The family justice man: Sir Andrew McFarlane P

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How the President got his ‘big break’ in family law; judicial conduct, silos and specialisation; and balances struck as a working judge with a mighty portfolio. Interview by Philip J Marshall QC

I meet Sir Andrew McFarlane in his imposing rooms at the Royal Courts of Justice in early spring. Entirely in keeping with his approach to transparency surrounding issues of wellbeing, he has recently announced that he is shortly due to undergo open-heart surgery and will be taking a three-month leave of absence to recuperate. While not obviously foremost in his mind, this is a presence in the room. Neither of us knows, however, that a tsunami of a global pandemic is about to be unleashed both on the world and on the family justice system of which he is the head.

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Sir Andrew was called to the Bar in 1977 and took silk in 1998. He was appointed a High Court judge in 2005, a Lord Justice of Appeal in 2011, and became President of the Family Division of the High Court of England and Wales in July 2018. Although often overlooked, as we discuss later in our interview, he is also President of the Court of Protection (an office created in 2005 and bolted on to the Family Division).

His appointment was much anticipated and warmly welcomed.

Sir Andrew was brought up in Solihull in the West Midlands before moving to my home town of Crosby near Liverpool and then to Shrewsbury School in Shropshire, where he boarded from the age of 13. By his own account he demonstrated no particular ability for sciences or economics or business studies while at school, but had a particular penchant for acting and debating, and so it was suggested that a career in the law might be appropriate.

A visit to Gray’s Inn confirmed his resolve to become a barrister at a time when it was not necessary to have graduated from a university before being called to the Bar. Sir Andrew’s subsequent attendance at Durham University was seen as no forgone conclusion – at least, he tells me, as far as Shrewsbury was concerned – but it was there that he met and became friends with Lady Black, who was later to become a fellow Family Division judge, member of the Court of Appeal, and is now a Justice of the Supreme Court.

Acting figured large during Sir Andrew’s time at Durham, where he was a founder member of Durham University Sensible Thespians (similar to Cambridge University’s Footlights), and harboured a modest – but, he assures me, never serious – temptation to pursue a life treading the boards had it really taken off. But the law prevailed. on the basis Sir Andrew hasn’t entirely yet given up on the idea of a theatrical career, although I’m prepared to accept he was being somewhat playful when he told me it was ‘never too late’).

Slightly mischievous, and with a beguiling and disarming sense of humour, magic is also an abiding passion from Sir Andrew’s childhood (something coincidentally he shares with the current Chair of the Family Law Bar Association). For reasons upon which I prefer not to elaborate, he is well suited to the role of the visual entertainer and a life of prestidigitation, a talent which was honed as a boy with his best mate at school, who apparently had all the best tricks (‘… like cutting your arm off’).

Having been called to the Bar, Sir Andrew initially undertook pupillage in chancery chambers in London, where he had intended to remain until family circumstances resulted in him moving back to Birmingham where he joined 2 Fountain Court (whose former members include Sir Stephen Brown, formerly President of the Family Division). There, as was entirely conventional at the time, his early practice was a common law ‘mixed bag’ of crime, landlord and tenant, PI and employment, in fact ‘everything except family’.

Sir Andrew’s move into family law, and his eventual stellar reputation as a specialist in children law cases, came later. I ask him whether this was as a result of any conscious decision on his part. It wasn’t. He is able to pinpoint his emerging interest in children law work to a late brief – with no instructions, as was so often the case – to appear before a Registrar in Nottingham at 2pm that afternoon to represent the parents of a child who had been removed by the local authority and placed in care and automatically made a ward of court. Sir Andrew assured his clients that without a court order there must have been some dreadful mistake, and that he would tell the judge and their child would be returned home. Such, of course, turned out not to be the case.

But it was this that sparked his interest in understanding the law that lay behind the stark reality of most public law children cases, which in those days were still played out either before lay magistrates sitting in juvenile court or a High Court judge under the guise of wardship. Another chance event – one of his regular solicitors being contracted to conduct all of a local authority’s adoption cases – meant that the course was set for his move into predominantly family law (although Sir Andrew reminded me that he continued to undertake all types of family work at the Bar, including financial remedy cases, and later also sat doing crime as a Recorder).

His ‘big break’ came when he and David Hershman, a recent recruit to 2 Fountain Court, decided to write a book. Hershman and McFarlane: Children Law and Practice is now in its 29th year (and on update Number 86). It is the leading authority on children law, without doubt.

