Domestic Violence and Legal Aid - Dispelling Myths

A number of headlines are circulating at the moment and it is of concern that people may think legal aid isn't available to victims of domestic violence.

It is.

The Government ensured that legal aid for victims of domestic violence was protected from cuts. Howeverm they did require that a degree of evidence was required to support that allegations of domestic violence were genuine, and not being used as a means to get free legal support (for such things as custody battles).

There is a wide body of evidence which can be produced to help gain free legal assistance. This includes:

• an existing protective order or injunction in respect of the other party, against the applicant;
• an undertaking having been given by the other party in lieu of a protective order or injunction for the protection of the applicant;
• a police caution for domestic violence against the applicant;
• appropriate evidence of admission to a domestic violence refuge;
• appropriate evidence from a social services department confirming the provision of services to the victim in relation to alleged domestic violence;
• evidence from GPs;
• a criminal conviction for domestic violence by the other party against the applicant;
• evidence of a multi-agency risk assessment conference having been referred as at risk of domestic violence, with action recommended;
• a finding of fact by the courts of domestic violence by the other party against the applicant.

It should be noted that the above criteria do not require concrete proof that domestic violence has happened in the past, simply evidence that it may have done.

It's important to remember that false allegations are a form of domestic violence too, and the Government has a duty to protect all victims.

The Government might have insisted that legal aid funding be recouped if allegations were found to be false, or unproven, but circumstances do exist where false allegations are prompted by anxiety or mental illness, and under those circumstances, financial penalties would be inappropriate. Campaign groups for domestic violence charities would inevitably argue that such penalties would act as barrier to genuine victims coming forward.

We deplore domestic violence against either gender or children, but in this instance, believe the Government struck the right balance. False allegations remain a significant part of family law proceedings, and the impact of such allegations can cause long term emotional and psychological harm (not to mention the implications to a child's development and wellbeing caused by needless investigations, manipulation to believe a parent might be dangerous when not and the cessation of contact when allegations are false).

On our site, we have a section providing information regarding help available to victims of DV, including information about non-molestation orders, occupation orders and undertakings, and organisations which can advise and support. This includes information to assist parents who do not qualify for legal aid and who need to apply to the court for protective orders.

Click on the image below to be taken to our family law app and Domestic Violence Support Menu:

We might also add we provide information to support those falsely accused, too:

Submissions to the EU Parliament on Failings in UK Family Justice

Vincent McGovern is Chair of Central and North London Branches of Families Need Fathers, part of the UK’s largest shared parenting charity, and has recently returned from Brussels having presented evidence to the Petitions Commission of the European Parliament in its session concerning failings in the Family Justice Service. He was also supporting a German father, giving evidence to the EU Review related to the efficacy (or lack, thereof) of the Brussels II Revised Regulations.

The German Father's Submission on cross-border Contact Order Enforcement.

In relation to the German father’s submissions, allegations involved the UK courts ignoring a contact order signed under Bis II in another member state and a failure to enforce that agreement. Further, that there was a lack of legal aid for the German father despite the other party having a six figure sum funded by the state. The father intimated there was a breach in equality of arms, and in this, a failure regarding his Article 6 rights to a fair hearing under the human rights legislation. The father invited the EU Parliament to investigate why the UK Courts do not meet their obligations under international agreements, and asked that, if the Commission accepts his evidence that there has been a breach of EU law, they should commence infringement proceedings with the European Court of Justice against the UK Government. The inference was that by not enforcing the order made in another EU state, the court had also infringed on both his child’s and his right to family life. The father was critical of the vast sums of money spent on what he considered an ineffective legal process.

Mr McGovern's Submissions on Abuses within the MARAC Process

Mr McGovern also gave evidence related to the processes followed by the UK’s Multi Agency Risk Assessment Conference (MARAC) and their being open to abuse. Indeed, he argued that here too, the system fails to uphold the citizen’s Article 6 and Article 8 Human Rights.  Mr McGovern raises criticism that when allegations are made, the Conference takes hearsay evidence from one party, especially when domestic violence is alleged, without the opportunity for defence or disclosure regarding the nature of allegations made. He went on to explain that the MARAC process is shrouded in secrecy, and he claimed evidence from a Freedom of Information request that evidence is only taken from females, lending the agencies involved open to criticism for gender discrimination. Mr McGovern went on to explain that this gender barrier has resulted in male victims of domestic violence being blocked from having access to local authority services, and children not having been protected from harm, due to the unipolar nature of such investigations.

