Family Law

All of us were deeply saddened to hear the news of Sir Nicholas Wall’s death last week.

Sir Nicholas Wall was indisputably one of the outstanding family lawyers of our generation. He combined great intellectual rigour with humanity and compassion. His appointment as President of the Family Division in April 2010 crowned a most distinguished career in family law.

He was well known for his kindness and generosity to colleagues at the Bar and on the Bench, and for his patience and courtesy in dealing with those who appeared before him, especially those without the benefit of legal representation.

Unlike a number of recent Presidents, Sir Nicholas came to the office after an entire career steeped in family law.

He was called to the Bar in 1969, took silk in 1988, and was appointed to the Family Division in 1993 at the age of 48. In 2004 he went to the Court of Appeal.

At the Bar he established a reputation as a highly effective advocate, possessed of formidable forensic skill. His practice embraced the most complex children and financial cases; for we must not forget that, although more widely known for his practice concerning children, he appeared as counsel in a number of landmark financial cases: Edgar, De Lasala, Gojkovic, and Duxbury. A former pupil, now a judge in the Division, recalls him as the best and most generous of pupil masters, a man of great kindness and immense generosity.

But Sir Nicholas was not just a great family lawyer, his judicial versatility being demonstrated by his service both in the Employment Appeal Tribunal and in the Administrative Court. And for five years he was the Family Division Liaison Judge for the Northern Circuit; the affection with which he was held on that circuit was reflected in a memorable ‘send-off’ party at the conclusion of his term of office – hosted on a ferry on the Mersey.

Sir Nicholas was a man of many parts. He enjoyed writing clerihews and he was a skilled bookbinder. A former judicial colleague reminds me that the bound copy of the transcript of the speeches on the occasion of his appointment to the Bench contains this inscription from the craftsman: 'Bound by Nicholas Wall QC by appointment bookbinder extraordinary to the judiciary'; the corresponding volume marking the same judge’s retirement being inscribed 'Bound by Nicholas Wall bookbinder extraordinary to the retired judiciary and other distressed gentlefolk.' And another judge offers this by way of affectionate tribute:

'Sir Nicholas Wall

Was exceedingly tall

He said: "My unreported judgments may be very few,

But I would rather bind a book or pen a clerihew."'

Sir Nicholas’s work away from the Bar and, later, off the Bench was as prodigious as his work as barrister and judge. He devoted seemingly tireless energy to the development of family justice, in ways too numerous to catalogue here. During the 1990s he was one of the pioneers of the inter-disciplinary approach to family law – an approach which seeks to improve the quality of judicial decision-making by benefiting from the insights of a number of different disciplines including socio-legal research, child development and attachment theory and relevant developments in the hard sciences, like neuroscience. An inter-disciplinary approach to family law has become the norm but it was not so in the early 1990s when Sir Nicholas was one of the first to champion the cause. He was a Member of the Lord Chancellor’s Advisory Board on Family Law from 1997 to 2001 and Chairman of the Children Act Sub-committee from 1998 to 2001. In that capacity, he oversaw the consultation for, and publication of, key reports which informed the practice of family law: the committee’s 2000 report on Parental Contact in cases where there is Domestic Violence, and in 2002, Making Contact Work, its report on resolving contact disputes. On top of all this, Sir Nicholas also spent several years writing and editing that key work, Rayden and Jackson on Divorce.

In 2004, he gave vital evidence to the Constitutional Affairs Select Committee on Family Justice; as a result, he was, in the following year, asked by the then President, Dame Elizabeth Butler-Sloss, to consider the Women’s Aid report on Twenty-Nine Child Homicides. Sir Nicholas submitted his own review of this report to the President, by then Sir Mark Potter, in 2006. The review – the product of painstaking reconsideration of the relevant court files – was, as Sir Mark commented, 'comprehensive and thorough'. Sir Nicholas’s recommendations, wholly accepted and endorsed by Sir Mark, led to the formulation in 2008 of the relevant Practice Direction (now PD 12J) for residence and contact disputes in cases of domestic abuse and harm. Sir Nicholas summarised the approach the courts should take:

'We are now much more acutely aware of the significance of domestic abuse in contact cases. Gone, I think, are the days when a man could be violent to the mother of his children and yet could still be considered a good father.  We are much more aware of the risks to children posed by domestic abuse, and I think this has helped to underline the proposition that, in English Law, contact is the right of the child, not the right of the parent, and that the child’s safety, and well-being, in contact is paramount.'

