TERMS AND CONDITIONS to Proceed

My beautiful Byron,

Thursday has come around again. This one finds me a bit ill. Not Coronovirus, I am sure. Food poisoning. Yesterday I ate some dried fruit (dried Persimmon) that tasted a bit off, and in the middle of the night I awoke feeling ill. Well, actually, super ill. Two hours of  pretty gross. But the up side is I feel much better today, a total detox if ever there was one.   I plan to take it slow today, to recover fully. Nurse Phyllis is doing a great job. Vitamin C. And Mint tea. And chicken soup. I am not going to miss my regular Letter to Byron though, so here’s today’s subject.

I found this picture of your grandfather, taken before he went off to fight in the second world war. That reminds me a bit of the courage I need to keep on with this annoying thing called British family law. And the injustice that represents reminding me of the injustice my father fought for 6 long years. I have been fighting to see you for 6 years now. It totally sucks. In the time it took him and the allies to vanquish Mussolini and Hitler, I have failed to even see my own son, or prevent British family court making a judgment nothing short of larceny. Saying ‘I am trying my best’ doesn’t seem plausible. I am sorry my best remains inadequate.

Only yesterday I read a letter from the former President of  Family Law – Sir James Munby – who was the judge that heard my ‘Permission to appeal’ the ridiculous judgment of Michele O’Leary, the type of Judge he refers to in his talk in Edinburgh (Which I copy below for you to read one day if now is too soon) and found that an Appeal should go ahead because O’Leary’s judgment was a load of bollox. So why didn’t the appeal proceed?  The answer is in Sir James’ letter. And it is annoying to me because he knows exactly what happened in your case, yet did nothing.  And here we are years later – two years after I wrote him a detailed letter (Which you can read one day) detailing the fraud in Amlot and Adler’s case.

And still nothing has happened. You still don’t know when you can next see me. And I still don’t know when I can next see you.

At the same time, because I have no legal representation, Adler and Amlot can carry on making whatever applications they choose, which breach previous applications, and still, nothing is done. Judgments are passed in which I am neither present nor represented. And that sucks. As much for you and me as for the reputation of British family law, which is revealed as the antithesis of a fair and equitable judiciary. But rather, one that supports its own members in manner not dissimilar to a New York Mob Family.

I have tried to get legal representation, and I have been represented by several law firms, including the one Fiona Shackleton made famous – until my bill went over £500,000. At which point I couldn’t pay anymore.

I tried to represent myself but that didn’t work out either thanks to yet another hearing where I was not represented and Adler and Amlot persuaded the judge (Ashworth) to not allow me to be represented in a matter which determines whether or not you get to see me. That sucks. And it sucks concurrently to the former President of Family law agreeing that it sucks.

Sir James Munby. The former president of Family law, who knows me and knows about you. And knows about Amlot and Adler and O’Leary. And who proposes remedies for what ails his former charge, Family law, that are ignored. Who ignore remedies that are proposed, including by myself, in the book Who Lies Wins, in which I make plain that a court system – established for adversarial trials of murderers and criminals – with legal assassins trained to scalpel slice in prosecution and defense – is no place for children of warring parents to have their futures left in hands of lawyers whose payment depends on creating animosity.

The entire fabric of family court needs review. And I am not alone in having useful and helpful initiatives that would prevent what happened to you happening to another generation of children. Yet, as Sir James’ points out and as I have learned:

• that judges do not comply with the President’s Guidance of 2017;
• that in the orders they make (or decline to make) judges are not applying section 1(2A) of the 1989 Act as they should and are failing to give effect to the statutory policy;
• that judges are not sufficiently alert to the behaviour of women who are alienating their children from their fathers;
• that judges are not sufficiently robust in ensuring that their orders are actually complied with by recalcitrant mothers;
• and that judges are feeble and flabby in their responses to defiant mothers.

Judge O’Leary was more than feeble and flabby in her assistance to Adler’s Malicious mothering approach. She wasn’t even set down as the judge that day. She switched with the judge who was, and the first thing I was told my my Barrister was “If we get O’Leary we will lose“. That is because he knew she was switching to FIX the hearing towards Adler and Amlot’s favor. At your expense. That’s what sucks. They know what is happening  as members of family law. But nothing gets done. There is no accountability. Judges are allowed to act with impunity.  Free of censure. I even wrote to the DOJ (Department of Justice) and have their reply confirmed that “We have every confidence in our judges being the final arbiters.”  And that my beautiful Byron, is what is known in adult talk as ‘ A crock of shit.’  (Which means you cannot use that rude word until you are an adult, and even then, only when appropriate, which you will only be able to determine when you are an adult and empowered with critical thought process.)

In 2015, when I sat before Sir James in that hearing for Appeal, I really thought I had found the one guy in family court who was going to make things right. Certainly, that fits with what he told me. But even he is still to be found giving talks about the same things that were wrong in my hearing, still wrong today. I probably shouldn’t be astonished after all I have seen, but I am. Truly astonished. These are ‘Thieves walking in broad daylight’. Even the head of Family law points it out. And still NOTHING gets done. Because the DOJ say “Judges are the final arbiters. We don’t need an appeals process at all. Family court judges know best. All the time.”