One major criticism was that the accused is not provided with the evidence used by the MARAC to reach a finding. Following the finding, Social Services will meet both parents, but will only divulge the finding rather than the evidence upon which it was based.  Mr McGovern argues that this secrecy and a failure to disclose evidence is a breach of Article 6 of the Human Rights Act.

The verdict of the undefended MARAC inquiry can equip a vexatious litigant with the ammunition to approach the Family Court without notice to the father, and armed with the undefended MARAC findings, the Court will automatically make orders removing the father from both the family home and the children’s. Should he breach the orders made, he may face jail. 

Mr McGovern has contributed to a number of successful Ombudsman Investigations where findings were made against London Borough of Brent Social Services, Brent Children’s and Adolescent Mental Health Services (C.A.M.H.S), the Solicitors Regulatory Authority, Brent Primary Care Trust (a divisional arm of the National Health Service), and the Children’s and Family Court Advisory Support Service (CAFCASS).

Despite findings against and criticism of these organisations, Mr McGovern argues that the systems and processes undertaken by Multi Agency Risk Assessment Conferences continue to be incompatible with the Human Rights Act, and violate human rights in the UK.

The representations to the EU Parliament come only days after Mr Justice Tyzack criticised teachers and specialists for accepting abuse allegations without question. The judge emphasised that professionals need to keep an open mind, and not take allegations at face value.

TCM Comment
The costs involved in cross-border litigation, and litigation concerning jurisdictional disputes or other aspects of international family law are staggering. It's not uncommon to have a parent asked for a down payment of £30,000 for a leave to remove case, with estimates given of up to £100,000 in legal costs. In the German father's case, the costs for both sides have exceeded £200,000. All this to enforce an existing order. 

In relation to the other matters raised by Mr McGovern, aside from the significant harm done to the falsely accused and their children, false allegations draw diminishing resources from support services for genuine victims of abuse. The transparency wanted by Sir James Munby needs to extend beyond the court to the MARAC process.  It staggers us that someone can be barred from seeing their children and lose their home, in a closed court, following a closed investigation, where not all evidence is disclosed, and where the accused does not have representation. To my mind, not a system to be proud of, or one which supports transparent and equitable justice. Due to the draconian nature of injunctive orders, we have no doubt that allegations should be heard against the test 'beyond reasonable doubt' rather than upon the 'balance of probability' as happens in the family court. Violence and abuse are criminal matters, should be treated as such, as should the making of false allegations, and heard in the criminal courts.

The court has to take a cautious approach when allegations are made, but there also needs to be greater use of penalties for false allegations. Tyzack's cautionary words need to be heeded. There is gender bias in DV services, but this reflects an attitude in society that violence against men is more acceptable, or even a matter for humour.

If you're sceptical, watch the video below, published by Mankind (and if the thought enters into your mind "he probably asked for it", would you hold the same thought in respect of the woman being abused).

Family Law App: Help with Crisis Situations and More

In the event you missed it, we've built our Crisis Menu into our main Resolving Disputes section.

You'll find practical, step-by-step answers and approaches to the most common crisis situations, whether your children and ex-partner are missing, you're facing a psychological assessment, there is risk of domestic violence, the children are at immediate risk of harm, it's disputed you're the father, you're not seeing your child, you face false allegations or your ex-partner is threatening to take the children abroad or move some distance away.

Whether or not the parent faces these crisis situations, knowledge of what you might do in these situations can reassure and reduce stress. 

Sections on Contact Enforcement, Internal Relocation, Leave to Remove, Parental Alienation and Paternity Testing will have dedicated case law libraries in support. We should have this section of the project concluded within the next two weeks (three of these libraries are already live, and we'll be reviewing case law as we go).

New on our Resolving Disputes Menu is a dedicated Welfare and CAFCASS section, including guides on CAFCASS, Family Assistance Orders, the role of the Guardian-Ad-Litem, Parenting Information Programmes, and a new page giving suggestions when meeting CAFCASS. 

