13 May 2010

Earlier this week one of my clients received judgment on his wife's application to relocate overseas with their children.  The case was hard fought, the issues complex and there were a large number of witnesses including five expert witnesses.

The hearing was due to have taken place last November. It had to be adjourned because, despite assurances given by Cafcass to a High Court judge last summer, Cafcass were unable to allocate the case to a reporter in time.

When the hearing was relisted, the judge personally called Cafcass and, in her words, "begged" for an experienced reporter to be appointed. In the event, the case was allocated to, and the report written by, an undergraduate on a work placement scheme with Cafcass. The reporter's most telling evidence to the court was that he had no experience whatsoever of interviewing children. 

The judge found that she was unable to rely on the reporter's recommendations or any of his opinions. She has sent a copy of her judgment to both the Chief Executive of Cafcass and to the President of the Family Division.   

This case is the clearest indicator of underfunding of the family justice system at all levels - most noticeably at Cafcass. Despite the best efforts of the judiciary, specialist lawyers and Cafcass, children are left in limbo as cases take longer and longer to resolve. In this particular case the children had to live through an additional six months of acute distress brought about by the uncertainty of where their future home would be and how much or, more tellingly, how little they would see of their father. 

My client's happiness at successfully opposing the application was tempered by the unnecessary and avoidable additional stress that his children suffered as a result of the serious failings of the process.

Parliament has said that delay in deciding any question about a child's upbringing is likely to be prejudicial to that child's welfare. The financial constraints under which the family justice system currently operates mean that delay, and therefore prejudice to countless children, is now systemic. Without a fundamental review of how separating parents resolve disputes about their children the situation will only get worse as government funding cuts begin to bite.

Next week I will set out my suggestions for an alternative, cheaper and more efficient system to resolving co-parenting issues following separation.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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