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Repeal s.54 of the Access to Justice Act 1999 and provide legal aid where permission to appeal is granted

Comment 1st June 2016

Section 54 of the Access to Justice Act prevents a matter being taken before the Supreme Court if the Court of Appeal (at the Royal Courts of Justice) has refused permission to appeal. This refusal prevents the proper development of law, and effectively gives the Lord Justices of Appeal a right of veto over its own precedent being considered and reviewed by a higher authority (the Supreme Court).

Repeal of s.54 of the Access to Justice Act will assist in reducing delays to legal reform, and in the example set out below, would have ensured that child welfare is better safeguarded. It would protect both the judiciary and our legal system from reputational harm.

For the law to be upheld, it must be open to scrutiny and perceived to be beyond reproach. There must be a system of checks and balances. This statute precludes this.

Where the Royal Courts grant leave to appeal to the Supreme Court, the applicant should have the assistance of legal aid, given that matters of great constitutional or social importance go before the Supreme Court. Where it is accepted by the Lord Justices of Appeal that an application is meritorious, the limited financial means of an applicant should not preclude arguments being properly set forth by counsel. In such circumstances, the fees for an application should also be waived. Where there are general points of law to be reviewed which impact on more than a single applicant's case, there should be no barrier to a full and open review, and one where the applicant is assisted by expert counsel. Such an outcome is in the public interest.

Why does this matter?

The Access to Justice Act prevents the 'proper development of law'. A prime example was the repeated refusal by Lord Justices of Appeal to allow permission to appeal the binding precedent and ideology with controls judicial determination of relocation cases in family law. [1]

Our legal system prohibits a review of precedent made by a court of equal or lower status under the legal rule of stare decisis, meaning that a court cannot overturn its own precedent except in rare circumstances, such as the precedent having been set without due consideration of statute or earlier precedent. Where 'bad' or 'out-of-date' law exists, only a higher court can overturn it.

In leave to remove and relocation cases, the existing precedent was set in 2001 in the case Payne v Payne which followed an ideology first set forth in law in 1970 based on a 70s view of parenting and children's needs. [2]

Since 2001, there has been published a compelling body of academic research which finds that children are harmed when separated from a parent, and this research has not been properly heard by the courts, nor allowed to influence the current guidance. [3]

The courts are bound by precedent to pay great weight to what is commonly referred to as the 'distress argument', a judicial belief that to deny a parent the right to relocate with the children will cause them such distress that the children will suffer significant harm. There has been no research to support such a belief in 40 years. No research need be presented in evidence at trial to support that such a risk exists since, in law, the legal principle of 'judicial notice' allows for the judiciary to accept arguments and set precedent without there being supporting evidence. Where the presiding judge believes a matter is widely held, it need not be proven. This makes more important a system of checks and balances. Psychiatric professionals stated in 2005 that relocation was not an effective treatment for parental anxiety or depression, and that no evidence existed to support the judiciary's unsubstantiated ideology as set out in Payne v Payne. [4]

The contemporary research which challenges the courts' guidance is precluded from being afforded sufficient weight, and routinely goes ignored and unheeded in relocation cases. That research confirms that children are subject to psychological, developmental and emotional harm when separated from a parent. Such harm is compounded when children are removed from the familiarity of homes, culture, school and through the loss or diminishing of their existing friendships and relationships. [5]

Whether such harm should be considered is a matter of debate, but in practice, it rarely is. Despite this knowledge, permission to relocate is granted in 90% of cases. The Children Act 1989 sets out that the child's welfare must be the court's paramount consideration, yet the precedent casts an illegitimate gloss on the purity of this statutory principle. In practice, the parent's wishes outrank what research informs us are the children's needs.

Appeals to the Royal Courts of Justice have commonly been heard and refused by the same Lord Justice of Appeal whose guidance was set out in the binding precedent from Payne v Payne. [6]

Since 2009 there has been mounting criticism by charities, the legal profession, the public, the international community, MPs, psychiatric professionals, and celebrities of that precedent. [7]

The condemnation of the court's approach has been considerable, and it culminated in 2009 with Sir Bob Geldof writing 'The court is entirely informed by outdated social engineering models and contemporary attitudes rather than fact, precedent rather than common sense and modish unproven nostrums rather than present day realities. It is a disgraceful mess. A farrago of cod professionalism and faux concern largely predicated on nonsensical social guff, mumbo-jumbo and psycho-babble. Dangling at the other end of this are the lives of thousands of British children and their families.' [7]

It was only after the High Court urged that the matter be urgently reviewed by the Supreme Court and the publication of a declaration by international judiciary in Washington which conflicted with the UK courts' guidance that the self same Lord Justice of Appeal accepted on national radio and later in a speech, that the guidance in Payne was out-of-date, and required review, yet permission to appeal must still be granted in an individual case. [8] [9 [10] [11]

A review by the Supreme Court must still await an individual parent coming foward with the financial means to cover considerable legal and court fees. Until that time, the lower courts must heed guidance that even its own creator now doubts. The question remains, why did this take years for the judiciary to accept, when their own profession had question their reasoning 5 years before. Why was permission to appeal still being refused in January 2010. [12]

Had the (somewhat perversely named) Access to Justice Act 1999 not enabled the Lord Justices of Appeal to boycott an earlier review by the Supreme Court, thousands of British children's welfare might have been adequately safeguarded.

End Notes

1. s.54 of the Access to Justice Act 1999

2. Payne v Payne [2001] EWCA Civ 166

3. The Custody Minefield: 'Relocation: Children's Needs and Rights Parliamentary Briefing Report published December 2009'

4. 2005 Law Society Debate – 'Is leave to remove too easily granted'. 85% of solicitors who took part said yes, and Dr Mark Berelowitz found there to be no evidence which supported the 'distress argument'

5. ibid 3. The compelling body of research findings is provided in the December 2009 Custody Minefield Report.

6. G (A Child) [2008] EWCA Civ 1468 and R (a Child) [2009] as reported in the press.

7. ibid 3. Foreword by Sir Bob Geldof.

8. see Relocation Campaign website, and media coverage.

9. AR (A Child) [2010] EWHC 1346 (Fam)

10. Radio 4 Interview with Lord Justice Thorpe (30.06.10 – 7.30am)

11. 'Relocation: The Search for Common Principles' (London Metropolitan University) [June 2010]

12. D (Children) EWCA Civ 50

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