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Mr Justice Wilson

The Atkin Lecture 2002: "The Misnomer of Family Law"

The Reform Club

17 October 2002

I have never forgiven Lord Justice Dunn for describing the Family Division, in which he had served as a judge for eleven years, as a backwater  ( 1 ). It is a widespread misconception but I am surprised that, as a top-class family judge, he subscribed to it. The great majority of you here this evening are not family lawyers; and it is that majority which I propose principally to address. I am sure that you would make the conventional concessions both of the importance of work in the family justice system and of the judicial heart-ache inherent in some of the decisions. But nevertheless most of you will admit that your private perception of the Family Division is, in every sense, as the Third Division. The Leyton Orient of the High Court.

We are not the Third Division.

The forensic exercise which we undertake is entirely different from that in other courts. I am not so foolish as to seek to down-play the importance of the work of the other Divisions or indeed of the Crown Court in maintaining the foundations of peace, prosperity and individual protection which are essential to the elevation of a society of humans above a herd of animals. Looking back, I am amazed that a chance encounter as a recent graduate with James Comyn QC should have led me unwittingly away from those areas into a field which I had not studied and then held no interest for me. But the thrust of my argument tonight is that the exercise required in family work is not only different from, but in certain respects (and such is the level of my impertinence) more difficult than, the exercise conducted elsewhere in the courts. I sense in this room a restless spirit already stirring; and it belongs to that great common lawyer in whose memory I speak and who frequently sat reading in this glorious library. In the Family Division we certainly conduct the conventional exercise of collecting the agreed facts; of making findings in relation to disputed facts; of discerning legal principle in statute and precedent; and of applying the facts to the principle. Indeed in the main area of my expertise at the bar, namely financial provision following divorce, such is the essential exercise, albeit enlarged within a wide discretion. But this evening I refer to the exercise of the jurisdiction referable to children. During the nine years of my career as a judge of the Division, as I have listened to a mass of issues about children and tried to devise their optimum resolution, I have reflected upon the various extra dimensions of the court's function in that sphere. I now attempt to collect and express these reflections and finally to articulate a self-critical concern to which they give rise.

A major feature of our jurisdiction is that it looks to the future. With whom should the child live? The mother? The father? Grandparents? Foster parents? Or adopters? In which country should the child live? What contact should the child have with the non-residential parent, or with siblings who for whatever reason will not be living in the same home? Which school should the child attend? A variety of other issues can arise, such as whether he should be circumcised or she should have a termination of pregnancy. It is difficult for lawyers to look to the future. They do better at inquests into the past. Concepts like the burden and standard of proof, which are part of their alphabet, do not fit into an assessment of future benefits and risks. They are happy to till the terra firma of historical fact and struggle to handle airy speculation about future possibilities.

But I do not claim that it is the focus on the future which makes the child jurisdiction unique. Certain other areas of the law, for example the assessment of damages, can require such a focus. I make my claim on the basis that our jurisdiction centres upon the future of children, and indeed not just upon their practical and economic but upon their psychosocial future. By reason of dispute among members of the family or between them and the local authority, it falls to the family judges to choose the optimum plan for their childhood. Indeed we are not just making arrangements for their childhood because, as the old cliché has it, the child is father of the man: we are probably shaping their whole lives. The crucial importance of choosing the best home for them needs no explanation. But what of contact, formerly known as access? During his reign over family justice two decades ago, Lord Justice Ormrod never stressed the importance of contact  ( 2 ) , which usually means contact with fathers. He was a brilliant family lawyer, progressive in many respects but perhaps in retrospect unduly dominant in our field. Almost all of the lawyers who then did family work, whether as judges or practitioners, took their cue from him. Our attitude then was: "It's only access". We now realise that the continuation of a fruitful network of relationships on both sides of the family, notwithstanding family breakdown, is deeply valuable for the child's sense of identity and of self-esteem both before and after the eighteenth birthday and for the psychological nourishment likely to be derived by the child from multiple love and commitment; and that a converse degree of harm is likely to be caused by a parent's exit from the child's life. Thus in the hands of the family judge there is something literally priceless: a child's future.

