People are often surprised by decisions made – and not made – by the family court. People who lie in court are rarely even challenged, let alone sanctioned for it. Many break court orders and directions, and a blind eye is turned. Those who tell the truth and follow court orders to the letter feel outraged and that there is no justice.
Two cases earlier this year have highlighted this.
If you’re a Daily Mail reader you may have seen the case of the Rev Gibbs reported when a family court judge refused to send 60 year old Mrs Gibbs to prison for contempt of court.
For the last 20 years Mrs Gibbs has been making unfounded allegations that her ex husband emotionally and sexually abused their son (who is now 33). Although her allegations have several times been found to be untrue the Methodist minister has never seen either his son or his daughter again. Not content with this Mrs Gibbs has also set out to destroy the rest of his life, namely his ministry, and his reputation.
In 2017 Mrs Gibbs began an email campaign against her ex sending abusive and lurid allegations to 50 or 60 people at a time, including journalists, MPs, the Methodist church and the Supreme Court.
The Reverend applied to the court to stop her from disclosing information about the court proceedings. Family court proceedings are held in private and no-one is allowed to tell anyone else what happens there, or to disclose any of the documents (which is why such dreadful decisions keep being made about children, because so few people know what is really happening). However, contempt of court proceedings can lead to imprisonment and are held in open court which is why this hearing was reported.
By 6.45 on the morning after the court order was made against her Mrs Gibbs had sent over 100 more emails. She was sentenced to nine months imprisonment for breaking the court order. Presumably she behaved herself inside as she only served four and a half months.
But the moment she was released, she started her email vendetta again. The court granted her ex husband an order prohibiting her from making further allegations, but six months later she was arrested for breaching that order.
The judge then had to decide whether or not to send Mrs Gibbs back to prison. Reverend Gibbs’s barrister argued that another period inside would give him some respite from her relentless email campaign as her allegations had a devastating impact on his life and ministry, though fortunately he has managed to hang on to his job.
The judge said there were two factors she had to consider: whether imprisonment would persuade Mrs Gibbs she should obey the court, and the authority of the court.
She said: “it is of the utmost importance that people understand that court orders must be obeyed and that very serious consequences can flow from not obeying those orders. Ignoring court orders undermines the judicial system and the protections for the whole of society.” Indeed. But Mrs Gibbs made it quite clear that she was going to go on sending her emails whatever the judge did, and that she was prepared to go to prison again rather than be silenced.
The judge decided she wasn’t going to send her to prison again. She said that Mrs Gibbs is “truly obsessed with the rightness of her cause and although I do not think that she enjoyed being in prison, she views herself as a martyr to that cause”.
She said It would not persuade her that she should obey the court, she will merely view herself as an even greater victim of the justice system. A jail sentence would not deter her and at some point the court has to conclude that enough is enough and cannot continue to send her to prison. It would achieve nothing and merely absorb prison resources at a difficult time (she was presumably referring to the Covid lockdown).
Instead she took a very unusual course and wrote a summary of her decision vindicating the Rev Gibbs which she said he could distribute to all the recipients of the dreadful emails, although she felt by this time no-one would be taking any notice of them anyway. She also ordered Mrs Gibbs to sell her house in order to pay all the Reverend’s legal costs.
Whilst I understand the judge’s reasoning, I agree with all the Daily Mail readers who commented quite vociferously that she should have been jailed. I believe the judge’s decision gives a wrong message not only to the public, but also to all those going through the family court. My clients and many others often complain that nothing is even said, let alone done, about people breaking family court orders, which they very often do.
And the message from this case seems to be that the worse you behave, the less likely you are to be punished for it, which cannot be right.
And then there was MS v FS, another extraordinary case, though a very different one. Mr and Mrs S separated in 2010 or 2011, they didn’t agree even on that. In 2017 Mr S applied to the court for a divorce, presumably because he wanted to remarry. He was shocked to discover that not only had he already been divorced in February 2011, but the former matrimonial home had been transferred from joint names into his wife’s sole name following a financial consent order made in June 2011.
Mr S applied to the court to set aside the decree absolute and the consent order. A handwriting expert gave evidence that some of the signatures on the various documents were not those of Mr S and the judge made a finding of fraud. He did not set aside the decree absolute, which was probably just as well as both parties had remarried by the time of the final hearing.
The time taken to get that far was not just because of court listing delays but, in the words of the Judge, the “frankly shambolic and unacceptable case preparation”. It baffles me how solicitors get away with such behaviour so I looked this firm up and found it to be a small, two partner firm specialising in human rights and immigration. Family law is barely mentioned. It’s like going to a busy orthopaedic surgeon when you need brain surgery – better than going to a carpenter, but very unlikely to give you the best result or make you feel confident in the process. If you need a lawyer, choose very carefully!
The Judge also had to decide whether his judgement should be disclosed to the police, and Mrs S’s professional regulatory body given that she is an accountant. Mr S had to consent to this as clearly his information was contained in the papers and no family court documents can be disclosed to third parties without this. Not surprisingly, Mr S did agree. However the Judge declined to make an order for disclosure to any third party.
The reason he gave was that this fraud only affected the parties and it was not necessary in the public interest to make disclosure of it. This would normally only be done in very serious cases such as one which had led to the death of a child, or where a party who is a serving policeman was found to be corrupt, or a party who works with children was proved to be a paedophile. “Given the number of skeletons which come out of cupboards in family proceedings, where would it end?”
Mrs S did not even apologise for her fraud, and you may think she got off lightly. She was however ordered to pay 80% of Mr S’s costs. It is unusual to be ordered to pay the other party’s costs in financial proceedings and almost unheard of to have to pay such a big percentage of them. And it would have been 100% of them but for the fact that Mr S’s lawyers messed up on such a big scale.
Men reading this may conclude that these two people got off lightly because they are women, but I wouldn’t agree with that. After all Mrs Gibbs had already served a fairly lengthy prison sentence. And I believe a judge would be even more unlikely to endanger a man’s career than a woman’s. The fact remains that people of both sexes get away with an awful lot in the family court so it’s wise to assess your expectations when going there: if you go expecting justice for the other party’s bad behaviour you’re likely to be disappointed. An award of costs is the most you’re likely to get, and then only in exceptional circumstances.