Not many judgments cite My Cousin Vinny

Those judgments that do cite My Cousin Vinny probably rarely do so to such good effect.

This unusual judgment from Wales is delivered in the form of a letter to the young person whose custody and residence are at issue in the judgment, a fourteen-year-old boy identified as Sam.

Briefly, Dad wanted to move with Sam to Scandinavia; Sam said he wanted to go and to have citizenship there, but alternately said he wanted week-on/week-off. Mom and the Cafcass advocate for the child felt that he should stay primarily with Mom, in England, with meaningful access to Dad (in person, or, if Dad moved to Scandinavia, mostly by Skype and telephone).

The decision letter was read out in court to the parties and the young person as well as being published, and it strikes me as very fitting for the form of case at issue: one in which the weight to be given to the child’s views and preferences was a major issue, and one in which the child was a party represented by counsel.

There’s a great deal in the letter which is also of interest. The form the child’s evidence took, in particular: the court asked each parent to provide, via counsel, five questions to be asked of the child; the court then asked those five questions. This allowed appropriate evidence to come forward while ensuring that this vulnerable young person was not subject to cross-examination by his parents or their representatives.

The court’s letter explains the decision to the child directly. This is relatively rare, and when done, nearly always done outside of the judgment itself. To use the letter as the reasons is an interesting technique. From a child-focused perspective, I quite like it; with an eye to appeal prospects, I would be curious to see how it held up. The reasoning is certainly just as clear in the letter as in most judgments (and clearer than in many), so it might work just fine.

Much of the decision is fact-specific, but still useful as an example. The child’s clear desire to follow Dad on his proposed “adventure” was weighed against the practical, already functioning plan put forward by Mom, and the refusal by Dad to so much as check up on housing, schooling, or job prospects for the planned move to Scandinavia.

I particularly like the judge’s focus on explaining to the child that one aspect of the decision was that Mom was not only settled but happy, and that Dad was neither; and that the judge felt that the child’s following along with Dad’s wants was because Dad needed that support from the child. In particular: “My view is that you brought the proceedings mainly as a way of showing your dad how much you love him. It was mainly to meet his needs, and not yours” (at para. 5).

And, a familiar description to all of us with much courtroom experience: “I have seen the self-centred way that he behaves, even in the courtroom, and how he makes sure everybody knows how little respect he has for anybody who disagrees with him. Even as a judge, I found it hard work stopping him from insulting the other witnesses. Your mother certainly finds his behaviour difficult, so difficult that she avoids contact with him whenever possible” (at para. 5).

In many cases, that description of a parent to a child–however accurate–might not be appropriate. Highlighting the parent’s weaknesses to the child is rarely the role of those involved in custody/access cases. However, in this case, where the child would have access to the decision regardless, the court found a relatively gentle way to express it, and tempered it.

The tempering was particularly achieved in the last section, and the citation of My Cousin Vinny: “Lastly, I wanted to tell you that your dad and I enjoyed finding out that we both love the film My Cousin Vinny, even if it might be for different reasons. He mentioned it as an example of a miscarriage of justice, while I remember it for the best courtroom scenes in any film, and the fact that justice was done in the end.” It was thoughtful to draw a connection between them for the child, even if he was making a fairly sharp point as well.