Many of the extra dimensions of the function of the family judges flow from a chastening discovery, namely that there are substantial limits to our ability to achieve what we want. A prisoner can evade the sentence of the Crown Court by escape; a defendant in civil proceedings can evade his liability to pay damages by putting his assets beyond the court's reach. But the possibility of such evasion does not lead the criminal or civil judge to doubt his authority, still less to factor such doubt into his sentence or award. We, on the other hand, have constantly to be aware of the risks of the failure of our orders and, in particular, of their sabotage. Even if (which is sometimes no easy task) the mother can be made to produce the child for contact with the father, is she going to achieve the failure of contact by a prior drip-feed of negative talk to the child about the father? In 1971, in the first case in which I appeared in the Court of Appeal, where the facts were along such lines, I will never forget the darkness through which Edmund Davies LJ addressed the "grave problem to which no proper answer can be given by any human court" ( 3 ) . Conversely, will the father who does not accept that the child should reside with the mother or who otherwise feels bitter towards her destabilise the child's home with her, deliberately or otherwise, by an analogous drip-feed during periods of contact? Will parents who have suffered the agony of the removal of their children into a foster or an adoptive home feel driven to misuse any periods of contact with them to strike at their emotional foundations there? Unfortunately we are not just in the business of promoting family relationships. If we are persuaded that the relationship is on balance damaging to the child, we have to see whether it can be purged of its damaging element; if not, our duty is to attempt to circumscribe or even occasionally to suspend communications altogether.

These awesome functions impact substantially upon the way in which the hearing of an issue relating to a child is conducted. First, the limitations on our ability to make our orders work place a premium on our collecting for our judgment the respect and thus the cooperation of the relevant adults. This does not mean that we should forfeit our authority in some attempt at cosy familiarity. What collects their respect is good-humoured efficiency and a sensitive grasp of the details of their case. It is crucial to this aspiration that all adults in close proximity to the child should feel that they have participated in the forensic enquiry, whether as parties or at least as witnesses. One of the reasons why we seldom make an order for costs is lest the spectre of such an order were to deter a relevant adult from participation as a party ( 4 ) . Even when the advocates disclaim any intention to call, for example, a grandparent or the mother's boyfriend to give oral evidence, I often insist that they do so. The judge's engagement of the support of a grandparent can be a considerable advantage for the success of his plan. The boyfriend moreover can have a crucially positive influence because he himself is often a father; and the mother will listen to him as to no one else.

Second we need the maximum opportunity to assess the personalities of the relevant adults in order to devise the optimum configuration of arrangements for the child. What they say in the witness box is secondary to how they say it. They can plan the former but can seldom convincingly pre-arrange the latter. My strategy is, within reason, to let everything hang out. It can be a great mistake to interrupt in order to demand that they answer the question; their diversion from it can illumine more brightly than a direct answer. Nor, within reason, do I mind when they lose their temper. For the judge, the charm of temper is that witnesses cannot put on an act when they have lost it. Sometimes counsel give me a look which clearly means "Surely even you are going to tell the witness that he can't insult me like this". They usually look in vain.

We have a proliferation of litigants in person because of the low ceiling of eligibility for public funding and because, even if eligible, some parents fall out with their legal advisers and either forfeit or relinquish their services. It is a retrograde development; and, at any rate in the higher courts, the lack of advice to the litigant in person is more serious than the lack of a professional presentation of his case. But I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience a father. One sees him in action throughout the case, not just when produced by his advocate for his performance in the witness-box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against the barbarity which sometimes infects that exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example whether hand-overs of the child between them would proceed sensibly, than to study their language, including of the body, towards each other in that unenviable situation.

