Reflections on Judging

The reason for my retirement, was in part because of my curious pension arrangements with the Ministry of Justice which required me either to sit for fewer days or forego my pension and in part because it gave me the opportunity to have a phased rundown from the Bench while I build up a practice in private FDRs, mediation and arbitration. I am very grateful to have been allowed to keep all the court cases already allocated to me to bring to finalisation over the next 18 months. 

The highs and the lows of the job

It has been a huge privilege to sit as a Judge. I first sat as an Assistant Recorder (a now abolished role) in 1993, so that by 2026 I will have been judging for 33 years. My seven years as a full-timer were the highlight. 

My goal has always been that litigants should leave my court happier than when they came in. I hope that I have largely succeeded in that. For many litigants, it is the fear of the unknown which is so troubling. To leave the hearing with an outcome with which they can live is a huge relief to them. It is also often the catalyst for a better relationship with the former partner. 

It is very important to present a human face to the parties. They need to have confidence in the judge and in their ability to understand them and their actions.  Often, I will address the parties directly and I always try to ensure that I have them in my eyeline. If counsel blocks that view, I will ensure that someone moves.

In some ways we are very lucky in the High Court, above all in the fascinating variety of work that we do. To go from a high value financial divorce case with complicated issues of valuation to the international movement of children, and then to serious child abuse cases and Court of Protection end of life decisions is a hugely stimulating mix. There is no chance of getting bored or stale. 

When I was appointed a full-timer, a number of friends warned me that I might find myself lonely. I came from chambers in 4PB where I had spent some 40 years among very close comrades.  Putting our heads into each other’s rooms would be the norm for the day. Issues were chewed around between me and my colleagues, and we had many laughs together.

I can truthfully say that I have never for one moment found the job lonely. The High Court turned out to be far more collegiate than I had anticipated.  I was surrounded by people whose friendship and goodwill was always apparent.  Yes, there was less time mucking around than in chambers! We were all under pressure in the High Court and we got on with the work, but if you needed help, an ear or a sounding board, there was always someone nearby who would assist.  I found that often explaining the problem to someone else clarified my own thoughts without the need for them to help with the answer.

I am by nature an optimist. I like to see the best in others. Most people behave at least tolerably well, notwithstanding the difficult circumstances which will eventually bring them before the family court.  But sadly that is not always the case. Nothing has been more heart-rending than the distress of a mother whose beloved child has been abducted, often to a North African or Middle East country, and when there is no prospect of a relationship ever being reestablished.  Seeing such distress brings home what a vile crime abduction can be.

There are some other cases which have upset me. I have only had one case in which parents quite deliberately tortured their children. The torture was more mental than physical but such were the experiences of boys then aged about 10 that when faced with a choice, whether of what they might do or eat, they could not cope, because they had never been given a choice about anything. The videos of them having to stand to attention for hours in only their underwear for some perceived misdemeanour were chilling. 

I had the misfortune to be on out of hours duty one Sunday evening when I had to deal with the case of a critically ill boy.  He had been ill for a while but had suddenly declined. His parents were both doctors themselves and were desperate that the treating team should try a particular procedure. As the child deteriorated, I had a number of applications made to me by telephone conference call that evening and night. I could not order the treating doctors to undertake a procedure that they felt would not assist and very sadly the child died overnight.  I had alerted two colleagues that they might have to take over the case the next day, as I was unable to break the case in which I was part heard. They were very supportive in affirming that I had made the right decisions, but it was a harrowing application. 

End of life cases can be very difficult and having a 19 year old appear before me with her parents, at her express request, to persuade me to stop her regime of force-feeding and let her die was desperately sad for everyone in court. She was very articulate. She could have been the child of any of us.

Money cases are unlikely to engage the emotions in quite the same way, but they present different challenges. It is important to put to one side the judge’s personal approach to life. I have been presented with massive budgets for personal expenditure quite out of anything that anyone in my social circle has ever experienced.  But, if that is the way that a couple had lived their lives, s.25 MCA is engaged as the court must have regard to the standard of living. The most extreme example I can recollect is the budget for one couple’s annual summer party which included £50,000 for “spraying champagne”.  It will not surprise you that this item did not make its way into the budget that was allowed.

It is infuriating how many cases end up with the need for enforcement applications. Sometimes this is sheer bloody-mindedness on the part of the payer, sometimes a lack of cooperation from another person whose assistance is needed and in respect of whom no question has arisen during the substantive hearing.

Many think that the role of the judge ends when they rise at the conclusion of the court day. If only…The Family Division is unique in its demands. I have often had judges from other Divisions say how much harder we have to work than they do. Despite the change of the nature and the increase in the volume of work, there are only two more FD judges that there were when the Matrimonial Causes Act came into effect 50 years ago.  Because of our low numbers, every one of us has a leadership role. In my case it was as Judge in charge of Appeals to the Family Division.  Getting on for 400 applications for permission to appeal are made each year and they all have to be case managed and determined. I had a small team to assist me but the volume was such that there was a never-ending stream of applications waiting for me to be done outside court.

