Your Freedom - Custody Minefield Backed Family Law Reform (please visit the sites and back these campaigns)
Repeal s.54 of the Access to Justice Act 1999Please visit the following link, and express your support for this campaign! It will only take a few seconds: Repeal of s.54 of the Access to Justice Act will assist in reducing delays to legal reform, and in the example set out below, would have ensured that child welfare is better safeguarded. It would protect both the judiciary and our legal system from reputational harm. For the law to be upheld, it must be open to scrutiny and perceived to be beyond reproach. There must be a system of checks and balances. This statute precludes this. Where the Royal Courts grant leave to appeal to the Supreme Court, the applicant should have the assistance of legal aid, given that matters of great constitutional or social importance go before the Supreme Court. Where it is accepted by the Lord Justices of Appeal that an application is meritorious, the limited financial means of an applicant should not preclude arguments being properly set forth by counsel. In such circumstances, the fees for an application should also be waived. Where there are general points of law to be reviewed which impact on more than a single applicant's case, there should be no barrier to a full and open review, and one where the applicant is assisted by expert counsel. Such an outcome is in the public interest. The Access to Justice Act prevents the 'proper development of law'. A prime example was the repeated refusal by Lord Justices of Appeal to allow permission to appeal the binding precedent and ideology with controls judicial determination of relocation cases in family law. [1] Our legal system prohibits a review of precedent made by a court of equal or lower status under the legal rule of stare decisis, meaning that a court cannot overturn its own precedent except in rare circumstances, such as the precedent having been set without due consideration of statute or earlier precedent. Where 'bad' or 'out-of-date' law exists, only a higher court can overturn it. In leave to remove and relocation cases, the existing precedent was set in 2001 in the case Payne v Payne which followed an ideology first set forth in law in 1970 based on a 70s view of parenting and children's needs. [2] Since 2001, there has been published a compelling body of academic research which finds that children are harmed when separated from a parent, and this research has not been properly heard by the courts, nor allowed to influence the current guidance. [3] The courts are bound by precedent to pay great weight to what is commonly referred to as the 'distress argument', a judicial belief that to deny a parent the right to relocate with the children will cause them such distress that the children will suffer significant harm. There has been no research to support such a belief in 40 years. No research need be presented in evidence at trial to support that such a risk exists since, in law, the legal principle of 'judicial notice' allows for the judiciary to accept arguments and set precedent without there being supporting evidence. Where the presiding judge believes a matter is widely held, it need not be proven. This makes more important a system of checks and balances. Psychiatric professionals stated in 2005 that relocation was not an effective treatment for parental anxiety or depression, and that no evidence existed to support the judiciary's unsubstantiated ideology as set out in Payne v Payne. [4] The contemporary research which challenges the courts' guidance is precluded from being afforded sufficient weight, and routinely goes ignored and unheeded in relocation cases. That research confirms that children are subject to psychological, developmental and emotional harm when separated from a parent. Such harm is compounded when children are removed from the familiarity of homes, culture, school and through the loss or diminishing of their existing friendships and relationships. [5] Whether such harm should be considered is a matter of debate, but in practice, it rarely is. Despite this knowledge, permission to relocate is granted in 90% of cases. The Children Act 1989 sets out that the child's welfare must be the court's paramount consideration, yet the precedent casts an illegitimate gloss on the purity of this statutory principle. In practice, the parent's wishes outrank what research informs us are the children's needs. Appeals to the Royal Courts of Justice have commonly been heard and refused by the same Lord Justice of Appeal whose guidance was set out in the binding precedent from Payne v Payne. [6] Since 2009 there has been mounting criticism by charities, the legal profession, the public, the international community, MPs, psychiatric professionals, and celebrities of that precedent. [7] The condemnation of the court's approach has been considerable, and it culminated in 2009 with Sir Bob Geldof writing 'The court is entirely informed by outdated social engineering models and contemporary attitudes rather than fact, precedent rather than common sense and modish unproven nostrums rather than present day realities. It is a disgraceful mess. A farrago of cod professionalism and faux concern largely predicated on nonsensical social guff, mumbo-jumbo and psycho-babble. Dangling at the other end of this are the lives of thousands of British children and their families.' [7] It was only after the High Court urged that the matter be urgently reviewed by the Supreme Court and the publication of a declaration by international judiciary in Washington which conflicted with the UK courts' guidance that the self same Lord Justice of Appeal accepted on