I spend a lot of time at UKAP.one criticising judges with, I am convinced, good reason. But principles of equity and empathy require us to try to see things from the point of view of the learned judge…
I do not know any family court judges personally, so I am going to have to guess at what their lives must be like. Then one might have a better chance of understanding how they make their decisions.
Let us start by thinking about the life of a judge in the Queens Bench Division (‘QBD’).
The courts have these ‘Divisions’ – Queens Bench, Family Division, Criminal Division and ‘Chancery’. Family and Criminal are self-explanatory. Chancery deals with all the esoteric stuff like Court of Protection cases. QBD deals with all the stuff that’s left over – personal injury cases, breach of contract, defamation and so on. So, if you’re a QBD judge, your life is extremely exciting I’m sure – a different kind of case every day. You may think of judges in other divisions as specialists and QBD judges as ‘GPs’. Or you may think that QBD judges are better judges as they have to keep abreast of all kinds of law. It is very difficult to stay up-to-date even if you specialise in one area, so your plate must be really full if you have to keep abreast of developments in multiple areas of law.
But the Family Court judge specialises. Logically, this ought to mean that she is a better judge. After all, she has to keep up-to-date with only one area of law. Further, there are only two main things to deal with – cash and kids.
Presumably it is important to deal equitably with both types of case. That’s why ‘cash cases’ start from a presumption that each party gets half (White vs White). But the same rationale does not, demonstrably, apply to child cases…
So, back to the life of a Family Court Judge. What must it be like to adjudicate on child cases?
The simple answer is: BORING!
The life of a Family Court Judge is going to be the same kind of life as the factory worker putting cherries on Bakewell tarts, or strangling chickens on a production line. Unlike the lucky old QBD judge, the Family Judge does the same thing every day.
Cash vs Kids
Pretty much all cash cases will involve hubby saying ‘I built the company up from nothing – it’s my hard work that got us here – that’s why we’re loaded’. And the wife replying, ‘that’s true, but who do you think has been bringing up the kids whilst you did all this hard work? I want half – our overall contributions have been, broadly, equal.’ And the law says ‘well, following White (above) that’s true – I have to start by assuming a 50-50 split – either side can lobby for more than 50%, but that’s where I start – I’m going to need a good reason to stray from this presumption.’ Sounds reasonable.
And pretty much all child cases will involve the wife saying ‘You never saw the kids, you were busy working all the time. I get the kids!’ and the husband replying ‘that’s true, but what facilitated our lifestyle – how was it that we were able to give our kids the great life they’ve had? My hard work! Broadly, our overall contributions have been equal – I want half! And, for exactly the same reasons, he should get half. But he doesn’t.
The courts seem to be suffering from ‘selective logic’.
Sorry, strayed off the point a bit there…back to the judge’s life.
Any lawyer (or Litigant in Person) will tell you that judges are short-tempered and impatient. Judges have usually made up their mind long before any lawyer gets on his hind legs. But is that surprising? The poor old Family Court Judge hears the same arguments every day, over and over again. Wife denying contact? Heard it! Boring! Husband hiding his pension? Woah, that’s a new one! See what I mean? A family court case is just another chicken that needs strangling, just another cherry on the Bakewell tart.
As if all that wasn’t depressing enough, the poor old judge has to listen to family lawyers droning on and on, making the same point (in different ways, if you’re lucky) over and over again. The same arguments she heard in the previous case, and the one before that. The same arguments she is going to hear tomorrow, and for the rest of her God-forsaken life!
Ladies and Gentlemen – some sympathy please!