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The Kent Region decided to run a debate ahead of their annual AGM in November 2009 following the huge success of their debate a year earlier in celebration of the 25 year anniversary of Resolution, formerly Solicitors Family Law Association. The title of the debate was intended to engender intellectual argument, along with some lighter relief for such a controversial subject.
We were very indebted to our esteemed panel with His Honour Judge Hopmeier chairing the Debate. He was appointed to the position of Circuit Judge on 14th July 2009 and is currently based at Kingston Crown Court on the South Eastern Circuit. He is no stranger to family law having been a member of the family set at Hardwicke Buildings until his recent appointment.
The Chambers of 1 Hare Court and 29 Bedford Row pitted themselves against each other on the motion. 1 Hare Court were for the motion, 29 Bedford Row against. Richard Sears opened his presentation for the motion knowing that he would be followed by Christopher Wagstaffe and then Petra Teacher of 29 Bedford Row, enabling Stephen Trowell to sum up for the motion.
Richard Sears described us as a profession of pragmatism predicting quick solutions with an acceptable degree of accuracy. He announced that the current form of judicial discretion undermines that effective and pragmatic ability that we, the legal representatives, can offer. Some of the recent headlines have, he argued, placed trial Judge on a pedestal so that their Judgements can only be interfered with exceptionally.
He suggested that the values of family life that are accepted in the community may not be reflected in the Judgements awarded, but they could not be challenged currently. Proponents of the current system argue that the flexibility it offers trumps its shortfalls but he disputes that. Richard observed that different minds reach different decisions and likened this to fairness being like beauty in that it lies in the eye of the beholder. He described fairness as an instinctive response that could not be justified or refuted by logical reason and that one’s sense of fairness changed through generations.
He sought to demonstrate with reference to some recently decided cases how the exercise of discretion rendered indications at FDR completely altered by the Judge at final hearing. The first case he described was on the facts of a 55 year old wife who had been married for 2 and a half years to a retired widower. Less than 21 days before they were married they completed a prenuptial agreement in which she was to receive 40% of the house that had been the widowers and a pension share. The Judge at FDR considered the wife to be a gold digger and said nobody should pay regard to a prenuptial. There should be no provision for the wife. At final hearing, the wife was awarded £120,000 lump sum to clear the mortgage she had on her own property plus £40,000 in legal costs. She also received a 39% pension share. Whilst the prenuptial was still not upheld, the outcome was very different. Richard queried whether this demonstrated a legitimate ambit for judicial discretion.
He went on to say how difficult it is in a needs case to predict the outcome because District Judges differ on their assessment of “need”. He also suggested that this therefore undermines our efforts to achieve alternative dispute methods of resolution because we are unable to predict accurately what can happen. How can we hope to keep people away from litigation? Of course the Mediators amongst us would counter this by pointing out that Mediation empowers people to make their own decisions. He also complained of how the courts are clogged up by cases that are fighting that should not be there and the considerable delay that often occurs between FDR and final hearing. He observed that costs incurred placed we, the profession, in a bad light. He also commented on the cost not just being for lawyers but also the impact on the children in terms of contested and uncertain outcomes. Richard concluded that bespoke solutions that can currently be crafted by the judiciary are palpably incorrect and he summed up with the words of Andrew Greensmith, Chairman of Resolution in 2007 when he said that players of the ancillary relief game find the rules dangerously outmoded.
Christopher Wagstaffe spoke next. He was a late replacement for Ken Collins, a trained Collaborative member of chambers who had been billed to present for the opposing 29 Bedford Row team. Chris began by presenting a scenario in which Llian is aged 25 having left school at 18 with a few GCSE’s and become a civil servant living in a rented flat with Steve. Her sister Sarah is due to be married. It is 11.30am and in her capacity as listing officer in the county court, which Judge’s list she puts two different cases in could predict a different outcome for each. She determines on using the alphabetical order approach. If it had been otherwise, what would have occurred?
