Month: May 2019

It seems that the issue of ‘transparency’, i.e. openness about the workings of the family justice system, aimed at countering the charge that it is a system of secret and unaccountable justice, is just as much a pet subject of the new President of the Family Division Sir Andrew McFarlane as it was for his predecessor Sir James Munby. I suppose we should not be surprised at this, as anyone in charge of any organisation would surely be anxious to defend the reputation of that organisation.

The new President has also inherited his predecessor’s habit of updating the profession, and indeed anyone interested, in the latest developments in the field of family law and his views thereon, in a periodical missive, cunningly entitled ‘View from the President’s Chambers’, the latest edition of which was published on the 7^th of May. Sure enough, the President had a few things to say about transparency.

We were told that: “It is important that the issue of Transparency should be kept under active review.” Fighting a sinking feeling, I read on to find that the President intends:

“…to establish a ‘Transparency Review’, during which all available evidence and the full range of views on this important topic can be considered (including evidence of how this issue is addressed in other countries).”

The aim of the review will be: “to consider whether the current degree of openness should be extended, rather than reduced.” It will be conducted over the next nine months, with a view to producing a report and recommendations by this time next year.

I hear that the President says he is open to listening to views either for or against increased transparency, but somehow I can’t envisage him agreeing that openness should be reduced. The undercurrent is strongly in favour of openness being increased, for better or worse.

I am always reminded of King Cnut when I consider the call for greater transparency. It is as if those making the call seek to stem the tide of misinformation surrounding the family justice system generally, and the family courts in particular. But that tide is far too strong: the general public already have access to an ocean of misinformation regarding the family justice system, both in the mainstream media and elsewhere, and a few more ‘correctly’ reported cases will do nothing to stem the flow. If you choose to follow the narrative that the system is biased, secretive, unaccountable, or even corrupt, then you will not be interested in anything that does not fit in to that narrative. And if your business is selling newspapers, you will only be interested in publishing stories that will sell those newspapers, not in whether those stories are accurate.

It should also be remembered, as the President hinted at, that many users of the family courts would actually prefer their private affairs not to be made public. Just the other day, a report of a Court of Protection case was published in which the judge took the unusual step of hearing the case in private, because the man at the centre of the case (which concerned such personal matters as whether he had the capacity to marry) was worried about the possibility of members of the public being present at the hearing. So the argument is not, as some may perhaps perceive it, simply between those within the system who have a vested interest in keeping its workings ‘secret’, and the general populace, whose sole interest lies in opening up the system to public scrutiny.

Another question must be: does it really matter what some people choose to think about the family justice system? In the end, the only thing that matters is that those who know the truth remain in charge of the asylum. Obviously, we cannot have importance decisions made by those who do not understand their consequences. Is it really the case that the calls from the ‘corrupt family courts’ brigade will actually be listened to by those in power, who will feel it necessary to assuage them by making the changes they seek? I’m not so sure it is. Perhaps we should concentrate upon the welfare of those unfortunates who find themselves at the mercy of the family justice system, rather than the misinformed hordes baying for change.

In short, I’m not certain that this modern fixation with transparency is as important as is claimed. I am sure that the resources being devoted to it could be more fruitfully directed elsewhere.

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Another short working week has mercifully kept the family law news to a minimum, but I’ve found the following four stories for your delectation:

Firstly, it has been reported in the mainstream media that a millionaire banker is suing his ex-wife for £500,000 in rent, which he claims she should have paid him for occupying the former matrimonial home. Kerim Derhalli and Jayne Richardson-Derhalli were divorced in 2016. They agreed a financial settlement, under which Mrs Derhalli received around £6.5 million from Mr Derhalli, and was due another £5 million after completion of the sale of the home, which was owned by Mr Derhalli. Mrs Derhalli remained in occupation of the property, rent-free. However, the sale was delayed, and in March 2017 Mr Derhalli’s lawyers requested that Mrs Derhalli either vacate the property, or start paying rent for her occupation. She refused, and remained in the property until it was sold earlier this year. Mr Derhalli sued Mrs Derhalli for unpaid rent, claiming £20,000 a month for the two years she remained in the property after being asked to leave. At an initial hearing the judge said: “It is my view that Mr Derhalli was entitled to determine the licence to occupy with reasonable notice. It follows that Mrs Richardson-Derhalli could be considered a trespasser from April, 21, 2017, since when she remains liable to pay for the use and occupation of the property.” The case will return to court at a later date, for an assessment to determine the amount of rent Mrs Derhalli should pay. An interesting case – hopefully, a full report of the judgment will be published in due course.

Secondly, Fiona Bruce, Conservative MP for Congleton (no, not the TV presenter), has spoken out against the government’s plans to introduce no-fault divorce. Ms Bruce, who is a solicitor, says that she believes that the new law risks “an immediate spike in divorce rates, which will impact negatively on the families involved.” She told the Law Society Gazette that the government ignored warnings that the changes will make divorce easier, and said: “The removal of fault sends out the signal that marriage can be unilaterally exited on notice by one party with little, if any, available recourse for the party who has been left. There will be far less pressure, or incentive, to work at the relationship in such circumstances.” With respect to Ms Bruce, I am sure that most family lawyers would disagree. People don’t choose to divorce simply because the law makes it easier, and in any event for most people the new law will not make divorce any easier, or any quicker. The new law is not about making divorce easier, but about making it less acrimonious.

Thirdly, the President of the Family Division, Sir Andrew McFarlane, has released draft guidance, for consultation, on reporting in the Family Courts. The guidance follows a recent case in which a journalist appealed against a reporting restriction order. Whilst the substantive outcome of the case was ultimately agreed between the parties, the President said that it demonstrated that there remained a need for greater clarity and guidance in relation to applications by journalists to vary/lift statutory reporting restrictions, and the purpose of the Practice Guidance is to meet that need. The President said he welcomes people’s views and suggestions to the consultation, which will close on the 30^th of June. You can find the draft guidance here. Whether it will boost news coverage of the family courts, as I understand is the plan, I have my doubts.

And finally, HM Courts and Tribunals Service (‘HMCTS’) and the Ministry of Justice have announced that video hearings are being tested in domestic abuse cases. The study by HMCTS at Manchester Civil Justice Centre means vulnerable people can appear before the court using a video link from a computer in their solicitor’s office, avoiding the distress of appearing in court at an already difficult time. This has been used in six cases so far and feedback from those involved has apparently been positive. Testing will continue in the family and civil courts during the coming months and is being independently evaluated. Justice Minister, Lucy Frazer, said: “We are hearing that, even in the early stages, testing fully video hearings are having a positive effect and ensuring the justice system is supporting people at one of the most difficult times in their lives. I look forward to seeing the evaluation of this work and ensuring we continue to improve access to our courts through new innovations.” An interesting development.

Have a good weekend.

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