Mr Justice Coleridge: family judges should express themselves forcefully and publicly
3 December 2010
Family law judges have been unusually vocal recently in sharing their ideas for family justice reform. The latest to put his case is the High Court judge Mr Justice Coleridge, in a speech entitled Lets hear it for the Child; Restoring the Authority of the Family Court, Blue Skies and Sacred Cows given at the Association of Lawyers for Children’s 21st Annual Conference last week.
The traditional role of judges is to speak out in court and stay silent outside of it. But the relatively new head of the family courts, Sir Nicolas Wall, has set a strong example of judicial outspokenness, and it appears that the other judges are following suit in the face of large cuts to the family justice budget. That being said, Mr Justice Coleridge has been a vocal advocate for family justice reform for a number of years.
Coleridge was very clear that he was coming off the fence, judicially speaking. He stated that “in these new circumstances” judges are “not only entitled to have a view, gained from direct daily experience, but a duty to speak out and express it publicly and, if necessary forcefully, when circumstances demand it. Nowadays it is the “proper function of the family judge to express himself/herself publicly”.
Mr Justice Coleridge’s speech had three aspects: first, how the Family Courts in Britain are going to deal with the proposed 23% cut in the Ministry of Justice Budget, secondly what he suggests are some of the current problems in the Family Courts and finally some solutions for improvement, for now and for when the cuts come into play. The thrust of his speech was how to deal practically with the implications of less money and more work in the family law courts, citing the example of the intractable contact dispute. Coleridge is keen to emphasise that the family courts are a front-line service for the family at the time of breakdown, akin to, and just as integral as the family GP.
The crux of the problems facing family courts said Coleridge is two-fold: a reduction in the perceived authority of the family court and the family judge and secondly, an increasing tendency to “listening uncritically to the unfiltered views and wishes of children” in order to decide what is best for the child.
This lack of authority is what Coleridge perceives as a “major contributing factor” to the problems facing the family courts today. Court orders are treated with impunity, “regarded as helpful advice rather than binding edicts to be obeyed”. Coleridge quoted another judge, the then Mr Justice Munby (now Munby LJ), in the infamous case where a “wholly deserving father” left court in tears, (Re D (intractable contract dispute) 2004 1FLR 1226), Munby J, claimed that “flabby judicial responses” encourage the very impunity judges are trying hard to avoid.
Coleridge states that the decline in judicial authority is a “symptom of a greater problem” that of the lack of parental authority and the way authority is now treated in society. He quotes Dr Aric Sigman, an American doctor who calls himself, amongst other things, a “street anthropologist”, to support this point,
There is a growing list of compelling reasons to unashamedly reinstate adult authority and hierarchy as an absolute necessity in relation to our children…. Erosion of authority is cascading across our society. You could call it institutionalised disrespect.
Coleridge supports Munby’s J cry to “grasp the nettle” and deliver swift judicial decisions which have penalties attached to them in event that they are ignored. Similar to criminal proceedings, any flouting of the courts authority (lateness, not following bail conditions etc) can and usually does result in a punishment, possibly including a night or two in the cells.
Roll back the soft furnishings and the casual court attire, described analogously by Dr Sigman as a “misguided attempt to be more sensitive to the children’s needs”, judges should get tough. A move back to wearing robes in family courts is welcomed by some practitioners as a way to reclaim their lost authority.
The sacred cow in Coleridge’s speech is the views and wishes of the child. Enshrined in the Children’s Act 1989 is the need in an age appropriate way to listen to the views and wishes of the children involved. Coleridge J rallies us to hear it for, rather than from the child, he states there has been too much emphasis on listening to their views and wishes, particularly from younger children, who are he states being forced by the courts to choose between their parents. Children after all he claims are technically treated in law as “being under a disability” and therefore shouldn’t really be forced to make their views and wishes heard. He goes so far as to argue that this emphasis is a symptom of family law practitioners
[s]hirking their responsibility to a degree which is bordering on the abusive. In just the same way as the weak and indecisive parent allows the children to call the shots we are abnegating our function to a degree which is nothing short of cowardly and unfair.