Being ‘unrepresented’ means Adler and Amlot can make whatever demands they choose and get whatever award they want from whatever judge they choose in family court. That has been the case 100% of the time to date. So, last week, I tried calling a  family solicitor, recommended by my very smart friend,  with a reputation in this type of law. Here’s what she wrote back to me after I disclosed that I would not be able to pay her ‘up front’. Family lawyers are like prostitutes in that, no pay no play. This is the third reply I have had in asking for help after spending over half a million pounds with family law. Explaining that – in British Family law, if you can’t pay them, you cannot expect to be heard. Not even if you want to represent yourself.
…….

Dear Andrew

Thank you very much for your email last Thursday.  I was grateful to you for setting out the background so clearly, but also being specific about what you want to achieve and your expectations and suggestions about how to get there. 

 I have however reviewed the background that you have provided very carefully.

I regret that this firm is not going to be able to assist you.  Our pro bono policy is focussed on  providing advice to community organisations in the areas where we have offices  and only exceptionally extends to advising individuals where they are part of community initiatives.

We don’t operate on a contingency fee basis – i.e. that if nothing is recovered our costs are not met.  We also don’t offer our clients extended credit in Family Law cases.

We do advise where fees are funded by specialist litigation loans.  Those arrangements require an analysis of the assets and likely outcome which is  presented to a specialist funder who will then authorise a loan up to a certain amount based on the initial assessment of risk.  Generally those loans are available where financial remedies are sought but not issues relating to a child’s welfare.  Most frequently they are secured on real property, or backed by after the event insurance in which case the insurance costs are added to the costs of the loan. 

 I am sorry therefore that I am not in a position to help.  As I say, I was very grateful for the comprehensive background which enabled me to consider all the options before responding to you.

Yours sincerely

(Family Solicitor)

…………..

That is all a little deflating and so right now, I am still just hoping someone in family law will take a look at Adler and Amlot and make a decision on how their conduct reflects on child abuse and larceny by family court members. But it is a hope borne from many nights of disappointment over many years. And it may be that our best hope remains – you getting to an age where you can emancipate yourself. Assert your human rights to decide which parent you want to see and when. And heads up, your mother is a family lawyer and will make it difficult for you. But you have legal rights in a way that I do not. You will know when the time is right.

Meanwhile, in the world that goes on, news here is all about this Coronovirus. I wrote a blog about that years ago. Not Coronovirus, but pandemic flu. The biggest one was called the Spanish flu. Here’s the link to that blog. I think although there is a lot of hysteria, if you wash hands a lot, (which I had you doing from the get go so it should be nothing new to you),  stay clean, don’t touch dirty surfaces and drink lots of vitamin C, like fresh orange juice, then you have nothing to fear. Vitamin C is not stored by your body – so you need to take it on several times a day.  Like with every meal. 3 times a day. Don’t shake hands or kiss people. And soon it will all pass. Meanwhile don’t be distracted from all that is important to you. Most of what you hear about Coronovirus is hype. People loo0king to make money out of creating hysterical reactions.

Hope school is going well. I hope one day soon you will be able to write to me privately. In  way that I know it is you and not Adler or Amlot using you. My email for you to use is andrew@andrewbrel.com  Or you can call Chris and he will set up whatever you want to be in touch with me. Message Chris HERE

Miss you,
love you,

Daddy

 

Here are a few of the letters that have been passing in the background these past few weeks. Because they are not age appropriate – I am copying them at the bottom in case you choose to wait until you have more education under your belt, to better understand words not commonly available to a 10 year old, rising 11. There are two letters.

1.) The talk by Sir James Munby, in which he points out the 2 main shortfalls in family law. Of course, as he sat at my own Permission to Appeal, and found in my favor, very strongly, because it was obvious to him as it was to me that the O’Leary judgement was a fix, I think his choice of words in the matter of ‘Appeals’ in family court is in part a reference to my meeting with him. The line that matters most is this:

“How far have things changed since then? Nothing like as much as I would have hoped. And, whatever the state of the law, current practice is profoundly unsatisfactory.”
Here’s his talk in full. I include this for you mostly because when I met Sir James, I had high hopes. He has a tremendous kindness about him. And I am not often wrong about these things.

This is a talk by Sir James Munby (lately President of the Family Division of the High Court of Justice of England and Wales) at the Conference in Edinburgh on 10 February 2020 of Shared Parenting Scotland

It is good of you to invite me to this important Conference. But first, if you will allow me, a health warning in relation to what I am about to say. My experience is in England and Wales, and I confine myself to the situation there. There are others here today much better qualified to talk about what is happening in Scotland, and on such matters I defer unreservedly to them.

