SJ interview: Sir Mark Potter

Legal aid

Many family lawyers are concerned that the proposed reform of legal aid will result in fewer people having access to legal advice on family matters. What are your views?

If it is the case that the proposed reform of legal aid will result in fewer people having access to legal advice on family matters, then that is plainly a matter for concern. As I understand it, there has already been a steady reduction over the last two years in firms willing to take on family work that is dependent upon public funding, given the low current levels of remuneration.

As someone concerned to achieve improvements in the dispatch of judicial business, particularly in public law care cases following the care proceedings review, my principal concern is that the measures proposed in the recent consultation paper following Lord Carter's review may lead to a reduction in those family law firms whose principal practice is representation of children in care proceedings. The state, the courts and families all benefit from the experience of accredited solicitors who provide practical and realistic guidance to their clients.

In particular, this expertise leads to the saving of time and costs through the ability to engage parents in the court process, the ability to negotiate less draconian (and cheaper) interventions when appropriate, and in achieving agreement narrowing the issues in the case. Without the continued availability of these experienced solicitors to perform such tasks, the court will find it more difficult to case manage effectively, with all the consequent ill-effects for the children whose welfare should be our paramount consideration. In these circumstances, I welcome the suggestion that the implementation of Carter will be put back and that the figures will be re-examined.

Mediation

There has been a significant push to make mediation the first step to resolve family disputes. Do you think this is realistic?

The Private Law Programme, which has been operating since January 2005, has been very successful in resolving family disputes. Research has demonstrated that, following in-court conciliation by CAFCASS, up to 80 per cent of cases are completed without a contested hearing. I am also aware of the success of local schemes where mediators present in the courthouse discuss cases with the parties, and refer them to mediation services to help them reach agreement. Not all matters can be resolved in this way, and government funding is not always available, but on the whole, I do think this is a desirable procedure.

Isn't there a risk that, as divorcing couples do not agree through mediation, more work will be created, disputes will take longer to solve, and the burden on the court system will, in fact, increase?

For the same reasons, I do not consider that the development of mediation will lead to the creation of more work. Provided that the courts do not impose mediation when for one reason or another (eg, in cases involving domestic violence), the case is unamenable to resolution by that means, it is clear to me that early intervention narrows issues, reduces tensions and contributes to the shortening of matters before the court.

Collaborative law

This dispute resolution mechanism started in the US, but uptake has been slow here. Do you think it can provide a practical, successful mechanism to avoid litigation?

Collaborative law of course is not mediation as generally understood and practised. It is a significant departure from the conventional methodology of alternative dispute resolution in that the parties and their lawyers sign a collaborative agreement to resolve their differences outside the court process. It is to be welcomed. Parties are encouraged to be less defensive and to listen and respond more positively to the other party's position. This should produce a better relationship in the future.

Collaborative practitioners emphasise that, rather than cutting out mediators, the great attraction of the process is its flexibility; it can readily be adapted to meet the family's needs, for example, by bringing in family consultants, mediators or child specialists to deal with the arrangements for the children and to assist the couples' future relationship, or accountants and financial advisers to assist on the financial arrangements.

It is clear that collaborative family law cannot solve all problems '“ there will always be a role for the court in private law cases in dealing with those difficult cases where, for whatever reason, a settlement is not possible. The obvious drawback from the parties' point of view is that, if a collaborative law case does not settle, and the case has to be fought, neither party can retain their original representative, so that increased expense and delay are likely to result. However, this is a risk made clear to and accepted by the parties when they sign up.

Public access

There has been a lot of debate this summer over whether family courts should be open to the media and to the public, and a consultation on this, which closed on 30 October. Do you believe the public interest is served by opening family courts to the public and to the media and how should vulnerable parties be protected?

My broad view is that the media should be admitted to all family proceedings, except adoption proceedings, provided the court has a wide discretion to exclude them or at least limit reporting in the interests of justice in appropriate circumstances for the whole or part of the proceedings. The general public should not have the right to be admitted, but the court should have a discretion to admit one close family member or friend per party. In coming to this conclusion, I have had regard to the needs of the children for protection during intensely private litigation, and I also recognise the need for public confidence in the courts. The public must understand how the courts and the court process works, and if family disputes are routinely held in private that understanding may be inhibited.

I am concerned, however, that the government consultation paper does not address the 'nuts and bolts' of the issues involved. These omissions include what can and cannot be published, along with punishment or sanction for breach. I would urge that before any final decisions are made, let alone legislation passed, consideration is given to how the proposed changes will work in practice.

Celebrity divorces

These seem to be in the news irrespective of whether the proceedings are public. Do you think 'celebrities' publicising their separation are encouraging a more conflictual approach to divorce?

