Wednesday, 4 September 2013

Let's abolish the Family Justice Council

I wanted to share with you excerpts from the Children in Families Committee (part of the Family Justice Council) written contribution to the Family Justice Review. It is a little old news, but I had missed it, and upon reading it, am somewhat scandalized at the content. I imagine most of you missed it too, as such  things tend to be buried on Government websites. Be prepared for a range of emotions, from surprise, to humour, to shock and perhaps anger. Perhaps their biggest insult was to the judiciary themselves. Read on...

Would you expect 'The Committee' (seemingly of professionals) to be seeking to subvert the principles of judicial discretion, when their basis for doing so is subjective opinion? Consider this...

The Committee feels that some healthy skepticism about the appropriateness of shared residence orders is required to counteract an apparent growing judicial willingness to make such orders in circumstances where they may not be appropriate.1

Have we got this right. The 'Committee' do not trust our judiciary? Surely there must be robust grounds for this? In the same paper, they admit there is no research as to the extent or outcome of shared residence orders being made by the courts. Shouldn't research come before the Family Justice Council (FJC) seeks to subvert judicial discretion?

What was the child welfare research to support such a finding?

The child mental health specialist member of the Children in Families Committee expressed a very firm view, based on her clinical experience, that shared residence orders are rarely in the best interests of children but are much more about meeting the needs and interests of their parents.

Her clinical experience. A single person's experience on the impact on child mental health. The fact that 'her experience' is contradicted by a wide body of educational, psychological and sociological research would have escaped the Committee, as it appears such decisions are made over a cup of tea and a rich tea biscuit rather than the analysis of impartial empirical research. Is this what our laws are based on?

You would hope that the author of the report would question this point him or herself. You would hope that, when advising the Family Justice Review, they would have a regard to accuracy, impartiality, and objectivity. Not at all. The authors dig a hole, and keep going. Consider the ignorance in what they go on to say about shared residence and its application in relocation cases (their words in italics, my criticisms come after):

Current case law means that in practice a parent who has a sole residence order will get leave to relocate to another jurisdiction with the children. Really? Doesn't the outcome turn on the individual facts of the case and arguments presented? What about motive? What about whether plans are reasonable? This seems, at best, a prejudicial opinion not in any way linked to the needs of the child in each individual case and at worst, justifies the view that many have that the courts rubber stamp relocation applications with scant regard to the impact on the individual child. Such prejudicial attitudes resulted in Moore-Bick LJ (the Deputy Head of Civil Justice) being parachuted into the family courts to clear up the mess left by 10 years' rigid adherence to Payne v Payne and Thorpe's beloved 'distress argument' (a review, I might add, that the then President of the Family Courts had declared would not happen in the Court of Appeal... oops!).2 Moving on, the author kept wielding their shovel. In a case where there is an international dimension, obtaining a shared residence order means that the parent who opposes a relocation application will have at least some prospect of succeeding in preventing leave to remove being granted. Are they suggesting that a parent should gain shared residence as a strategy to defeat a future leave to remove application? Ah, the chicken and egg stratagem! Nonsense. Any legal adviser with half an ounce of sense or experience knows that the legal status of 'shared residence' is unimportant, compared to the quantum of care (and the facts of the case!). Perhaps someone should comment to the author of the report that shared residence is not an automatic bar to relocation being granted (but let's not cite more authorities [common law] and rub it in)?3  The lawyer members of the Committee therefore believe shared residence orders may have a place in such cases at least where such an order reflects the involvement of the parents in their children’s life. Ahha... let us look at an actual fact...

The quantum of care time between mothers and father in intact families in society is near identical... differing, on average by only 15 minutes a day. My opinion? Not at all, as some of use do look at research before writing.4 Could there be a correlation between this statistic, and Mostyn J's assertion that shared residence orders were becoming the norm (again, sadly, a view which lacks the statistics to support it).

Again, had the Committee a basic knowledge of case law, they would know it was established in 2002 in Re A (Children) (Shared Residence) [2002] EWCA Civ 1343 that shared residence orders should be made if they reflect the reality on the ground. There are a long line of authorities since.

So if the lawyer committee members are right, that shared residence orders have a place in cases where the order reflects the involvement of the parents in their children's lives, the Family Justice Council should keep their ill informed noses out of the matter, and ideally be put out to pasture.

