Sir Mark Potter’s inadequate reply to criticism of the family courts leaves children at risk of harm
On 7 December 2009, research was released which directly challenged the family courts’ application of legal precedent in child relocation cases. This was the third independent report in 2009 which criticised the family courts for their adherence to outdated case law in relocation cases and called for change (the first by The Centre for Social Justice, the second, a Ministry of Justice funded report by the charity Reunite, both published in July 2009).
In December 2009 a report by The Custody Minefield brought together 9 years of research which proves that removal from a parent is likely to cause a child developmental and psychological harm. In the foreword, Sir Bob Geldof accused our current Family Law as being ‘barbaric, criminally damaging, abusive, neglectful, and harmful to society’. He said it was ‘beyond scrutiny or criticism and like a secret society its members – the judges, lawyers, social and child “care” agencies behave like any closed vested interest and protect each others’ backs.’
Sir Mark Potter, President of the Family Division of the Courts of England and Wales has replied on the matter of the recent research and criticism of the courts, and a copy of his reply was forwarded to us at The Custody Minefield. Geldof’s words appear to have been prophetic.
While Potter admits that the reports cause the judiciary some concern, he states he does not personally believe that the law should change. He ignores the substance of the academic research which fully supports that the courts’ current stance does not properly consider (or understand) what best supports a child’s development and welfare. This is what commonly happens when such evidence is presented in family law proceedings, with the Judge stating, as Potter does in his letter, that Payne v Payne is a binding authority on them (even though that case law predates the research which challenges it).
Payne v Payne, was a notorious case in which a mother was allowed to remove a child from her father and relocate to Australia, the court’s rationale being that refusal of her application would cause a mother such psychological harm that she would be unable to properly care for her children. Psychiatric professionals have subsequently argued that the judiciary’s reasoning has no basis in fact, and that even if the mother (or mothers as such a rationale is commonly applied to all relocation cases) had a propensity to depression or anxiety, relocation was not an effective treatment. Lord Justice Thorpe rejected the argument that removal from the father would harm the children on the basis no evidence was presented to support such an opinion. Academics have subsequently published research which conclusively supports that children do indeed suffer harm in such circumstances.Despite the judgment in Payne v Payne having been proven to be flawed, Potter goes on to say that Payne v Payne will remain the binding authority unless challenged successfully in the Supreme Court.
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Potter neglects to mention that permission to appeal is often refused by the Royal Courts of Justice, and that such appeal hearings commonly fall before Lord Justice Thorpe, the principal architect of Payne v Payne. When permission to appeal is refused, the evidence cannot be fully heard. Worse, once LJ Thorpe or another Lord Justice of Appeal has refused permission for a full appeal hearing at the Royal Courts of Justice, the matter cannot be raised with the Supreme Court due to restrictions contained within section 54 of the Access to Justice Act 1999. The Royal Court can and does prevent such cases being heard by the Supreme Court.
Potter’s reply caused little surprise, for if he publicly accepts the validity of the many UK academic studies which challenge the judiciary’s unfounded opinion as to what causes harm to children, and accepts the recommendations of the three 2009 reports which criticise Payne v Payne, he accepts that his Court of Appeal has been responsible for outcomes which have harmed children’s development for more than 30 years. By refusing to accept the validity of the arguments and evidence presented to him by a wide body of organisations, he leaves himself open to the allegation that the courts’ reputation is more deserving of protection than the children it is responsible for.
It seems whichever way he turns, Geldof’s words will come back to haunt him.