Written evidence from Brian Hudson (CFA0134)
HOUSE OF LORDS CHILDREN AND FAMILIES ACT 2014 SELECT COMMITTEE INQURY
Dear Committee Members,
I am writing to you all following the committee meeting held on Monday 23rd May, I am the lone member of the public that attended the session. I’m hoping that sharing my observations and views of the discussion will be a benefit for everyone by helping to widen the perspective and gain some insight from a parent who has extensive personal experience of private family law proceedings, combined with assisting many other parents and several years of detailed research that makes use of the limited available public data to challenge the established narratives. You can find out more about my volunteer work at the United Parenting Federation website.
1. Prof. Rosemary Hunter stated that “the great majority of separating parents have no interest in or desire to go to court”. That is unfortunately not the case, and I offer the following information derived from a combination of MoJ & ONS data.
In 2018 there were a total of 90,871 divorce petitions filed¹, approx. 45% of those had dependent children (circa 40,892). In the same year, there were 53,164 new private law cases lodged with the family court involving 123,334 children21. MoJ estimate that 32% of their cases involve unmarried parents, therefore the total number of divorcing couples within family court would amount to approx. 36,152 which tells us that of those divorcing couples with dependent children, a staggering 88.4% are resorting to family court, almost 10 x that of Sweden.
In support of the above data, the volume of children seen by Cafcass (England & Wales) in private law cases was circa 105k. Compared to the total number of children that would appear a low figure, but it should be compared to the number of annual live births instead (657k in 2018) to give a true figure of the total percentage of our nation’s children exposed to Cafcass oversight during their childhood. So that true figure is 15.8% of all children in private law, and a further 4.5% in public law, 20.3% combined. These numbers should alarm everyone that reads them!
By contrast, Prof Hunters assertion that “use of the family courts by separating couples is low, and in most cases is reluctant & necessary” and another assertion that “perhaps only 15% don’t need to [go to court]” contradicts the freely available data from ONS and Cafcass. I’m very concerned that the committee will take Prof. Hunters view on this, which only serves to downplay the scale of the problem from 90% of a very high % of separating couples, to 15% of a low % of separating couples. These assertions highlight not only the importance that the quality of data made available to the committee, parliament and the public generally be vastly improved, but also that professionals being relied upon to give evidence to the committee have that evidence scrutinised for error and/or misrepresentation. Failure to do so is likely to lead to further poor decision making when it comes to recommendations for and implementation of reform.
2. Prof. Hunter went on to say that “there is a small proportion who have serious child welfare and safeguarding concerns”. I would like to see the MoJ data that underpins this assertion, as it doesn’t align with the vast volume of parents making applications to court. Its unlikely that so many parents are making applications to court, without raising at least one of the concerns listed by Professor Hunter, the question remains as to what proportion of those claims being made have merit, and what proportion are being made as a part of a strategy for litigation advantage? These are datasets that MoJ should be (if they are not already) recording and making publicly available as a matter of course, but no such data sets are made public, and having made numerous FoI requests for data just like this I have been refused each time.
3. Prof. Hunter referred to the Harms Panel recommendation of an “investigative” approach. This is one of the few good things to come from the Harm Panel Report, but it does nothing to address the 90% of cases that should never even result in an application to court to begin with, nor does it tackle the incentives, enticements and lack of consequences that lead to those avoidable cases.
4. Bob Greig drew attention to lack of litigants’ knowledge about “hybrid mediation”. As a parent with far too many court hearings and several years of campaigning to my name, I can confirm that I also had not heard of it prior to mention in this meeting. Why? It strikes me that whatever MoJ information provision there is for hybrid mediation is not reaching parents, either by fault of those responsible for promotion of that information, or because parents accessing information about this means of resolution is against the interests of the legal professionals advocating for them, and / or the lack of desire by the parent driving the litigation (litigation will mostly be driven by one of the two parents not both) to engage in a form of resolution that is less likely to give them the ability to achieve control over the children and therefore dictate the financial outcome of the separation.
