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Had the old Mexican stand-off with Master Redpath yesterday (Thursday), who was sitting in room 2.21 at the High Court in Belfast.

His list had our client, who was a litigant in person listed for 9.30 with the rest of the mentions at call over. The Master and his office were well aware that I was there to assist my client as the client could not be there due to being out of the jurisdiction. The other side knew this as well.

We were never spoken to until after all the vocational lawyers (solicitors and counsel) had left, and then only by the Master’s clerk who came out asking was there anyone there for Mr X. We said we were there for Mr X and were informed that the matter was adjourned to the 25th February!! I asked whether costs were awarded and the clerk said they weren’t. At least that was something. That was at around 11.30, meaning we waited for over two full hours to hear that, and not once did anyone come out for us.

I accept that a litigant in person should not be in chambers to listen to everyone else’s business, and I also accept that taking the litigant in person in first would only add to the costs of the multitude of other clients.

Why not have a list for litigants in person that actually says the time they will get their chance to go in and see the judge or master? If the list had’ve said Mr and Mrs X at 1130 we would not have turned up at 9.30. Same goes if one of the parties is represented and one is a litigant in person.

You guys and girls in England and Wales will say that court attendances are timed. I know that, as we do a lot of work there. Hearings are rarely timed in family cases in Northern Ireland, meaning that people are turning up at court on time and because of the lawyers jostling for position, and the courts lack of concern about a personal litigant, personal litigants and their McKenzie friends are kicking their heels for hours. Personal litigants are losing money from lost hours at work and having to pay their McKenzie friends.

Who would be a personal litigant! More and more people it would seem…


Just thought I would share the following letter with our readers that was sent to both Lady Silvia Hermon MP and Nigel Dodds MP seeking clarification on the law on Northern Ireland in relation to ‘communications’ of documents and other information on Children Order and Matrimonial Causes Order cases.

From: John Junk [mailto:belfast@familycourtsupport.co.uk]
Sent: 22 January 2010 14:59
To: Lady Sylvia Hermon MP for North Down
Cc: ‘Nigel Dodds’
Subject: Family Court ‘communications’ Northern Ireland

Dear Lady Sylvia

Thank you for seeing both myself and your constituent at your Bangor constituency office on Friday 15th January 2010.

You mentioned that you would consider seeking clarification on a number of matters raised during that meeting by way of Parliamentary questions. I suggested that a more expedited way to deal with the matter would be to write to the Head of the Family Division in Northern Ireland Mr Justice Weir, and to copy Sir Declan Morgan, the Lord Chief Justice in to the correspondence as an information addressee. Regardless of which method you chose to staff this matter, I thought it might be helpful for you if I were to formalise the issues I raised with you around ‘communication’ of documents under the Children (NI) Order 1995 and the Matrimonial Causes (Northern Ireland) Order 1978.

Firstly I made the point that I was unsure whether a Member of Parliament in Northern Ireland (and their staff?) required leave to see any documents from either a current or historical Children Order or Matrimonial Causes case. I believe that both yourself and your staff would be aided in your work if this matter was clarified and communicated to you by either the Northern Ireland Court Service or from the senior judiciary. A similar issue arose today when I was called to the office of Nigel Dodds MP to speak to a constituent of his who had attended at his office with a live Children Order matter, currently being heard by District Judge Alcorn at Antrim. I advised Mr Dodds’ office and the constituent that as I had not been granted leave to see the papers I felt unable to assist, and cautioned them on what I believed the law to be on communication. I have coped Mr Dodds’ office into this email.

Secondly, I pointed out that as a lay adviser and McKenzie friend who assists in divorce, ancillary relief and private law matters under the 1978 and 1995 Orders, it is my experience that unlike England and Wales, there is no formal direction (for from example the Family Proceeding Rules Committee) that states that litigants in person do not require leave to show papers to their McKenzie friends and lay advisers. I cannot speak for others in the lay advice sector such as Women’s Aid or the Citizen Advice Bureau, but I can say with confidence that there either is no accepted procedure for lay advisers seeing documents in cases under either the 1978 or 1995 Orders, or alternatively if any global guidance does exist it is not being followed throughout the court system in Northern Ireland. In support of this assertion, and by way of example I will set out a number of situations I have experienced in local courts.