This seems to undermine the Children’s Act 1989 and other principles of law relating to children. The UK has for example one of the lowest ages of criminal responsibility, if a child of 10 can be held criminally responsible for their actions, arguably by analogy their views and wishes should be heard in family proceedings.
From problems to solutions; Coleridge suggests more training to ensure actions are taken authoritatively at an earlier stage. More controversially he suggests something similar to a “three strikes and you are out” approach. Simply put if you as a parent in custody of your child breach three court orders you could find your child being removed from your home and taking residence with the other parent, a guardian or even being placed in a foster home.
Coleridge recognises that judicial toughness for breaching court orders should not usually result in imprisonment but at the same time does not rule it out as a method to bolster authority. A further suggestion was judicial continuity in cases, he cites the example of a case where there were 43 different hearings conducted by 16 different judges.
He concluded that if these suggestions if implemented will be in the best interests of the child, will improve the smooth running of family courts and will revive their authority.
See also commentary on the speech on the Pink Tape Blog
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Something needs to be done about the Family court proceedings. My Fiance and I have already spent 9k in 9months to secure a court order (consent) for his 21 month old daughter. The Mother has now left her part time job to secure more legal aid, and we will be taking her back to court because she has already broke the court order. We will pay probably another £1000 to enforce the order.
My Fiance is a natural Father, the bond he has with his Daughter is amazing, Im looking forward to our future together as a family, we only see her twice a week with no overnight access. We are going for half residency and half custody. I’m a senior Nurse in the NHS and am deeply shocked through professional dealings with child protection cases that a naturally able, kind , caring Father in 2010 continues to fight so hard to be an active Father.
The Mother stopped taking her Birth pill without advising my Fiance who had advised her on many occassions he did not want children. This all happened after only dating for 6 months; she gave him two options when she became pregnant, ‘leave and not see your child or stay with me’. She seems to have a personality disorder, unproved at present. My Fiance chose to seperate when his Daughter was 1. This was following an attempt to strangle my Partner whilst he was holding their child!
You could not make up such stories. The tax payer is paying her legal bills and we as fine upstanding citizens are spending spending spending!!
I would love to advise Justice Coleridge of our current plight. Our final hearing is in March 2011.
Step Mother to be!
As one would expect, Coleridge J makes good points and expresses them in a characteristically outspoken way. He stressed (on page 3) that he was stating his own views. Personally, I think it would be preferable for the Judges to speak collectively but they should nevertheless speak out on matters of concern. One thing is certain: he was not exaggerating the scale of the problems caused by family breakdowns.
There is a Family Justice Review in progress. What will that birng? Perhaps the only pointer so far is that greater use of mediation will be required in private law family cases. Quite where this will leave Family Proceedings Courts is unclear. In those courts either Magistrates or District Judges (Magistrates’ Courts) sit. They probably handle the majority of the more straightforward private law cases though these are often the contact and residence disputes about which Coleridge J spoke.
There are delays in cases and many reasons for them: one being the serious under-funding of CAFCASS.
Are so many “experts” required? Almost certainly not. Most cases ultimately turn on the overall family and home situation. Where it is claimed that expert opinion is required the court should examine the request in great detail. There has been too much willingness to accept that their evidence will assist. A kind of “get the report and see what it says” view.
Should judges be trained in psychiatry? If that is what Coleridge J meant by greater training then I would say not. Surely, ordinary judgment applied to the case will usually suffice. Where it will not suffice then the expert is required.
Judicial continuity? It would be good and, to be fair, is mostly achieved in the “Care Centres.” It hardly exists in FPCs except where the case is allocated to a DJ(MC).
Judges meeting the children was always problematic and whether to do it ought to be considered very carefully. [It is practically impossible in FPCs unless, again, the court is just a DJ]. Their views have to be ascertained and older children will have views – often quite firm views. Whatever the views, children express them in various ways including in their behaviour. Of course, the ultimate question for the court is what is in the child’s best interests.
There is a general perception that courts have gone “softer.” “Directions” are frequently not properly complied with. [That will worsen as legal aid is cut]. Also, parents will “duck and dive” to avoid a court order which they dislike. That can include bringing in fresh allegations against the other parent as a reason for non-compliance. This is an area which requires a very detailed examination.
Interesting speech though: food for thought.
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