5. Prof. Hunter commented on a recommendation for a shift from MIAMS to DRIAMS, to aid with dispute resolution. For parents dragged into court this is a ‘no brainer’, but again, would largely not be necessary if the ground rules for separation were established to be formulaic, and underpinned by an understanding that for the “best interests of the child” to come to fruition rather than be an aspirational sound bite, any state aided separation support needs to ensure that BOTH parents come through the other side of the separation in as good a shape as is reasonably achievable under the circumstances the family are faced with financially and logistically. That ought to be government’s primary objective, best outcomes for children are achieved by both parents being fit to deliver them consistent and quality care. The adversarial system is a battle between the parents, typically involving one parent using the children to get what they want at the others expense, and the other parent hanging on for dear life, while advocates (I include solicitors and McKenzie friends in this) do their best to syphon value from the family estate, all too often leading to both parents being left in dire straits, which of course impacts the children and the state for years to come. Parents locked in court battles have their financial productivity hampered, sometimes stopped altogether, and the quality of care they deliver to their children is also severely impeded, at least for the duration of their case and sometimes permanently.
6. Lord Mawson raised the issue of poor communication by HMCTS and Prof. Hunter added to this by saying that the volume of available information is overwhelming but there is no means to filter it and therefore navigation is extremely difficult. This is typical of anything to do with law, which is not built for the lay person. This is also at the root of why it has been so obscenely damaging for the ‘family law industry’ to have penetrated so deeply into family separation issues. I would argue that it is not possible to remedy the complexity, largely because those responsible for the complexity are benefitting from it and so oppose remedy or would undermine remedies with further complexity, just as Prof. Hunter described in relation to all prior attempts to reform the system being gifted to the professionals in the system, resulting in changes that benefit those professionals not the service users.
7. Baroness Prashar asked “What changes would you like to see?“ Bob Greig said suggested he would like parents to be made much better aware of the likely outcomes of family court, both negative and positive. For that to be effective, there would need to be a formulaic approach as I suggested above, which would broadly fit the majority of cases. Informing separating parents of the likely outcomes based on how the system is administered today couldn’t work, as there appears to be no standardisation at all, wide ranging discretion is made available to numerous professionals in the chain, including judges and social workers, and that discretion is materially impacted by the conduct of legal professionals and litigants themselves. For this educational approach to be effective, it must be decided what the likely outcomes could/should/would be within a range of scenarios, with some discretion around the edges of those, otherwise it would simply remain too complex and therefore likely to continue to be gamed by those with a vested interest in doing so.
8. This conversation continued with Prof. Hunter agreeing with respect to the education of parents and an investigative approach. Whilst this approach has merit and would likely lead to a measurable improvement of sorts, the lowest hanging fruit for substantial withdrawal of parents resorting to court is to ensure that parents know what the likely outcomes will be from a relatively small number of variations on a theme, and that there are measures in place to tackle litigants and legal professionals gaming the system. What I mean by that is, the current system has no form of consequence for parents or professionals who perjure themselves to game the system, even though there are powers for this, occasions when they are used are vanishingly rare, and therefore confidence that there will be no consequences among those motivated to take advantage is verging on absolute. I will give data backed examples that show the system is being manipulated at scale later.
