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).

A very British Coup - Payne Reviewed?

The following is of course a fictitious interpretation of what has recently happened in the Royal Courts of Justice, concerning the quite astonishing, and long overdue review (civil court rescue of its family court cousin?) concerning the binding precedent of Payne v Payne. We are of course not reviewing or interpreting or amending what was said in court. Our sincere respects to Lord Justice Moore-Bicke (would he mind staying a while!) and Lady Justice Black, and of course, to Lord Justice Matthew Thorpe, our Head of International Family Law.

MB
"Now look into my eyes...

Let me introduce myself. I'm a new boy to family law, so bear with me if I appear a little callow. Well yes, I may be Deputy Head of Civil Justice, but I'm only here by chance, just filling in for the day!

Let us remind ourselves that our President of the Family Courts said a review of Payne wasn't possible in the Court of Appeal, so of course, this isn’t what we’ll be doing in court today. Sir Nicholas was of course quite right that only the Supreme Court or Parliament could review binding precedent *mumble*... yes I'm aware that if Payne had been applied 'per incuriam' - without care - then of course the Court of Appeal could make corrections, but that's not why I've been parachuted in *cough*, I mean why I am here by chance today [and if it is held that I have reviewed Payne, I've covered myself quite nicely at paragraph 79... note well Lord Falconer, this is why judges should have an advocacy background and not come from the lesser ranks!].

So let me be quite clear, this judgment I am handing down today, in this case K (Children) does not include a review of Payne, oh no, not in the slightest. I've simply passed some comments on Payne, I'm not reviewing it at all, and I am not contradicting our President of the Family Courts.

Payne of course remains as precedent, but only in so far as it raised a single point of law (look into my eyes)..."that child welfare must be the court's paramount consideration" [which of course needed to be emphasised in 2001 as a point of law, given that some of my colleagues appear not to have understood what paramountcy means - looking at no-one in particular].

I am aware that some will say that I am rewriting the guidance in Payne (the Solicitors Journal), but they're quite mistaken... not at all what I'm doing, I'd just like you to consider that the entire family justice profession and judiciary, with the notable exceptions of Hedley J and Elias LJ, have misunderstood and misapplied Payne v Payne for the last 11 years [so glad I come from the civil courts!]

We'll avoid mentioning the thousands of British families affected. The children who
have subsequently lost contact with the parents left behind due the court's additional
naivety at blindly believing so many 'primary carers' that they will of course support
contact once beyond the UK court's grasp. No point mentioning the emotional, psychological and developmental harm which relocation risks inflicting on our children. We can't turn the clock back, and they're no longer within our jurisdiction, so they're not British children now, strictly speaking, or our responsibility.

Clearly, there is little point in apportioning blame, when the only way to sack those responsible would be to have both Houses of Parliament vote to remove them from office, and that has only happened once in 250 years. Parliament's attention is understandably focused elsewhere. [Could the timing of this judgment have been any better... thank heavens for the News of the World!]

Let us also avoid Matthew's quoting of statistics, and the fact that the Equalities Commission found in 2008 that fathers and mothers share care almost equally in today's society, and it is only once the courts become involved that this falls from almost 50% to the 3% that Matthew just quoted to you.

Let us also avoid mentioning the likelihood of harm caused to children by the court's position for the last 40 years, and that Briefing Report and evidence submitted at Westminster last November by The Custody Minefield and Families Need Fathers which highlighted that these risks of harm have been known since 2002, yet it has taken concerted campaigning to get the family courts to remember that their raison d'etre is safeguarding child welfare and not dogmatic wrangling over protocol.

*Cough* Moving swiftly on, I believe it is a more sensible resolution to say
that, what you believed Payne v Payne to have meant, and how it bound you all
wasn't in the slightest what the Lord Justices intended... was it Matthew... just nod old chap!

...and of course the guidance must be 'followed', as the President of the Family Courts said recently), what he actually meant was 'considered', since aside from the sole point of law concerning the paramountcy principle, it just provides some jolly useful tips, which of course should be considered, but that guidance is merely guidance, it isn't actually binding you see, and never was!

There has however been a jolly unfortunate misunderstanding, and had it not been for Matthew's slight slip in 2007 which caused this fuss, of using super-glue to apply guidance as precedent, we could all be doing something else this afternoon.

...and of course Re Y should be heeded by the judiciary where care is shared as Matthew so rightly just reminded you [after our little chat].

With reference to his comment that Re Y will only affect a handful of cases, I refer you to Lady Justice Black.

Lady Justice Black peers over the top of her glasses and says [and I quote] ... 'I would not expect to find cases bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements are such as to make the case "a Payne case" or "a Re Y case"'

(Is that clear Matthew)

So you've all been dreaming... you're in a better place... I'm going to count back now, 3.... 2..... 1....."

[Editor – ‘Does anyone remember that moment when Bobby Ewing stepped out of the shower and he hadn’t been murdered at all, 18 months before?']

A dream? Peut-etre c'etait un cauchemar pour les enfants’.

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Payne Reviewed? A Very British Coup

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