On one occasion I had to give an oral undertaking under oath in the High Court in front of Mr Justice McLaughlin to be granted leave to see papers; whilst on another occasion I had to be given leave to see case papers by a Master that I had already seen; and had admitted to having seen. I have had to apply for, and been given leave to see papers by a range of magistrates after the court made the issue justiciable, by the magistrate raising the matter of their own motion. On numerous other occasions jurists have made no issue about my seeing the papers, and leave was neither sought nor given, and I was granted a discretionary right of audience to advocate my client’s case. I count Mr Justice Weir and the current Lord Chief Justice in the latter category.

I feel that the position in Northern Ireland is unsatisfactory in that litigants in person are unnecessarily being prevented from obtaining assistance as urgently as they require it. On a personal level I am potentially placing myself in an contemptuous position as the law stands in Northern Ireland by seeing papers without leave being granted. It is impractical to expect anyone to assist in a case if they cannot see the papers at the earliest possible opportunity, normally when a client attends a lay adviser.

This position is to be contrasted with the position in England and Wales where Statutory Instrument 2005 No. 1976 (L. 18 ) The Family Proceedings (Amendment No 4) Rules 2005, and subsequent primary and secondary legislation applies, sanctioning McKenzie friends and lay advisors to see the entirety of the papers without seeking leave.

Some authoritative interim guidance setting out the position in Northern Ireland would be helpful until such times as the matter can be considered by whichever legislature ends up dealing with the substantive issue.

Yours sincerely
John Junk

For www.familycourtsupport.co.uk


By their own account RFFJ NI had a successful meeting with the SDLP at Stormont yesterday. I haven’t seen any press release from the SDLP, setting out their commitments but I may just have missed that.

Other groups such as Families need Fathers and Fathers for Justice in Northern Ireland need to take a leaf out of RFFJ’s book and publicise these meetings on their respective websites ahead of time and blog a report after the meeting. It may also be helpful to make the briefing documents available online so that other supporters can see what research was being relied on.


Having taken some time out to concentrate on political developments in Northern Ireland, most of our original readers will be glad to hear that I am going back to my specialist subject, family law reform. Of course I would like our new readers to stay, but unless the issues I normally blog on affect them or their family or friends they have my permission to blog off!

On Friday past I was with a politician whose name has been mooted as a potential new Minister of Justice in Northern Ireland. To comply with the draconian laws governing communication of family court cases in Northern Ireland, I do not feel comfortable naming them.  Of course it goes without saying that I am also potentially in contempt for being in receipt of such communications without leave; as is my client for disclosing such information in his legitimate quest for assistance.

The law on communicating and being in receipt of documents from the family court is much more realistic in England and Wales and the anachronistic position in Northern Ireland is apparent when one contrasts my personal liability during two similar cases on the same day, in two different jurisdictions within the UK.

Imagine if you will I am assisting a client in England and Wales in the morning under the Children Act 1989. I need no permission from the court to see any documents in the case due to Statutory Instrument 2005 No. 1976 (L. 18 ) The Family Proceedings (Amendment No 4) Rules 2005 and subsequent primary and secondary legislation.

However, when I fly back to Belfast in the afternoon for a Contact application under the virtually identical Children (NI) Order 1995 I am put through the mill, having to go into the witness box to give a verbal undertaking not to disclose any information I glean in court, and then having to be given leave by the jurist to see the papers, that I may or may not have already seen. How does the court in Northern Ireland expect me to have gotten this far with the client without seeing the papers!!!

This charade is similar to the ‘Silent Movie McKenzie Friend Game’ whereby it is ok for me to whisper what to say into a litigant in persons ear and for him to repeat it, but I am not allowed to address the court on his or her behalf. This certainly helps to speed things up doesn’t it Mr Magill and Mr Alcorn?

Currently these matters are within the competence of the Westminster parliament, but if and when Policing and Justice is devolved to the Northern Ireland Assembly such matters will be under the purview of local politicians.

I can’t wait….



Not really related to the subject matter of the blog but as I know various news organisations will want some background on this story, I have put it here rather than fielding calls all morning.

Anyone based in the UK will be aware that the AA have accused local authorities of not gritting roads early enough. What are the RAC up to during this time of national crisis. Read on to find out…

Woman who is 6 months pregnant gets stranded around midnight in blizzard conditions on hilly country lane near Hillsborough, Co Down.

