Sir Mark Hedley is talking with me about his judgment in London Borough of Southwark v A Family [2020] EWHC 3117 (Fam) (18 May 2020). In his words, a ‘unique case and one that is unlikely to be repeated’ – involving a child that died in circumstances that were impossible to fathom. His must-read judgment includes a phrase I have asked him to reflect on:

‘There is an element in human judgment that lies beyond cold rationality as every experienced trial judge soon comes to appreciate.’

As prelude, Sir Mark details how his legal outlook was shaped. Starting in criminal work, he became aware of the intuitive elements of sentencing. Family work, and especially judicial experience in the Family Division of the High Court and the Court of Protection, gave him a ‘very particular kind of background in the law, which is deeply involved with how troubled humanity works’. In recent years he has been one of a select number of trial judges entrusted with the most difficult end-of-life, abuse, medical, and mental capacity cases.

Sir Mark draws a distinction between criminal work, which operates within ‘relatively strict tramlines,’ and the work of the Family Court, where uncertainty is built in to fact-finding and discretionary judgments. In these cases, ‘the human element is quite difficult to analyse, because it involves you as much as it involves the parties.’ The judge needs, he says, to have a ‘deep sympathy with human fallibility’.

Sir Mark’s words chime with those of Lord Neuberger, who recently wrote about judicial mistake-making. For Sir Mark, an appropriate awareness of that all-pervasive fallibility extends to that of witnesses, that of construction of documents, that of professional judgments, not to mention the often-tragic human origins of the case itself. ‘In theological terms,’ he says, ‘a judge needs a sound doctrine of original sin to explain what is going on.’ It is a resonant expression, expressing consciousness of the fraught business of achieving accuracy in a world of error. ‘It also protects against cynicism: you realise you are dealing with real humanity rather than being cynically detached.’

We consider how this kind of judging is influenced by a judge’s personal values. Some of those core values and assumptions are, in Sir Mark’s view, so profound that ‘we don’t even know they are there’. I ask whether the ‘judicial conscience’ he mentioned in London Borough is at all separable from these personal views. Sir Mark says that though cases do not turn upon a judge’s personal views; he believes that a judge ‘must recognise your values play a significant part in your thinking, and then you have to make allowances. There will be times you consciously have to say, “my values must now give place to the values of the family with whom I am dealing”.’

Sir Mark cites the example of male circumcision as a topic requiring deliberate judicial self-awareness and restraint. In such a case, for a judge to ‘obtrude his own [if oppositional] views would be to deprive a child of his sense of identity in his community; you can’t do that’.

In London Borough, Sir Mark’s fidelity to ‘judicial conscience’ meant he had to conclude that he didn’t know what had happened. Did that, I ask, feel like failing to decide? ‘Yes, but it is vital to remember the question I needed to answer: have I been satisfied on the balance of probabilities by the Local Authority? I had not. The “I don’t know” conclusion was uncomfortable, but not at all illogical or irrational.’

Sir Mark has experienced his judgments and values being criticised. The Guardian, for example, once took issue with his Christian faith. I suggest to Sir Mark that this is ironic, because many of his judgments (especially in the areas of same-sex parenting and overseas surrogacy) do not sit naturally with Christian beliefs. Sir Mark agrees, acknowledging that he has picked up ‘friendly fire’ from Christians – ‘not always completely friendly either’. How did he plot his way through these fraught cases? ‘The solution to them lay in that, whatever I might think about parental or societal conduct, there was – at the centre of this – a small child who did not ask to be there. My responsibility was to advance their best interests. My paramount consideration, my moral imperative, was to secure that child’s future.’

In such cases, the fearless exercise of discretion is needful, but also risky. In this, Sir Mark’s thought accords with that of the late Lord Bingham, who expressed approval of a limited exercise of discretion only within child law. Sir Mark says, ‘I have done enough civil law to know that discretion can be dangerous: certainty of law is important. I am mindful of the danger of discretion. My decisions must not simply be “what I think is right” – they have to be workable for the parties.’

Doing justice in the Family Court requires working with the grain of frail human nature, but efficiency in the court process is also a necessity. Sir Mark is in favour of ‘pushing people through the process,’ but says that when people are brought to the point of decision, there is no point in pressurising them, ‘because if you do, then any answer produced probably won’t work.’

The need for patience is, therefore, motivated by the pragmatic desire to achieve a workable result. ‘If people are talking, then they must be allowed to talk. You rely on the integrity of counsel to know whether talking is leading anywhere, or not. There were a couple of barristers whose names I used to dread seeing on the list. Not because they were difficult or unpleasant, but because they would not advise their clients in such a way as to indicate what was going on in the world and, if clients were not prepared to accept that advice, to tell the court that – and get on with it.’

I suggest to Sir Mark that London Borough was potentially historic, the first trial of its kind on Zoom. Sir Mark agrees, saying the prospect of moving the trial online after week one ‘frightened him’ as a ‘techno-dinosaur’, but that it was a necessity imposed on them. An adjournment, in the circumstances, was unthinkable. Nonetheless, he shares Sir Andrew McFarlane’s view that a live trial allows for better consideration of the evidence. I pursue the technology point: does he see a role for AI in trials? ‘In the dead child cases, AI may have a contribution to make to the expert scientific inputs, but these are only part of the evidence.’ He wonders whether AI may, like money, be a ‘good servant, but a bad master’. His experience is that parties can often live with decisions that they consider to be wrong, as long as they have been treated fairly in the process. It remains to be seen if AI could help give parties similar assurance of having been treated fairly.

I ask Sir Mark for advice as to how to nurture the capacity for empathetic judgment.

‘In family justice, you need a fundamental fascination with, or love of, humanity. If you have that, you will develop an understanding of how people function, or rather misfunction – because family law is, fundamentally, about managing the consequences of human failure to protect those least able to protect themselves. The second, crucially important, requirement is to be a good listener. Once you have come to provisional view in a case, it is very easy to hear further evidence in a way which fits that view. What you actually need to do is to hear the whole of the evidence and allow it to challenge your view.’

He develops the theme of listening. ‘I have always been fascinated,’ he says, ‘by how good an account of themselves inadequate parents can give in court. Part of that is the unique experience of having important people give 100% single-minded attention to what they are saying. It is very important that judges do just that.’

Sir Mark remarks that our modern concept of human rights is underpinned by a Lockean emphasis on the value of the individual, itself stemming from a belief that each person is made in God’s image. Likewise, Sir Mark believes that, whatever an individual judge’s philosophical standpoint, a sure grasp of the unique value of each individual, irrespective of the nature of their crimes or failings, is indispensable to administering justice effectively.

He leaves the Zoom. I am left reflecting, with a sense of gratitude, on the fact that the most heart-rending decisions facing the courts are in such impartial, yet compassionate, hands as Sir Mark Hedley’s. 

The Modern Judge: Power, Responsibility and Society’s Expectations (Sir Mark Hedley, LexisNexis: 2016)