9. Presumption of Contact - Baroness Bertin question
Prof. Hunter referred to the need for a detailed welfare check being made in cases of concerns being raised about abuse, and the insinuation is that this was a minority of cases. However, those welfare checks are already carried out by Cafcass, and the volume of children now being seen by Cafcass in private law cases was 105k in 2018 (even more now). Cafcass are brought in when safeguarding concerns are raised, and with a little over 50k annual cases in private law, and below 2 children per couple, it appears that virtually all child arrangements applications have sufficient reason to involve Cafcass and therefore for a welfare check to be undertaken. Prof. Hunter claimed that the proviso of “if its safe to do so” that goes along with the presumption of contact is routinely ignored, and that was identified by the risk of harms panel. However, the risk of harms panel produced no evidence that this is the case, outside of parental anecdotes captured via a survey with no controls. There were a great number of problems with the manner in which the Risk of Harms Panel went about their review, to such an extent that an application was made for judicial review, you can find the documentation for this application here. My understanding is that the application for JR was blocked by MoJ, and having read the documentation in detail I cannot fathom why that would be. Terry White is one of the chaps behind the application for JR, he published a presentation on YouTube to go through the issues found with the process, you can find it here. In any event, the presumption of contact isn’t the key issue to address, the key issue is that 90% of cases going to FC should not be there in the first place combined with the fact that case numbers keep rising despite declining marriage, divorce and birth rates for the last few decades. Removing a presumption to contact without tackling the reasons why the majority of separating couples are turning to family court, will only lead to an even greater degree of certainty for those gaming the system to achieve the exclusion of the other parent based on allegations of abuse. The risk of actual harm to children with a genuinely abusive parent is primarily magnified by the fact that most court resources are taken up with cases that should never be in court. It therefore would follow that in tackling that issue, those resources would have ample time to give detailed attention to assessing the risks associated with those genuine cases, and putting in place appropriate responses/safeguards to mitigate verified risks.
10. Bob Creig’s view on the proviso of “if it’s safe to do so” with regards to presumption of contact was the polar opposite to Prof. Hunter, expressing that dads (mostly) that he is supporting are faced with extensive periods of very many months where a mere allegation/s results in no contact at all. My own experiences align with Bob’s point of view, and I too have assisted hundreds of parents in the same position, almost universally all of those have been able to categorically prove allegations against them to be false. These polarised views are ultimately a case for data to reveal the reality of this situation, not least as the MoJ has a trove of data that could and should be utilised for this very purpose. That data was not made available within the risk of harms review, nor any other process I’m aware of, but was superseded instead by a survey that had no controls applied to it in terms of whether respondents even had a case in family court. When data is open to manipulation, and there are vested interests, the likelihood that those vested interests will manipulate is extremely high. Mr Creig also highlighted the fact that risk of harm being caused to children due to having one parent removed from their lives is not considered, and this factor, not least due to the sheer scale of the problem, shines as a glaring oversight of the harms panel in their review. With no representation on the panel for fathers, alienated parents, or other family members or even Cafcass for that matter (imagine excluding the courts own experts, who deal with the parents and the children in the real world, from a review into the risk of harms?!), many cynics would suggest that oversight was deliberate.
11. Very little data and transparency in family court - Baroness Bertin question
It’s a relief to me that this process so far is acknowledging the dire situation with regards to lack of data and transparency in the system. Prof. Hunter noted that a new “Core Data System” is being rolled out but spoke of “years” to deliver, which speaks to the age-old problem of MoJ & HMCTS resistance to reform. These parts of government are literally decades behind all others in their adoption of assistive technology and that cannot be further tolerated as it provides cover to how this system has grown for the benefit of professionals not families and children in particular. Prof. Hunter touched on the inability to extract data from the legacy administrative system, and I implore committee members not to buy into this excuse. As this is my professional area of expertise, technology is readily available to overlay on top of virtually any legacy system in order to interoperate with it, enhance it, and make it possible to extract useful information and insights from it, without causing disruption or risk. That aside, it would also be possible to gather exceptionally useful data and insights by running alongside existing processes/systems the means to capture data into systems built for the purpose of gathering those insights. Such systems are readily available at low cost and could be deployed for multiple pilots across the HMCTS estate. Such pilots would add exceptional value to this committees review process, with little to no disruption to HMCTS operations, by selecting individual courts to collect specified data points as a control sample for set periods of time, which ideally would be a few months each but even at a few weeks would be hugely assistive.