She rings RAC who tell her that as her car isn’t broken down they can’t come and help her. She then phones her husband who rings RAC, and after getting a less than sympathetic female operator,  he is told that the RAC have issued guidance that they will not respond to such situations as firstly it isn’t a breakdown, and secondly responding to such snow rescue calls would inundate the service. When told by husband that he was going to contact BBC to let them know of the RAC’s position, female operator sarcastically suggests that the BBC might help with a weather forecast. At least she has a chance of getting a stand-up comedy job when she loses this one.

Husband asks to speak to supervisor and after holding he is mysteriously cut off. Husband rings back immediately and speaks to a male operator, who takes his details again and puts him through to Scott, who claims to be a manager, and who apologises for cutting husband off earlier. Same response from Scott as original comedienne operator, who tells husband to contact the emergency services.

Husband contacts female officer at Lisburn police station who informs husband that police are unaware of RAC not responding to call outs due to snow. Passes husband on to ‘Call Handling’ at Antrim, who have also not been informed of the RAC not responding to calls due to snow. Antrim take details and send car out from Lisburn. Police officers are initially far from happy at being tasked this way but overcome their annoyance at the RAC and manage to to get car out of grass at side of road. Problem solved but by the police, not the RAC. Over to you guys…

Feel free to retweet and repost.

*****UPDATE 31st Jan 2009*****

Update of email correspondence including RAC reply and my response on 31 Dec 2009.

I was hoping this matter would be resolved quickly but as I have heard nothing back since NYE I will post this  correspondence up for completeness. It represents progress, but the full picture of what the RAC’s policy was on helping their members stuck in snow on the 23rd Dec 2009 hasn’t emerged yet.

The sad aspect of this case is that the RAC have needlessly damaged their business and can’t seem to find a way out of the mess, and don’t understand the power of social media. This blog post has been read many hundreds of time and I find it hard to believe that anyone who reads it would feel warm and fuzzy and rush to join or renew with the RAC. I would love there to be a happy ending for the RAC that involved them fronting up to their failings and giving their customers the service that they require in these climatically challenging times.

*******24 Dec 2009 22:25  UPDATE …RAC RESPONDS TWICE?????*******

Two responses have come into the blog about this post. One claims to be from the RAC and another doesn’t make any claim at all, but the name given was ‘Pauline Bates’ and email was pbates@madasafish.com.

The Official RAC reply says Just to advise, our RAC customer relations team are aware of this matter and are currently looking into what happened so this can be resolved. Thank you, RAC.”

The one from “Pauline Bates” is rather more pejorative, “Poor piece of “journalism”. If you’d been following the news, you’d know that tens of thousands got stuck in the snow. If the AA and RAC went out to rescue all of these, they wouldn’t get to people who had actually broken down, which is what they’re paid to do. Also love the sensationalism of the headline “heavily pregnant”, then qualified by 6 months. Hmmm…”

Strangely, both come from the same IP address, which according to my nerdy mates records this IP address is under the control of the RAC. Very strange?  Will update you more later but I have had enough of Scrooge for one night!

Have inserted the emails in PDF format underneath so you can check them for yourself. Feel free to use documents and retweet at your leisure

RAC customer relations reply

Pauline Bates? RAC? reply


Real Fathers for Justice are mentioned in an article in the Belfast News Letter today. The online version is here. For those of you who don’t know, the Belfast News Letter is the oldest English language daily newspaper still in publication anywhere in the world, and was  first printed in 1737.

The nub of the article is that the Northern Ireland members of Real Fathers for Justice have had enough of the ‘softly softly’ approach and are promising some ‘media events’ in the New Year, as they feel that very few policy makers and politicians are listening.

RFFJ frustration will hardly be helped by the Northern Ireland Court Service hiding behind the old canard that the paramount consideration of the justices, judges and magistrates is ALWAYS the welfare of the child. This is much too abstract a claim to be true and is aspirational at best. It should really have read that ‘even though our stated approach is that the paramount consideration is the ‘welfare of the child’ , that is an impossible standard to attain as our judges are only human, and can be biased, prejudiced and unfair like everyone else’ .

