson is a family law barrister. Fingers crossed, but Tim will be a hard act to follow. Stories of Edward's work with organisations involved in finding missing children give us some hope. Maybe he'll help us to find Steve Moseley's daughter, or secure legal aid for parents fighting to recover their abducted children.
The law society and judiciary would have you believe that children are well served by the system. Only 60% of applications to the court for contact are successful. Of those which are successful, many see contact orders flouted within months (or days!), and it can then take months or years to go through the enforcement process. The system doesn't serve families, but it does serve itself, and certainly protect itself, rather well... but I digress.

Maria Miller is moved to the position of Culture Secretary in the midst of the important work she's been doing to provide replacement services for when legal aid is abolished. Maria had announced very publicly in the press that the number of fathers who lose contact with their children is scandalous (she certainly appeared committed on this subject). She had clearly developed views on this matter. A scalp for Sir Humphrey? Well... maybe not. It may be a panic move by Cameron since her role as Minister for the Disabled meant her role was becoming toxic. The campaigning against ATOS and disability benefit cuts is growing every day. It's clear that Dave Cameron is 'bricking it' about the negative press from disability benefit reform (and the boos towards George Osborne at the Paralympics won't have helped that anxiety). People in wheelchairs campaigning is an election loser. Move on Maria, and bring in the media savvy Esther McVey.

Esther's an interesting one (no, she's not pictured here with F4J, or at least we don't think so!). Clearly intelligent, with an excellent media and business background, a TV presenter, she was also instrumental in setting up the Madelaine McCann fund. She has a law degree. She's won plenty of awards, so a switched on cookie in terms of not only succeeding, but making sure others know she has succeeded, and managing the media as she does. Just what the disabled benefits axeman ordered!

The one certain positive from the reshuffle is Ken Clarke's exit as Justice Secretary... raise a glass (albeit, he's still floating about advising Dave)... and he's replaced by Chris Grayling, the last Culture Secretary. Chris... a non-lawyer (that will rock the MoJ tower but may give Sir Humphrey's wig wearing chums the opportunity to run rings round him). An interesting comment by Tim Dutton QC, former chairman of the bar, who said that Chris must fight hard for all the elements that make up the rule of law. Ah... but he isn't one of your chaps... and hopefully, he will fight for reform and change as the current system doesn't serve its users. Chris is known as the jackal of the Tory party, but let's remember that the MoJ and judiciary wore down Jack Straw. Our bet on Chris Grayling's motives? Cost cutting and reform... but likely related to economic rather justice improvements.

Funny how words are used... jackal... supposedly meaning savage, but the dictionary definition is more humorous a. An accomplice or a lackey who aids in the commission of base or disreputable acts. b. One who performs menial tasks for another. Let us hope he doesn't become the jackal of the MoJ.

What conclusion do we draw from the reshuffle? Is it a civil service plot to knobble family law reform? Possibly in terms of Tim Loughton's execution, but looking at the whole, the sensible conclusion is that this Government believes other matters take priority. Shared parenting has briefly fallen out of fashion as the Government deals with other crisis; with a strong lobby from the legal profession, MoJ and a small handful of third sector organisations. If it's to come back into fashion, there needs to be noise.

My prediction:

Children have a right to a meaningful relationship with both parents (or similar waffle) will be introduced to the Children Act. Children already have the right to family life, enshrined in the Human Rights Act and the UN Convention on the Rights of the Child. However, we see that statistically, only 60% of applications for contact orders result in staying contact? Without more prescriptive legislation setting out what meaningful family life actually means, nothing will change.

The second red herring. Politicians will tell us there is a presumption of shared parental responsibility. They think this means shared parenting... of course it doesn't. The idiot politician is befuddled on this matter and badly (or misleadingly) advised. Most parents have parental responsibility, but many don't even see their children, aren't included on decisions regarding choice of school, or medical treatment. Shared parental responsibility has no connection with shared care. An utter, and shameful red herring.

The campaigner who thinks he's achieved something needs to clear the wool out from in front of his eyes.

But all is not lost, in terms of reform...

Change must come. There must be more prescriptive legislation, and the way in which family law works will have to change. The days ARE numbered for the jolly, old boy's club of judicial discretion and the status that it carries. Why? After April 2013, the family courts will start to seize up. There will be an increasing number of litigants-in-person, when legal aid is pulled. The courts are barely coping as it is.

A harsh economic climate puts more stresses on families, and parental separations increase.

The naivety of no sanctions for false allegations of domestic violence, but legal aid for the accusers in Children Act cases means we will see a marked increase in cases involving domestic violence. The accuser gets all the help in the world, while the accused, if he/she cannot afford a solicitor, gets no protection or assistance at all. No doubt there will be a rush by either party to make the domestic violence allegation first? So much for Article 6 of the Human Rights Act.

We have already forecast that the courts will seize up due to an increase in more complex private law cases. Inevitably, we're going to see a marked increase in international relocation, abduction and retention cases as our demographics are changing rapidly. More than half of children born in London in 2010 were born to foreign born mothers. Nationally, that figure is 25%. 

A less attractive economic climate in the UK will make some foreign migrants rethink their place of habitual residence. A return becomes more likely.

All these factors will place a greater pressure on the courts, and Ryder's recommended judicial reforms fail to give adequate thought to increasing capacity.

Legislation must become more prescriptive, the courts less adversarial, and judicial discretion must be curtailed. Economically, it's inevitable, and that is something that no lobby or special interest group can block, regardless of whose friends they are. We will either have thoughtful, planned change, or panicked reaction. At the moment, the latter is more likely, and children and families will suffer.