Click on any of the images to be taken directly to those pages or use the links.

Abusing Legal Aid

In 2013 there was a hoo-hah. Victims of domestic violence were only to receive legal aid from April 2013 if there was evidence to support an application, introduced by The Legal Aid, Sentencing and Punishment of Offenders Act (LAPSO). The list of evidence included:

• an existing protective order or injunction in respect of the other party, against the applicant; 
• an undertaking having been given by the other party in lieu of a protective order or injunction for the protection of the applicant;
• a police caution for domestic violence against the applicant;
• appropriate evidence of admission to a domestic violence refuge;
• appropriate evidence from a social services department confirming the provision of services to the victim in relation to alleged domestic violence;
• evidence from GPs;
• a criminal conviction for domestic violence by the other party against the applicant;
• evidence of a multi-agency risk assessment conference having been referred as at risk of domestic violence, with action recommended;
• a finding of fact by the courts of domestic violence by the other party against the applicant.

The reason for this restriction was due to concerns that, with legal aid being otherwise abolished, the number of false allegations would skyrocket as the system was manipulated to achieve free legal representation.

False allegations are common in the courts. We all know it. We see it week in, week out. They may be due to parental anxiety or hostility. They may come from psychological problems and projection. When intentional and deliberate, the motives include the fast removal of an ex from a property... stopping contact for months... securing free legal representation... and punishment. Sometimes allegations are made for purely pragmatic (and somewhat sociopathic) reasons. The relationship is over... I want him/her out of my life completely.

Mrs Justice Parker reminded all us in December, in a judgment where the mother had alleged domestic violence, that not all allegations are genuine. She found that Social Services had uncritically accepted the mother's allegations and the mother had abused the children herself. She reminded people not to always believe claims of domestic violence and that sometimes parents rewrite history. She's a highly capable judge, and the surprise comes not from her saying this, but it being deemed so exceptional that the national papers reported it.

Should it surprise us that DV allegations aren't critically examined? Not at all. A culture exists where reports of allegations are treated as confirmed happenings (by both media and politicians... I've pointed to examples in other blog posts last year). There's an underlying current that questioning the authenticity of allegations causes abuse to the victim a second time. Such reasoning, and the low balance of proof required in the family courts lends itself to miscarriages of justice. Fact finding decisions are binary (the judge may only decide a matter did or did not happen... unproven is not an option) and the level of proof is that an allegation is more probable than not.

What prompted me to blog about this today?

I was speaking to a police officer today (a friend ...I hadn't been arrested!) who was telling me of another case where he'd been called out and it was clear to him that the call to the police had been tactical, and in his opinion motivated by the parents' up and coming 'custody case' as he called it. The father was removed, but no caution given, and there would be no prosecution. No violence had taken place.

Another call came tonight from a friend wishing me a belated Happy New Year. They happen to be a legal adviser, and were irritated by the number of ex-parte non-molestation orders being sought and granted in 2013. Sighing, they went on to explain that at the following on-notice hearings, the accused was encouraged to give an undertaking. In each of these non-mol cases, later on in proceedings, the non-molestation order was rescinded after findings of fact went in favour of the (falsely) accused. Their clear view was the system is being manipulated. Also that judges share suspicions, but feel obliged to order finding of fact hearings or else face judgments being appealed.

The bizarre situation arises that by making false allegations of domestic violence, the accuser ends up being the perpetrator, and is unwittingly assisted in this by the legal system. Not only this, the perpetrator is financially rewarded. If the (later rescinded) non-mol order didn't see them gain legal aid, the giving of an undertaking (even when a cross undertaking) saved them a few thousand pounds in legal costs. Does the court punish those who make false allegations? Very, very rarely - and Mrs Justice Parker is an exceptionally analytical judge. Is it a crime? Yes... it's contempt of court and fraud, but the court's rarely treat it so.

If the accused is advised by counsel for the other side or encouraged by the judge to give an undertaking (it implies no guilt but carries possible imprisonment for a breach), they unwittingly hand their accuser a cheque, made out by the Government, which pays for legal representation to reduce or eliminate their time in their children's lives. How's about that for a masterclass in vicious manipulation and coercive control.