Well guys and girls that’s the truth isn’t it? Are judges infallible? I find it offensive if anyone is claiming that they are. Of course they have a hard job to do, but the height and size of the hoops that (mostly) dads have to jump through to get contact with their kids isn’t explained by the children being at the forefront of the courts mind.

My view is that like judges sitting in Diplock courts, the judges sitting in far from open family courts can become battle hardened due to the continual and withering conflict they have to deal with. Human nature seems to suggest that they may also get power hungry without much in the way of checks and balances.

Given that journalists are not permitted into the the Higher Courts in Northern Ireland that opinion is unlikely ever be repeated outside this blog.

Maybe it’s time to admit journalists in Northern Irish family courts?


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Interesting article and comments in the online version of the England and Wales Law Society Gazette, about the solicitor branch of the legal profession. Too may graduates, not enough training places. It’s gotten so bad that the Law Society in England is warning students about the situation.

As trainers and providers of family law McKenzie friends we have already had requests from people doing the BVC to work as lay advocates with us, and expect to receive requests from LPC graduates and trainees as well in the near future. We already get a raft of enquiries from law students to work with us. This is markedly different than two years ago when we had no requests from anyone but law students.

The numbers just don’t add up for the established legal professions and either training contracts will have to be replaced with something that will subsume the LPC and BVC graduates or you create another branch of the legal industry, possibly McKenzie friends Plus, and place them above paralegals. That should ensure that these graduates aren’t lost to law altogether.

McKenzie friending for commercial providers such as ourselves should be considered either as an alternative to a vocational legal career, or as a holding pattern until you can get something better. The experience is top drawer and the standard in established companies is high. The likes of Dr Pelling and others including myself regularly take on and trounce counsel, both in the quality of our drafting as well as in our role as advocates.

I also predict that family law McKenzie friends and lay advocates will be available on legal aid with 24 months, and that the ‘value’ of the legal aid rate and the savings made will be pivotal in that decision being made.

And for all those reading this article thinking that we are a cheap route to a better CV I would envisage that there would be a cost to anyone wishing to train with us. This is to be expected in the current climate as there are now ‘paid  for’ rather than ‘paid’ internships.


I am sure there are vocational lawyers out there who will be spitting feathers at the mere suggestion of doing a divorce without a lawyer, but don’t shoot the messenger as it is one of your own who has written this book! John Bolch is a solicitor with over 25 years experience specialising in divorce and family matters. He is a member of Resolution (formerly the Solicitors Family Law Association), and is the author of Family Lore, blog, purportedly the first family law blog in the UK.

Here at Family Court Support we take it as read that divorce, ancillary relief, residence and contact matters are done without a vocational lawyer, as the thought of handing over £100+ per hour to a solicitor (plus uplift for Care and Control and VAT of course), and then paying counsel to do the real work at hearing while said solicitor Tweets in the cheap seats, doesn’t make sense to us.

John Bolch is careful to draw a line in the sand between a truly uncontested divorce, and one that starts off all sweetness and light but ends up kind of mental, with everyone hating each other and blaspheming through their veneered teeth about what a skank the other person was. His standard advice then is to get legal advice if things get contested.

Of course that is not necessarily the same as walking down to your local High Street and seeing a solicitor who helped you with that compo claim a few years back, or who conveyed your house purchase back in the 90’s.

If you choose to eschew your right to conduct your own litigation or represent yourself, an alternative approach if the litigation has already started is to look to see whether you can find a barrister who you can instruct by way of Direct Access. Or you could try to get a specialist Family Law solicitor. Piece of advice though, try and find one with a decent law degree, and not some BA who has done a conversion course. Have a look at their website or headed paper for the qualifications as I have a theory that most family lawyers haven’t got a great degree classification to start with, but it is axiomatic that a law degree is more relevant to the situation than a degree based on writing about Shakespeare. Not wishing to be snobby here but writing in a legal academic style is miles harder than doing an essay for an English degree.

I read this book from cover to cover (it has some excellent Appendices of court forms and sample affidavits etc ) and like the cut of it’s gib enough that I have sold out to the capitalist ideal listed it as a recommended book on our website at Family Court Support. It is written in a very easy to understand  Plain English style, has a glossary at the end, and is very current being published August 2009.