There is also value to be had from data contained within the existing systems and even on paper, such is the progress of technology we are generally all very aware has been made in recent years. That value could be extracted at relative low cost, and very quickly, all it requires is the appetite to do so. I would argue that any obstruction to make this happen as a matter of urgency should be viewed with considerable suspicion as to the motives. I would also like to point out that government has systems that would enable vast improvements to case management and provide real time insights already in use in other areas of government. You can find details here https://www.digitalmarketplace.service.gov.uk/g-cloud/services/561575759739258, and you should take time to review the use cases published in this document here https://assets.digitalmarketplace.service.gov.uk/g-cloud-12/documents/93596/561575759739258-service-definition-document-2020-04-27-1344.pdf, which on pages 2-4 gives a comprehensive A-Z list of use cases the system supports, numerous of which are relevant to family court administration. Those responsible for oversight of family courts should be extremely cautious about allowing those currently administering the service to be the decision makers or overly influencial when it comes to what data should be collected, how it is collected and how it is collated & distributed, the track record of failure to act in the publics interest in this regard speaks for itself, continuing to afford any level of trust that dynamic will change would be wrong and can only lead to further harm.
12. Lord Mawton – “large parts of government are not a learning organisation”
Both witnesses were in agreement with this observation, as am I. I would argue that there are no certainly no private organisations of this size that could get away for so long with such poor capture and review of critical service measurement. That can only be due to a desire to prevent accountability, why else would any organisation of this size not want to have a very detailed picture of the truth to aid review and decision making sufficient for continuous improvement initiatives that can be backed up by hard facts?
13. Lord Bach – Legal Aid. Laspo leading to lack of early legal help leading to failure of some elements of the act. “Are exemptions to Laspo functioning properly?”
Both witnesses were in agreement that Laspo has been problematic and that legal aid should be extended to both parties to the case so that there is a “level playing field”. Laspo was intended as an austerity measure to cut the legal aid bill, instead the legal aid bill has risen as professionals and litigants game the system. Legal aid in its current form provides incentive to make false claims of abuse, the threshold for proof of domestic abuse is now extremely low and goes completely unchallenged, such as a letter from GP stating the patient has spoken to them about it, the same from an IDVA (usually Women’s Aid or similar), who also do not make any challenge as to the legitimacy of the claims being made (note there is a conflict in IDVA advocacy in that the more ‘victims’ the greater the case for increased funding). Post an award of legal aid it appears there is no requirement for a litigant to pay that back if it transpires they have fabricated their allegations, and little to no oversight of legal aid lawyers when it comes to the part they play in defrauding the legal aid system. I assisted an alienated mother with her case which was previously handled by a local firm of legal aid solicitors, they had billed over £30k to legal aid, and the mother assured me they provided no more than half a day of services to her, then refused to hand over files when they lost her case, I had to threaten them with reporting to SRA in order for her files to be released to her. I reviewed the work they had undertaken, and frankly it was shockingly poor, and I say that as a former businessman with no legal qualifications. This type of practice is alarmingly commonplace, and any action taken against those defrauding the system is vanishingly rare. Whilst I believe it is important that legal aid be extended to both parties where the financial need is there to do so, without tackling the legal aid fraud which is currently rife I cannot see that a satisfactory outcome will result, but I can see the legal aid bill rising substantially, when there is an opportunity for it to fall dramatically and to be targeted to the cases where it is genuinely merited.
In November 2020, I wrote an article in response to the Sunday Times article titled “It’s a perpetrators dream: court orders to stop domestic abuse soared in lockdown”. You can find my full article here, but I have pasted in the most relevant parts below. Note: non-molestation orders guarantee legal aid to those gaining the order, most are gained ex-parte, and once awarded, the other parent has a very lengthy battle on their hands attempting to have them set aside and to gain any contact with their children.
14. Lord Mawson – “What one change would you like to see made in the Family Justice System?”
Bob Creig – education as to the alternatives to family court and to aid awareness of the impact of parental conflict on children, resources for children going through a family separation. This is both essential and a no brainer, but must be part of disincentivising going to court, i.e. the reason behind manipulating the court process are primarily the financial gains achieved by the fact that ‘money follows the child’ under the current set up, rather than ensuring that, as I said earlier, regardless of the specifics of individual cases any resulting orders are made with the objective that both parents are left in as good a financial state as is achievable under the circumstances and so that they can both deliver at least adequate parenting support to their children in the time they have them. The ‘winner takes all’ approach incentivises gaming of the system and incentivises legal professionals to aid that for their own financial gain.
