One of the challenges of being a deputy district judge (DDJ), is that the jurisdiction is so wide. We sometimes have to decide cases in areas of law that may be new to us and in which we have no experience. As a former family solicitor, this transition was difficult for me, because most DDJ work is civil. Family ancillary relief lists do come under the civil law ‘umbrella’, but non-family work still dominates. We have to apply for specific training (even with a background in family law) if we want to hear private children law cases. It took three years for me to get a place on the training, because selection depends on the suitability of the candidate and the business needs of each circuit.
Fortunately, I can now hear civil, family and private law cases, so I receive a good mix of cases. Several years on, I still come across civil issues I have never heard of before. It can make one feel like a fraud when the legal representatives know more about the issue than the judge does! But I remind myself that it is the job of the litigants or their representatives to put their case to the court, and for the court to make a decision. This isn’t so simple with litigants in person, who often have no idea of the legal position. When faced with such a situation, as judges, we just have to do the best we can with the facts, the evidence and the law before us. The challenge is to make instant and sound decisions on that basis, and under huge time pressures. I remind litigants that as they haven’t been able to agree, any decision now sits with me; that it isn’t a perfect system, but it is all we have; and there is always a risk in coming to court, especially in cases where the court can exercise discretion as to its decision. The civil burden of proof also applies, so cases are decided on the ‘balance of probabilities’: ie if something is more likely than not. By definition, it does not and cannot require certainty.
While the judiciary seeks people with different perspectives and personalities, from varied backgrounds, I believe that one’s experience must be relevant to the type of judging one is most suited to. I chose to be a family lawyer because I felt I would be making a difference: and that I could emphasise more with real people with real issues. With child work, it mattered to me so much more than, say, a commercial case. No less important from a legal perspective, just less so to me. In court, I definitely feel an instinct for and more confidence in determining family cases, which, even with years of judicial experience, I have not developed to the same extent in civil law cases. I know deputies who would disagree and consider that the application of their experience to a wholly new area of law is refreshing and testing in a positive way and ensures no staleness in approach and in decision-making. So, while I would like to see specialist family courts for those of us preferring this type of work, others disagree that they are required.
Family law work and reform is topical right now. The recent Owens v Owens Supreme Court judgment (referred to in my last column) highlighted the clear need for a review of divorce law and since I last wrote, the government has launched a consultation on the matter – we await the outcome with interest. The divorce process would undoubtedly be more straightforward and less emotive if no blame was attached. Family courts could focus on what matters, that is, financial and legal support for those involved in family breakdown and the children’s welfare. Parties also might be more focused on those principles if fault and blame were removed and the temperature of proceedings lowered. A national debate in September, run by the Family Matters campaign (the Times’ campaign to modernise family legislation, launched with the Marriage Foundation) recorded an overwhelming consensus in favour of divorce reform, and reminded us that Parliament approved no-fault divorce over 20 years ago, which was never implemented.
There are still doubters who believe making divorce easier would undermine marriage, but the majority appear to disagree. With 42 per cent of married couples currently getting divorced, a change in the law would affect a significant number of people. The introduction of civil partnerships for heterosexual couples and the prospect of new legislation for cohabitees are hopefully on their way soon too, after the Supreme Court ruled existing legislation was incompatible with the European Convention on Human Rights.
The work of a DDJ is varied and interesting. It is difficult to be an authority on any one topic, though, and I often feel more like a ‘jack of all trades, master of none’. Specialist courts would change that, but that is a whole different discussion, raising issues of feasibility and budgeting, and those responsible for appointing judges may fear specialisation could halt progress on and prevent greater diversity in the judiciary.