If the opportunity arose I would have little hesitation in recommending it to our clients, but by the time they arrive at our oasis of calm they are normally passed the ‘let’s be amicable’ stage, and are more likely to Google ‘Voodoo Dolls’ and the long tail ‘Lithuanian Hitman who offers Die Now Pay Later’  rather than giving an inch or compromising. Our clients normally arrive with a monster solicitors bill in tow, usually with two columns, one labelled ‘Professional Fees’ and the other asking for £10,000’s without a list of dates or times, or anything approaching an account statement. Thankfully a double helping of Cook on Costs soon brings the miscreant solicitor back down to earth with a bump.

Even though I might get a few coppers from Amazon if someone buys the book through our link I do genuinely recommend the book as it takes the very wise position of suggesting that the starting point for matters concerning the children should be Shared Residence. Some good tips in it as well but you will need to buy the book to find those out!

Some things that I would like added are a companion website for all the useful links plus footnotes in support of propositions made in the book, for example the change of the CSA formula in 2011 and the ‘remarriage rule’. That might make it more of a legal academic text book and I would understand if John felt that this was taking the book away from first principles.


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

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.


Dr Michael Pelling has given the following analysis of the effect of the Children Schools and Families Bill on existing “openness” precedents Clayton v.Clayton and Clibbery v.Allan and shows that far from increasing transparency in Family proceedings, the Bill in many respects does the exact opposite.

Why the Children Schools & Families Bill implies a statutory reversal of Clayton v. Clayton [2007] 1FLR 11 CA

1.  The current law is that it is a Common Law contempt (declared in s.12(1)(a) AJA 1960) to publish information relating to child proceedings heard in private (i.e. general public not admitted, even if accredited press are) such as under the Children Act 1989 or in wardship. Information means substantive information about the content of the proceedings, such as submissions, evidence, and judgment, but case law held that it did not, for contempt purposes, include the mere names of parties, witnesses, or children the subject of the proceedings – see X v.Dempster [1999] 1FLR 894. These could be published without contempt. However, s.97(2)-(6) Children Act 1989 created a summary criminal offence of publishing information to the public or a section of the public identifying or likely to identify a child as the subject of proceedings under the Children Act, and this actually applied whether the proceedings were in private or in open court. Clayton v.Clayton CA held that the s.97 prohibition only applied while the proceedings were continuing – once the Court had reached its final decision and the case was concluded, it would be no offence to identify the child. In particular in newspaper reports and to the public generally.

2.  The Bill repeals s.12(1)(a) AJA 1960 and s.97(2)-(6) Children Act 1989, and ss.32-41 create general restrictions on publication of information relating to Family proceedings, whether child related or not (e.g. proceedings under Part IV Family Law Act 1996 are covered, but not matrimonial causes). They apply only to proceedings heard in private (general public not admitted) and to both ongoing and concluded proceedings [s.32(1)]. A new statutory contempt is created by s.32(2) covering the “publication of information relating to the proceedings” unless (and only if) any of 3 exceptions applies, in which case there is no contempt. These are:-

(a) an authorised publication of the text, or a summary, of the whole or part of an order made or judgment given by the court in the proceedings;

(b) an authorised news publication;

(c) authorised by rules of court.

It is important to realise that “information relating to the proceedings” now DOES include identification information – see the interpretation section 41. Information identifying or likely to identify parties, witnesses [except professional witnesses], or those (typically children) the “subject of the proceedings”, is now included in the statutory contempt, unless of course falling within (a), (b) or (c). Further, it makes no difference whether the proceedings are ongoing or concluded.

3.  It follows that we have a reversal of Clayton v.Clayton in the case of Children Act proceedings heard in private (as they almost inevitably are) UNLESS publication of the name of the child, or information likely to identify him, to the public or a section of the public, after the proceedings are concluded falls within one of the exceptions (a), (b) or (c) set out in s.32(2).

4.  One can easily deal with (c) – there are no rules of court authorising publication to the public at large.

5.  The definition of (b) is found in s.34.  A publication of information is an authorised news publication if a series of conditions are met. Condition 1 [s.34(2)] is that the information was obtained by an accredited news representative by observing or listening to the proceedings when attending court in the exercise of a right conferred on such representatives to attend. But Condition 3 [s.34(4)] is that the information is not identification information relating to an individual involved in or referred to in the proceedings (subject to power of court to allow publication, but we are concerned with the general case and not with the special situation where the court makes specific orders or injunctions enlarging or restricting the scope of what is permitted publication). It follows that exception (b) is of no avail.