No. The media have always been interested in celebrity divorces. Nowadays celebrities like everyone else, reach agreement upon how their divorce will proceed, the real conflict developing in relation to later questions of financial provision and, if residence and contact cannot be agreed, the provision to be made in respect of the children. I do not think that individual high profile cases of publicised conflict that occur from time to time encourage a wider conflictual approach.

Ancillary relief

Do you think the recent 'big money' cases such as Miller v Miller and McFarlane v McFarlane have got the balance right?

Like all judges who sit at first instance, it is no function of mine to demur at the decisions of the House of Lords. In relation to the level of the awards in the individual cases, I have no quarrel with the outcome in Miller or McFarlane. It is important for public confidence that the courts can and do produce consistent results based on easily recognisable legal principles. The guiding principles are now fairness, compensation and sharing. No award is to be seen as largesse from one spouse to another, because the courts are dividing assets to ensure that, in accordance with current mores, each party has their fair share of family wealth based on their needs and contributions.

The Lords also introduced the concept of equal sharing of 'matrimonial' assets ie, assets acquired during the existence of the partnership. This means that consideration has to be given to the origin and type of assets that fall to be divided. Assets made or earned during the marriage fall to be shared; but those which arise from inheritance or gift need to be considered differently, unless need prevails and the horizon of fairness dictates. There is obvious scope for numerous arguments based on asset type; impact of need upon non-matrimonial assets; and fairness. I do indeed wonder, in common with Mr Justice Coleridge in Charman v Charman, whether some kind of generally accepted tariff is not called for in this area of very big/huge money.

Most cases will still begin and end with an exercise based on needs because the assets will be insufficient to cover them. In most cases, the outcome will be governed by the need to provide a home for the children. So, although many leading professionals act in the rarefied atmosphere of the 'big money' case, we must not forget that such cases are a tiny minority of the cases which fall to be decided each year. If there is insufficiency of assets, then 'needs' must and will continue to prevail.

Costs

How do you think the new cost rules will change the parties' attitude to litigation in family proceedings?

As yet I have had no experience or substantive information as to how the new Rule and Practice Direction are operating, principally because they only apply to proceedings begun after 3 April 2006.

Parties will have to be more careful in framing the open offer, as without prejudice offers are now no longer admissible, save in FDRs. Open offers have generally been pitched low (by the husband) and high (by the wife) because there was always the cover afforded by Calderbank offers. Open offers will now need to be much closer to what would formerly have been offered without prejudice. This should promote more
settlements.

In the big money cases, where there is no shortage of money to spend on lawyers, the new rule may well make no appreciable difference to the parties' attitude to the litigation. I fear that r 2.71 (5), which states the factors to which the court must have regard before it makes an order for costs in favour of one party, may prove a fertile ground for forensic jousting/appeals.

At lower levels, the rule may well have an impact simply because, the lower the scale of assets, the less money there will be to litigate with.

Children and family proceedings

Harriet Harman is keen to involve children in family court proceedings and encourage judges to speak to them. How do you think this will work and do you think it will bring real benefits for those involved?

It is my view that, in an effort to ensure the welfare and happiness of children, and to listen to their voice first-hand, we should encourage judges to be willing to talk in private to children who are old enough and wish to do so, trusting the judge to retail the burden of his concerns or any changed perception having heard the child, while respecting the confidence of the child in sensitive areas.

I know this causes concern in certain quarters, not least among child psychiatrists. In particular, on the basis that judges, with insufficient training, no opportunity for preliminaries, only a short time at their disposal, and varying degrees of approachability, sensitivity and caution in respect of their task, may: (a) form untrustworthy impressions; or (b) may unfairly seem to place the burden of dispute resolution upon the child.

I understand those concerns, but I believe they could be met by appropriate training. I am not proposing a requirement, upon judges in all, or indeed most, cases to talk directly to the child, but rather to consider receptively whether it is a desirable course in the particular case. However, in two categories of case at least, I consider it desirable. First, where for whatever reason, there is cause to question whether the reporting officer or guardian's expression of the child's views is sufficient or correct. This may arise as a result of challenge or allegations of coaching by one of the parties, by reason of doubts expressed by the guardian, or simply from the form of the report. Second, it may arise in a case where the child has himself expressed a wish to speak to the judge. In the absence of very good reasons, I do not think any judge should refuse such a request.

Of course, many (probably most) children old enough to express their views will have no desire to see the judge. Most families and children find the court process difficult and intimidating and all the child wants is for the dispute to go away, let alone to participate in it. But where they wish to speak to the judge, they should in my view be permitted to do so in the absence of very unusual circumstances.

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