When it was announced in September that despite the increased reported number of domestic violence allegations to the police, the proportion being sent to the Crown Prosecution Service had gone down. Papers and DV charities automatically reached the conclusion that the police were failing victims (despite reasons for the fall not being recorded). Note... with no evidence or analysis, there was the assumption that police were failing victims. Yvette Cooper blamed police cuts (with no evidence to support that the increase was in genuine victims). It is always possible that the police are analysing allegations where others aren't (even if such action isn't fashionable).

When the evidence based restrictions on awarding legal aid in DV cases were proposed, DV organisations opposed this. Arguments that there should be punishments for false allegations were also opposed. Narrow interest lobbying organisations influence Government, prepared to defend one group of victims at the expense of the other.

What about the victims created by false allegations, the impact on child welfare of unreasonably (in hindsight) stopped contact? What about the services diverted from real victims? What about the money drained from the public purse to support perpetrators in carrying out domestic violence (and fund their doing so via court proceedings)? Not only this, but the abuser ends up with expert support in court, while the victim often has none.

There is a solution. The binary nature of decision making in family law should be widened to include unproven. In instances where allegations are proven to be false (as opposed to unproven), a proportion of funding should be recovered from solicitors (an encouragement for a little analysis when their client approaches them with the allegation). Let the solicitor check the evidence themselves. I do not believe this is unfair, as we're speaking about professionals who should have this ability. Neither do I think it fair that the solicitor should repay all legal aid funds. They may also then pursue their client to recover the monies repaid to the public purse. The court should treat false allegations as a crime with punitive action taken (including community service and fines). Where false allegations are extreme, committal should be considered. Additionally, proven allegations of domestic violence should be treated as a crime, with more than an injunctive order to dissuade the proven abuser from repetition. Being a crime, the court should perhaps hear DV cases under the test of beyond all reasonable doubt (and base prosecution for false allegations against the same higher threshold test). DV, in all its forms, should be treated seriously (and include unreasonable breach of contact, the impact of which, I still feel is trivialised). Anyone complicit in fraudulent applications for legal aid should face criminal prosecution.

In December, the Guardian reported that DV charities and the legal profession are saying that fewer victims are coming forward because they cannot provide the evidence necessary to get legal aid. Before the state hands over thousands of pounds, of course there should be evidence, or in the absence, a mechanism of recovering the funds from people who fraudulently abuse the system for financial gain. Should the courts make injunctions against people where no evidence exists and the accused isn't present in court to defend themselves? No? But they do. Should the Government remove the ineffective evidence based criteria for securing legal aid? Arguably, they should strengthen the controls as the system is left open to abuse (as are the falsely accused who are also DV victims).

Sadly, with risks that the current legal aid system is being abused, the courts should be wary of asking people to give an undertaking, and similarly, people need to be cautious before signing an undertaking in respect of alleged DV. While an undertaking doesn't mean you accept guilt (or you've been found guilty) it does hand your ex-partner a fighting fund to remove your children from you, if that is their wish.

Is the CAB guilty of under reporting DV?

Two interesting stories today left me pondering the alarming statistics from the Citizen's Advice Bureau, and whether they too are part of the problem of the lack of reporting on domestic violence.

Gillian Guy is Chief Executive of the charity said:

“…the Citizens Advice service took action and piloted a new radical programme in bureaux across the country to give victims a safe space to disclose this hidden violence by asking a few routine questions.”

"No less than 27 per cent of female clients involved in the ‘ASK’ scheme said they had experienced domestic violence at certain points since the age of 16 – three per cent higher than the national reported average of 24 per cent. If the same discrepancy were in place across the rest of the UK, it would equal 540,000 victims of unreported domestic violence, the charity claims – “the vast majority of whom would otherwise have stayed silent.”

Now the study only appears to have involved female victims. I've checked back to the March announcement when they talk about compiling their statistics, and it seems, very much, a gender based exercise.

Consider the warning of Mrs Justice Parker to social services in a recent case:

 '...not all allegations of domestic violence and abuse are true and at the end of a stormy and difficult marriage as this has been between the parents of the children, it is very easy for parents to re-write history in their own minds.’