national radio and later in a speech, that the guidance in Payne was out-of-date, and required review, yet permission to appeal must still be granted in an individual case. [8] [9] [10] [11] A review by the Supreme Court must still await an individual parent coming foward with the financial means to cover considerable legal and court fees. Until that time, the lower courts must heed guidance that even its own creator now doubts. The question remains, why did this take years for the judiciary to accept, when their own profession had question their reasoning 5 years before. Why was permission to appeal still being refused in January 2010. [12] Had the (somewhat perversely named) Access to Justice Act 1999 not enabled the Lord Justices of Appeal to boycott an earlier review by the Supreme Court, thousands of British children's welfare might have been adequately safeguarded. End Notes 1. s.54 of the Access to Justice Act 1999 2. Payne v Payne [2001] EWCA Civ 166 3. The Custody Minefield: 'Relocation: Children's Needs and Rights Parliamentary Briefing Report published December 2009' 4. 2005 Law Society Debate - 'Is leave to remove too easily granted'. 85% of solicitors who took part said yes, and Dr Mark Berelowitz found there to be no evidence which supported the 'distress argument' 5. ibid 3. The compelling body of research findings is provided in the December 2009 Custody Minefield Report. 6. G (Leave to Remove) [2008] 1 FLR 1587 and R (a Child) [2009] as reported in the press. 7. ibid 3. Foreword by Sir Bob Geldof. 8. see Relocation Campaign website, and media coverage. 9. AR (A Child) [2010] EWHC 1346 (Fam) 10. Radio 4 Interview with Lord Justice Thorpe (30.06.10 - 7.30am) 11. 'Relocation: The Search for Common Principles' (London Metropolitan University) [June 2010] | Repeal of Sections 11-17 of the Criminal Justice and Courts Services Act 2000 and Section 7 of the Childrens Act 1989: abolition of CAFCASS."I can hardly read the literature on Family Law without simultaneous feelings of an awful sadness and profound rage. Sadness at what has been done to our children and their families and deep rage for our Family Courts and the inadequate practitioners that work within it." The Children’s Act 1989 is a widely admired piece of legislation which has been fatally flawed in private law proceedings by Section 7, the welfare report. Over the first ten years after the act into force the welfare report was provided by probation officers, little more than prison officers, with little, if any, experience of children and families. When coupled with the hard left politically correct stance of their union, the National Association of Probation Officers, untold damage was done to children and families over the period. The use of probation officers to provide welfare reports in children’s proceedings was replaced by the establishment of the Children and Family Court Advisory and Supervisory Service (CAFCASS) under Sections 11-17 of the Criminal Justice and Courts Services Act 2000. At the same time CAFCASS took over the role of the Official Solicitor in representing children party to proceedings in mainly public and some private law. For the first few years from its inception CAFCASS was an unmitigated disaster leading to the sacking of the chief executive and the Lord Chancellor’s demand that the entire CAFCASS Board resign in 2003. Another three years of untold damage to children and families. Seven years later the majority of CAFCASS output is still assessed as inadequate (the lowest level of performance) by the inspection agency OfStEd since April 2007 as it was prior to then by Her Majesty's Inspector of Court Administration. There is no effective complaints process for the tax payer, who pays in excess of £100,000,000 per annum for this avalanche of inadequacy only to have it imposed on him and his family by the unelected and unaccountable family justice system. There is not a single tax payer in receipt of this “service” who sees any value in it at all and most see only the damage done by it. | Please visit the Government's website 'Your Freedom' which allows members of the public to suggest legal reform. If you agree with our recommendation, please register, on the Your Freedom website, and give this suggestion for legal reform your 5 star rating. In essence, we're asking that parents should be able to ask for legal advice from whomever they choose, and not be disadvantaged in court if they cannot afford a solicitor. Repeal sections 12 to 19 and Schedule 3 of the Legal Services Act 2007. These sections preclude anyone other than a solicitor or an exempt individual from offering legal advice or acting as a advocate in court. It should be up to the individual where and from whom they seek advice and assistance. If they have limited funds which prevent them from affording the services of a solicitor, they should then have access to lay advice without the need for the judiciary's permission. It should be the right of the individual to access legal advice from wherever they so choose, and there should be no barriers to access to justice. The principle of lay advice is well accepted, if, bizarrely, illegal if the lay advisor is not employed by a solicitor. As recently reported on Radio 4, in a Magistrates court, there are instances where the only person with legal qualifications in court is the clerk. In Family Law, in July 2010, the President of the Family Courts issued new guidance which, at paragraph 27, acknowledges that lay advisors may be paid for 'the provision of legal advice in connection with court proceedings'. Charities which provide legal advice services, but from lay advisors, to paying members, may technically be found to be breaking the