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Published On: August 14, 2017 | Blog | 0 comments

Is Sir James Munby the modern day Charles Dickens?

The President of the Family Court, Sir James Munby, hit the headlines last week with his devastating judgment in the matter of X (A Child) (No 3) [2017] EWHC 2036 (Fam) , a judgment  that was covered on TV, radio, newspapers and social media with the concern of a then 16 year old girl who was a very high security risk and the complete lack of availability of secure, appropriate accommodation.  His judgment is powerful and reminiscent of some of the best of Charles Dickens’ writing.

It appears that the girl, only known as X, only had one goal and that was to kill herself.  A case that the President found “profoundly disturbing” with the evidence presented and a case which had come before the courts earlier in which it was made clear that it was imperative to find an appropriate placement for X.

The judge went through the relevant duties of the state to provide appropriate accommodation.  The judge recorded a pitiful ‘report of incidences’ that in less than the last six months in which X had to be restrained on 117 occasions and that there had been 102 significant acts of self-harm.  Set out below are the key passages of the judgment, edited in part:-

32 .I have been greatly assisted by two officials from NHS England, the Deputy Head of Mental Health Commissioning for the North West Hub and the Secure and Specialised Case Manager for the North of England Specialised Team, North West Hub, who have attended the hearing while at the same time continuing their frantic efforts to find an appropriate placement for X… I emphasise that neither of these committed public servants is to be criticised for the present state of affairs. They can only do their best, as they are doing, having regard to the resources made available to them. They are not responsible for the provision of those resources – that is the responsibility of others.

37. What this case demonstrates, as if further demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with. We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.

38. X is, amongst all her woes, a young person convicted in the Youth Court and a prisoner of the State. As long ago as 1910, a Home Secretary, speaking in the House of Commons, asserted that “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.” In modern times the principle has expanded, so that, as is often said, “One of the measures of a civilised society is how well it looks after the most vulnerable members of its society.” If this is the best we can do for X, and others in similar crisis, what right do we, what right do the system, our society and indeed the State itself, have to call ourselves civilised? The honest answer to this question should make us all feel ashamed. For my own part, acutely conscious of my powerlessness – of my inability to do more for X – I feel shame and embarrassment; shame, as a human being, as a citizen and as an agent of the State, embarrassment as President of the Family Division, and, as such, Head of Family Justice, that I can do no more for X.

39. If, when in eleven days’ time she is released from ZX, we, the system, society, the State, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence, she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.

40.  My judicial duty, as with every judge in this country, is “to do right to all manner of people after the laws and usages of this realm.” There are occasions, and this is one, where doing “right” includes speaking truth to power. The entrance to the Old Bailey, the Central Criminal Court, admonishes those who enter to “Defend the Children of the Poor.” Is less required of the Family Court or of the Family Division of the High Court? I think not.

50.  I direct that copies of this judgment be sent immediately to the Chief Executive Officer of NHS England, to the Secretary of State for the Home Department, to the Secretary of State for Health, to the Secretary of State for Education and to the Secretary of State for Justice.

The effect that his judgment has been most profound. It has moved emotions but also moved people into action. It is reminiscent of Dickens’ outcry against the establishment at the death of Jo the crossing sweeper in Bleak House.  Jo “knows nothink ”.  He has never been looked after by the authorities, church or state and as a young boy, he lays dying of an unnamed but eminently curable disease if medical care had only reached him earlier.  The hero of the book is with Jo as the light passes from his sad and tragic life.  In doing so, the hero begins to teach Jo the lord’s prayer.

“Our Father.”

“Our Father! Yes, that’s wery good, sir.”

“Which art in heaven.”

“Art in heaven–is the light a-comin, sir?”

“It is close at hand. Hallowed by thy name!”

“Hallowed be–thy–“

“The light is come upon the dark benighted way. Dead!”

“Dead, your Majesty. Dead, my lords and gentlemen. Dead, right
reverends and wrong reverends of every order. Dead, men and women, born with heavenly compassion in your hearts. And dying thus
around us every day.”

The outcry is similar.  The powerful images evoked by the prose used frequently by the President in his judgments.  The President never becomes party political but he does not shrink from raising issues that concern society as a whole.

Jo says of the hero, the only man that ever paid him any attention, “He wos very good to me he wos” as the President is to all children he is concerned with in his court.  Munby P is the modern-day Dickens.  He is a social writer.  Bleak House is a novel very much concerned with the law and its failure to help people.

The President also gave the leading judgment for the Court of Appeal in the Owens case, [2017] EWCA Civ 182   where the first instance judge had refused to grant Mrs Owens a divorce from her “desperately unhappy” 39 year marriage.  He commented that “it is not a ground for divorce if you find yourself in a wretchedly unhappy marriage – people may say that it should be.” The passages from paragraphs 83 through to 98 are not only full of historical and literary references, but they are full of humour and insight. The judge went on to ask Parliament to consider introducing no fault divorce.

At the FLBA conference at the end of 2016, the president was keen to set out how the government had been completely silent in many responses warning them of the imminent crisis in the family justice system.

His numerous judgments highlighting the harsh outcomes of those forced to go to the family courts without the benefit of legal aid are both relevant and powerful.  The president described the increase in court fees for divorce as “a poll tax on wheels” and disproportionately affecting women.

So often the President’s words appear as if they could have been written by Dickens.  In the matter of M (a child) July 2015, he began his judgment:  “Once again I am faced with the plight of a vulnerable mother unable to pay the cost of the family proceedings in which it is essential that she is enabled to participate properly if her, and her child M’s, Articles 6 and 8 rights are not to be breached.

In the matter of D (a child) (No.2) [2015] EWF C2, he wrote:  “A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much as the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent.  It is one of the oldest principles of our law.  It goes back over 400 centuries to the earliest years in the 17th century – that no-one is to be condemned unheard.  I trust that all involved will bear this in mind”.  The President viewed the family justice system as “neither compassionate nor even humane”.

In the earlier decision in the matter of D (a child) [2014] EWFC 39 in October 2014, Munby P wrote: “what I have to grapple with is the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority’s application without proper representation – to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 [of the European Convention on Human Rights]; it would be a denial of justice.  The child is also entitled to a fair trial”.  The words could have been written by Charles Dickens himself.

Indeed Bleak House of course focuses on the long running Chancery case of Jarndyce and Jarndyce of which Dickens wrote –

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.

Sir James Munby, who will step down next year when he turns 70, will be sorely missed.  Perhaps he can start that novel of our times he has always been itching to write.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

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