A father in person recently asked me to make a contact order. Two years previously he had telephoned the maternal grandfather and threatened to kill both him and the mother. The father's case was that, with psychotherapy, he had come to appreciate how badly he had behaved; and that he wanted to apologise and prove that he could be trusted to have contact with the child. I asked the mother's counsel, to his surprise, to call the grandfather to give evidence. I wanted to create a dialogue between him and the father which would have been impossible if the father had been represented. I watched them converse civilly, on first name terms, for half an hour and was determined not to interrupt, whether for irrelevance or otherwise. Indeed it hardly mattered what they spoke about. Not surprisingly the grandfather rejected the father's apologies as insincere. At least however I had replaced their last appalling conversation with a better one. Whether I had sown a seed which would ultimately flower into a sufficient, if wary, trust is quite another question. There is no room for naïveté in the Division.

I turn to another dimension of our work which, although glibly, may be described as adult education; or rather an attempt at it. Let me give you a few examples.

Three years ago I had to decide whether the baby of an HIV-positive mother should herself be tested for HIV ( 5 ). There was about a 25% chance that the baby was HIV-positive and, if diagnosed early, she could be well treated. But the parents refused to have her tested. Two consultant paediatricians, expert in the field of AIDS, gave evidence and patiently answered all the questions put by the father and counsel for the mother. As I said in my judgment:

My hope was that the parents would learn from the medical evidence, which was overwhelming, and either proffer belated consent or at least cooperate with the inevitable order. That hope was starkly unfulfilled. Rather than obey the order, they fled with the baby to Australia.

Some of the saddest cases relate to loving but inadequate parents who have not positively mistreated their children in any way but who have seriously neglected them: not fed them appropriately; not kept them clean; not got them to school; or not noticed when they needed medical attention. I remember such a case in which I became determined not to take the children into care, at least not at that stage. I spent a week presiding over a laborious discussion, by evidence and submission, of the individual incidents of neglect and why each was detrimental to the children. My intention was that, with the spectre of a care order to galvanise them, the parents would learn from the discussion the importance for children of diet, cleanliness etc and, with support, would care for them better. I heard no more of that case so it is even possible that that stratagem worked.

But the most extraordinary educative function of the family court is the need to educate a mother about the dangers posed to her children by the man with whom she is living, whether or not he be their father. These are cases in which it is clear that, while he remains in her home, the children cannot safely live with the mother. But, while that may be clear to everyone else in court, it is sometimes not clear to her. For she loves him; and perhaps she needs him. I once spent a fortnight presiding over a parade before the mother of the long paedophile history of her new boyfriend, the truth of which she had been refusing to accept. Just prior to delivery of judgment, she announced through counsel that her relationship with him was at an end and that she required him to get out of her house at once. In that case I was convinced that her ultimatum to him was genuine and that she was emotionally strong enough to adhere to it. I have had two separate cases recently where it was plain from the nature of the injuries suffered by the babies that the fathers, who were caring for them at the time, had shaken them violently. But the mothers, who were still living with the fathers, each believed their vehement denials. So the exercise was to help the mothers to confront the truth by requiring them to listen to the categorical evidence of a variety of top consultants. I often feel considerable discomfort at asking a mother, in effect, to choose between the man and her children. Indeed, if she is married to him, one is in effect asking for the breakdown of a marriage. It is an uncomfortable role for a judge of the Division. I believe that we should not be judgmental when she chooses to keep the man. She may simply be unable to function without him and, even when she says that she will separate from him for the sake of the children, we have to look critically at whether she can actually do so.

