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Legal aid procedures causing problems for the Family Court, says the President

Sir James Munby praises the work of Families Need Fathers

Sir James Munby, President of the Family Division, says that problems with the quality of decision-making by the Legal Aid Agency, and the complexity of the process for applying for legal aid, is, in some private family law cases, skewing the court process , and risks undermining positive outcomes for children and parents.

Speaking at the AGM of Families Need Fathers, Sir James said:

"It would be idle to imagine that the process in private law cases has not been affected by the fact that legal aid is simply not available unless there is an allegation of domestic violence.

"And that of course produces another problem because the consequence of that is – and we have seen it in number of cases and I have given judgments on this – we are increasingly seeing cases where the woman – usually but not always the woman – who alleges domestic violence has legal aid and her partner does not. That simply produces further problems. It produces problems for the partner, typically the man. It produces problems for the judge. Most importantly of all, it produces problems for the child because, as I repeatedly say, unless both parents have a fair process then the child is not having a fair process and if the parents don't have a fair process and the child doesn't have a fair process then the risk one is running is not only injustice to the parent but injustice and worse to the child."

Sir James went on to say: 

"Of course legal aid is a matter of political decision. It is a matter of public policy – an area in which judges can tread only with great care. Where we can tread and I don't shrink from this is if it is impacting on the fairness of the proceedings in front of us it is our duty to make sure the proceedings in front of us are fair. If that requires representation we must say so and if the absence of representation means the proceedings are not fair and because they are not fair are potentially prejudicial to the interests of the child then we must say so."

Jerry Karlin, Chair of the charity Families Need Fathers, commented:

"Thrusting a parent who is often in a very fragile state of mind after separation into a system they have little understanding of, to defend themselves against often very serious allegations presented by experienced legal professionals, creates an imbalanced system that does little to serve the interests of justice. The undermining of the many good initiatives being introduced in private family law to try and improve the process and management of cases by this fundamental flaw can result in the best interests of children being compromised, and we hope the Government will sit up and take notice of the concerns expressed by the President."

Sir James covered a wide range of topics relating to family law in his talk, including the need for courts to take a more 'sceptical' approach to reports from Guardians, Cafcass and social workers, where concerns have often been raised about the quality of the information provided to the court. He said:

"The fact is the courts are getting much, much more sceptical, much more searching, less blindly accepting of reports…. People who come to court with sloppy things, not properly thought out, are told to go away. That, I know is in public law but the same attitude must apply across the board. We have got to question everything wherever it comes from."

Sir James praised the work of Families Need Fathers, saying:

"It is a particular privilege if I may say so to be here on your 40th anniversary. You as an organisation have been doing invaluable work for far too many years. The fact that there is still so much to be done is no criticism of you but is, if anything, a commentary on the system. All I can say is keep up the good work. We all have a very long way to go."

Sir James Munby's speech, entitled "Family Separation – Opportunities and Problems", was delivered to coincide with Families Need Fathers' 40th anniversary. The speech is here.

7/12/14