The outspoken former president of the family division has called for urgent action to stop the private family law system from falling to its knees or worse as a result of damaging criticism.
Sir James Munby said the system was under 'heavy and sustained attack' from two different viewpoints - those who have experienced the system as litigants, and from journalists and family practitioners. Munby said there was 'no room for the complacent assumption that if you are criticised by both you are probably getting it right. On the contrary, it surely suggests that we are getting it very wrong'.
Munby made his comments in a speech entitled 'The crisis in private family law', published on the website of open justice group the Transparency Project. He had been supposed to deliver the speech at an event in Edinburgh for Shared Parenting Scotland, formerly known as Families Need Fathers Scotland, but was unable to attend.
The former family chief addressed the outcry over His Honour Judge Tolson's judgment following a fact-finding trial in proceedings for child arrangement orders, which the High Court said was 'so flawed as to require a retrial'. The case attracted national media coverage.
The case illustrated 'in microcosm just what is wrong', Munby said. It was 'distorted' by the fact the woman had legal aid and the man did not. The judge's approach to the issue of consent in the context of a history of coercive and controlling behaviour 'was astonishing'.
Munby said: 'No doubt some will say that this particular judgment is not typical, that it is an "outlier". Others, no doubt, will say that it is no more than the very small tip of the proverbial iceberg. Without research we simply do not know, but I fear that the latter view is probably very much closer to the truth. I emphasise that exactly the same goes for those judgments relied upon in support of their complaints from those on the other side of the debate.'
He suggested several ideas to prevent the system from suffering 'further damage' and highlighted the need for independent research to find out what is happening on the ground. This includes a six-month survey, recording key information in every case under part II of the Children Act 1989 and part IV of the Family Law Act 1996.
Munby said: 'Time is running out to address all these problems. These continuing attacks on the private law system pose a particular threat to the reputation and standing not merely of the family justice system but also, crucially, of the family judges... These criticisms are immensely damaging and, unless addressed, and seen to be addressed, with vigour, and with a complete lack of either complacency or sentimental self-protection, will sooner rather later, I fear, bring the system to its knees. Confidence in the system is at an all-time low, and unless drastic steps are taken, it will sink even lower.'