So, what did he do that was fantastic?
Sir James judgments were always a joy to read. His use of language “A farrago of delusional nonsense,” “forensic incontinence” and many other gems that will be repeated long after he has gone have left an indelible mark. His clarity, fluency and forthright manner of expression were rare qualities in these times and he set an example which unfortunately too few judges have bothered to even try and emulate. In truth, apart from similar stratospheric salaries, very few come even close. Sir James Munby’s presidency of the family Court has been far more eventful than many before him. He notably stuck his head above the parapet on a few issues and was not afraid to be outspoken and court controversy either. Most recently he stated, ‘“Anybody who thinks that we currently have a network of courts which enables proper access to justice is deluding themselves.”
His public opposition to government cuts that virtually eradicated legal aid in the family courts was admirable. He was especially keen to openly challenge cuts where they deprived vulnerable people of their human rights to access to justice and a fair trial.
Sir James was therefore not afraid to stand up and be counted to defend sincere and treasured democratic and legal principles. Sadly, I felt sometimes that he was a determined but lonely voice shouting into a gale.
He fearlessly spoke out against firms of lawyers that used undue influence to take advantage of their clients to swell the sizes of the already bloated fees. His assault upon the ridiculous size of bundles that seemed to be routinely produced by some legal firms was welcome news to many clients who were being charged extortionate fees for work that was both superfluous and unnecessary. Despite cries of horror from the legal professions and the subsequent application of his guidelines. A few judges supported his initiative and demonstrated that this was indeed a very real problem that could be overcome with relative ease and a little determination. I had the impression that a few comentators sneered at these initiatives which were welcomed by the public.
Sir James promoted model orders for the child arrangements program in family cases and these were, for LIP’s at least, a welcome step. Indeed, anything that encourages consistency, conformity and predictability within an idiosyncratic fickle and opaque system can only be a step forwards for the rule of law and the paying punters.
Perhaps Sir James will be mostly remembered for his brave attempts to drag a traditionally conservationist even prehistoric judiciary, that is heavily weighted down and obdurate towards its lower end, into the 21st century. His transparency reforms were much-needed and a step in the right direction. The number of published judgements in family cases has gone up considerably during his tenure. Although published judgments can represent little more than a mere glimpse through a heavily sanitised shop window into the family court they can, nonetheless, give us much more of an insight than was previously the case. Therefore, an increased rate of publication from greater numbers of judgments represents a considerable step in the right direction. I’ve used the word ‘considerable’ with care because the study by Dr Julie Doughty of Cardiff University gave us all an insight into the magnitude of the task which Sir James, to his immense credit, was not afraid to tackle. When Dr Doughty contacted the family judiciary, to poll them on various aspects of transparency, the president wrote to all the family judges to support Dr Doughty’s study and encourage their cooperation. The response rates and indeed some of the responses were, to say the least, disappointing and showed an attitude that would be more at home amongst naughty teenagers than a family court judiciary. The responses — or lack of them — to this study demonstrated why Sir James was unable to complete his transparency reforms and illuminate the dusty, dark corners of the lower courts. In some cases I also feel that this demonstrated a lack of respect for the president’s offices that needs to be addressed.
Designated family Judges
Another of Sir James’ initiatives was the introduction of the single family court and an improved judicial structure to serve it. Again, a few judges have embraced this with both arms whilst others have effectively cocked two fingers in the president’s direction. For evidence of this just google the DFJ in Bristol. Then look for his neighbour (10 miles across the Bristol Channel in Newport. I rest my case. One is open and clear, the other as murky as the channel which separates them geographically.
As part of the structural reforms the post of “Designated Family Judge’ (DFJ) was created
Notwithstanding the judicial oath to perform their duties “without fear or favour, affection or ill-will” The DFJ, ‘…has a pivotal role in ensuring that each Care Centre and the courts in his or her area, are run as efficiently and effectively as possible, within the resources they are allocated, and that the other family judges and the staff at those courts play their part in this. The DFJs will work closely with the Resident Judge and the Designated Civil Judge in their area to discuss and reach agreement on issues concerning the administration of justice across the jurisdictions.’
In addition to this the DFJs, ‘… assist the FDLJJ (Family Division Liaison Judges) of each circuit. They in turn assist the Lord Chief Justice, through the President and the Senior Presiding Judge, in discharging his overall responsibility for representing the views of the judiciary; for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary; and for maintaining arrangements for the deployment of the judiciary and the allocation of family work within the Care Centre and other courts’.
That last sentence is important. The allocation of cases is supposed to be carried out by a very senior judge who will have supervised the professional development and ongoing education of each judge around his centre. It is clearly not intended to be a job for the feint hearted or for a clerk.
If Sir Andrew McFarlane fancies a challenge then he does not need to look far. But he will have his own work cut out trying to secure the support of this same cohort of the judiciary, that effectively scuppered even more transparency improvements, for his, Dr Hamish Cameron’s and Andrew Bridgen’s proposed early interventions project. He apparently wants the judiciary to take ownership of the scheme. He has our support but he also has our sympathies because he has taken on a project that is as difficult as swimming in a pool of jam. If the judges we hear tales of in the lower courts are any indication of the difficulties he faces then he has a frustrating and difficult time ahead.