Judge backs angry fathers over contact with children
Call for sweeping changes to family justice system after 'shameful' court failures
Clare Dyer, legal correspondent
Friday April 2, 2004
A high court judge yesterday launched an extraordinary attack on the family justice system for failing separated fathers and their children.
Mr Justice Munby, a respected judge of the Family Division, said he was going public with a judgment following a private hearing, while keeping the parties anonymous, because judges needed to "face up honestly" to the failings of the system so as not to forfeit public confidence.
He called for sweeping changes to the system after a father had to abandon his five-year battle for contact with his seven-year-old daughter following 43 court hearings in front of 16 judges. The "wholly deserving father", who last saw his daughter in December 2001, had left court "in tears, having been driven to abandon his battle for contact".
The delays in the case were scandalous, added the judge, who said he felt desperately sorry for the father, whose case was "far from unique".
The judgment follows a number of high-profile protests by fathers who accuse the family courts of treating separated fathers unfairly.
Mr Justice Munby said the last two years had been, from the father's perspective, "an exercise in absolute futility".
It was "shaming to have to say it" but he agreed with the father's view that he had been let down by the system.
The judge suggested that the way the courts dealt with contact applications might even breach the European convention on human rights, which guarantees the right to respect for family life, the right to a fair hearing within a reasonable time, and the enforcement of court orders.
He said he could understand why there was disappointment that a pilot scheme announced by the government this month to try to divert contact disputes from court only encouraged mediation rather than making it mandatory.
Fathers' groups have condemned the scheme as "doomed to failure".
The judge called for a new protocol for handling contact disputes, with every case allo cated to a single judge who would set a timetable for cases to be dealt with in weeks rather than months. Even serious and complex cases would be finalised in months rather than years.
In difficult cases, an independent social worker could be appointed who would be "on hand on Saturday morning to make sure that the handover takes place" or even act as go-between if the mother could not bring herself to meet the father.
Where mothers were determined to flout contact orders, a "flabby judicial response" encouraged them to believe court orders could be ignored with impunity, he said.
A judge might stipulate in an order for Saturday contact that the father's solicitor should notify the judge on Monday if there were any problems, so that the mother could be summoned to come to court on Tuesday and an order made committing her to jail, but suspended.
Then, "the mother can be told in very plain English that if she again prevents contact taking place the following Saturday, she is likely to find herself in prison the following week".
He said the mother in yesterday's case had obstructed contact with threadbare excuses and made groundless allegations that the father had frightened the child, forcibly fed her and threatened not to return her.
Despite the court rulings, the mother continued to obstruct contact until the father snapped and lost his temper with her in December 2001.
Mr Justice Munby said that although it was the father who made the first move that day, it was the mother who carried the legal, parental and moral responsibility for what happened.
The judge ended with a public apology to the father, who was described as a warm and caring man, and his daughter. "We failed them. The system failed them."
He added that the debate in the newspapers on problems in the family justice system made uncomfortable reading for the judges. "We need to take note. We need to act. And we need to act now."