Prof. Hunter – called for adequate resourcing. I would argue that this is throwing more money at the symptoms of this dysfunctional system, rather than tackling the dysfunctional system and the fact it is manipulated at scale, which is wasting the extensive resources already provided and paid for by the taxpayer.
15. Mavis Maclean –
Advisor at MoJ since the child support act. Was part of the review of children care proceedings. Claims for 50/50 parents from fathers were very vociferous around the time of the act being drafted. Also raised the issue of lack of transparency.
Sir James Munby – had 2 concerns about the 2014 act at the outset
a) Fear that mediation provisions would not work, that concern born out in practice
b) Provisions in relation to shared parenting were unnecessary and would not change practice at all, but set-up expectations. With regard to MIAM’s, insufficient analysis and support had been applied before the rules were set.
He doesn’t believe consequences were unexpected, government had been warned but did not heed those warnings.
16. Barnoness Prashar – “how crucial is it to achieve the 26 week time frame?”
This question is in relation to public law cases which I have no experience in and little knowledge of. Suffice to say that, tackling the issues that have resulted in overwhelming cases numbers in private law would naturally release resource to far better manage the case load in public law.
Notice was given to the “relentless increase” in number of cases, and it would be wise when reviewing this to understand why case numbers would increase relentlessly when the birth rate has fallen by 19% in the last 10 years. Is it possible that nefarious activity is taking place in public law as well as private law? There is certainly a great deal of campaigning going on that suggests this is the case, perhaps it is time to canvass those who are campaigning for reform of public law?
James Munby – stated “we don’t know what is going on in family justice system”, he is on the Nuffield Family Justice Advisory. He states they know “what is going on” but not “why its going on”. I would argue that they can’t “know what is going on” with the absence of critical data that Sir James states has been the key problem for many years.
Judicial “leadership is hobbled” due to lack of data. Why do they not have any ideas as to how to extract it? Why is it simply being accepted that they don’t have it? Why have simple measures not been put in place to get the data required? Simply accepting system shortcomings as an excuse is not acceptable.
17. Lord Mawson – “heard concerns family justice system is not operating cohesively, what is needed to remedy this, does Cafcass require additional support?”
Mavis Maclean – “Of course Cafcass needs additional support”. Spoke of need to collect core management information. States Cafcass needs more money, have more to do than previously, does the system want them to do even more? Stated that Cafcass are required to discover more than they were before the act, but don’t have resources increased in line with this.
Lord Mawson asked – “how do we innovate?” because more money isn’t an option
Feedback was that judges need more administrative support. Sir James stated better leadership is required, but there is no data so leadership is hampered. Judges are only accountable to the court of appeal and their own consciences.
Cafcass has never had the funding it or independent observers have advised that it requires.
Maintaining a status quo of inadequate data can only result in financial and ideological vested interests continuing to drive the system, as their narratives routinely go unchallenged. These narratives have led us to where we are today with this system, that is “on its knees” in the words of Prof. Hunter.
Mavis Maclean stated – MoJ were convinced that legal aid bill was soaring because lawyers were “revving up the argument”, so this suggests that poor conduct by lawyers is a known phenomenon. She then goes on to say that some of this increase is due to the divorce rate having “tripled”. But this is wrong, as the chart containing ONS divorce data below shows.
That being the case, the likelihood is that MoJ’s own assessment of fraudulent family lawyer conduct with respect to legal aid has considerable merit, as the number of divorces has continued to steadily decline to roughly half what it was in the 70’s, 80’s & 90’s despite the population growing by 21.5% in that time window. What this highlights is not only the need for reliable data, but also the need to scrutinise any claims made in regard to statistics that are driving any decision making. Whilst it is generally acknowledged that the family courts are not collecting or producing sufficient management information, there are data sources out there that can be analysed sufficient to give a steer as to what has been going on historically, and that steer will be useful in regards to guiding immediate decisions in terms of what other data should be collected, how and why in order to guide the committee and help to reach conclusions with rationale that can be reliably evidenced. That will also aid the committee in any recommendations for how any changes to the act and/or how it is administered are tracked so that the public can benefit from continuous improvement guided by a newfound level of transparency.
