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Dave, can you suggest any literature where the concept of miscarriages of justice is applied by name to Private Family Law?
Dr Lynne Wrennall
No, I am not familiar with the term - and I think I can explain why.
Miscarriages of justice are of course endemic, as a matter of fact, in the Family Division. In public law, children are commonly removed from both their parents for no good reason; and in private law, children undergo the loss of one of their parents for no good reason; because there is no legal requirement to show good reason.
Further, the concept of 'miscarriages of justice' is linked, very closely, to the concept of appeals, and the idea that an injustice can be, or should be, set right by the appellate court.
This concept does not apply in family cases.
As is well known, the only case which sets a significant precedent in family law and family law appeal cases generally is the case of G v G - which says that all appeals in family cases must fail.
The exceptions to this general rule are insignificant.
More exactly, the rule in G v G is that a family law decision cannot be overturned unless the judge is plainly wrong or has exceeded his discretion. Since the judicial discretion in family law is almost without limit, and since there are no significant precedents other than G v G, it is all but impossible to satisfy the appeal court on either count. Further, and as a side point, since the family courts do not have significant standards for the probity of any evidence there will generally be no evidence to overturn.
In practice, this means that if a judge followed a Social service report recommending child-parent severance, no matter how wrongful, the decision is just about beyond appeal; and in private law, just about any decision made by a judge will be beyond appeal, because 'every case is different'.
Although it is technically wrong , in private law case, to order no 'contact' at all in the absence of no reason at all, there are no bars whatever to ordering almost no contact for almost no reason - which will, in turn, produce no contact anyway.
So, what with one thing and another, miscarriages of justice do not get much of a look-in in family cases.
This problem is compounded by the self-justifying ambit of the Children Act, which says that every decision must be in the child's best interests. This defines all decisions, irrespective of what they are, as being in the child's best interests - otherwise the decision could not and would not have been made. This is one of the reasons why no appeal process is really necessary: the legal process is, whatever the outcome, innately perfect.
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