I am both flattered and dismayed at being asked to give this paper. Flattered, of course, at being asked at all. Dismayed by the distinction and erudition of my predecessors. What can a jobbing hack such as myself offer in the face of such erudition? I was at the Bar for 24 years. I was a judge of the Family Division for 11, and in the Court of Appeal for 6. My practice was almost exclusively in family work, and the only escape I had as a judge of the Division was to the Employment Appeal Tribunal and, latterly, to the Administrative Court. Now I divide my time between sitting at first instance and in the Court of Appeal.
It is, principally because I am, first and foremost, a practitioner, that I am not going to talk to you about law reform, but changing the culture. I have read the lectures given by those two distinguished family lawyers Baroness Butler-Sloss and Baroness Hale of Richmond. The latter discussed the role of the judiciary, the Law Commission and Parliament in reforming the law. It is not a subject into which I wish, or feel competent, to venture. I recall clearly being welcomed onto the bench and, following Francis Bacon’s Essay on Judicature, announcing proudly that I saw the judicial role as “jus dicere” not “jus facere”: I recall equally clearly my first case, in which I sought to re-write the law of maintenance as it applied to adult children seeking relief from their deceased parents’ estates, only to be told firmly by the Court of Appeal that this was none of my business . My theme, therefore this evening is not law reform, but practice and culture, both as they affect the judiciary and the professions. Most of this paper will be about the judiciary, and it is the judiciary with whom I will start.
Historically, the English (or Welsh) judge has been the umpire or arbiter. He or she (usually he) has stood aloof from the process. The advocates prepared and presented their cases, and judges only intervened in that process if invited to do so, to resolve a point which the advocates disputed. The judge then decided the issue and went away. Enforcement of any order was the function of others. The process as described was seen as part of the guarantee of judicial independence. The judge did not descend into the ring, but remained above it.
In Family Law, as well as in other jurisdictions, this model is no longer practicable or acceptable. For present purposes, I propose only to go back to the Children Act 1989, in relation to which I share the common view that it represents “the most comprehensive and far reaching reform of child law” and that it remains “the overarching legal framework for family law as it applies to children” .
The Act, of course, expresses two principles of particular importance to the theme of my paper this evening. The first is expressed in section 1(1) of the Act, that when a court determines any question with respect to the upbringing of a child his or her welfare “shall be the court’s paramount consideration”. Paramount, of course, means more important than anything else, notably – in the context of proceedings relating to children – the Article 6 and 8 rights of their parents and (usually) – the Article 10 rights of the public in general and the media in particular(?).
