Saturday, 5 February 2011

Have the Wigs returned as a political force?

This week, Sir Nicholas Wall, President of the Family Division of the Courts, made plain his view that unmarried couples should have the same right to property as that of married couples. I can see arguments on both sides. The objective view is that entering into a contract is a choice, and entering into a contract requires consent by both parties. Some say that if people want the contractual rights that come with marriage, they should get married. The traditionalists worry that widening rights for unmarried partners weakens the institution of marriage.

There is a valid case for saying that where assets have been accumulated by partners over the course of a long relationship, these should be divided. The view that a man should support a woman for life is somewhat patriarchal.

Should Sir Nicholas be involving himself in these debates? The Guide to Judicial Conduct advises caution. The Daily Mail and even The Times considered that Sir Nicholas had crossed the line.

Lord Devlin, a former Law Lord said “The judges are the keepers of the law and the qualities they need for that task are not those of the creative law-maker. Enthusiasm is not and cannot be a judicial virtue. It means taking sides and if a judge takes sides, he loses the appearance of impartiality and quite possibly impartiality itself.”

On the issue of domestic violence, Sir Nicholas’s October 2010 speech called into question his impartiality on the subject of domestic violence. Admitting his views were not politically correct, he said domestic violence was mainly a male problem. According to evidence (the British Crime Survey), 40% of victims of domestic violence are men (including being a victim of severe force). What may be a more accurate reflection on this serious issue is that the courts treat male on female violence (whether physical or psychological) far more seriously when the victim is female. Sir Nicholas went on to give a somewhat absurd notion that 'if men embrace the comfortable doctrine that domestic violence affects people of both genders, that is a short step away from doing nothing about it?' Absolutely bizarre! You can read this gem for yourself at paragraph 8 of his speech.

There is a belief that gender discrimination in the courts is systemic, and particularly in relocation cases. The courts follow a historic and patriarchal view that mothers will not be able to emotionally cope should their wish to emigrate with the children be denied by the court. The father is expected to handle his children going to another country, and his relationship with them being pared to the bone if not lost completely. The impact on the children, in the cases I’ve been involved in, receives little or no consideration at all.

I can accept Sir Nicholas condemning the last Government for their plans to make the courts self funding (which would have made family law inaccessible to all bar the rich), and conduct guidelines would allow this as the Government’s plans would have directly impinged on the administration of justice.

Sir Nicholas’s latest opinions cannot be so easily defended, as he crosses the line between judge and politician. On the subject of domestic violence and gender, it isn’t only a question as to whether he should have entered the political fray, but his publicly voicing an opinion which was both politically and factually incorrect.

In November 2009, in an earlier speech to the Association of Lawyers for Children, Sir Nicholas said it was the duty of judges to speak out over changes that were damaging the service to children and families. He also said that “the time has now come when the historical and indeed instinctive judicial reluctance to go public...must come to an end.” Perhaps his own house needs to be put in order first.

If Sir Nicholas is to restore some confidence in his office and the family courts in general, he might like to consider ruling that the guidance in relocation cases was made without care by his colleague LJ Thorpe, and set it aside. He should provide practice directions reminding his judiciary that all evidence, including child welfare research must be considered in relocation cases. For him to be seen to follow a non-discriminatory position on domestic violence, he should perhaps include contact denial and the making of false allegations as forms of domestic violence.

Michael Robinson -