Mavis goes on to advocate for a solution being “early legal advice”, being well documented as being helpful. I would urge considerable caution with such an approach, not least due to MoJ’s recognition of legal aid being gamed prior to Laspo, and the evidence supporting the escalation of fraudulent abuse of that system ever since. I would want to see the documented evidence that Mavis refers to, it may be possible to achieve some benefit in this area if the government were to be the provider of the legal advice without any connection to taking on cases thereafter, but handing independent legal professionals any further responsibility will see them encouraging litigants to court so that they can either claim fees from government or from the families directly.
18. Sir James commented that a variety of approaches is necessary as there are multivariant circumstances within these cases. He also went on to state that most cases “don’t require a judge at all”. This lends further credence to my view that 90% of cases shouldn’t ever reach family court. He gave a specific example of parents coming to court to have an order made about which railway station platform the child should be handed over on. As trivial as this example is, aside from the gross waste of court time and resources, its actually an example of litigation abuse by one parent against the other, and could easily be dealt with were there a clear set of family court ground rules issued to parents to read before they make their application to court.
19. Baroness Bertin – “presumption of contact” question
Mavis Maclean – at the time if we hadn’t had that provision there would have been “bloodshed”, she was opposed to 50/50 and was against the presumption until addition the proviso regarding proven welfare issues. She goes on to say that parental alienation concerns have subsided, but that view is at odds with the available data and the continued growth in case load set against social factors which should be leading to shrinkage of case load. I would argue that the primary reason there is less noise about parental alienation than 10 years ago is that the media very rarely give campaigners air time or column inches, those campaign groups and support groups receive no funding whatsoever from government, while in stark contrast domestic abuse organisations (almost exclusively for women) now have increased funding to over £500m annually, a substantial amount of which is used for media and other forms of publicity which further lead to greater and greater marginalisation of alienated parents, fathers and extended family in particular. That is exacerbated by the arrival of numerous domestic abuse and victims commissioners, all of whom happen to be female, and aggressive opponents of Parental Alienation. Many would argue that this situation amounts to state sponsorship of the oppression of marginalised parents, based on a support for ideologically based campaigning that comes up short when evidence is placed under scrutiny.
A key lesson that must be taken from this is that exclusion of one side in this debate has not helped to remedy the problems of the family justice system, those same problems have only continued to worsen. It has never been right that fathers and alienated parents generally should be excluded from the family justice and domestic abuse conversations, and it is high time that equal representation be given to those groups and at least a relative portion of the government funding be targeted to them so that they are able to support those parents who are affected, a great many of whom are resorting to suicide.
Sir James – was in favour of the presumption of contact remaining as it is.
20. Lord Bach – question regarding the combination of Laspo and this act coming into effect, causing the lack of success.
General consensus that Laspo has been a disaster. That assertion needs further qualification as to why it has been a disaster. The historic presence of lawyer fraud of the system was not addressed, and the conditions were changed in such a way as to result in escalation of that fraud, coupled with no investigation into that fraud, let alone consequences for it.
Sir James made the point that immediately after Laspo hearing times doubled due to judges needing to explain to litigants what’s going on, where lawyers would previously be responsible for this prior to the hearing. What is difficult to understand is why there would not be a video resource available for parents to view prior to hearings, giving them that same explanation? There are so many examples of how video explanations would prove to be an invaluable resource for parents and therefore likely to lead to significant time saving for the courts, but there have never been any such resources produced.
21. Lord Bach – raised the issue of lawyers and money, and how they conduct cases focused on the money primarily.
Sir James challenged this with his view that most family lawyers come at it from the position of “deep concern for their clients”. With the greatest respect for Sir James, that is at odds with what most parents would say, and certainly at odds with my own experience, where lawyers on both sides were very much driven by their earnings from the case, and arguably each of them acted in such a way as to intensify and prolong the dispute. Sir James view is also at odds with the likelihood of widespread legal aid fraud that the evidence suggests is present and which MoJ identified prior to Laspo.