But my experience some years ago as Chairman of the English Law Commission taught me one important thing. Our legal arrangements in the United Kingdom mean that we can all learn from what our other jurisdictions are doing. Let me be clear: this is NOT a plea that you follow the example of England. Quite the contrary. Much of what I have to say is very critical of the English system, and I set it out so that you may avoid our failings.

The background for you today is the progress through the Scottish Parliament of the Children (Scotland) Bill. To put what I have to say in context, can I very briefly sketch out the basis upon which the English family court operates. Disputes between parents in relation to the upbringing of their children – what we call private law disputes – are dealt with in accordance with Part II of the Children Act 1989. Claims by one partner for protection from violent or abusive behaviour by the other are dealt with in accordance with Part IV of the Family Law Act 1996.

Section 1(1)(a) of the Children Act 1989, replacing provisions that have been part of our statute law since 1925, provides that:

“When a court determines any question with respect to … the upbringing of a child … the child’s welfare shall be the court’s paramount consideration.”

Sections 1(2A) and (2B), introduced by way of amendment in 2014, provide that:

“(2A)    A court … is as respects each parent … to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

(2B)       In subsection (2A) “involvement” means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.”

This amendment generated much controversy during its passage through Parliament. Some saw it as an unnecessary and potentially damaging gloss on the paramountcy principle. Others saw it as wholly inadequate, as it contains no presumption in relation to either shared parenting, or the equal sharing of time, or even any direct involvement with the child. That debate, as we shall see, has now transferred into an equally controversial debate as to how the amendment operates in practice.

It is now getting on for 16 years since, in April 2004, I delivered a judgment (Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam), [2004] 1 FLR 1226) which attracted much notice at the time and which, sadly, given its contents, continues to be referred to far too often. My judgment in Re D, was an analysis and excoriation of the defects in the private family law system.

How far have things changed since then? Nothing like as much as I would have hoped. And, whatever the state of the law, current practice is profoundly unsatisfactory.

There have been important developments. Some have been positive, like the up-dated Practice Direction 12B: Child Arrangements Programme, and, most important, the significantly revised and up-dated Practice Direction 12J: Child Arrangements and Contact Orders: Domestic Abuse and Harm and the revised President’s Practice Guidance, 18 January 2017: Family Court – Duration of Ex Parte (Without Notice) Orders. Some have been decidedly negative, in particular the baleful and, one fears, all too predictable, and indeed actually predicted, effects of LASPO, the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The effect of LASPO, 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.

It is little wonder that, anecdotally, and on the basis of the day-to-day realities, there is very real concern, to put the point no more starkly, on the part of most family justice professionals.

Looking at matters in the round, there are two major problems. One concerns cases where the issues are such as to make one wonder whether the court should be involved at all. The other, and a very much graver problem, on which I propose to focus, concerns the court’s handling of cases towards the other end of the spectrum, where a judicial determination is plainly required, often against the background of serious allegations and counter-allegations of domestic violence or other forms of domestic abuse.

Here the reality is of a system under heavy and sustained attack from two very different viewpoints:

• One is the viewpoint of those who have experience of the system as litigants: here, much of the debate is polarised and largely gender-based.
• The other viewpoint is that of many experienced and, I emphasise, responsible journalists, and of increasing numbers of legally qualified family practitioners, whose experiences and opinions feature both in the print and broadcast media and on the blogosphere and other online social media.

One perspective is of complaints:

• that judges do not comply with the President’s Guidance of 2017;
• that in the orders they make (or decline to make) judges are not applying section 1(2A) of the 1989 Act as they should and are failing to give effect to the statutory policy;
• that judges are not sufficiently alert to the behaviour of women who are alienating their children from their fathers;
• that judges are not sufficiently robust in ensuring that their orders are actually complied with by recalcitrant mothers;
• and that judges are feeble and flabby in their responses to defiant mothers.

The other perspective is of complaints:

• that judges are not sufficiently alert to and understanding of the very serious problem of domestic abuse in all its forms (largely, though not always, a problem where the perpetrators are men) and its effects on both the parent and the children, especially when the allegation is of coercive and controlling behaviour;
• that judges are not sufficiently aware of what coercive and controlling behaviour is, and how it manifests itself (for example, in preventing victims giving their best evidence in court), and do not treat it as seriously as they should – minimising, for instance the significance and consequences of stalking and harassment;
• that, despite PD 12J, and misinterpreting the meaning of section 1(2A), there is an increasing tendency to revert to a culture of ‘contact at all costs’;
• that judges are unwilling to order risk assessments for proven or admitted abusers;
• that judges are unwilling to accept evidence from domestic abuse experts;
• that judges are too accepting of some supposedly expert evidence in support of allegations of parental alienation;
• that judges are not conducting fact-finding hearings when they should in order to get to the bottom of what has been going on;
• that in some cases where there has been a fact-finding hearing the findings have been skewed by judicial attitudes which are uninformed, lacking in understanding, out-of-date or even misogynistic;
• that judges are frequently failing to comply with the requirements of the relevant Practice Directions, in particular PD 12J;
• that judges are not doing enough to prevent the process itself becoming abusive:
  • judges failing to control and if need be to prevent abusive repeat applications;
  • judges allowing or even facilitating abuse during court hearings, for example, by not making proper use of such ‘special measures’ as are available and by not controlling, and where permissible preventing, inappropriate cross-examination of complainants by their alleged perpetrators; and
• generally, that many applicants find the entire process so daunting and demoralising that they simply ‘give up’, preferring, for example, not to pursue even serious allegations of domestic abuse.