Sir Nicholas was not a mere lawyer. He had a deep understanding of the importance of process and much of his most important work as a judge in the early years was directed to emphasising the importance of good practice, to defining the proper approach to dealing with care cases under the Children Act 1989 and to improving the process – things we now take for granted but which were less central to the culture of the family courts before he became a judge. For example, openness, frankness and transparency within the process – cards up on the table –, the need for all the professionals to work cooperatively with each other and with the court, and the vital importance of experts and of ensuring that expert evidence was presented in the best way. He was an admirer and supporter of the work of NYAS and of the contact centre movement. He was one of the first to recognise the need for a more rigorous approach to expert evidence in family proceedings, a topic on which he gave a number of leading judgments. His Handbook for Expert Witnesses in Children Act Cases, first published in 2000, with a second edition in 2007, was a landmark and remains indispensable.

On and off the Bench, and to the wide admiration of those who practise in family law, Sir Nicholas often spoke with passion, and in plain language, about the importance of family life, the good practice of family law, and the proper administration and resourcing of family justice. He was appropriately outspoken about the plight of children caught up in the midst of parental conflict. He expressed his deep concern again and again about the impact of domestic abuse on children and on family life. His words on the importance of both parents in a child’s life continue to inform us on a daily basis. He was a powerful proponent for many important things:

• the resolution of family problems outside the courtroom,
• the end of fault-based divorce,
• cohabitees being given the same rights as married couples,
• the need for improvements in the availability of experts,
• the importance of the tandem model of representation of children in family cases,
• the rights of litigants of person,
• better access to information from and about the family courts, and
• more generally, opening up both the family courts and the Court of Protection to public scrutiny.

He was an early supporter among the judiciary of greater transparency in the family justice system and initiated a fruitful dialogue with the media on how reporting restrictions in family cases operated and explored how they might be relaxed without harm to the vulnerable.

When it was necessary to do so, he was rightly blunt in his criticisms of poor practice wherever it affected the proper and fair administration of family justice. But always – always – his judgments were humane, balanced, and fair. He was a compassionate and empathetic judge who thought and cared deeply about the outcome of his cases.

Sir Nicholas’s appointment as President of the Family Division in 2010 was warmly welcomed by his colleagues and widely welcomed by family specialists in both branches of the legal profession.

It was, and I use the word in its true sense, an immense personal tragedy for Sir Nicholas and his family, his wife, children and grandchildren, that a cruel illness should have compelled him, far too young and far too soon after becoming President, to retire in December 2012; and then robbed his family of the man they loved and admired. For us, for the whole family justice system, it was and remains an enormous loss.

But even in his all too short time as President Sir Nicholas achieved much of lasting significance. He drove forward the move to greater transparency. In July 2011, together with the Society of Editors, he issued an invaluable guide, The Family Courts: Media Access & Reporting, for the use of journalists, judges and practitioners. In the Preface, he wrote:

'There is no more difficult issue in family justice than the reporting of cases. There is a tension between concerns about “secret justice” and legitimate expectations of privacy and confidentiality for the family. Both standpoints are valid, and the question is whether they are irreconcilable.

Against this background, and under the wise tutelage of the Lord Chief Justice, a group of lawyers and journalists, including representatives from both the print and broadcast media, have got together to talk to each other. As part of these discussions, they commissioned a paper which would set out a statement of the current state of the law in this most complex area.

The result is the document which follows this Preface. It has been drafted by two members of the bar, Adam Wolanski and Kate Wilson. It is an analysis of where we are at the moment: what we can and what we cannot do. It is, in our view, a substantial and very important piece of work. Its publication is all the more timely as the debate on increased transparency and public confidence in the family courts moves forward. It will serve to inform future consideration of this difficult and sensitive area, including the questions of access to and reporting of proceedings by the media, whilst maintaining the privacy of the families involved.'

In this, as in other matters, he was a convinced, determined and principled moderniser. He welcomed the recommendations of the Family Justice Review led by David Norgrove and had the wisdom to appoint Mr Justice Ryder, as he then was, as the judge responsible for planning how the recommendations could best be implemented. Sir Ernest’s report, published in the summer of 2012, set out a blueprint for the radical reform of the handling of care cases within a new, unified, Family Court. Unhappily, Sir Nicholas was not able to implement the reforms that he so much wanted to see. That task fell to me. I am immensely grateful for all the work that Sir Nicholas had done in preparing the ground so well.

Sir Nicholas’s life was one of very great achievement and he has left us a formidable and enduring legacy.

But can I end with a final reference to Sir Nicholas the man. Professionally and personally he was known for his precision, clarity and commitment to openness and transparency with a parallel dislike for euphemisms, secrecy and obfuscation. He spent much of his life challenging stigma and speaking professionally and publicly and with great humanity about subjects that others found difficult or emotionally challenging. Those of us who enjoyed the privilege of working with him, appearing before him, sitting together with him on the Bench, mourn the loss of a good man, a great family lawyer and an immensely valued colleague.

I know that I speak for all of us, for the whole family judiciary, in expressing sincere condolences to Sir Nicholas’s widow, Margaret, his family and his many friends.