law. Why the contribution is important In England and Wales, the legal aid budget runs at £2billion per annum, the highest per capita in the world. Less than a third of the population qualify for legal aid, yet the cost of solicitor advice is beyond the financial means of many. Lay advisors, some of whom charge (but typically a greatly reduced hourly rate in comparison), provide an essential service to the ever growing number of litigants in person in the civil and family courts. Their involvement often assists the courts who would otherwise be faced with a bewildered, uninformed and unassisted litigant in person. In an ideal world, there would be sufficient funding available to provide free legal assistance for all from qualified solicitors, but this is beyond the financial means of the country at this time, and for the foreseeable future. The likelihood is a further restriction in legal aid. It should be the right of the individual to freely choose where they seek advice, and from whom. Lay advisors run the risk of imprisonment by providing an essential service. The litigant in person runs the risk of contempt of court when asking advice, prior to the court accepting the advisor as a McKenzie Friend in proceedings. The seeking and provision of advice should not carry a risk of jail in a civilised society. There should be no barriers to the individual having access to information and assistance which informs them of their legal rights. Nor should access to legal advice be dependent on one's financial means. The state should not dictate where one goes for advice. For the nervous, anxious or otherwise verbally impaired, or for the less articulate, there should be no disadvantage when faced by an opposing party with an advocate to speak on their behalf. The state should remove whatever barriers exist to there being an equality in arms. Repeal of sections 12-19 and Schedule 3 of the Legal Services Act 2007 would resolve the paradoxical situation of the courts providing official guidance to paid lay advisors where the services they offer can be construed as a criminal offence in statute. The repeal of this legislation is recognition of a growing societal need and addresses the conflict between existing judicial guidance and statute. |
2009 - Current: Relocation: The Children's Needs and Rights Campaign In December 2009, we published a Parliamentary Briefing Report in support of an Early Day Motion calling for better protection of child welfare in 'relocation' and 'leave to remove' cases before the family courts. These cases involve one parent wishing to move a considerable distance from the other, taking the children of the family with them. The impact on the children is not properly considered, with the reason being that application of the existing guidance by the courts (which dates back to the 1970s) fails to accord proper weight to the adverse implications of relocation on the children: · According to the Children’s Society, a child is 40% more likely to suffer mental health problems when they don’t see their father. · Academic achievement is directly linked to both parents being involved in the children’s education. · The list of scientific research findings are compelling, and overwhelming, and can be read in our report. Despite this evidence, the courts continue to allow relocations in 90% of cases. Child welfare, and the impact on the children, is not accorded the importance it deserves. There is a growing recognition of this problem both nationally and internationally, and the approach of the courts in England and Wales is significantly different from the approach of the courts in other developed countries. In our increasingly global society, after parents separate a growing number seek to emigrate with the children, severing the relationship between the children and their other parent. Contemporary research now confirms the sociological, psychological and developmental harm that children are likely to suffer when denied both parents being involved in their day-to-day care. As well as lobbying on the subject, we provide information to parents who wish to defend against a relocation application. Sir Bob Geldof wrote to foreword to our Briefing Report, expressing the concern and outrage that many of us share at the courts having failed children for 40 years, and their continuing to do so in the face of compelling evidence which is routinely ignored. Foreword by Sir Bob Geldof. Published December 2009 The court is entirely informed by outdated social engineering models and contemporary attitudes rather than fact, precedent rather than common sense and modish unproven nostrums rather than present day realities. It is a disgraceful mess. A farrago of cod professionalism and faux concern largely predicated on nonsensical social guff, mumbo-jumbo and psycho-babble. Dangling at the other end of this are the lives of thousands of British children and their families. How much longer must we put up with the state sanctioned kidnap of our most vulnerable? Because in effect that’s what “Leave to Remove” amounts to. How much longer do we tolerate the vested interest intransigence of the appalling U.K. Family Justice system? How long before just one of them admit they have got it ALL wrong and apologise to their myriad victims? Latest Update In June 2010, we witnessed two remarkable events. First came the criticism by the High Court of the Court of Appeal’s guidance in international child relocation cases. In the High Court, the Honourable Mr Justice Mostyn QC called for the urgent review by the Supreme Court of the Court of Appeal’s guidance. That guidance, from the case Payne v Payne, has stood for 9 years, and reinforced an ideology which originally