Next he responded to Richard’s challenge that there are inconsistencies between FDR and final hearing by saying we have to trust the Judge to make the best decision. At this juncture His Honour Judge Hopmeier said many a time at this stage I have asked the parties to go outside and settle!
Christopher Wagstaffe commented that we could create a formula like the CSA and we know how well that works! He drew our attention to the law in Scotland where what you take into the relationship you get to keep. Anything jointly acquired is split equally. The remedy for any transitional problems is through a 3 year maximum maintenance provision unless there are exceptional cases but even then there can be no maintenance beyond 10 years. So even in a more defined system injustice can still arise.
Most of the time with a formula you will get reasonable decisions but there may be say 10% of problems at the margins. America has the same problems although their system is different.
After looking at the different systems, he went on to discuss what happened in the 60’s and 70’s with TOLATA type cases. Pre 1973, married couples used this approach to argue that the wife was already entitled to her share rather than attempt to argue she should have a share. His point was therefore that we, the lawyers, change our approach to suit the objective. He queried is it the rules of the game, the player or the Judges that are at fault? He said how many times have we been involved in a dispute where the husband does not want to pay the wife money and the wife wants more. Both reveal attitudes that are impacted on by gender but if you were to change that you would improve outcomes.
When you consider that you can see only 5% – 10% of cases go to court, the system currently suits most cases. So is it such a bad system given that most are therefore predictable outcomes?
He asked whether we would have a better or just different system if the rules were changed. He felt it would be different not better. What we are trying to establish is justice and to do that we have to entrust Judges with the facts and allow him or her to come to a solution. He argued that is better than a “sausage machine” formula and invited the audience to oppose the motion as he did.
Petra Teacher then stepped up to lend support to what Chris Wagstaffe had said. She opined that tailor made solutions are needed because one size does not fit all. She said we need to be responsive to each single family.
She dealt with the tension between flexibility and certainty that we all face with our clients. She said certainty is the aim of the law whilst uncertainty is unfair. However flexibility is better to achieve fairness.
She observed that one of the benefits of judicial discretion is it can move with changing social attitudes. The law commission regarded this as appropriate. Petra said it was important that Judges could move with the times rather than be constrained by Parliament. She also said that currently there was no desire to wade in to change the law there, being insufficient political will.
She said if we argue that discretion ruins the profession what else can be done? She drew attention to two areas where there is no discretion they being TOLATA which applies very black and white principles of trust law but discretion has developed in that. Also the CSA now CMEC originally was a fixed system but that has been massaged to meet different circumstances. When parliament acts to try to lay down principles that do not permit discretion, these are the results. She therefore concluded that the motion could not be supported.
The Debate was concluded by Stephen Trowell stating that all his material had been used. He sought to win us over with one of the few jokes of the afternoon “what do you call a Judge with no thumbs” Answer: Mr Justice Fingers (interjected by Chris).
Having the advantage of hearing all the other arguments he was able to succinctly summarise points for the motion. He urged us to acknowledge that it is parliament’s role that we must respect. The judiciary do not have a legislative role. He said a narrower discretion may be an advantage but we still need judicial discretion. He said we cannot have imposed on us needs, compensation and sharing when only “needs” are actually enshrined within the statute.
He also said we have a good reputation if we leave our clients with as much money as possible!
By cleverly suggesting that perhaps the judicial discretion was too broad, he may have clinched the deciding vote by narrowly encouraging those attending to vote in favour of the motion when His Honour Judge Hopmeier put it to the vote. That was not before the audience of Kent presented many points to the panel and there was some considerable debate on what we might do to replace the current system and offer a narrower discretion. As always, there were differing viewpoints.
The Debate was as successful, if not more so than last year. It combined lively discussion with a great degree of humour. The feedback forms were very positive revealing that I wasn’t alone in having a good time. The serious outcome of course is that there is support within the membership for our Law Reform programme, but in Parliament.