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David Hodson on International Family Law: The High Court sitting on a beach in Tenerife

Date:3 MAY 2011

David HodsonMr Justice Mostyn received thoroughly unfair newspaper criticism last Sunday 24 April 2011, and in a way which did no good for perceptions about family justice. The Mail on Sunday led on its front page story that as the duty judge, with responsibility for dealing with emergency applications out of normal court sitting hours, he was in fact in Tenerife. The clear inference was that he was unable to do his job properly and that family justice, specifically local authority care cases, may suffer as a consequence. The Press colourfully referred to the fact that families caught up in dramatic children cases could be perturbed to learn the judge may only have just come off the beach or out of the swimming pool!

The newspaper is rightly known for raising important matters of genuine popular concern. However this criticism, so prominently on page 1 on the week before the Royal wedding and in one of the leading Sunday newspapers, was misplaced and unfair.

The piece quite rightly stated that these emergency hearings are often dealt with by telephone and e-mail. This is certainly the experience of very many family law solicitors. It was the guidance given by the Judicial Communications Office. An actual hearing outside of court sitting hours is very rare. The judge had in fact obtained permission to be abroad during the time when he was duty judge. In any event, the piece confirmed that the President of the Family Division, Sir Nicholas Wall, had offered to deal with any in-person hearings if any were needed. So that was absolute cover; telephone, e-mail or in-person. Therefore it was difficult to see why there could be any anxiety whatsoever.

The piece stated that lawyers, quoting Mark Stevens, expressed concern if an urgent injunction arose, with the piece drawing reference to the public scrutiny of judges in respect of super injunctions. These are rarely if ever granted in the Family Division.

The Mail on Sunday has recently featured a number of other items regarding Sir Nicholas Mostyn including his private life. Inevitably these were appended to the Page 1 News, even though unrelated and irrelevant.

Naturally in the Internet era, the item attracted significant chat room comment. Perhaps predictably, on the Mail Online site the best rated comments were those who attacked the judge and the family justice system in general with the worst rated comments being those who stood up for him and the duty judge system.

So a misplaced and unfair item; unfair to the judge, unfair to the duty judge procedure, unfair to the President of the Family Division, and unfair to the family justice system.

The bad timing is because only a couple of weeks earlier we received the astounding interim report of the Norgrove Family Justice Review. Astounding because of its breadth of condemnation of the existing problems, the extent of the solutions proposed and the beneficial changes the recommendations could make. Even if partially implemented, it would produce a family justice system at the end of this decade almost unrecognisable from that in which we are presently working. If much-needed changes in substantive law eg to ancillary relief, were also introduced, England and Wales would be a very different family law jurisdiction.

Amongst their excellent recommendations were greater use of remote, electronic hearings (eg by telephone), greater judicial continuity, much more judicial specialisation and that the requirement to hear other types of work before being allowed to sit on family law matters should be abolished. They said a requirement to appoint to the family judiciary should in future include willingness to specialise. This is all tremendous news. For too long the family justice system has had too many non-specialist judges. Many practising family law specialists, especially solicitors, have been inhibited from making judicial applications because of having first to spend time sitting in criminal cases. Crucially we have had too many judges, former barristers with no or minimal family law experience, appointed into the Family Division. Some have proved exceptional eg Sir Mark Potter. Some have not, without any feel for the fundamental dynamics and sensitivities of family cases. It is to be hoped that the FJR recommendations in this regard will be quickly adopted.

Returning to that beach in Tenerife, I am sure there are a vast number of other family law solicitors who, when needing a duty judge over a bank holiday weekend, would much rather have a family lawyer steeped in the traditions of family law fairness and practice, even if on a mobile phone or e-mail and still dripping wet from the sea surf, than a judge bussed in from other areas of legal practice even though able to take a short cab to the RCJ. An unfair attack on a leading figure in family law, much respected across the profession, is an unfair attack on the family justice system at a time when we need to be looking at the justifiable and deserved criticisms and the radical solutions.

NB: for the sake of transparency, I have no professional relationship with the judge in question, save having instructed him from time to time over the years as have many other solicitors, and no social relationship, save supporting the same football team, occasionally the greatest footie team in the world (and just promoted to the Championship!).

David Hodson is a Consultant at The International Family Law Group LLP. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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