There are other, more generally shared, complaints, for example that there can be long delays and huge backlogs in obtaining police disclosure, leading to hearings being delayed and cases stood out.

It will be noted that, on many of these topics, the system is criticised – is under attack – from those on both sides of the debate. But there is no room for the complacent assumption that if you are criticised by both sides you are probably getting it right. On the contrary, it surely suggests that we are getting it very wrong.

Occasionally, a searchlight is suddenly focused on a particular case, thus revealing, in painful detail and with profoundly distressing clarity, just what is going on. Let me give just one recent example which provides an illuminating peep into the world of the family court: the judgment of Russell J (in JH v MF [2020] EWHC 86 (Fam)) allowing an appeal against the decision of His Honour Judge Tolson QC in a fact-finding case where a woman’s allegations of rape by her partner were the central issue.

The case illustrates in microcosm just what is wrong:

• the entire case was inevitably distorted by the fact that the woman had legal aid and the man did not;
• for reasons which, even if explained by him, are inexplicable, given the relevant Practice Directions and Guidance, the judge decided not to allow the woman the use of screens;
• the judge failed to stop the man’s McKenzie Friend prompting him while he was giving evidence; and, far and away worst of all,
• the judge’s whole approach to the issue of consent in the context of a history of coercive and controlling behaviour was astonishing.

Understandably the case has raised a storm of protest. Very much to the point, and to be read and pondered by anyone with a concern for the system, are four articles to which I draw particular attention. It is a fact, as it happens, that each of these authors is a woman and that the three newspapers referred to are both at the liberal (some, I suppose, might even say the left-wing) end of the spectrum. Anyone tempted to think that this could be a reason for doubting the message – shooting the messenger is always more comfortable than engaging with an extremely challenging message – is a blinkered, complacent fool. As anyone who has taken the trouble to read (or, better, watch) the debates on these issues in the House of Commons over the last few years will know, these are matters on which there is a high degree of consensus on both sides, indeed, in all corners, of the House and on the part of both male and female Members of Parliament.

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.

All this said, our understanding of the private law system – I leave on one side international cases and focus exclusively on ordinary, run of the mill, cases as they feature, day in day out in the family court – is hindered by six pervasive realities:

• First, private law cases, both under the 1989 Act and the 1996 Act, are heard in large part by either Magistrates or District Judges or Deputy District Judges, from whom appeals do not, by and large, ever reach either the Family Division or the Court of Appeal. The senior and appellate judiciary do not therefore have the same exposure to the prevailing practice in private law as they do, in contrast, to practice in public law (care) cases.
• Secondly, because, post-LASPO, the private law family court is, as I have said, increasingly a lawyer-free zone, there is
  • less advice to prospective appellants and therefore, one fears, fewer appeals being brought which might be successful, and
  • less knowledge within and feedback from the professions as to what is a truly going on.
• Thirdly, very few first instance judgments in private law cases are ever published on BAILII, and published judgments by District Judges in such cases are vanishingly few.
• Fourthly, the comparative rarety of published judgments in private law cases has another, particularly serious, consequence. The restrictive provisions of the now elderly and hopelessly obsolescent section 12 of the Administration of justice Act 1960 mean that, absent a published judgment, there is very little that a journalist who has exercised the statutory right to attend a family court hearing can actually publish about the case.
• Fifthly, officially collected statistics are based on criteria which have not always been applied uniformly and which do not in fact measure anything like all the things that ought to be measured. They do not therefore necessarily disclose the full reality. In fact, in the context with which we are here concerned, the published Ministry of Justice (MoJ) statistics are useless.
• Sixthly, 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 (or not 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.

On the other hand, it is absolutely clear that there is still too much – far too much – wrong with the system. What the truth is amongst all this is not easy to determine, not least because of the striking lack of any rigorous, independent, research. But there is a vast and ever-increasing mountain of anecdotal material suggesting, beyond all serious argument, that there are very serious problems which cannot sensibly be ignored by any reasonable person. There is no room for complacency.

The reality is that responsible voices in large numbers and from far too many quarters – journalists, legal commentators, practising family lawyers, Members of Parliament and others – are raised in often severe criticism and in some instances all too justifiable denunciation of our private law system.And what is also very clear, despite the suffocating effect of section 12, is that these issues feature prominently in the mail boxes of both Members of Parliament and journalists, many of whom receive desperate pleas from litigants detailing their distress (to use no stronger word) at the experiences they have suffered at the hands of the private law family justice system.

