MckenzieBlog

The Children Act 1989 – past it’s sell by date?

by McKenzie on December 7, 2009

in CAFCASS Comment,England and Wales Family Law,McKenzie Friend Comment

Interesting piece in the Guardian about the alleged demise of court reporting generally given the collapse of the print media industry, and how a dearth of reporters reporting might militate against ‘Open Justice’. I would add that the prospect of having to pay for content might negatively affect reports reaching the general public.

Such is our concern at Family Court Support we are actively considering paying journos to attend family court hearings. More to follow on that one anon., and any journos out there who want to offer their services commercially feel free to email us at help@mckenziefriend.com

Potential solution…send in the bloggers …send in the journalism students….and the law students, and the media students… and the in-house reporters. Oh, and let the public in if they want to come in, like they already do in Scotland where private law child cases under the Children (Scotland) Act 1995 are heard in public, have public judgments given, and don’t require anonymisation or impose reporting restrictions.

The state should stop supporting  and propagating  the falsehood that the current exclusionary system is about protecting children, as it’s a complete canard. In a way it is akin to senior judges, their family members and/or acquaintances being Lloyd’s ‘Names’ while their brother lawyers supposedly close the ‘floodgates’ in ‘nervous shock’ cases. Specious, fooling only the foolish and those who don’t have scepticism as a shield.

Relax the rules to ensure that come what may, court reporting continues, even if some of what is written is raw and difficult to digest at first and seems far from impartial. And while we are at it, make the court tapes available to interested parties for all hearings. Why not?  If there is nothing to hide what is the problem in doing that?

The lamentable reality is that individual judges, expert witnesses, lawyers, CAFCASS and Social Services staff have something to hide as some are unconsciously incompetent, and others who may or may not suffer under a similar disability scrum behind them. Some individuals are on such a power trip, especially judges, expert witnesses, CAFCASS and Social Workers, probably because they wield discretionary power over parents and children, and don’t brook criticism well.  Allowing people to complain about the other side’s lawyers would help, as would complaints being adjudicated on by anyone apart from other vocational lawyers. Having said that, the conduct of some vocational lawyers is merely a boil that needs lancing on a terminally ill patient.

As someone who has the advantage of assisting throughout England and Wales and Northern Ireland I feel in an almost unique position to announce that the extremely dated Children Act (Children Order in  NI) is at the heart of the problems around Contact and Residence, and needs root and branch reform to take account of the changed societal landscape. Grandparents needs rights, non resident parents need rights instead of higher and smaller hoops to secure a relationship with their children. Resident parents need to be able to petition the court for contact orders to be adhered to by the non resident parent.  Allegation’s of themselves shouldn’t stop the contact clock. Stop allowing British and Northern Irish children to be taken away from their family, friends and schools when one of their paretns wants to leave the jurisdiction.  Let one of their parents go if they wish, but let the children stay in the UK. A Rebuttable presumption of shared residence.  Fact finding hearings to happen in all cases within 8 weeks of proceedings commencing. Perjury needs to be a strict liability offence in family courts, not virtually ignored as at present.The judge should see the litigants in the presence of their lawyers and give them a stern agreed direction about perjury. I am sure you can add your own suggestions as these are only from our cases in the last few weeks.

Something radical has to be done quickly before more children lose a relationship with their families. and any attempt at incremental reform of the Children Act and its progeny is going to leave the system open to stinging criticism, likely demoralise those involved and needlessly drain the public purse.

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