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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