Both the President of the Family Division and the MoJ have established inquiries tasked with investigation and recommendation, though it is to be noted that the former, chaired by Cobb J, is not tasked to consider PD 12J. But unless these invaluable initiatives are coupled with a serious programme of really independent research, they will not be able to expand their recommendations beyond the purely anecdotal base.

What, then, is to be done? Only a fool would pretend to know the answer. All I can do is suggest a few ideas.

Some things are outside the control of the judges, and thus, in the final analysis, dependent upon political will and commitment and, crucially, a willingness – seemingly lacking at present – to increase, drastically, the financial and other resources necessary if these problems are to be tackled effectively. But given the lack of compassion and political will in our society, how likely of achievement is this in contemporary Britain?

What do I have in mind?

• Legislation to prevent the cross-examination by alleged perpetrators of their alleged victims; draft legislation in the form of the Domestic Abuse Bill will, if enacted, go some way to addressing this long-running scandal but, as has been pointed out, the Bill does not go far enough.
• Legal aid should be made available (subject to means testing) for the respondent in every case where there are allegations of domestic abuse and the applicant has been granted legal aid.
• Additional judicial resources must be made available.
• Further and better special measures must be incorporated in every family court building and made available to all vulnerable witnesses, including, for example, the provision of separate entrances, separate waiting areas, video link facilities and better screens.

Other things require changes to the practice and procedure of the family court:

• We need to divert many more private law cases away from the family court before they ever get there. That is the Government’s policy and it is, in principle, something I have always believed is necessary. It is something at the heart of the Private Law Working Group’s thinking. Plainly, there are cases where a judicial resolution in the family court is essential, for example, cases where there are significant issues in relation to domestic abuse, mental health, or drug or alcohol abuse. But there are many cases which do not require the involvement of a judge and where, to be blunt, exposure of the parties to the court process can sometimes only make matters worse. Moving forward on this front necessitates two things:
  • The first is the provision of mediation, arbitration and all the other out-of-court services that such cases need if they are to be kept out of court.
  • The other is a much more rigorous allocation process, with triage as an essential element.
• There is a pressing need for the introduction of triage at the very outset of the proceedings and before any directions have been given, so as to ensure that cases are allocated to the most appropriate ‘track’. Triage has been familiar to clinicians for a very long time indeed – I believe that it was first applied on the battlefields of the Crimean War over 160 years ago – but it is a concept whose utility seems little appreciated in our justice systems. What do I have in mind?
  • First, the court must decide whether the proceedings should be allowed to continue or whether the matter should be dealt with out of court, either
    • because the parents should be required to exercise their parental responsibility and resolve matters themselves, or
    • because the parents should be diverted into some form of non-court dispute resolution, for example, mediation, arbitration or whatever.
  • Secondly, the court must decide whether or not there needs to be a fact-finding hearing and, if so, give appropriate directions for a focused fact-finding hearing at the earliest possible opportunity.
  • Thirdly, and if the case is to remain in court without an immediate fact-finding hearing, the court must decide which ‘track’ the case should follow.
• Early action is vital to implement the recommendations, once they are published, of the President’s Private Law Working Group and the MoJ’s Spotlight review.

Other things require much better and much more rigorous compliance by the judiciary with the letter and the spirit of existing requirements:

• First, there is an imperative need to make a reality, across the board and without exceptions, of the well-established principles of proper timetabling, fair but robust case management, and, most important of all, judicial continuity.
• Secondly, although this should go without saying, there must be strict compliance in every detail with both the letter and the spirit of PD 12B and, crucially, with the letter and the spirit of PD 12J and the President’s Guidance of 2017.
• Thirdly, judges, including District Judges and Deputy District Judges should be urged to publish more judgments, however seemingly mundane, in private law cases and, especially, in cases where there are allegations (whether substantiated or not) of any form of domestic abuse.

Unhappily, all this will only go so far. What is needed, and it is apparent that this is now urgent if the family court is not to suffer further damage to its already gravely diminished standing, is:

• Enhanced training for judges at all levels in relation to all aspects – legal, procedural and psychological – of domestic abuse, including, in particular, sexual abuse and parental alienation.
• Serious consideration to be given to limiting the trial of domestic abuse cases where there are allegations of sexual abuse to those judges who, having received appropriate training, have been given a ‘ticket’ by the President of the Family Division analogous to the ‘ticket’ authorising judges who have undergone appropriate training to try Serious Sexual Offences in the Crown Court. Is it not beyond time for the family courts to demonstrate that serious sexual assault is to be considered seriously by adequately trained judges, as it is in the criminal jurisdiction?
• The preparation, based on, and distilling the essence of what emerges from, the research referred to below, and covering every aspect of domestic abuse, legal, procedural and psychological, including parental alienation, of both:
  • training materials for the judges and
  • published Guidance.

