Sir James Munby, the outspoken former president of the family division, has called for urgent action to stop the private family law system from collapsing as a result of damaging criticism.
He described the system as being under “heavy and sustained attack” both from those who have been in the system as litigants, and from journalists and family practitioners. Munby went on to add that there was “no room for the complacent assumption that if you are criticised by both you are probably getting it right. On the contrary, it surely suggests that we are getting it very wrong”.
Munby’s comments come from a speech published on the open justice group the Transparency Project‘s website, entitled “The crisis in private family law. He had been scheduled to deliver the speech at an event in Edinburgh but was unable to attend.
Munby addressed the outcry following His Honour Judge Tolson’s judgement following a fact-finding trial in proceedings for child arrangement orders, deemed by the High Court as “so flawed as to require a retrial”.
He said the case illustrated “in microcosm just what is wrong”, saying it was “distorted” by the fact the woman had legal aid and the man did not. The judge’s approach to the issue of consent in the context of a history of coercive and controlling behaviour “was astonishing”.
The former president said: “No doubt 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. I emphasise that exactly the same goes for those judgments relied upon in support of their complaints from those on the other side of the debate.”
In his speech, Munby highlighted the need for independent research to see exactly what was happening on the ground, and made other suggestions to prevent the system from suffering “further damage”. He called for a six-month survey to review key information in every case under part II of the Children Act 1989, and part IV of the Family Law Act 1996.
“Time is running out to address all these problems,” said Munby.
“These continuing attacks on the private law system pose a particular threat to the reputation and standing not merely of the family justice system but also, crucially, of the family judges… These criticisms are immensely damaging and, unless addressed, and seen to be addressed, with vigour, and with a complete lack of either complacency or sentimental self-protection, will sooner rather later, I fear, bring the system to its knees. Confidence in the system is at an all-time low, and unless drastic steps are taken, it will sink even lower.”
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