Munby And McFarlane Go Head To Head Over Family Court Presidency

06 Wednesday Sep 2017

Posted by Natasha in Family Law, Researching Reform

President of the Family Division, Sir James Munby has put to rest rumours that he will be retiring next year.

In a speech at the Families Need Fathers’ Annual Conference this March, Munby told the audience that he had no plans to step down as President and that the claim, widely circulated by media outlets like The Times and The Law Society Gazette, was unfounded:

“There’s been a lot of what I think in some quarters is called “fake news”. The effect that I have announce my retirement – I have not. It’s even being said on a well-known website that I’ve decided to retire in despair at the system, which is not so.

This point has only emerged because some journalist with nothing better to do has rung up the judicial office and was told by the judicial office, “Sir James reaches the age of 70 in July 2018. He is required by statute to retire at his 70^th birthday.” Which has become this very non-story.

I have no particular ambitions, although my ability to remain silent from the side-lines, freed from the fetters of judicial responsibility I suspect may be limited. I suspect I am thought of, in too many quarters, as too plain speaking and the price you pay for speaking truth to power, which is what I’ve done, I suspect I wouldn’t be welcome in certain places. Not that I have any particular wish to go there.”

The remark comes one month after articles published in the media suggested that a spokesman for the judiciary had confirmed Munby’s retirement over the phone to a journalist.

Whilst Munby may not be stepping down just yet, the question mark over his presidency remains.

A position of considerable authority, family law judges aspire to the Presidency both for its kudos and the opportunities for peerage and power it offers.

News of Munby’s alleged retirement did not go unnoticed, and one judge in particular looked like he had his eye on the prize.

Shortly after the bogus announcement at the beginning of February, Lord Justice McFarlane delivered an interesting speech for the The Bridget Lindley OBE Memorial Lecture 2017, on 7th March. The similarities between Munby’s openly political judgments and outspoken approach to the problems inside the family justice system, and McFarlane’s own attempt at mimicking that style, did not go unnoticed.

The speech was a brazen attempt at securing support from all sides – appealing to legal and child protection sectors, as well as families and in particular fathers who feel disenfranchised by the Family Court. It was a stunning display of chutzpah, even before Munby himself had gone on record to confirm the rumour.

But perhaps McFarlane’s confidence isn’t completely self manufactured. After spotting our piece on McFarlane’s bid for the presidency, reliable sources told Researching Reform that he had been tipped as the next President by officials working in the corridors of power. And in November 2016, at The Family Justice Young People’s Board (FYPJB) conference in London, Munby allegedly told attendees that he would be retiring.

In an apparent change of heart, the current President has since decided to hold on to his title.

Munby’s growing impatience with a system that refuses to modernise or address its failings may well have given the Executive, and other government branches, a reason to force him out.

Nevertheless, any perceived or actual bids on the Presidency didn’t stop Munby from defending his position. One month after McFarlane’s call to arms, Munby retaliated with a well timed speech at the Families Need Fathers conference, quashing any suggestion that he would be retiring. Munby casually dropped this sentiment in at the end of his lecture, though the move was far from casual, or off the cuff.

McFarlane will now have to bide his time.

Many thanks to Family Coalition for alerting us to Munby’s speech and Penny Lilac for information on Munby’s comment that he would retire, at the conference in 2016.

Lord Justice McFarlane, “A barrister wouldn’t tell a lie.”

06 Wednesday Sep 2017

Posted by Natasha in child welfare, Family Law, Researching Reform

≈ 28 Comments

Yet another Family Law case involving parents going through child protection proceedings has made the headlines this week.

In this case, the parents claimed their barrister forced them to wait outside the court room, preventing them from presenting evidence about their child’s treatment whilst in care. An adoption order was made in their absence, and the judgment itself was never given to the parents.

The judgment then appeared on the free legal library BAILII ten months later, whereupon the parents discovered that the judge had been told by their barrister that the parents had in fact elected to stay outside the court room.

The mother subsequently applied to the Court Of Appeal for a fresh hearing, having been denied her right to be heard in the first instance. Lord Justice McFarlane, who was the appeal judge for the mother’s application, listened to the mother’s evidence and then contacted the mother’s barrister to get her version of events. The barrister did not reply for some time, finally sending a letter several weeks later, repeating her claim that the parents had chosen to stay outside the court room that day.

Whilst it seems that no other evidence was produced at the time, other than the mother’s word against the barrister’s, the judge ultimately accepted the barrister’s position. The mother, who made notes during the hearing, heard the judge make a remark in passing. That remark was, “a barrister wouldn’t tell a lie.”

There are a lot of concerning things about this case.

The first is that we know lawyers do tell lies. Carry out a simple Google search, and you can access publicly available information on this phenomenon very quickly (perhaps McFarlane should do one of those internet courses):

There was the barrister in 2014 who faced jail after lying to police .

The barrister who lied about her career, and ended up being disbarred.

The trainee barrister who went to jail for falsely accusing her boyfriend of rape.

The barrister who lied and defrauded people and businesses out of hundreds of thousands of pounds, resulting in a jail sentence of nine and half years.

Solicitors too have been caught fabricating evidence, conducting make believe litigations and even making up entire reports that were said to be written by experts in the cases concerned.

So, Mr McFarlane’s view of the legal profession is a little naive.

It’s also telling that he does not quality why he believes the mother’s barrister over the mother. This would suggest that there was no actual evidential basis for his conclusion, which in itself is deeply concerning.

The Family Court is riddled with bias. Some of it is manageable, but for the most part it ruins lives, makes a mockery of the legal duty to conduct a fair trial and in the worst case scenario, as you can see here, leads to children being removed from their parents.

This appeal should have been allowed. McFarlane should have probed more as to why the parents may have chosen to stay out of the court room, if they did – which on the face of the facts available seems extraordinarily unlikely – after all, they wanted very much to share their evidence in court – and a call for evidence on both sides should have been made to come to a conclusion about the question over attendance, as there clearly wasn’t any offered at the time of the initial investigation by the judge.

A deeply disappointing result from a judge who is most likely going to become the next President of the Family Division.

Very many thanks to Michele Simmons for sharing this news item with us.

McFarlane