Finally, there are two other important matters demanding attention:

• First, there is an urgent need to address the problems associated with section 12. It has become increasingly clear that section 12 should be repealed, to be replaced, no doubt, with much less restrictive, more narrowly drawn and more focused legislation better suited to the modern world.
• Secondly, and a matter for immediate action, there needs to be a detailed programme of rigorous, independent research by suitably qualified academics. What I have in mind is, at least to start off with:
  • A comprehensive international literature review of all the existing non-legal research into the existence, causes, and consequences, and means of identifying:
    • Parental alienation
    • Domestic abuse in all its forms.
  • A comprehensive review, including all cases on BAILII as well as in law reports, of all the publicly available English case-law, focusing in particular on first-instance decisions at all levels, relating to:
    • Parental alienation
    • Domestic abuse in all its forms.
  • A time-limited survey, extending for (say) 6 months and recording, in every case during the survey period, enough of the key information to enable one to see what is going on at all levels of the family court in cases under:
    • Part II of the Children Act 1989
    • Part IV of the Family Law Act 1996.
  • This survey would be based on a pro-forma, carefully crafted by practitioners and academic researchers to ensure capture of the relevant data, which would be completed by the judge (or, where the case was heard by magistrates, by their legal adviser) at the end of every hearing in every case during the survey period. To minimise the burden on judges, and maximise the level of compliance, the pro-forma should consist mainly of purely factual questions to which the answer is Yes or No, or which can be answered with the minimum of text (eg, a date, a case number, and so on). There should be a facility to enable judges to provide additional comments, but only if they wish. The data would be transferred to an electronic database to facilitate analysis and the framing of conclusions. Much careful thought would need to go into the planning of this exercise, but the benefits would be enormous in terms of getting, for the first time, a clear view of what is going on in the family court.

Some important research has already been published on some of this, but too much still remains to be done.

Time is running out to address all these problems. 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.

Our public law system is under considerable scrutiny and attack, but most of that is directed either to those parts of the legislation which, for example, permit a care order to be made where there is no more than a risk of future emotional harm or which enable the court to make an adoption order against parental opposition, or to the actions of local authorities and guardians; there is much less direct criticism of the judges. In stark contrast, the attacks on our private law system have much less to do with the law and are much more focused on the alleged failing of the judges.

The point is brought out very starkly when considering PD 12J. Although, there is, I do not doubt, room for improvement to PD 12J, the criticism in very large measure is not that PD 12J is defective but rather that the judges are simply not complying with it. That is a damning indictment.

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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[1]             I said (para 4): “Those who are critical of our family justice system may well see this case as exemplifying everything that is wrong with the system. I can understand such a view. The melancholy truth is that this case illustrates all too uncomfortably the failings of the system. There is much wrong with our system and the time has come for us to recognise that fact and to face up to it.”

[2]             For example, a judge who had allowed rape allegations to be included in the schedule of complaints but excluded all the coercive control as being “irrelevant”, when on the contrary it was essential to contextualise the rape by hearing evidence of what might be a long list of incidents.

[3]             As Russell J said (para 1), “This case is yet another example of the difficulties encountered by litigants when public funding is not available to the party against whom complaints are made; and of the way in which justice or a fair trial is compromised when the judge is required to enter the arena.”

[4]             As Russell J said (para 15), “The Appellant … is a vulnerable witness … and had applied for screens to be made available in the court room … as a measure to be put in place to assist her in giving her best evidence: to enable her to do so is the court’s duty … The judge took the inexplicable step, contrary to the expressed view and request of the Appellant, and contrary to the rules of procedure, of ordering that the Appellant give evidence from counsel’s row as “better” than using the witness box and screens. In doing this he had not only decided not to follow Part 3A of the FPR 2010, but he also completely failed to give any or adequate reasons for doing so … These are serious procedural irregularities which would allow for an appeal to be granted …”

[5]             See the astonishing account of events set out by Russell J (para 16).

[6]             As Russell J put it: “… the judge’s approach towards the issue of consent is manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct (para 33). This is a senior judge, a Designated Family Judge, a leadership judge in the Family Court, expressing a view that, in his judgment, it is not only permissible but also acceptable for penetration to continue after the complainant has said no (by asking the perpetrator to stop) but also that a complainant must and should physically resist penetration, in order to establish a lack of consent (para 37). The logical conclusion of this judge’s approach is that it is both lawful and acceptable for a man to have sex with his partner regardless of their enjoyment or willingness to participate (para 45).”