The most obvious function of the family court beyond its mere reaching a decision is a function which exists in all courts but is, I argue, particularly important in ours. A fair hearing, the right of every litigant long before 1998, requires in particular that the loser should, if in any way reasonable, feel that his or her major points have at least been clearly addressed. Even as a barrister rather than a litigant, I greatly resented judgments in which my arguments were subtly misdescribed so that (forgive my paranoia) they could more easily be rejected. It is a terrible thing to take a child permanently away from his or her parents into what will usually be closed adoption, ie without even face-to-face contact with them. I am not proud of the quaver in my voice when, at the end of the judgment, I announce such a decision: for reason, not emotion, must colour - and be seen to colour - the thread of the court's approach. But, as the European Court of Human Rights has recently ruled ( 6 ) , the potential removal of a child from his or her parents is so serious as to demand adjustment to normal English forensic procedures. However obvious it may be from reading the papers that the child will have to be removed, the court has to seek to minimise the effect upon the parents of the bereavement. How long should one allow such a case to proceed where all the evidence points that way? Some of my colleagues would still - and powerfully - argue that my attitude is too indulgent and is to the prejudice of other children in relation to whom live issues await urgent resolution. My approach, nevertheless, is, within reason, to let the parents, hopefully by counsel, present their case as they will. If even their own expert is adverse to their contention, I will elect to call him as a witness of the court so that they can cross-examine him rather than examine him in chief. To a limited extent, let them (I say) put theories to the expert witnesses, whatever their source and even though they have not been canvassed in evidence before the court. If the parents from whom one has permanently to remove a child feel that an ordinary human-being rather than, as television will have led them to expect, a man in a wig and with an age of 75, a gavel and a short temper, has considered all their arguments, it may be of some help in their recovery.

Once, after making an adoption order that day, I met the child, a social worker and both the adoptive and the biological parents at a Chinese restaurant so that, over supper, the latter, who were Hong Kong Chinese, could give the child a bracelet and say goodbye. The difficult occasion went reasonably well. I am not recommending such a course for other cases but it was an imaginative attempt, devised by the social worker, to help the biological parents achieve closure and to inculcate apt memories in the child.

Our multi-cultural society presents the family judge with special problems in gauging likely adult behaviour. As Lord Bingham has said:

In a case where the marriage of a Muslim girl to a Sikh man had broken down, the evidence drove me with some astonishment to conclude that, while their son continued to bear the Sikh names which they had given to him, both he and the mother would be ostracised from the Muslim community in East London ( 8 ). Two months ago, again in the court's educative mode, I presided over a discussion as to precisely how, without being sexually intrusive, a Muslim father should clean his small daughter after her use of the lavatory. It seemed a bizarre job for me to be doing. Indeed I needed first to receive education myself about Muslim cleansing practices (which incidentally struck me as admirable) and then to fold them into the dialogue.

My emphasis so far has been on our attempts to help, encourage and educate parents and to collect their support. But there are cases in which one is driven to the conclusion that such an attempt would be futile and that the influence of the parent upon the child's situation is irremediably malign. I have already referred to the drip-feed into the child's mind of poison about the other parent, administered either by the residential parent (let us say the mother) or, during contact periods, by the other (let us say the father). It is the latter case which this evening I happen to have more in mind. Often the child loves the father dearly and it is almost impossible to know what to do. There is the pressure-cooker point, unattractive but inescapable: namely that, if the steam in the father is not released by a degree of contact, there may be an even worse, explosive outcome for the child. Often, however, we feel that our duty to the child is to take a firm line, occasionally at some personal cost. I considered it quite possible that, as you entered the club this evening, a father, whose claim for contact I rejected five years ago and who has since dogged my footsteps, would offer each of you a leaflet explaining what a terrible judge I am. Unpleasant though such personal criticism is, I did consider that, were he to do so, it would give you an arresting advertisement of the long cold fury which the jurisdiction generates.

So far I have spoken primarily of the adults and hardly of the child. Whether the wishes and feelings of the child are adequately communicated to the court prior to the decision is a big question, not within my remit. But I should mention the less-discussed converse situation, namely the communication to the child of the court's decision. If, for example, one is evolving a plan for the gradual reestablishment of contact, I regard it as essential for the court to attempt to explain the gist of it to any child aged - to be arbitrary - ten or over. Equally, if I have reached any decision in relation to a child of that age which appears to be contrary to his or her wishes, I regard it as, at its lowest, bad manners not to attempt to explain my reasoning to the child. But how should I do so? Where, as in proceedings for removal into the care of the local authority, the child is a party, his or her forensic guardian is the obvious conduit of the court's reasoning. But in most proceedings between parents there is no guardian. Once, after giving judgment, I have, with the consent of the parents, seen a boy privately in order to explain my decision. But it was an awkward situation; I was concerned that he had already been required to see too many professionals; and frankly I was nervous about being drawn into an argument with him. On two other occasions I have drafted a letter for me to send to the child and showed it to the parents. I tried my best not to draft it in stuffy language. I offered - in retrospect I wonder whether it was necessary for me to do so - not to send the letter unless both parents agreed. That offer has led to trouble. On the first occasion the father consented to my sending to the letter but now denies that he did so and complains bitterly about it; and on the second occasion, although its despatch was very much in his interest, the father withheld his consent. As you see, I have not begun to solve the problem of communication from judge to child.

