Family Law

A tale of two Presidents

Sir Mark Potter's five year tenure as President of the Family Division was far from uneventful. During a period that saw intense interest in the workings of the Family Justice System, despite (or perhaps because of) his background as a commercial practitioner and judge, history will show that his tenure was a success.

He presided over a significant number of hugely important decisions (covering the entire panoply of family law: jurisdiction, finance, private and public law, international abduction and adoption). At the same time he oversaw fundamental changes to the management of the family justice system. 

Implementation of the rules allowing media access to family proceedings took place during his watch, as did a complete redraft of the Family Proceedings Rules (which are awaiting final sign off).

His most important contribution to the family justice system may, however, prove to have been made following his retirement. Sir Mark told The Observer last Sunday that he felt able to speak more freely now he had left his post.

He warned that children are now being placed in danger because the family courts are facing an "acute situation of crisis". A lack of adequate resources combined with a huge increase in the number of public law cases that have being issued in the last two years means that children are being "left for a considerable proportion of their early lives in atmospheres of violence, high emotion and parental dispute which, if prolonged, is bound to interfere with their long-term development and give rise to problems in adolescence and later life."

It falls to Sir Mark's successor, Sir Nicholas Wall, to find a way to manage the systemic problems facing the family courts; problems which will only get worse if the Government takes a hatchet to the family justice budget. The indications are that Sir Nicholas will be far less reticent in office than his predecessor. He has already warned that without more funding for family courts, the system will implode "and it is children who will suffer most".

In his address to the Annual Conference of the Association of Lawyers for Children last November (published in Family Law [2010] Fam Law 29) Sir Nicholas made his position clear. "Neither I, nor any of my colleagues has any wish to engage in politics" he said, continuing "But I do think - certainly in the field of family justice - that the time has now come when the historical and indeed instinctive judicial reluctance to go public over matters properly within our sphere of activity must come to an end. In common parlance, we must come off the bench. We must say what we think, and if we feel that the exercise of our proper functions is being impeded by anyone or anything, we should say so, loud and clear, and in plain language."

Fortunately, having initially rejected Sir Nicholas' appointment, the former Justice Secretary subsequently backed down. Having a past and current President who are both prepared to speak out forcibly against the lack of resources available to properly run the family justice system can only be in the best interests of children and their parents.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

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