[7]             One is an article by the experienced and much respected journalist Louise Tickle published in the Guardian newspaper of 6 January 2020 entitled In our secret family courts, judges still don’t understand what rape means; the strapline was It’s a scandal. Away from scrutiny, courtrooms are failing mothers by not taking evidence of sexual assault seriously. The next is a blog by the well-known family law barrister and blogger Lucy Reed posted on 25 January 2020 on her Pink Tape blog, entitled starkly System Error. The third is an article  by the human rights and family law barrister Charlotte Proudman published in the Independent newspaper of 25 January 2020 entitled The courts’ outdated views on domestic violence are putting vulnerable children at risk of harm; the strapline was A shocking family court judgment expressed an alarming view of sexual consent, but the problem may be a lot wider than one judge. So what should be done? The fourth is an article by the equally experienced and much respected journalist Sonia Sodha published in the Observer newspaper of 26 January 2020 entitled When judges don’t know the meaning of rape, there is little hope of justice; the strapline was As we watch the Harvey Weinstein trial unfold, other horror stories emerge in our own courts. The third of these concludes with this pungent observation: “Meanwhile, family courts’ outdated attitudes towards domestic violence put children at risk of further harm – sanctioned by the very institutions that are supposed to protect them.”

[8]             According to a question put by Louise Haigh MP in the House of Commons on 6 February 2020 (Hansard, Vol 671, col 472) Judge Tolson “made the same ruling again” in another case on 3 February 2020.

[9]             Commenting about a rare exception (the powerful and illuminating judgment of District Judge Bailey in Re B & C (Children: Child Arrangements Order) [2018] EWFC B100), Lucy Reed, in a blog on the Transparency Project website posted on 31 January 2020, observed that: “If you want to see what the Family Court looks like, if you want a picture of what it’s like at the coal face, of what a ‘typical’ case looks like, of what sorts of issues are cropping up in the Family Court and of how well or badly they are being dealt with – look to the District Bench. Even if all circuit judges stuck to the 2014 guidance [President’s Practice Guidance 16 January 2014: Transparency in the Family Courts: Publication of Judgments] and published their judgments when they were supposed to, it would not give us a real overview of the work of the family court and its performance. It wouldn’t tell us how widespread the problems highlighted in the Tolson judgment really are.” Precisely so.

[10]            Consider, for example, the article by Louise Tickle published in the Guardian newspaper of 6 January 2020 to which I have already referred. Most of the article was about Russell J’s damning decision on appeal from Judge Tolson’s judgment in JH v MF, but the article included this necessarily Delphic passage: “I recently sat through days of evidence in a family court case involving claims of domestic abuse and a dispute around child contact arrangements. The judge in that case made it clear he is unlikely to publish a judgment, and it is therefore unlikely at this stage that he will agree to allow the media to publish any part of what went on in court. But I can say that I emerged from that courtroom astonished, dismayed and alarmed for very similar reasons to those that prompted the woman described above to appeal against a different judge’s findings about what constitutes rape.” We would all properly like to know more about this case, but we cannot.

[11]            Consider Professor Jo Delahunty QC’s Gresham College lecture on 30 January 2020, Can the Law Keep Up with Changes in Society? which includes a challenging discussion of the extent of domestic abuse in our society and of the family court’s inadequate handling of the issue.

[12]            The President reconvened the Private Law Working Group and asked it to review the Child Arrangements Programme [PD 12B]. It produced an interim report in June 2019. The final report is awaited. It is important to note that (interim report, para 90) “Review of the operation of PD 12J is outwith the specific remit of the Private Law Working Group’s terms of reference.”

[13]            The MoJ’s ‘Spotlight’ review was announced on 21 May 2019, when we were told, unbelievably, that it would report back in three months. Unsurprisingly, it has not yet done so. In response to its public ‘Call for Evidence’, it has apparently received something like 2,000 responses. These have not yet been published and I have no idea what they say, but I would be astonished if they do not contain large numbers of harrowing accounts. Louise Haigh MP has published the Memorandum she submitted to the review (https://www.louisehaigh.org.uk/wp-content/uploads/sites/74/2019/08/Family-Court-Consultation.pdf). It is a powerfully illuminating description and analysis of the issues and is, understandably, severely critical, as are others, of the limitations of the review.

[14]            As Louise Haigh MP commented in her Memorandum, “whilst this review is incredibly welcome from the Government, and it is hoped that it makes strong recommendations for improvements in the treatment of domestic abuse in the family courts, much more authoritative, independent research and analysis is required to get to the heart of the issues.”

[15]            See T v S [2013] EWHC 2521 (Fam), [2014] Fam Law 1664, and, for an elaboration, my lecture, A Matter for the Parents? A Matter for the Judge? Thoughts on 30 years of the Children Act and the revival of the inherent jurisdiction, [2019] Fam Law 264.

[16]            One might have three tracks: (i) the ‘in and out track, where it is realistic to imagine that the case can be resolved at the First Hearing Dispute Resolution Appointment (FHDRA); or (ii) the ‘ordinary’ track, where although it is not realistic to anticipate resolution at the FHDRA there is nothing to suggest that the case is or will become intractable; or (iii) the ‘special’ track for the potentially more complex cases.

[17]            I would hope that the recently established Nuffield Foundation Family Justice Observatory, of whose Board I am the Chair and whose raison d’etre is to improve the outcomes for children by undertaking and commissioning data collection and research, can play a central role in this project.