The words 'alleged' and 'allegations' are missing from the CAB's announcement. It's also somewhat disappointing that they report only on alleged domestic violence suffered by women. Domestic violence is, in most accepted definitions, any controlling behaviour, be it physical violence, emotional or psychological abuse, or financial control. Since March 2013, the term coercive control has been accepted within the definition.

Mrs Justice Parker makes a further, objective point relating to contact breakdown and the matter of manipulation of children which, curiously, always seems ignored in domestic violence reporting and statistics:

‘I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful.’

It would be reprehensible to claim that domestic violence against women shouldn't be taken seriously, or should be ignored. However, the CAB do exactly this against men, and fail to report on (or consider) how DV affects non-resident parents and their children in the case of unreasonable contact denial. The case study they give cites a woman whose ex applies to the court for contact (so the issue of contact denial is on their minds...). The sad thing is, where false allegations are made to justify contact denial, the CAB and legal profession can end up perpetuating this 'violence' through the assistance they give the perpetrator against the victim (let's use the proper words!)... and this has gone on for years! All victims need help... when considering the services required, all should be heard in surveys to ensure a balanced provision of services.

Also, it seems that when DV is perpetuated against men (through contact denial), we must justify the seriousness of it in terms of the impact on the child (relegating the impact on the adult to a seemingly minor matter). Contact denial is often routed in controlling behaviour... and despite the emotional and psychological harm caused (and the increased incident of attempted suicide among victims... estimated at 7% in a past survey by a family charity), somehow, stopping a parent from seeing a child (and vice versa) seems less serious among social workers, court welfare officers, and many judges (who don't have Mrs Justice Parker's insight).

Mrs Justice Parker nails it though, when she says it is 'exceptionally harmful', and we'd add, affects millions of adults and children in the UK this Christmas. DV to the non-resident parent... and child abuse too. Let's call it what it is. Their study also ignores male victims and physical domestic violence... and trust me, they exist, and end up hospitalised too.

If the CAB (rightly) views the lack of reporting of DV as a scandal... does it add to the problem by seemingly ignoring how DV impacts on such a large segment of society in their study?

Aren't men citizens too?

The Shared Parenting Campaign...

Heavens... heavens... the tombola has stopped spinning, and it's time to look and see whether we've got a winner...

On the whole... yes, but with reservations. 4 or 5 numbers on the lottery ticket, but not the full house. We won't be purchasing our yacht and sailing into the sunset yet. Briefly, we'll set out what the Government has agreed to:

1. A presumption of shared parenting (this does not mean a 50/50 division of time, but a presumption that both parents will continue to be involved in bringing up their children after separation... so long as it is safe for them to do so).
2. We'll be seeing the terms residence and contact replaced with child arrangement orders. Sole residence is set to go... and that horribly demeaning term 'contact' is off to the dustbin too.
3. There'll be new enforcement measures available to judges, including seizing of passports and removal of driving licenses for breach of orders.

All of these things are positive steps forward. Download the proposed legislative amendments

The Opposition

In terms of opposition, which was considerable, charities such as Gingerbread and One Plus One, along with the Law Society and politicians such as Alan Beith have opposed our aims. David Norgrove's Family Justice Review came out against shared parenting too (heavily influenced by the legal lobby). The opponents used some underhand tactics... claiming that the proposals were confusing (they're not), bringing along a very narrow selection of research (which commonly had small to meaningless sample sizes), claiming that shared parenting meant a 50/50 split of time (when they knew otherwise), and that there was no evidence to support that shared parenting supported child welfare (when there was evidence a plenty). There also seemed a lack of understanding as to what a presumption is... it's a starting point, and not an end! Thankfully, our Government didn't fall for it! Yay them!

Also, there were plenty of academics, individuals, and organisations arguing for shared parenting, and you might be surprised that we know a fair number of solicitors and barristers who did not share the Law Society's view (and who are quietly celebrating too... yay but shh).

Disappointment

There will be some who will see the result as a failure in terms of the overall campaign, and here's where we explain why.