Still think I'm being harsh? Oh there are more priceless inconsistencies spewed out by this shovel wielding incompetent who seems to have an axe to grind against Sir Nicholas Mostyn (one of our more capable high court judges). Mostyn was Paul McCartney's brief. He was editor of Jordan's International Law. He's undoubtedly intelligent and widely respected by his peers, but his judgment, given in the cited case cast criticism on the thinking of the Court of Appeal, and indirectly, the recently retired Head of International Family Law.5 For a High Court judge to criticise guidance given in the Court of Appeal was rare, and likely unwelcome [could I understate this more?]. As many believe, the thinking of Mostyn was right, and as one of the most respected lawyers in the country before becoming a High Court judge, delivered beautifully (and we suspect, with some personal satisfaction, having had that same Head of International Family Law throw out his appeal only two years earlier).6

As justification for opposing shared residence, the Committee attempts to savage one of the reasons Mostyn views shared residence with favour (and a powerful one, based on a child's human right to family life). In judgment, he had declared:

"If one were to draw up a hierarchy of human rights protected by the ECHR [European Court of Human Rights], near the top would be the right of a child, while or he she is growing up, to have a meaningful participation by both of his parents in his upbringing;...”.

Note the words 'meaningful participation' rather than mere 'involvement' which became the diluted sop in the Children and Families Bill in response to years of outrage by the public at bias in the courts. How did the Family Justice Council seek to confront such a cogent argument? Read on... their inconsistency isn't hard to spot.

Whilst few would disagree with Mostyn J’s statement that a child has a ‘right’, while he or she is growing up, to have a meaningful participation by both of his parents in his upbringing, [but you know they want to] this is not a ‘right’ which children have ever been able to enforce against unwilling parents [shouldn't that be a role for the courts then, and our laws]. Rather, it reflects a moral and potentially legal obligation on the parent with care to facilitate a relationship where the non residential parent wants this [shouldn't our laws support moral and legal obligations]. Consequently, the Children in Families Committee of the Family Justice Council (“CIFC”) questions the implicit assumption that in order to achieve such meaningful participation in a child’s life, his or her parents must have the benefit of a shared residence order made by the court [such orders are sought when parents fail to uphold this human right for their child].

Bravo to the Committee's author on a fine example of cognitive dissonance in practice!

So consider... and let me repeat the where the Family Justice Council got it right... 'few would disagree that a child has a right to a meaningful participation by both of his parents in his upbringing.'

What might strengthen and uphold that right in family law... that a child has the right to shared parenting. Why then, did our Family Justice Council argue so vociferously against it? Why now do we see shared parenting or shared care removed from the Children and Families Bill? Why has the word 'meaningful' been removed and diluted to 'involvement' (which could be anything). Shouldn't our laws reflect societal norms? Shouldn't they be based, one would hope, on child welfare research? It's a little moth eaten now, but we published details of  a wide number of findings some years ago. There's lots more on our website.

What of the Committee's conclusion and recommendation in relation to shared residence orders... and this will shock you. They said they wanted to all but abolish shared residence.

The Committee would prefer to see them made only in exceptional circumstances, those where there is potential for relocation or where one parent is resolutely denying the existence of the other’s PR [parental responsibility] and a shared residence order is used to make it clear that either parent could, in the view of the court, provide a home for the child (the implicit threat being that if the recalcitrant parent does not mend his or her ways, a full residence order may be made in favour of the other parent). 

Far from wanting to see a child's right to the meaningful participation of both parents upheld in law, it seems the Family Justice Council wants to all but abolish it, ignoring the authorities which cite the appropriateness of shared parenting (developed over 20 years, and since Butler-Sloss was forced to overturn her own guidance to the courts which limited shared residence orders to exceptional circumstances).7 I suspected the FJC didn't want change. I didn't realise they sought to overturn 20 years of judicial progress!

Another reason why Parliament needs to introduce a presumption of shared parenting in law, because those who influence our judiciary are ignorant of research, ignorant of modern parenting in this century, and seek to impede the development of law even at the expense of judicial discretion.

When we see how the Children and Families Bill has been diluted, it is little wonder when such powerful groups have lobbied the Government (in the guise of 'experts').

Rather than abolishing shared residence, isn't it time we abolished the Family Justice Council, if they lack the dignity to resign.

 1. Annex 2. The Use of Shared Residence Orders. A Discussion Paper Prepared by the Children In Families Committee of the Family Justice Council as Part of the Family Justice Review (undated).
2. K (Children) [2011] EWCA Civ 793.
3. If you want us to rub it in, it was Re T (A Child) [2009] EWCA Civ 20.
4. Equal Opportunities Commission [2008].
5. AR (A Child: Relocation) [2010] EWHC 1346 (Fam).
6. G (Children) [2007] EWCA Civ 1497.
7. Re A (Children) (Shared Residence) [2002] EWCA Civ 1343