Working conditions are far from ideal. It is embarrassing always to have to require the parties to bring over to court hard-copy schedules of assets as we have no capacity to print landscape documents, let alone in colour.  The temperature of the court buildings seems to be controlled by someone who has no connection with the outside world. In my court (Court 40) the temperature yo-yoed between polar and tropical, except mysteriously on Friday afternoons when, as if to mock us as we left for the weekend, it averaged itself out and gave a pleasant climate. Going on circuit round the country suggests that the RCJ falls somewhere in the middle, with some courts such as Liverpool and Bristol providing an efficient and comfortable environment while some others are much less good.

One of the remarkable features has been going to judge’s lodgings all around the country and I think that I have stayed over the last seven years in every one of the fourteen that remain.  They are a great asset – knowing that you can leave your papers safely on your desk when you go to court without a risk of them going awry; having the company of a congenial colleague or two with whom you can discuss work without the risk of others overhearing; being looked after when you away from home. On the other hand many of them are in an appalling state of repair because they are not adequately maintained and there is an extraordinary hierarchy which means that in most of them the clerks go up the back stairs and live in the attic while the judges are provided with grand rooms, albeit often glacial and with faded décor. 

One of my colleagues accurately described being at the Bar as a life of acute stress, whilst being a Judge was a life of chronic stress. Unlike the Bar, the moment one case finishes you are straight into the next one.  Unless you get your judgment out at once, you simply create a millstone round your neck and catching up becomes increasingly hard. I confess that has meant that sometimes a judgment is less polished than I would have liked, but at least the parties will have the judgment in at most 2-3 weeks from the end of the case. You will all know how long parties have to wait for decisions from the Court of Appeal and Supreme Court.

Lessons I have learnt

1. If you don’t understand the issue, all will be likely to become clear if you just sit and listen. I have read cases, whether involving desperately complicated financial issues or highly complex medical evidence and thought “I really don’t understand this”. Yet if you just listen, asking questions when you need to, things will usually become clear.
2. Don’t be afraid to change your mind.  First thoughts are often right, but not invariably so. It is no sign of weakness to change your mind.
3. If in doubt, let fairness triumph.  This might sound odd, but let me explain. In one case I had to divide the family assets. I did so but within a couple of months the husband’s business collapsed so that the result that I had hoped to achieve did not transpire. The order had not been finalised and he asked me to revisit it and adjust the figures to achieve the percentage division that I had been seeking. The wife said that I had made my decision clear and there was no scope for revisiting it, given that if the business had prospered she would not have received more. I changed the sum to reflect my intention. In another recent case the wife had delayed in applying to set aside an order made on a misapprehension created by the husband as to when his interest in an asset would be realised. He alone was responsible for her award being under-assessed.  I decided that fairness required me to let her proceed with her application notwithstanding the delay. In the former case the CA granted permission to the wife to appeal and the matter settled. The latter case is still ongoing. But, I remain convinced that the court at first instance should have fairness as its touchstone.
4. Be comfortable. Sometimes the courts are unbearably cold or hot. If cold, all you can do is let people keep their coats on, but if it is hot, I have no hesitation in taking my jacket off and allowing everyone else to do the same. None of us work at our best if we are uncomfortable.
5. Show your court that you enjoy the work. A miserable judge will not bring the best out of the parties. They need to have confidence in you and that is more easily achieved if they can see that you are engaged in their case and trying to find the right answer.
6. Having a good clerk is a joy beyond value.  I was extremely fortunate to have such a wonderful clerk who was not only highly efficient but who became a very good friend. Without such help, the job would be significantly harder.

I have no doubt that my family have found me more easy to live with as a judge than as a barrister. I have found the pressure much less.  True it is that you cannot get away from it, and the pressure is inclined to be back-loaded in terms of preparing a judgment rather than front-loaded in terms of preparation for presentation of the case, but being away from the pressure brought by clients was a relief.

What next?

Settling a case is best for everyone – not just the parties, but for the children as well.  It provides a base against which family relations can at least in part be repaired. Both parties will walk away with a settlement that they have agreed to. One side may be happier than the other but at least each has something with which they can live.  Neither will go forward with a finding that might impair future opportunities. 

I look forward to having the opportunity to spend time with parties helping them achieve a settlement and find creative ways which will enable both sides to be satisfied. As a judge, you must try the dispute before you. Sometimes you can engineer a settlement during a hearing but too often the time for that has passed and the timetable for the case does not permit easily for the parties to take an extended time out to talk. I shall look forward to working again from my old chambers at 4PB where I have spent so many happy years, doing private FDRs, mediations and arbitrations.

At the same time, I shall continue to work my way through the list of outstanding cases which I have in my diary.