Valour: the better part of Judicial Discretion

Mr Justice Coleridge has been ruffling feathers again. In a speech whose title sounds more like a popular soundtrack to an ’80s film than a serious polemic, Mr Justice Coleridge has made some radical proposals about the way forward for the family justice system. This is not the first example of Coleridge making outspoken remarks, nor of senior family judges doing the same, but it is a relatively recent phenomenon and not an approach adopted by the majority of the judiciary.

Mr Justice Coleridge

Mr Justice Coleridge

In his speech to the Association of Lawyers for Children Conference last week Coleridge says that the implications of the recently announced cull of legal aid for private family disputes have not been properly considered and cannot be known. He predicts that the changes will however result in a greater call upon the services of lawyers for children. Cuts to the funding of the system come, he reminds us, at a time of unprecedented increasing demand for services. He poo poohs the idea that such cuts can be implemented without an impact on front line services.

He says that all that can be done in respect of case management and efficiency has been done: “Without drastically truncating the process and so cheapening the product unacceptably, I do believe we can do no more.” But he is candid that, whilst there has been some success streamlining the process for straightforward cases, the impact of such steps upon complex cases is minimal.

In the course of his speech Coleridge identifies as one significant driver of cost the fact that people simply do not take seriously the orders of the family courts. Courts, he says, are demonstrating insufficient authority in their handling of cases. And his focus is on what he describes as “that most sensitive and demanding of cases; the intractable contact dispute”.

There is a lengthy and interesting discussion of the question of parental and judicial authority, before Coleridge comes to his practical proposals: “if an order is disobeyed, say, three times the residence of the child should normally be transferred to the other parent” with the use of a suspended residence order in order to ensure compliance.

As a corollary of that we should draw back from the position where we are in the thrall of the wishes and feelings of the children, and judges should resume responsibility for making decisions for children whose expressed wishes are so often unreliable indicators of what they really want or what is best for them. There is positive reference to Dr Kirk Weir, who I have posted about before in a post entitled Wishes & Feelings Reports – No Panacea.

This speech makes compelling reading and I am sure it was delivered with all the charisma and force that one would expect from Mr Justice Coleridge. Thinking back over cases I have been involved in over recent months I recognise much of what Coleridge identifies. There is increasing weight given to the wishes and feelings expressed by children, at ever younger ages, and regardless of the expertise with which those views have been elicited, the voice of the child has become something of a mantra, and enforcement remains as hopeless as ever.

For ease of reference: Full speech here.

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