Definitions and Interpretation

What does shared parenting mean? The Government's proposals are too open to judicial interpretation, and each judge will interpret what shared parenting means in their own, individual court. Some will argue that the result will be no different to what we have now. One crusty old judge may feel that Sunday afternoons once a fortnight is a 'meaningful involvement', while in the court next door, a judge who was or is more of a hands on parent would see family life and a father's role quite differently. That roulette wheel spins in every case... and opponents of the current legal system want a measure of uncertainty removed by the introduction of more detailed guidance. Perhaps it should be remembered that in 1989, Parliament intended shared residence to be commonplace, but the judicial guidance issued by the President of the Family Division contradicted this.

Domestic Violence and Legal Aid

We, and we hear many in the legal profession sharing this view, believe that the number of domestic violence allegations will skyrocket next year. The reason being that legal aid will be given to parents who claim to be victim of domestic violence, while otherwise, parents must employ a solicitor or represent themselves.

With no penalty for false allegations, the tactic of false allegations to stop contact for a 3 or 6 month period while the allegations are investigated will be appealing to the unscrupulous (as will free legal representation!). The status quo will grow in the their favour, and even if the court believes the allegations to be a pack of lies, there will be no sanction. Many falsely accused could also be forced out of their homes by the use of occupation orders or threatened with jail via non-molestation orders. Without more thought, the situation will be ugly, and many children and parents will suffer. Those genuine victims of domestic violence will see services stretched, and face greater disbelief and obstacles, as the courts try to fathom whether this 'victim' is genuine.

It might be appropriate if courts started awarding costs against those who falsely accuse (including legal aid costs), and treat contact denial based on false allegations (and contact denial in general) as another form of domestic violence and child abuse.

What comes next?

Will the Government's proposals result in real change? Will more children have the benefit of both parents in their lives? Will the court use the new enforcement measures? Who knows... we'll have to wait and see.

The Government were right, that without a presumption of shared parenting there was little incentive for waring parents to enter into mediation. They were right, that shared parenting is fundamentally in children's best interests, and a presumption with a caveat on safety is inextricably supportive of child welfare. The research supports that... and comes from respected academics and experts in child welfare, rather than law (surely, as it should be!).

Much will depend on judicial interpretation. We do not know yet who will be the next President of the Family Division of the Courts, but their guidance on this matter will be crucial. Thorpe is due to retire next year too... so we're to lose the two most senior family law judges, and we're seeing a young topgun (Mr Justice Ryder... 'I'm not the youngest High Court Judge ever... but the second youngest I believe') brought in to oversee judicial modernisation. Add to this the loss of funding for some 45,000 private family law cases when legal aid goes... a large increase in litigants-in-person...  a legal system which remains overly complex and is already stretched... and an increase in false allegations caused by legal aid criteria... and it's a recipe for difficult times...

So celebrate or not?

Today... oh yes! Without opposition to, and credible arguments raised against those who were against shared parenting, we'd have seen no progress. Congratulations and thank you to those who took part. It is a progressive step forward, and one to be welcomed.

To those who remain concerned, skeptical and disappointed... we understand, and you've good reason. So forgive us while we celebrate tonight... too early for champagne, but a glass of pinot gris is welcome. Tomorrow we'll need to roll up our shirt sleeves and carry on. The world is a little brighter today, but it hasn't changed yet... and the forecast for next year is positively stormy!

W Children [2012] EWCA Civ 1307

Father applying for residence... mother appealing on the basis that the court is refusing a finding of fact on issues related to domestic violence. Appeal rejected. Mothers allegations grew as the nature of the case changed, and mother did not object to contact. W (Children) [2012] EWCA Civ 1307 (for full text)

 Paragrah 10 of the judgment holds the core:

 10. Counsel then took instructions and returned to the judge and, in a long passage which I need not read in full, counsel for the mother made it plain as follows:

"My client's position is this. That notwithstanding any of the allegations that she still generally believes are true that she would like the children to see their father in a controlled environment and if he is able to behave appropriately and have a father, child relationship with them she would wish contact to progress."

And she then set out how that would happen. Counsel told the judge: 

"She understands that that would mean drawing a line in the sand in respect of her allegations both the ones she has detailed in her statements to the court and those she has raised today in respect of dad's conduct towards the children specifically." 

And I omit further words: 

"She is very clear she wants the children to enjoy their relationship with their father." 

