CHILDREN NEEDS RIGHTS CAMPAIGN

[Alison J Stevens]

Subject: Press Release from the Relocation: Children's Needs and Rights Campaign

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adherence to outdated case law in relocation cases and called for change (the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 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.
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.