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Are family court judges out of touch?

Regular readers of this blog will know that there are various different processes available for sorting out the issues that arise on family breakdown: negotiation, mediation, arbitration, collaboration, and litigation being the main ones. One of the disadvantages of litigation is that your family’s arrangements will be decided by a stranger, or in some cases several strangers, namely the judge or judges who hear your case at various stages as it passes through the courts. Unfortunately, for many people there is no option but to litigate, whether about financial or children matters, or personal protection and occupation of the family home. So who are these judges anyway?

The judges who deal with family matters in local county courts* are district or circuit judges, who are more often than not senior solicitors or barristers who have gone through a strict selection process and a training regime. Magistrates sit in the family proceedings courts*, and these are just ordinary people like you who apply for the position, which is voluntary – they have no legal qualifications and rely on a legally-qualified clerk to give them the legal parameters within they make their decisions. All types of family case are heard in the county courts, while magistrates may deal with some matters relating to children; only specially-trained magistrates are allowed to hear family cases. [2.6.14 Update – on 22 April 2014, the new family court took jurisdiction in family law cases.  Magistrates – now called lay justices – continue to sit as part of the family court, as do district and circuit judges, but these are all now judges of the family court.]

Further up the judges’ food chain come the High Court judges, the Lords (and Ladies) Justices of Appeal, and the Justices of the Supreme Court. These judges are relevant to all of us working within the law because they decide the high-profile cases which may set precedents to be followed in other cases. With this in mind, we were very interested to read the comments made by Baroness Hale of Richmond, the first and so far the only woman to sit in the Supreme Court, about how out of touch she considers many judges are with the realities of modern life.

Giving a speech for the Socio-Legal Studies Association conference at the University of York at the end of March, Lady Hale discussed the question “Should judges be socio-legal scholars?” She raised the issue, widely felt but perhaps rarely spoken, that many judges have risen to their positions via a route of private education, the Bar, the Inns of Court and other establishment enclaves, and therefore have not been exposed to many of the harsher realities of society. As such they may not be best placed to cast judgment on the complexities of modern life affecting those who have not had such a privileged upbringing.

Lady Hale said: “If the life-blood of the law is experience and common sense, then whose experience and common sense are we talking about? Surely it cannot only be the experience and common sense of the judges, many of whom have led such sheltered lives?”

She asserted that it was dangerous for the common law – the law made by judges, who interpret the law made by parliament in statutes – to rely upon the “experience and common sense” of a comparatively narrow section of society. She called for judges to be recruited from a broader section of the public, as well as suggesting that law should be studied within its wider social context, going beyond its academic application.

Although clearly standing out from the judicial crowd by not being male, Lady Hale has herself some elements of the privileged background of which she is critical – Girton College, Cambridge followed by a career principally in academia, appointment to the Law Commission and then as a judge. Nevertheless, we at CFLP are generally big Lady Hale fans, and her own education and work background does not undermine the validity of her comments. We agree that the judiciary needs to be far more representative of society as a whole, and are sure that it is possible to achieve this without compromising the quality of legal decision-making. We hope that the far more varied intake the legal profession now sees will filter through to the judiciary sooner rather than later – it is the clear case that women and ethnic/cultural minorities are not currently adequately represented.

Family court judges, at whatever level, have a tough job to do in steering a course through a turbulent family dispute. They are now faced with the prospect of dealing with vastly increased numbers of litigants in person following the removal of Legal Aid for the bulk of family law cases, and proposed changes to legislation such as the Children and Families Bill, at the time of writing wending its way through parliament. We do feel that it is important that the judiciary, who work tremendously hard to help those going through the court system, should not appear to be so far removed from ordinary society that they seem to find it difficult to understand the problems that affect ordinary families – society needs to have confidence that its judges do understand, and image is perhaps nearly as important as reality in this regard.

(As a postscript, those of you long enough in the tooth may well remember widely reported judicial gaffes such as Mr Justice Harman asking “who’s Gazza?” at the height of Paul Gascoigne’s career, and Mr Justice Popplewell asking in a High Court libel trial: “What is Linford [Christie]’s lunchbox?”. In response to concerns that judges are out of touch, especially at the appellate level, the Judicial College announced in 2012 that judges would be given lessons in popular culture, as well as other social issues such as unemployment, housing, drink and drugs so they were fully aware of issues facing the people who appear before them in court. The mind boggles! )

If you would like to talk about your options for resolving a family dispute, please give Adam, Sue, Gail or Simon a call on 01223 443333.


Join the discussion One Comment

  • Leenz says:

    I have witnessed first hand how privileged judges are out of touch with the lives of ‘normal’ people. One judge could not understand that my son who goes to a ‘state school’ (hissed out like it was a dirty word) actually has homework to do, nor that my son’s other parent should assume responsibility for doing this with him so that he progresses academically. It was like she felt that education was only of value to the privileged and privately educated, eg people like her. Not a concern for us proles.

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