I omit more passages:

"Your Honour, as I say, my client does understand that this will be drawing a line under her allegations. She is not withdrawing them in the sense that she does not accept they are fabricated and if I could say that does not strike us as a situation where this woman genuinely believes what she is saying. Whether that is objectively how events have occurred is a different matter and I know that it is a point that troubles my learned friend."

 ...and paragraph 26 explains the judges' refusal of the mother's appeal:

26.Treating this as an exercise of discretion, Ms Earley attacks it as being plainly wrong. In my judgment it was plainly right. The judge was fully entitled to look at delay, to look at the way of the mother's allegations of bullying had gradually grown as the case progressed, and to have regard to the fact that the mother was perfectly happy to leave these children in the father's care unsupervised and unsupported for weekends and over holiday periods. She consented to all of those orders. She was aware of the effect of the compromise in August when she agreed those orders. She did not then complain. She complained only when the case had changed and she was now the one seeking residence from father, who had the backing of the social services in retaining the children in his care.

Have the Wigs returned as a political force?

This week, Sir Nicholas Wall, President of the Family Division of the Courts, made plain his view that unmarried couples should have the same right to property as that of married couples. I can see arguments on both sides. The objective view is that entering into a contract is a choice, and entering into a contract requires consent by both parties. Some say that if people want the contractual rights that come with marriage, they should get married. The traditionalists worry that widening rights for unmarried partners weakens the institution of marriage.

There is a valid case for saying that where assets have been accumulated by partners over the course of a long relationship, these should be divided. The view that a man should support a woman for life is somewhat patriarchal.

Should Sir Nicholas be involving himself in these debates? The Guide to Judicial Conduct advises caution. The Daily Mail and even The Times considered that Sir Nicholas had crossed the line.

Lord Devlin, a former Law Lord said “The judges are the keepers of the law and the qualities they need for that task are not those of the creative law-maker. Enthusiasm is not and cannot be a judicial virtue. It means taking sides and if a judge takes sides, he loses the appearance of impartiality and quite possibly impartiality itself.”

On the issue of domestic violence, Sir Nicholas’s October 2010 speech called into question his impartiality on the subject of domestic violence. Admitting his views were not politically correct, he said domestic violence was mainly a male problem. According to evidence (the British Crime Survey), 40% of victims of domestic violence are men (including being a victim of severe force). What may be a more accurate reflection on this serious issue is that the courts treat male on female violence (whether physical or psychological) far more seriously when the victim is female. Sir Nicholas went on to give a somewhat absurd notion that 'if men embrace the comfortable doctrine that domestic violence affects people of both genders, that is a short step away from doing nothing about it?' Absolutely bizarre! You can read this gem for yourself at paragraph 8 of his speech.

There is a belief that gender discrimination in the courts is systemic, and particularly in relocation cases. The courts follow a historic and patriarchal view that mothers will not be able to emotionally cope should their wish to emigrate with the children be denied by the court. The father is expected to handle his children going to another country, and his relationship with them being pared to the bone if not lost completely. The impact on the children, in the cases I’ve been involved in, receives little or no consideration at all.

I can accept Sir Nicholas condemning the last Government for their plans to make the courts self funding (which would have made family law inaccessible to all bar the rich), and conduct guidelines would allow this as the Government’s plans would have directly impinged on the administration of justice.

Sir Nicholas’s latest opinions cannot be so easily defended, as he crosses the line between judge and politician. On the subject of domestic violence and gender, it isn’t only a question as to whether he should have entered the political fray, but his publicly voicing an opinion which was both politically and factually incorrect.

In November 2009, in an earlier speech to the Association of Lawyers for Children, Sir Nicholas said it was the duty of judges to speak out over changes that were damaging the service to children and families. He also said that “the time has now come when the historical and indeed instinctive judicial reluctance to go public...must come to an end.” Perhaps his own house needs to be put in order first.

If Sir Nicholas is to restore some confidence in his office and the family courts in general, he might like to consider ruling that the guidance in relocation cases was made without care by his colleague LJ Thorpe, and set it aside. He should provide practice directions reminding his judiciary that all evidence, including child welfare research must be considered in relocation cases. For him to be seen to follow a non-discriminatory position on domestic violence, he should perhaps include contact denial and the making of false allegations as forms of domestic violence.

Michael Robinson - www.thecustodyminefield.com