Former Judge and President of the Family Division of the High Court of England and Wales, Sir James Munby, has recently commented that reporting restrictions that have been placed on family Court cases are “hopelessly obsolescent” and should be removed.
Whilst in other Courts justice is seen to be done this does not apply in family proceedings as the hearings take place in private and are rarely reported in the media.
Reporting in family Court Cases
Sir James Munby, speaking at a conference in Edinburgh, went on to comment that since the withdrawal of legal aid for private family law matters in 2012 that there has been little effective examination of family cases, which would highlight the problems that the Courts are currently experiencing:
“The effect of LASPO [the 2012 Legal Aid, Sentencing and Punishment of Offenders Act], with its withdrawal of legal aid from most private law disputes, has been to make the family court an increasingly lawyer-free zone, with ever increasing numbers of litigants having to appear unrepresented and without legal advice,”
Adding:
“There has been far too little research into what is actually happening in private family law cases. There is virtually no accessible data as to what is going on in the courts, or as to the orders being made…let alone as to outcomes more generally. Not merely is the private law family court an increasingly lawyer-free zone, it is, to all intents and purposes, a black hole in relation to data and researchers.”
Sir James Munby strongly recommended that legal aid be made available to all respondents, on a means tested basis, in cases where:
- Domestic violence has been alleged; and
- Where an applicant has been permitted legal aid.
He also suggests removing the “suffocating effect of section 12” – which essentially stops the reporting of what happens in family law Court cases –, replacing it with much less restrictive and modern procedures.
Case law
In support of his argument, Sir James Mundy referenced a recent high profile High Court case (JH v MF [2020] EWHC 86 (Fam)) to highlight the issues with the family Courts.
This case included a woman who had legal aid and a man who did not, which according to Sir James Munby distorted the case, and the ruling of the sitting Judge in the context of coercive and controlling behaviour was, in the opinion of the former Judge, astonishing.
With regards to the case, Munby said:
“Some will say that this particular judgment is not typical, that it is an outlier.
“Others no doubt will say that it is no more than the very small tip of the proverbial iceberg. Without research, we simply do not know, but I fear that the latter view is probably very much closer to the truth.”
Comment
In the family Court you can face the prospect of losing contact with your children if adverse findings are made against you. It is very important to avoid incorrect assumptions being made by stating your case clearly and in accordance with the law. To do this you should take independent expert professional legal advice.
What appears to be parental alienation is in fact behaviour arising as a consequence of domestic violence or vice versa.
Childrens’ behaviour needs to be considered in accordance with their individual needs and should not be automatically attributed to the parents’ behaviour and characteristics. Expert evidence is often required to prove this to the requisite legal standard.
How can Nelsons help?
Melanie Bridgen is a Partner in our expert Family Law team, who can advise on these issues.
For more information on the topics discussed in this article, please contact Melanie or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.