Our new report into 'Family Law: Relocation and the Case for Reform'

Early Day Motion 373

Broadsheet Coverage in three nationals papers, legal, and third sector press

Repeal s.54 of the Access to Justice Act 1999

Section 54 of the Access to Justice Act prevents a matter being taken before the Supreme Court if the Court of Appeal (at the Royal Courts of Justice) has refused permission to appeal. This refusal prevents the proper development of law, and effectively gives the Lord Justices of Appeal a right of veto over its own precedent being considered and reviewed by a higher authority (the Supreme Court).

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 Where 'bad' or 'out-of-date' law exists, only a higher court can overturn it.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]

12.D (Children) EWCA Civ 50

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."
Sir Bob Geldof, Foreword to the Custody Minefield Report Report, "Relocation and Leave to Remove", December 2009.

Many of these inadequate practitioners work for The Children and Family Court Advisory and Supervisory Service (CAFCASS). CAFCASS was established under Sections 11-17 of the Criminal Justice and Courts Services Act 2000. In private law they mainly provide reports under Section 7 of the Children's Act 1989, the welfare report. CAFCASS also took over the role of the Official Solicitor in representing children party to proceedings, as Legal Guardians, in mainly public and in some private law cases.

In private law, it is time to give up on Section 7 of the Children’s Act 1989 and abolish CAFCASS along with it. In private law proceedings, if there are matters raised which are sufficiently serious to warrant a welfare investigation, the case should be moved to public law with the local authority to carry out the investigation. The welfare investigation should then be made to the timescales and standards of a S.47 and Core Assessment (35 days). As an alternative, independent experts could be jointly instructed and paid for by parties or, when appropriate, through Legal Aid. It is a measure of the inadequacy of CAFCASS that in the vast majority of cases it would work out cheaper to pay £2,000 for a reliable report in four weeks than wait six to nine months for CAFCASS to produce an inadequate one.

In public law, children would be better represented by people who know and understand them and can express their views, preferably drawn from their wider family or community and if necessary from the voluntary sector. It does not require the inadequate practitioners from a state service.

There is no need for CAFCASS at all.

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.

Twenty years after enactment of the Children's Act 1989 we have reached the level of “inadequate” in Section 7 welfare reporting. It is breathtaking to consider, what must now be, the millions of children damaged by the inability to properly implement this piece of legislation, it is time to give up.

There were were forceful submissions in the last family justice review on the unsuitability of social workers to act as children’s Legal Guardians. The current situation is ludicrous in that inadequate social workers from CAFCASS review the work of equally, according to OfStEd, inadequate social workers from the Local Authorities whilst both follow the same government imperatives.

It is a WIN WIN situation, huge amounts of money will be saved and the public will be grateful to see the back of a failed and inadequate service. Some of these savings could be diverted to the better management, training and monitoring of local authority children's services.

The underlying principle of the Children's Act 1989 is that there must be minimum state intervention in private family life. It has been totally disregarded by the family justice system whose inadequate practitioners have imposed its inadequate solutions on families for over a generation. The Children's Act was introduced by the same administration who got the state out of private economic life and breathed life back into the economy. The government should now get the state, in the form of the family justice system and its inadequate practitioners, out of private family life and breathe life back into the family.

Alastair Patterson