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Bring back authority, says senior family judge

29 November 2010

The problems facing the family justice system are due not so much to the rise in family breakdowns as to the family courts' declining authority in the past 20 years, a senior family judge has said.

“A major contributing factor to the problem is the reduction in the perceived authority of the family court and the family judge,” Mr Justice Coleridge said at the Association of Lawyers for Children’s annual conference on Friday.

“The cause is at least in part, if not in large part, of our own making,” said Coleridge J. “The population do not generally take our decisions seriously enough and do not obey the orders promptly and fully. And it is this attitude which leads to ever more hearings and ever more interventions by guardians, social workers, Cafcass officers and child experts of all descriptions.”

Calling on fellow judges to recapture their grip on the family justice system, he added: “We are demonstrating insufficient authority in our handling of cases and our orders are regarded as helpful advice rather than binding edicts to be obeyed.”

In an unusual outburst, Coleridge J said judges had “traditionally kept their mouths shut” when it came to being involved in policy matters but the circumstances were not such that they had “a duty to speak out” and express their views “publicly and if necessary forcefully”.

Coleridge J said children public law cases were not going to disappear despite the so-called lessons from the Baby P case, so that judges now needed to become authority figures once again to help ensure swift enforcement of their decisions.

He cited one of his own “misguided" attempts at making children feel more at ease for a hearing in his room by removing his jacket and tie, only to be told by the child psychiatrist to put them back on because he was “the authority figure”.

Going further, he warned about the “increasing emphasis on the sacred cow of listening uncritically to the unfiltered views and wishes of children” as a danger of undermining the family courts’ authority and proper function. This, in effect, passed the decision onto children, who by definition did not have the capacity to make such decisions about their wellbeing.

“In just the same way as the weak and indecisive parent allows the children to call the shots we are abnegating our function to a degree which is nothing short of cowardly and unfair,” he said.

Coleridge J advocated an approach generally more judge-like, where judicial authority was not “compromised in favour of being user friendly” and where the court was “the authority figure in the drama”.

He also suggested a few practical solutions, such as a “three strikes and you’re out” approach to contact orders, with a mechanism culminating in a swift change of residence order if breached three times.

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Procedures Divorce Children Charities