The jurisdiction over children calls as much for a special type of advocate as for a special type of judge. The advocate has a duty to the court to be alive to the extra dimensions to which I have referred. He can be a terrier but must never be a bull-dog. Histrionic advocacy, for which, having once hoped to be an actor, I had an appetite at the bar, has generally gone out of fashion but, as I now uncomfortably realise, was never appropriate to children cases. Style, which is in short supply, is however another matter. The idea that advocacy in child cases is easy because we seldom refer to text-book or precedent is hopelessly superficial.

The nature of proceedings relating to children makes it very difficult to construct a satisfactory system of appeals. This point goes far beyond the acknowledged inhibition upon appellate interventions in matters of credibility. Indeed it is different in kind. However articulate the judgment, it is impossible for the appellate court, merely reading the documents, properly to catch the dynamics behind the case or to understand the personalities upon the basis of which the judge has crafted his programme for the child. His obligation to ensure that everything said in judgment represents his genuine conclusions is sacrosanct; and he must address all the major arguments presented to him. But, subject to that, he may think it preferable for the future that in judgment he should avoid addressing parts of the evidence which are to the side of the case; or avoid articulating all his thoughts. To take an obvious example, he is hardly likely to say to an obdurate mother: "the child is being torn apart by your wilful obstruction of the father's contact and, if it continues, I may very reluctantly have to cease all attempts at contact". I believe that, if presented with precisely the same child case and even if arriving at the same central conclusion, each judge of the Division would often place a significantly different emphasis upon certain factors. In the words of Alexander Pope:

It is generally assumed that, since these decisions are discretionary, it is appropriately difficult for the appellate court - and for convenience I refer to the Court of Appeal, although high court judges hear some such appeals - to reverse them. I believe that the assumption is misplaced. One of the recognised bases for interfering with a discretionary decision is merely that the judge has placed insufficient or excessive weight upon a particular factor ( 10 ) . That is a peg upon which it is easy to uphold an appeal. The real question is not whether the Court of Appeal can interfere but whether it feels disposed to do so. In this area of work its decision, vital for the child, is particularly dependent upon touch, which, after a while, can occasionally become lost. Although the Court of Appeal is charged with discerning error in the court below, the room for its own error in this area is, if I may be frank, appreciable, particularly because it moves at high speed; and only rarely is there a point of law for its powerful intellects to address. I wonder whether, without causing offence, I might suggest that we should copy the Australian model in arranging for appeals in child cases to be heard by lords justices of whom not just one but all have had some experience in this area of work at first instance. In a more specialist court, perhaps a miniature of the Criminal Division of the Court of Appeal, there would be a greater facility for all its members to make a genuinely equal contribution to the court's despatch of the appeal and thus to counter any idiosyncrasies in the proposed approach. Whatever their expertise, however, the task of the appellate judges in these cases is unenviable not only because they labour under such handicaps but also because their interventions are essentially, if necessarily, destructive.