came from the 1970s. The guidance in Payne heavily influences outcomes in both international and internal relocation cases (where one separated parent seeks to move a considerable distance from the other, and uproot the children). The second surprise, on 30th June 2010 at 7.30am, was an interview on Radio 4 with Lord Justice Thorpe. I cannot remember a Lord Justice of Appeal going on a ‘drive time’ slot on national radio, but I suppose it may have happened. In answer to the very public criticism of the guidance in relocation cases, he defended himself by saying that the guidance was not his, but the court's. He went on to say that the guidance in Payne was ‘about right’ until challenged by the interviewer. Then there came a seemingly grudging acceptance that there needs to be a review, and more crucially, his guidance (he is, after our, Head of International Family Law) was out of step with international law in the rest of the Commonwealth. I say his guidance, since as he himself said, it was his decision in the case Payne v Payne (albeit supported by Butler-Sloss) to keep in place the guidance which had existed since the 1970s. Finally came his admission that the arguments against that guidance were not hard to articulate. Not hard for anyone else it seems. At a conference last week entitled "International Child Abduction, Relocation and Forced Marriage", organised by the Centre for Family Law and Policy, Lord Justice Thorpe called for an international consensus on relocation, and on this point, we'd raise the following questions: Why are the judiciary setting family policy, and since when was this the prerogative of the judiciary and not Parliament? The judiciary are not elected, and not accountable. As you will read further on, even when Parliament has set family policy, the judiciary do not necessarily follow it. Is this acceptable in a democracy? Why is it necessary for there to be an international consensus before the law changes in this country? Nowhere in Thorpe's speech does he talk of child welfare, child welfare research, or evidence. Instead, he talks of convention, protocols and consensus among his international peers. The Custody Minefield, an organisation that provides information to separating parents, has been campaigning against the court’s guidance in relocation cases for some time. Ours was not the first campaign seeking to overturn Payne v Payne. The Poel Group had tried, albeit unsuccessfully, but in the last 5 years, momentum has been slowly growing and reached a tipping point at the end of 2009. In 2005, 85% of solicitors in a debate by the Law Society agreed that leave to remove applications were too readily granted by the courts. A leading psychiatrist stated there was no evidence to support the assumptions upheld by Thorpe in Payne v Payne. Were the legal or psychiatric professions’ opinion heeded? No. In 2008, Mr Justice Mostyn QC put forward arguments in G (A Child) which again challenged the guidance in Payne, but his arguments were rejected by the presiding judge. Who was that judge? Thorpe LJ. In July 2009, a report into Relocation by the charity Reunite called into question the guidance in Payne. That same month, the Centre for Social Justice suggested there needed to be a review. A week after, as reported in the press, a relocation case came before Thorpe (R (a Child)). Thorpe accepted that the father’s plans for the child were concrete whereas the mother’s were ‘somewhat nebulous’. Thorpe found that the child was happy and secure where she was, settled and doing well at school. He pronounced ‘all that would be rendered history’ if she moved, which of course, he allowed. Such bizarre outcomes have been commonplace under Thorpe’s leadership on relocation. In October 2009, an Early Day Motion calling for a review of Payne was tabled in Parliament. Also came our own Parliamentary Briefing Report, citing the psychological, sociological and developmental research which suggested that the guidance in Payne led to outcomes which were harmful to children. We organised a concerted campaign for constituents to contact their MPs (some 4000 emails were sent by individual members of the public). The campaign was supported by Families Need Fathers, The Find Savannah-Jade Campaign, and JUMP. A response from the family courts, written by Sir Mark Potter, the then President, came in reply, stating that he did not see that Payne needed review until such time as longitudinal studies showed a need. The existing research findings presented in our report were ignored, although neither he nor Thorpe had research to support their own long held ideology. In 40 years, no such research has ever supported their position. It seemed that Payne v Payne would remain until the unlikely day that research was published which might uphold the court’s view. It was hoped that that research might come from an Australian study in 2010. It didn’t. In January 2010, The Custody Minefield helped write the submissions for an appeal case before the Royal Courts of Justice (D (Children)). We later published the generic argument to assist other parents. Our arguments confirmed there being no need for additional longitudinal studies prior to Payne being reviewed by the Supreme Court. There were ample studies in existence, and indeed a compelling number which showed children suffer psychological, sociological and developmental harm when separated from a parent. The arguments which directly challenged the guidance in Payne were accepted as ‘compelling in the right case’, but the father’s appeal was still refused. When permission to appeal is refused by the Court of Appeal, according to our somewhat perverse laws, a parent is prevented from taking the matter