02 April 2004
Legal system is failing fathers, says judge

One of the country's most senior family judges launched a blistering attack on the legal system yesterday for failing divorced and separated fathers.

Mr Justice Munby said he felt "ashamed" after dealing with a man who had fought unsuccessfully for five years to see his daughter, and he argued that mothers who repeatedly defied court rulings on access should be jailed.

"A wholly deserving father left my court in tears having been driven to abandon his battle for contact with his seven-year-old daughter," the judge told the Family Division of the High Court in London.

"From the father's perspective, the last two years of litigation have been an exercise in absolute futility. It is shaming to have to say it, but I agree with his view. I feel desperately sorry for him. I am very sad the system is as it is."

Mr Justice Munby's comments come at a time of growing protests against the decisions of the family courts in favour of the mother.

Last year David Chick, 37, spent six days dressed as Spider-Man on a 100ft crane near Tower Bridge in London to protest over access rights to his daughter. He was a runner-up in a Channel 4 viewers' poll for the most significant political figure of the year.

Well-known fathers, including Bob Geldof and the Prince of Wales, have also criticised the system for being weighted against fathers.

Geldof, who was involved in a protracted custody battle with his ex-wife, the late Paula Yates, said: "God bless Mr Justice Munby. The law itself is the problem and the system that implements that primary injustice compounds it."

In an attempt to defuse the situation, the Government has introduced pilot projects based on mediation between parents, but fathers' groups say they are too little, too late. They point out that 40 per cent of divorced fathers lose contact with their children after just two years. The same percentage of mothers admit to "thwarting contact" between children and their fathers.

Mr Justice Munby, 55, who has a son and a daughter, said a lack of resources and "scandalous" court delays were major problems.

But he also regarded the legal process as "adversarial" and counter-productive because it focused on the arguments of the parents, not the child. "There is much wrong with our system and the time has come for us to recognise that [or] risk forfeiting public confidence," he said.

In the particular case of the father and his daughter, Mr Justice Munby focused on the system's failure to prevent the mother from ignoring contact arrangements.

Among the many excuses put forward by the mother was that the child, known only as D, was frightened by the father's chastisement of her, that D was forcibly fed by him and that he threatened not to return her after contact.

"All those allegations, I emphasise, were groundless. Conspicuously absent, also, are any judicial findings supporting the mother's allegations of domestic violence."

The parents separated when their daughter was two, with the father allowed to see her every Saturday. But the mother attempted to "sabotage" contact and was in contempt of court. On one occasion she was jailed for two weeks for a "flagrant breach of court orders".

Matters came to a head in December 2001, the last time the father saw his daughter, when he lost his temper with the child's mother. "The father behaved most foolishly. But the mother needs to ask herself why," said Mr Justice Munby.

"The plain answer is that it was her constant sabotage of contact that goaded him beyond endurance.

"What is this father supposed to do? Just walk away from his daughter in the faint hope that perhaps if he does not press for contact something will happen? Surely not.

"Is he to be criticised for continuing to invoke what thus far has proved to be the wholly inadequate assistance of the court? Certainly not. He would, in my judgment, be fully justified if he believed as a responsible and loving father that the time for appeasing the mother had come to an end."

The case had spent nearly five years in the courts. There were 43 hearings conducted by 16 different judges and more than 950 pages of evidence.

Mr Justice Munby said that where a mother thwarted contact on a Saturday, she should be ordered to attend court on the Monday and, if she did not, she should be arrested. She could be told that if she thwarted contact again, she would be jailed for up to three days.

While committal was "the remedy of last resort", it might "achieve the necessary coercive effect without significantly impairing a mother's ability to look after her children".

Matt O'Connor, the founder of Fathers 4 Justice, said: "Lord Justice Munby's comments are highly significant. There seems to be a sea change in the way family law is being perceived at the moment."

John Baker, of Families Need Fathers, said: "Justice Munby is absolutely spot on. Making allegations is risk free for the person making them. There should be sanctions when they are proved unfounded. In other sections of the law it would be seen as perjury.

"Time that is lost [between father and child] should be seen as a debt to the child and paid back in new contact arrangements."

A spokesman for the Lord Chancellor's Department said: "In terms of contact orders, the Government is aware of the issues but is wary of imprisoning or fining a mother who deprives a child of contact with their father."

He said fresh proposals to help fathers would be announced this summer.