6.  The definition of (a) is found in s.33. Judgments need permission of the court to be published, but unless the court expressly prohibits it, there is (excluding Adoption proceedings) no restriction on publishing the text or summary of the whole or part of an order made in the proceedings. It follows that exception (a) will SOMETIMES permit the identification of a child in the proceedings – provided the text of a court order names or identifies the child. This seems to point up some very bad drafting in the Bill, because it cannot be reasonable that the right to publish the names of the child and parents should depend arbitrarily on whether or not they happened to be expressly named in an order of the court. In my experience it is equally common for the names to occur in the order as not – it is easy to draft a court order either way. For example:-

(i)  The Applicant Father’s application for a Residence order is dismissed.


(ii)  The Applicant Charles John Adams’s application for a Residence order in relation to Nicholas Joseph Adams (born 22 March 2001) is hereby dismissed.

7.  However, you can be sure that once the Family law judiciary cotton on to the new significance of whether or not names expressly occur in the texts of the orders they make, they will rapidly opt for modes of expression which cut out the names. It seems fair to say that the Bill does imply a statutory reversal of Clayton v. Clayton CA by virtue of its clauses 32(1), 32(2), 33, 34(4), 41 all read together.

8. But the matter goes further: because it is clear from the above analysis that, subject to the contingency of an order naming names, it will now be a contempt of court to name parties, witnesses (excluding experts), and individuals the subject of or involved in the proceedings, in most kinds of Family proceedings, and not only child proceedings, and a fortiori to disclose substantive content of the proceedings. Thus proceedings under Part IV Family Law Act 1996 (for exclusion orders or non-molestation injunctions etc: almost invariably heard in private) will be included. This means in particular that we also have a statutory reversal of Clibbery v. Allan [2002] 1FLR 565 CA, and not only to the extent of names but also now to cover evidence such as the Court of Appeal held Ms Clibbery was entitled to publish. The right of a party to publish information about his own case, in Family proceedings generally, not just child cases, is now severely restricted by the Bill, far more than under the existing law.

9. In a TV broadcast on 27 April 2009 Mr Straw stated he would not reverse Clayton v. Clayton (link to recording here) from which it now appears he lied or else he has been bamboozled by the civil servants and the ghastly convolutions of his own legislation.

10.  Frankly, this legislation is just rubbish – far from opening up the courts and creating “transparency” it’s really made things worse. As Frances Gibb, Times legal editor, correctly said, “A long, long step backwards”.

Michael J.Pelling, Dr.

29 November 2009

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The Indy has a short note titledCuts warning over family courts’, about the FLBA Annual Conference held in Bath yesterday with Mr Justice Coleridge supposedly linking delay in family cases with increased media access.

The story doesn’t really make any sense until you read it in conjunction with this post by Lucy Reed, family law barrister and blawger (sic) writing in her Pink Tape blog. Lucy reveals that part of the conference was in panel discussion format, entitled ‘Publicity in Family Proceedings’ , and lasted all of 60 minutes.

Don’t really feel that I can comment much more without seeing the transcript of the discussion, but suffice to say that I feel that what Mr Justice Coleridge seems to have said is most likely a supportive salvo from SOME of the judiciary into the debate around the Children, Schools and Families Bill Part 2 — Family proceedings. This Bill, under the pretence of more transparent access to courts statutorily reverses Clayton-v-Clayton, despite Jack Straw saying on This Morning on the 27th April 2009 that Clayton wouldn’t be reversed.  There is a rather long download video here and the action re Clayton-v-Clayton starts at 8:45.

If you have the time, then listen to the whole piece, as Straw not only speaks about Clayton but about an 11 year old child being forced by the Family Court to see her father. This starts at 10:25. Very telling in my view as Straw seems to suggest that given his own parent’s divorce he has sympathy with the child. He then goes on to say that family court decisions are binary and seems to have forgotten the Shared Residence option!

How I would have loved to have seen Dr Pelling on that show with Straw, but I doubt if Straw’s people would countenance that then, or now.