to the Supreme Court. The Court of Appeal has an effective right of veto, and so, the father’s application was blocked. We were privately told that the courts were hoping that the international judiciary would support the UK’s guidance in a new Hague Convention. It seemed there was a hope that the guidance in Payne might be salvaged if it received international approval. It didn’t. March 2010 saw a meeting of international judges in Washington. The ensuing Washington Declaration on International Family Relocation gave clear, concise guidance for relocation cases, and new guidance which is entirely focussed on child welfare. Thorpe’s favoured ‘distress argument’ was not supported. The last lifeline for the guidance in Payne had evaporated. June saw a newly appointed High Court Judge, the Honourable Mr Mostyn, savage the ideology of Payne in the case AR (a Child: Relocation). Mostyn J happens to be editor for Jordan’s International Family Law publication, and within a fortnight, Thorpe was on the radio. In his radio interview, Lord Justice Thorpe said he had been following what was done before. He talks of protocol and procedures. What he misses, which Mostyn doesn’t, is that the paramount duty of the court is not to maintain the status quo for the judiciary and to look back, but to safeguard child welfare and to consider evidence when doing so. The courts’ guidance must be beyond reproach. It now seems that a review of Payne v Payne is inevitable, and if the new guidance is not based on evidence, then the campaign will switch to calling for the curtailment of judicial discretion and interpretation. Privilege requires responsibility. x Regardless, the time has come to stop inflicting Payne on children. Click on the document images to download or open | Our Parliamentary Briefing Report - Foreword by Sir Bob Geldof
Early Day Motion 373
Broadsheet Coverage in three nationals papers, legal, and third sector press
Real life stories by the parents left behind
Our Generic Submission challenging the court's guidance in relocation cases
Washington Declaration focuses on children's needs and rejects UK guidance
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Please ask your MP to sign Early Day Motion 34. EDM 34 - BENEFITS SYSTEM AND SHARED PARENTING - Sanders, Adrian MP (Lib-Dem) We have made it easy for you by providing a template letter and you can find your MP's address by clicking here.
That this House notes that child benefit can only be paid to one parent; further notes that this unnecessarily discriminates against the other parent where parents are separated and maintain shared custody of children; further notes that this can further discriminate against one parent by preventing access to suitable housing and additional income to allow them to provide for children; further notes that this can lead to restricted access for one parent to see their children; and calls on the Government to take action to address these problems.
2008-2010: The Grandparents' Rights Petition, Early Day Motion and Campaign In 2008, The Custody Minefield started a campaign to reduce the obstacles that grandparents face when applying to the courts to maintain a relationship with their grandchildren. It is estimated that 1million grandchildren are denied such a relationship. We were joined by a large number of charities and campaigning organisations including The Grandparents Association, Grandparents As Parents (GAP), Grandparents Apart, The Grandparents Action Group UK, Families Need Fathers, JUMP and Mothers Apart from their Children (MATCH). The Campaign stated with a petition on the Prime Minister's Website, which was followed by our 'Grandparents Rights Petition Report' in reply to the inadequate response from the PM's office. In 2008, an Early Day Motion (EDM1199) was tabled in Parliament in support of our aims and was supported by 53 Members of Parliament. The Campaign was carried on by the Grandparents Association and Families Need Fathers, who attended a meeting in Westminster on 18th May 2009 along with Professor Fiona Brooks and Dr Cliff Hill from the Family Matters Institute, Professor Ann Buchannan from Oxford University and which was hosted by Steward Jackson MP. 19 March 2009 - coverage in: The Daily Mail The Sun The Times The Guardian The Yorkshire Post The Herald 21 January 2010 - The Government announce a Green Paper and their commitment to simplifying the legal process by removing the requirement to apply for the court’s permission before making an application for contact with their grandchildren; improving information about the legal and other options available so they can maintain relationships with their grandchildren when parents separate; and new support for kinship carers – including grandparents - who take on the care of their grandchildren when the parents are unable to, for example if they have drug, alcohol or mental health problems. Read the Department for Children, Schools and Families' Press Release
| Our First Briefing Report
Early Day Motion 1199 “That this House believes that a child's right to family life requires greater legislative protection; further believes that there should be an expectation that ancestors and close biological relatives become parties to Family Court cases on request; further believes there should be financial support for kinship carers; further believes that biological relatives including fathers without parental responsibility, grandparents, aunts and uncles should be automatically notified of care and adoption proceedings; and calls upon the Government to respond positively to the proposals from the charities announced on 17th March in the document Grandparents' Rights - A Response to the Government.” |