To expand on the reality of lawyer misconduct, family law solicitors are, in practice, unregulated. Whilst the SRA is the regulatory body, SRA data in regards to complaint handling shows that they do not regulate in practice. I will elaborate on that, my own experience led to me filing a complaint about the opposing solicitor breaching the SRA code of conduct in respect of filing allegations to court which he had been given evidence to prove categorically were false. The code of conduct dictates that he must make one of three choices in such a situation, a) withdraw those allegations b) notify the court that those allegations are false c) refuse to represent the client making those allegations unless they are withdrawn. The SRA dismissed my complaint despite the evidence of a clear breach of the code, on the basis that it was not for the solicitor to check the veracity of the allegations. But that assertion is in direct conflict with the SRA stated code of conduct, and therefore the fact they took no action is a breach of their contract with the public. My experience is not isolated, far from it. I submitted an FoI to the SRA asking for disclosure of the number of complaints against family law solicitors over a 20 month period starting September 2017, and from those complaints to list how many were upheld, and of those upheld what action was taken. The result was 1,013 complaints in total, only 8 of which were upheld, and of those 7 received only a “letter of advice” and 1 was ordered to refund fees. It seems unlikely that more than 99.9% of complaints about family law solicitor conduct had no merit, and I consider this to be evidence that lawyers tasked with regulating lawyers have ultimately become a lawyer protection society rather than fulfilling the purpose that the public have a right to expect them to fulfil with integrity and in their interests.
A key problem in so far as knowing what to believe in regards to family lawyer conduct is that they are not scrutinised, no data is collected and no barriers are in place to prevent them from gaming the system successfully for the benefit of themselves and to illegitimately ‘win’ cases on behalf of clients wishing to gain a greater share of family assets and greater ‘control’ of children and former spouse/partner. It would be short sighted to simply take anyone’s opinion on this topic, parents should be canvassed and data should be collected as to what the reality of the conduct of lawyers looks like. Judges do not have to live with the consequences of lawyer misconduct or their own decision making which is frequently manipulated, and they see lawyers primarily on their best behaviour in court, so it is not a good foundation for a reliable assessment. Sir James assertion that the money lawyers make in family law being “modest”, perhaps speaks to his personally privileged understanding of what large sums of money are, the lowest charging family lawyers are come in at around £200 + vat per hour, ranging up to and beyond £700 + vat per hour, barristers can cost £4,000 + vat for a day in court. Very few litigating parents will be earning anywhere close to those sums of money, so their savings and ongoing income will be depleted very quickly indeed, to the detriment of the entire family. Parents prevented from seeing their children will almost always fall into the trap of spending anything and everything they have (even selling essential assets and taking out loans) to reinstate those stolen relationships, and family lawyers are skilled at taking advantage of this.
22. Baroness Tyler – “If there was one change you could make”
Mavis Maclean - said reinstate legal aid for both parties – Sir James said that transparency is a “complete shambles”, and he would like to see better framework for non-married parents.
Recently a high-level financial analysis was carried out by Tim Wiltshire of Positive Conclusions (see www.positiveconclusions.org) with some assistance from me, into the societal impact of the family justice system. The analysis can be found here, and it includes a projection for where this is headed if not tackled, and the impact were it to be effectively tackled. Tim has approached Dominic Raab with this information in response to his call for ideas into how to tackle family justice.
I will close by saying that there is a real danger here that the committee will accept testimony from those involved in delivery of the system without scrutinising the available data, as well as not giving equal voice to both sides of the debate. From this session alone, significant parts of the testimony provided to the committee have been shown; to have no foundation, to be either exaggerated or unduly minimised, or even entirely false. Without taking that really seriously, the opportunity the committee has to fundamentally transform how HMCTS deliver family justice will be lost for many years to come.
Many thanks for your attention, I will be attending the next scheduled committee meeting if you wish to ask me any questions.
All the very best,
Brian Hudson
Citations
1. https://www.nomisweb.co.uk/query/construct/summary.asp?reset=yes&mode=construct&dataset=167&version=0&anal=1&initsel=
2. https://www.theguardian.com/law/2019/jul/03/family-courts-running-up-a-down-escalator-due-to-increase-in-cases
June 2022