Following on from our post about where McKenzie friends should sit Peter Cherbi has just announced on his blog that for the first time since the seminal judgment in McKenzie-v-McKenzie in 1970, a McKenzie friend has been permitted to assist a litigant in person in a Scottish Court.  Bizarrely however Lord Woolman decreed that the McKenzie friend sit behind the litigant, rather than beside!!!

How embarrassing for the Scottish senior judiciary to fudge this issue, whether by design or otherwise. If by design we have a word for such conduct in Northern Ireland. The word is ‘thran‘!


Why family courts make such bad decisions?

A lot of parents (mostly dads) are unhappy with their experience in family court and the resulting judgment.  As a full time McKenzie friend/lay adviser and lay advocate in UK family courts I can tell you that a lot of times one parent has a right to be perplexed as to how a decision was arrived at. Following a seemingly inexplicably arrived at judgment, a number of parents are in the catatonic state that Bishop Brennan was in after Father Ted kicked him ‘up the arse’ in this episode of Father Ted.

Accepting as I do that some decisions seem to be consistent with the facts presented , what about the rest, the majority of which see mother as the custodial parent following a welfare hearing?

These decision are made in my view as a result of largely non-legal influences. In Oliver Wendell Holmes’ ‘The Common Law’, (Amazon UK version here and Free Project Guttenberg text version here ) Holmes called these influences ‘inarticulate major premises’.

One of the inarticulate major premises that I believe is operative here is that mother is the best person to care for a child post separation and divorce. Worryingly even champions of dads like myself potentially hold that view. This may be heresy to some but I ask a simple question of each of you… ‘When was the last time you asked a male friend or relative where he and the kids where going to live after separation or divorce??? If you can say that’s a question you have never asked perhaps the inarticulate premise is alive and well in you as well? It certainly is within CAFCASS and others who report to the courts. If it is operative it needs challenged to see whether the premise is true or false. If false it should be abandoned, and consigned to the dustbin of legal history. If true the Welfare Checklist needs rewritten.

Probably one for a PhD thesis, but for now I am out of time and look forward to the retweets and comments to ensure this theory gets ‘out there’. Who knows, maybe our frenemies at the Ministry of Justice might run this post past some judges or comment in rebuttal?


Is Social Work a profession?

It is fair to say that a social worker’s favourite word is ‘professional’ or derivatives thereof. At a case conference I attended recently with a client, the word was bandied about as if it was well accepted in society that social worker’s were ‘professionals’. This notion of social workers as ‘professionals’ didn’t sit well with what I had just witnessed, so it got me thinking about what the academic, peer reviewed discourse said.

This question is not new and is the subject of a seminal journal article by Abraham Flexner from 1915 1

I wont spoil the article for you but it is fair to say that the perspective taken by Flexner whilst academically respected, was written almost a 100 years ago and is due for a modern day revamp using modern language and currently accepted methodologies. Any takers?

1   Flexner, A. (1915). Is social work a profession? In National Conference of Charities and Corrections, Proceedings of the National Conference of Charities and Corrections at the Forty-second annual session held in Baltimore, Maryland, May 12-19, 1915 pp581, 584-588, 590, Chicago: Hildmann reprinted in Research on Social Work Practice, Vol. 11 No. 2, March 2001 152-165.


Knowing as I do that we are followed by a lot of notables in the UK family law community I wonder what our cousins in England and Wales think of this judgment and what comments they would make on the arguments advanced by counsel and the reasoning employed by the judge, Master Bell.

I certainly wouldn’t have liked to have been acting for the wife on this one as this case was always going to be hard to win. I guess that £10 million can be a shiny shiny and hard to resist going after.Wouldn’t have been cheap to bring to court, and now that wife has lost case, lets hope she has the funds to pay lawyers!!!


Before you all get too excited about this case as reported in the Daily Telegraph I would ask you to hold off from rushing to include this in your skeleton arguments until you see the actual judgment from the Court of Appeal. Hope I am wrong but this seems to me more akin to an upholding judicial discretion type judgment, rather than something that has wide applicability for cases where the judge has not been so bold as to face down mother.

For every judge like HHJ Bond who early on sees the case as it is rather than what he is being told by mum’s lawyers, and sets about facing down an obdurate mother, there are another 50 judges of all levels who will let mother’s behaviour slide, and cajole rather than coerce.