In the second installment of a two-part feature, in conversation with Elizabeth Noone, Lord Wilson discusses the role of the child in court proceedings, transparency in the family courts, access to justice, and diversity in the profession.
Family Section members recently had the opportunity to put their questions to one of the finest minds in family law. In the second of a two-part feature, in conversation with Elizabeth Noone,
shares his views on a number of topical issues, including transparency in the family courts, access to justice, and diversity in the profession.
The voice of the child
Children are rightly being given a better voice in proceedings relating to them. It is important that, if they are of an appropriate age, they should understand roughly what is going on. It may be valuable that they meet the judge before he or she determines the child’s case, in order to understand better the system which is being applied. Equally, it may be important at the end of a case for a judge to explain to an older child why that decision has been made, particularly if the judge has taken a line that the older child has appeared not to want. All that I approve of.
However, the judge is not the proper person to extract from the child the wishes and feelings which need to be extracted and folded into the equation. When a CAFCASS officer has interviewed a child, goes into the witness box and reports on what the child had said, there is, rightly, the facility for a full cross-examination on behalf of the party whose case that evidence did not favour. Where, however, you have a judge presenting a child’s views, how can either party cross-examine the judge on how the child said it, the circumstances in which the child said it, the question which led to that answer being given - the whole matrix in which that, perhaps crucial, piece of evidence was given?
Lady Hale has suggested that children might give this evidence themselves in the witness box. I have a very good working relationship with Lady Hale: together with Lord Hughes, we three form the most powerful family law team in the UK top court that there has ever been - and that reflects the sudden realisation across the law about the importance of family law. But on this particular topic, I respectfully disagree with Lady Hale. I fear that it would be very difficult for some children to give evidence directly which favoured parent A and disfavoured parent B, and I feel that many parents would not be happy for their children to be in that position. So I have doubts about the appropriateness of children giving live evidence, even by video or other means designed to protect them from total visibility in the witness box.
Transparency in the family courts
I have no difficulty with the anonymisation of most judgments. There are some cases, in particular involving people in the public eye, which cannot really be anonymised: if you were to cut out all the material which would lead to the identification of that couple or family, you would be left with nothing intelligible. But, largely, the anonymisation of judgments is fine.
The more difficult question is whether family courts should allow the public into them, and this is currently a real issue in the Family Division. For the last few years, we have had a rule whereby the press can come in and listen - even to proceedings heard in private. They have the role of watchdog, so while it can’t be said that what is going on is entirely private, there are still considerable restrictions on what can be published. Where, however, a judge decides to hear a case in open court, those restrictions are at nought.
The problem at the moment is that there is a difference of view among the family judiciary as to whether cases should be heard in private, with the resultant controls on publicity, or whether they should be heard in open court. The main protagonist for hearing cases in open court is my good friend Mr Justice Holman, whose judgments I have for many years admired. But he is, as I understand it, pretty well on his own in considering all family cases should be heard in open court, with the result that it’s not only the press coming in, but also the public at large and with it, the elimination of all controls on what can be published. That is something that, with great respect to him, I am concerned about, because it is leading to an inability on the part of family lawyers to advise their clients whether their case is going to be heard in private or in public, and it can give the upper hand to one party to the litigation, as the other will know that there is a possibility that all the dirty washing of the marriage is going to be ventilated in public. And until the night before the court case, people are not going to know whether they are going to be listed in court 49, Mr Justice Holman’s court, with the result that it will be heard in public, or court 50, Mr Justice Mostyn’s court, where it is likely that the case will not be heard in public. I hope that this uncertainty can be levelled out by the President of the Family Division before too long.
Access to justice
Here at the Supreme Court, I am inoculated against many of the issues currently affecting the judicial system. Everything here is served up to judges on a plate. Everything is of the best. But go further down the ladder, into where family law is mainly to be applied, and you see overworked judges, overcrowded courts, confused litigants, overstretched administrative officers, and it worries me very considerably.
The worst thing, in my view, about the abolition of legal aid in private law family proceedings is not the absence of representation, but of advice: that is, the absence of firm advice from a qualified lawyer at the outset about the difficulties which may arise in relation to a party’s court case. There may be a number of interlocutory hearings which proceed without discussion of the substantive issue, but when the litigant gets to the big substantive day in court, they are suddenly confronted by the judge who has to explain to them a real problem in relation to their case. And so cases are going on longer and are costing the state more.
Another worry, particularly at magistrates’ court level, is court closures. I do understand that there has to be a streamlining, that particular courts in the countryside which may only operate one day every month, may be thought to be an extravagance. But how are litigants in the country to get to the new centralised magistrates’ court in the nearest urban centre - perhaps 50 miles away - when public transport in the countryside is so sporadic? One magistrate said to me the other day that the only way a particular litigant was going to be able to get to court was to steal another car. But behind that joke, there is a serious problem. The no-shows and the need for further and further adjournment is, I believe, a serious problem, particularly at that level.
Diversity in the legal profession
There are 12 members of the UK Supreme Court. Only one is a woman. There is no ethnic representation other than Caucasian. That certainly appears to many people to be a top court with very considerable powers, which is not representative of our society, and I understand those concerns. When we compare its composition with those of the supreme courts around the world which we respect, we find that our court appears considerably less representative of our society than those courts in relation to their societies. I am sure that this problem will soon be lessened. Of the 12 of us here now, six of us have, because of age limits, got to retire within the next three years. I am quite sure that that will mean not only new blood and fresh thinking, but also, at the very least, that a woman or women will come into the Supreme Court to join Lady Hale, who can continue for another two years after that. And it may well be that people of other ethnicities might also be chosen.
There is a strong argument that we might look to academia for one or two of our judges. There is an argument that judges might be able to work here on a part-time basis, which would mean that there would be even more fluidity of the composition of this court. And so, in my view, we will not need to wait for 50 years before this problem is satisfactorily resolved. And I can think of many very able males and females in the Court of Appeal of England and Wales, and others outside that constituency, who would make admirable members of this court.
I don’t think it’s necessary to introduce quotas to ensure diversity in the legal profession. I know many barristers and solicitors in the age group of 25 to 50, and I see a large diversity. I look at my old chambers, I compare its composition in 1967 to its composition now, and it’s wonderful that, somehow, those old-fashioned chambers have become inclusive of so many able people of different backgrounds.
When I started out, the pupil had to pay the pupil master. You had, I’m sorry to say, the old boy network, which worked to my advantage in acquiring a pupilage. All that has gone. There are now fair procedures for choosing the best, and so, at the age of 70, I am the representative of a happily outdated system. And the new procedures have enabled people from much wider backgrounds to come into the law. And they are moving up and they will become judges, and the problem which worries so many of us will, quite soon, be largely resolved.
Justice of The Supreme Court, The Right Hon Lord Wilson of Culworth
In 1967, after reading jurisprudence at Worcester College, Oxford, Lord Wilson was called to the Bar of England and Wales; and for the next 26 years, first as a junior and ultimately in silk, he practised almost exclusively in the field of family law.
From 1993 until 2005 he was a judge of the Family Division of the High Court. From 2005 until May 2011 he was a judge of the Court of Appeal.
In May 2011 he became a Justice of The Supreme Court.