 

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2.) My letter to the Family Court Financial Remedy Unit – following their decision to not allow me to; a) Be represented or; b) represent myself in the serious matter of the flood to my home, which is  down to the Alder. The freeholder and insured party in the 2014 flood – who told the court that she had fixed the house so it would not flood – and was believed by the judge when she said this – although I did point out that she was lying at that time. And as a result, is exposed by this flood for that lie. All I was asking them to do was allow a little more time for the hearing because I didn’t know when the court date was – they wrote to my address in England. And I have not lived there since 2014. So really – they should have sent it to my address. They did not. I only learned the date 2 days before the actual hearing and that was not enough time for me to recover from Jet lag after flying back from South Africa, and flying to London to attend a court hearing. They should have allowed at least 2 weeks. But as usual. They listened to Adler Amlot and proceeded with a judgement in which I was neither heard nor represented,

 

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To: Financial Remedy Unit. Family Court
From: Andrew Broulidakis

 Ends: 10,000 words.

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LETTERS TO BYRON in chronological order. The original live blog pages subject to same Terms and conditions:

The first of the LETTERS TO BYRON:  The PILOT
2nd GRAHAM COY
3rd:  TOM AMLOT
4th:  Thanksgiving day
5th: MICHELLE O’LEARY. The switch Judge
6th : Raining in California
7th: Music
8th: December Rain
9th: Brexit and Greek war
10th: Winnie the Poo
11th: December kayaking
12th: Family law and Mark Zetin
13th: Xmas day 2018
14th: Maria and Anna
15th: New years eve 2018
16th: Your first smile
17th: Your Uncle GEORGE
18th: The Mighty PACIFIC
19th: WEBSTER and Summer HOLIDAY 2019
20th: Breach of Privacy offense
21st: MARTIN LUTHER KING DAY
22nd: Philotimia
23rd: A short note
24th: MUSIC and KINDNESS
25th: Robin Hood
26th: SRA ethical code
27th: NINE YEARS LATER
28th: Valentines day
29th: EVZONES
30th: Rushing
31st: Quick Note
32nd: Johannesburg 2019
33rd: Still in Johannesburg
34th: More Johannesburg
35th: Last Johannesburg for now
36th: Traveling. Upgrade
37th: Spring
38th: Whales
39th: MEXICO
40th: CABO ST LUCAS
41st: 1 April. Wallace’s Birthday
42nd: SANTA BARBARA
43rd: Short letter
44th: PINEAPPLE EXPRESS
45th: KIRA visits
46th: Goodbye uncle Lazaros
47th: Easter Monday
48th: OJAI Tennis
49th: Short letter
50th: PARENTAL ALIENATION FACTS
51st: Cartagena memory
52nd: NEW RECORD
53rd: Last letter to 9 yo
54th: First letter to 10 yo
55th: D Day – 75 years
56th: LA QUINTA
57th: MASON GRADUATES
58th: DESIDERATA
59th: EARTHQUAKE
60th:  Chris and Golf
61st: Chris visits Byron in London
62nd: SUMMERTIME
63rd: PHYLLIS’ LETTER TO BYRON
64th: GUN CRAZY AMERICANS
65th: MISS YOU
66th: SCRUFFY
67th: Mason leaves for college
68th: ART
69th: Day after 911
70th: PAPOU. CALLING CHRIS
71st: Two Women
72nd: ANOTHER YEAR
73rd: PLANNING CALIFORNIA VISIT 2019
74th: KAYAKING WITH DOLPHINS
75th: M and M
76th: HALLOWEEN 2019
77th FINGER EXERCISE
78th: First late letter
89th: MIAMI
90th: Thanksgiving and the SRA
91st: Dentist
92nd: EDUCATION
93rd: Almost Xmas
94th: Boxing day 2019
95th: 2nd January 2020
96th: 9 January 2020. Liars and Thieves
97th: 16 January. Thursday
98th: 23 Jan. Mystery Thursday visit
99th: 30 Jan. Months end
100th: 6 February. 2020. Summer Holiday
101st: 13 February. 2020. Family Law
102nd: 20 February. Dogs
103rd: 27 February. The elderly in the desert
104th: 5 March. James Munbys’ talk on family law. And unilateral judgments
105th:  26 March covid19-what-else
106th: 2nd April. British Family law
107th. 9th April. Good news about Covid
108th: 15 April. 2020. Covid Tzar. A good pair of hands
109th:  23 April: Distance Learning
110th: 30 April. A video Letter. Byron Sundays
111th:  7 May. VE Day
112th:  14th May. History Lesson
113th:  21 May. A family birthday
114th: 28th May. Happy Birthday
115th: 4th June. Riots
116th: 11th June. Guessing
117th: 18th June. More Covid
118th:  25th June. Business open from Lockdown
119th: 2nd July. Writing and Cleaning
120th: 9th July. Six years after Scotland
121st: 23 July. Masked Lockdown
122nd: 30 July. Maybe next year?
…….130th. The one before the end
131st The last letter September 24th