I have no doubt that, within twenty years, the way in which we resolve child issues will have been transformed. As in life, nothing in the law is static: and what is important for those with power in any sphere is to plan and to seek to direct the inevitable change rather than to let it erupt, like a volcano the fall-out from which engulfs the existing landscape indiscriminately. Our approach to these issues will be more holistic. The judges will, I trust, have become empowered to secure expert help for the family on the ground in order to further their chosen plans for the child. Our current power, namely in limited circumstances to invoke the assistance of social services, is emasculated by the financial inability of many local authorities properly to discharge their duties. We must be given power to secure psychotherapeutic help, whether for the whole family or for one of its members, and to compel participation in courses on good parenting in the context of family breakdown. Interventions must take place earlier, in aid of resolution before a spirit of conflict becomes entrenched and, in a few cases, before that bizarre addiction to litigation takes hold. Mediation is a seductive figure whom government has been quick to embrace. But, like a mistress whose lover expected not to have properly to support her, she currently senses that her affair with government has cooled and is left worried about its long-term intentions. In due course she will be seen to have - and must be enabled to perform - an essential early role in a substantial minority of cases.

But you will already have sensed the real burden of this talk which, in conclusion, I here spell out.

This fascinating work is only to a limited extent legal work. Yet the family judge is usually just a lawyer. Your speaker this evening is certainly no more than that. Am I properly equipped to handle some of this work? I sense that it is not good enough for me to argue that, as a husband and a parent and after a life-time career in the family courts, I have developed insights into human behaviour which are sufficient to carry me through. In my view I need either special expertise or access to special expertise, in particular in the spheres of child and adult psychology. In most vexed cases nowadays a report by a consultant child or adult psychiatrist, usually now jointly instructed by all parties, is made available to the court. The psychiatrist will have read the court papers and, albeit usually no more than once, will have interviewed the parents and perhaps the child. The ensuing report, although often valuable, is no substitute for the expert reaction to the panorama visible from the bench, as the details of the case unfold, the conflicts are explored and the personalities more vividly emerge. In a particularly difficult case might I, like a judge who calls for the assistance of technical expertise in a patent or admiralty case, appoint a top psychiatrist or psychologist to sit as an assessor pursuant to s.70(1) of the Supreme Court Act 1981? The decision would remain mine alone but I could then have access to his or her expertise throughout the development of the hearing. Alternatively, were some university to offer say an intensive three month summer course on psychology, particularly if focussed more upon application than upon pure theory and indeed perhaps with a paediatric flavour, I would, if permitted, be keen to attend it. Or have you some other suggestion for bolstering my expertise?

I will not pretend that Lord Atkin evinced much interest in the work of the family courts. Indeed, soon after his elevation to the Court of Appeal, he was quick to reject an invitation to become President of the Probate, Divorce and Admiralty Division. But family work in his era was unrecognisable from what it is today. It was often a squalid enquiry into whether a wife had committed adultery and had therefore - yes, it is hard to imagine - forfeited her rights to be maintained by her husband and to care for or even have access to their children. Even our work as it is today would not sufficiently have challenged the power of Lord Atkin's mind. Nevertheless my plea to be furnished with quasi-medical expertise might well have collected his support. "One cannot help thinking that ... we do not take quite sufficient pains to secure that, in the ordinary course of training, [lawyers and doctors] are taught, so far as teaching can be given, that which is necessary in respect to medico-legal knowledge." ( 11 ) Those words were spoken as long ago as 1920 ... by the great man himself.

Endnotes

1. Sword and Wig, Memoirs of a Lord Justice, Quiller Press, p. 234.
2. On the contrary, see, for example, Chamberlain -v- de la Mare (1983) 4 FLR 434, especially at 440G and 444B-E.
3. B -v- B [1971] 1 WLR 1486 at 1494E.
4. Sutton L.B.C. -v- Davis (No. 2) [1994] 1 WLR 1317 at 1319C-D.
5. In Re C (A Child) (H.I.V. Testing) [2000] Fam. 48.
6. P, C and S -v- UK [2002] 2 FLR 631.
7. "The Judge as Juror ..." (1985) CLP 1 at 14.
8. R S (Change of Names: Cultural Factors) [2001] 2 FLR 1005.
9. An Essay on Criticism, lines 9-10.
10. G -v- G [1985] 1 WLR 647 at 652H.
11. Transactions of the Medico-Legal Society Vol. XV, p. 8.

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