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Family analysis: In his final press conference at the Royal Courts of Justice before his retirement after five years as President of the Family Division, Sir James Munby was outspoken to the last. Here, he summaries his views including on delays to essential reforms, the rights of victims of domestic abuse, divorce law reform and why judges should speak out on social injustices.
In a recent speech to the Family Justice Young People’s Board, you said you had ‘failed’ to achieve reforms to stop alleged abusers cross-examining their alleged victims in fact finding hearings and to enable children to have greater access to the courts. What stopped the reforms, and what other areas would you like to have progressed if you had more time as President?
I am not going to talk politics, either with a big or a small ‘p’. But law reform in this country is bedevilled by immense delays when even the seemingly most easy and obvious thing takes decades to be implemented. The speech I gave to the board was very hard-hitting even by my standards, and unequivocally points the finger of responsibility in a particular quarter. I said the Family Procedure Rules Committee and the President both wished to introduce a new practice direction to put a stop to the scandal of alleged victims of domestic abuse being cross-examined by their alleged perpetrators. The government simply says: ‘We agree but we will have to wait for a Parliamentary timetable.’
There is also a pressing need to change the way in which we arrange for children, if they wish, to come and see the court, give evidence if they want to and meet the judges. The simple fact is that the relevant working group recommended reforms four years ago. The Rules Committee has been investigating it for three years—and absolutely nothing has happened. The Minister [Justice Minister Lucy Frazer] wrote a letter very recently saying that she couldn’t support this. Why had the Family Procedure Rules Committee and the President recommended this? Because it is the right thing to do. Why has the Minister refused to agree? Because of the cost.
Following on from the Supreme Court decision in Owens v Owens, do you want to see divorce reform bring in a faster track to no-fault divorce?
The view which I expressed publicly beforehand was that there might be a disadvantage if the appeal had been allowed, because reform would be off the agenda for another generation and they would simply say ‘well, Munby got it all wrong. Munby was scaremongering.’
What is striking in relation to the divorce law reform is the sheer number of judicial lawyers, academic lawyers and other commentators who say there’s a desperate need for reform, and very few articulate voices against that. There’s a lot of different views of what form the reforms should take, but the need for reform seems to be, by and large, a very widely held view.
What are your views on the court modernisation programme and digitalisation, and how concerned are you about court closures impacting on access to justice?
I foolishly said in 2014, when I was ‘selling’ the family justice report, that what we were experiencing then was the biggest revolution in family justice any of us would ever see in our professional lives. I was wrong because the revolution which we are now seeing with court modernisation and digitalisation is even greater than that.
We are living in a world where, unhappily, far too many families do not have legal aid and are on their own as litigants in person (LIPs), so we have got to make the systems more user friendly.
Anybody who thinks we currently have a network of courts which enables proper access to justice is deluding themselves. I was told that somebody the previous week had walked for 12 miles to get to court and at the end they had to walk 12 miles back home. That is the reality of our present justice system.
But court closures have been going on for years. What we haven’t done is actually ask litigants—our ‘customers’ in the ghastly language we have to use—whether they would prefer to walk 12 miles and see a real judge or talk to the judge by Skype. I would not be at all surprised to discover that significant numbers of people would be saying: ‘Well, actually it’s a complete no-brainer, of course I do not want to go to court, I’d rather do it by Skype.’
There will be cases where you need to have physical contact with a judge, but why should we assume axiomatically that litigants all have to go and see the judge? Why should the judge not go and see the litigants? I was sitting in Norwich yesterday because Norwich was more convenient for the litigants than sitting in London.
We should be more flexible and adventurous in our thinking. I caused shock and horror two or three years ago when I said that, in principle, we shouldn’t object to sitting in a public house. Within living memory, all sorts of courts were sitting in all kinds of local buildings, village halls, town halls, and we’ve got to back to that kind of thing.
You have consistently championed greater transparency in the family courts. Have you achieved as much as you hoped?
Nowadays, with social media and the internet, anybody can publish anything internationally at the click of a button, and therefore one has a completely free, completely unregulated marketplace of information, ideas, dissimulation, misunderstanding and, in some cases, just downright untruths.
In terms of the print media and broadcasting, transparency, including the publication of judgments, has transformed reporting of the family courts.
But there will always be a tension as there are two views. One, which tends to be reflected in the views of many children, social workers and others, is that there is already too much media coverage. The other is that we have got to open up the process further because otherwise we will never get support for the idea that we have a responsible, accountable system of justice. My own view is we have just about got the balance right.
How concerned are you about the stress those working in the family courts face daily?
Morale is high, but because of that people want to go the extra two or three miles. My concern is people do not realise the strain they’re putting themselves under, and if you push people—or let people push themselves too far—we may see the different manifestations of stress in terms of physical or mental illness. Good morale is a defence against that, but if people do crack, then it’s all the more sudden and serious.
What are your concerns about legal aid being largely withdrawn from private family law disputes?
The consequence has been that very large numbers of people are now coming to court without representation. What that has done is show that our present court processes, our rules, our forms, our guidance, is woefully inadequate to enable LIPs, even educated, highly-articulate, intelligent LIPs, to understand the system. And that is a shocking reproach—to us, not them.
We have rules which are of Byzantine complexity. In the Family Court, we have the Family Court Practice (the Red Book)—2,500 pages of rules and procedures. It is impenetrable to laymen and we’ve got to get a grip on this. I think the solution is actually going to come through IT, with rules and practice directions becoming part of the software so we only have to deal with a book 200 pages long.
You have been very forthright about social injustice, for instance in the case last year when you said the nation would have ‘blood on its hands’ if an NHS hospital bed couldn’t be found within days for a teenage girl who was at acute risk of taking her own life. Would you urge other judges to speak out?
There was a very, very high degree of risk that the girl would have been dead within days unless something was done in circumstances where, using more conventional language, nothing had been achieved.
In my book, one has to speak appropriately, in appropriate blunt language, if one is faced with that kind of problem. What was the alternative—an inquest and a lot of hand-wringing?
I think there are some kinds of cases in which very senior judges can appropriately express themselves in a way which would not be appropriate for less senior judges. I am not sure it would necessarily be helpful if every family judge in the country who was faced with a superficially rather similar problem was to use similarly strident language.
I always believe that being a judge is, in one sense, very simple. I am not answerable to the Lord Chief Justice. I am not answerable to any other judge. I am answerable to only two things—my judicial conscience, encapsulated in the juridical oath, and the Court of Appeal or the Supreme Court.
Different judges may take different views as to what is or is not appropriate in the context of the judicial oath. But I do not make any apology for the language I used in that case. As I commented in the subsequent judgment, it was surely no coincidence that, within 24 hours of my saying what I said, miraculously the hospital bed, which had not previously been available, was found.
Looking ahead, what will be the main challenges facing the family justice system?
The biggest problem is that, essentially, we have static resources—whether it is in terms of judges, CAFCASS officers, social workers, court staff—when the volume of family cases is going up very significantly. If this continues, we cannot cope, and there is a very real risk that, unless someone grapples with this, the system will simply, sooner rather than later, fall over.
What do you hope will be your legacy as President?
Probably the two most important things I have done are, firstly, to steer the system through the massive reforms in 2014 when we set up the Family Court, introduced the 26-week protocol and the test of necessity for expert evidence and started to get a grip on the size of bundles. More recently, I have been steering the system through the early stages of the current court modernisation programme.
The second thing is transparency. Things have improved, although there is still a long way to go.
Interviewed by Grania Langdon-Down.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
This News Analysis was first published by LexisPSL Family. Click here to request a free one week trial.
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