Family Law

By Hugh Logue, Newswatch Editor

A senior Family Division judge for England and Wales has warned that people do not take family court decisions seriously enough and do not obey the court orders promptly and fully.

In a speech to the annual conference of the Association of Lawyers for Children this morning, Mr Justice Coleridge warned this lack of respect for family court orders is leading to an increasing number of hearings and ever more interventions by guardians, social workers, Cafcass officers and child experts.

The judge argued that in order to avoid a "flabby judicial response", especially at a time of unprecedented squeeze on public resources, that family courts need to reassert their authority. One of the ways in which he proposes to do this would be to introduce a three strikes system whereby if a parent disobeys a court order three times the residence of the child should be transferred to the other parent.

Summing up his argument, Mr Justice Coleridge said: "my principle point this morning is that we should all, all of us involved in the system,  be alive to the unintended slippage in the authority of the family court which has been creeping in and gathering momentum over the last decades and which we can no longer afford to ignore. Expression and projection of proper authority is of vital importance to parents, the courts and society. The rot must not be allowed to go further. In every way we simply cannot afford it."

In addition he said that family courts should seriously consider following the Australian example and resume wearing robes and removing the carpets and indoor plants to reinforce the authority of the court.

Although the judge was speaking in his own capacity and not on behalf family judiciary in Britain, he added: "However, many I would count as my friends I know share my views although they tend to be rather more reticent about expressing them in public. In that respect I now no longer share their traditional restraint. Times demand more open discussion and debate." 

Mr Justice Coleridge criticised the way in which too great an emphasis was being placed on listening uncritically to the views and wishes of children, including young children. This he said was leading to the danger of "undermining the family court's authority and proper function which is to arrive at a decision which is overall, best for the child."

"As a matter of both fact and law, children lack capacity to make important decisions. That is why they are treated as 'being under a disability' legally speaking," the judge said.

"If we forget this and too readily impose the decision on the child, surely we, all of us, are shirking our responsibility to a degree which is bordering on the abusive. In just the same way as the weak and indecisive parent allows the children to call the shots we are abnegating our function to a degree which is nothing short of cowardly and unfair. 

"Children expect and are entitled to expect us to make these important decisions without overly and unnecessarily involving them in the process."

He added: "I suggest we need to reaffirm, redefine and re-establish the proper function and role of the family court and family judge. It is to act as the proper and appointed authority figure both towards the parents and the children. Not another expert or welfare officer."

Speaking about the recently announced 23% cut in the Ministry of Justice budget , Mr Justice Coleridge expressed the view that the implications could not possibly have been properly considered. He said "the law of unintended consequences make it quite impossible" to predict the implications of the cuts.

In order to improve efficiencies in family courts, the judge also called for better judicial training to reduce the need to appoint child experts.

It is not the first time that Mr Justice Coleridge has been outspoken. In a speech to a Resolution conference in 2008 the judge said that an "epidemic" of family failure was "as marked and as destructive as global warming".

A full summary of Mr Justice Coleridge speech will appear in January's Family Law journal, and a full article will be included in February's Family Law journal. To log on to Family Law journal Online or to request a free trial click here.