Initially, they intended to write a different and far less ambitious book dealing only with care proceedings in the juvenile court. But Sir Alan Ward suggested they ought instead to write something to coincide with the recently enacted Children Act 1989, whose main architect was Law Commissioner Brenda Hoggett QC (Baroness Hale of Richmond, President of the Supreme Court, as she was later to become). Family law is a pretty small world, although Sir Andrew tells me that as relatively stripling juniors he and David Hershman didn’t actually get to meet Law Commissioner Hoggett at the time.

After 15 happy years at 2 Fountain Court, Sir Andrew moved to join my chambers at 1 King’s Bench Walk in the Temple. He has a vivid recollection of being interviewed by our then head of chambers, the redoubtable James Townend QC, in his shorts, in his garden, at his holiday home in Deal. Anyone who remembers James Townend QC will know this is enough of a test for anyone wishing to move chambers. Sir Andrew’s arrival followed (entirely coincidentally) Brenda Hale QC ceasing to be a Law Commissioner and briefly joining chambers before her appointment as a High Court judge assigned to the Family Division.

Sir Andrew’s appointment to the High Court bench followed 11 years later in 2005. He told me he didn’t expect to become a judge – certainly not a High Court judge – but that he had found the work of a deputy judge both interesting and challenging, and that it had provided him with a good opportunity to see cases from a different perspective and to see how the courts work. If Sir Andrew’s appointment came as a surprise to him, it came as no surprise at all to those who knew him at the Bar. His much expected appointment to the Court of Appeal followed six years later.

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I ask Sir Andrew which he enjoyed more: being a High Court judge, or being a Lord Justice of Appeal? He tells me that while they are completely different tasks, he enjoyed both roles and for different reasons. He refers to something of a ‘white knuckle’ initiation to the Court of Appeal whereby most new members of the court will encounter new areas of law which they might not have seen since they put their textbooks away at the end of their law finals (or possibly not at all). But Sir Andrew points out that no member of the Court of Appeal can sit there as a passenger, and says that the work is really, really interesting once one gets into what are often highly specialised and complex topics of areas with which one has previously been unfamiliar.

Sir Andrew is not in favour of family appeals only being decided by three members of the Court of Appeal with a family law background (as often used to be the case). In fact, he considers it wrong in principle that important family cases should only be subject to scrutiny and analysis by appellate judges with an exclusively family law background (although he does think that one member of the Court of Appeal should have that experience if possible).

He adopts a similar approach to new appointments to the High Court and Circuit bench. Citing some well-known non-family law specialist additions to the High Court bench such as Sir Bill Charles, Sir Anthony (later, Lord) Hughes, and most recently Mrs Justice Lieven, Sir Andrew tells me that in his opinion the Family Division should not be seen to operate in a silo, and should welcome appointments from practitioners across all areas of the law so that family law can be scrutinised and, when appropriate, developed by judges with fresh eyes and fresh brains. He also disapproves of compartmentalising judges into those who only hear children cases and those who only do financial remedies.

To that end, Sir Andrew doubts whether the High Court would (or should) be invented today with three entirely separate divisions, divided by rather artificial concrete walls, which he tells me should not be seen as not capable of being traversed. He welcomes the fact that some Queen’s Bench Division judges have recently agreed to sit occasionally in the Family Division hearing both children and financial cases (subject to receiving some additional training).

I ask Sir Andrew what it has been like dealing with first instance hearings again after a lengthy spell sitting in the Court of Appeal. He tells me that he has found it very refreshing, having recently undertaken a three-week fact-finding hearing during which he listened to evidence from his first live witnesses for over nine years. He thinks it might be a good thing for other Court of Appeal judges to hear first instance cases from time to time, although recognises that the demands on their time are already ‘very burdensome’ in terms of the volume of work and so the opportunity to release them probably won’t arise very often.

I also ask Sir Andrew about the balance to be struck between the administrative burdens and demands of his role as President and the opportunity as a judge to get into court and hear real cases. He mentions that a senior judicial colleague had suggested that the President couldn’t, or perhaps shouldn’t, really expect to do a three-week long fact finding hearing out on circuit. He disagreed, and tells me he believes it is important he continues to experience the reality of hearing such cases. He doesn’t think he could ask his team to do this type of work if he was not prepared to do it himself to keep up to date with issues surrounding disclosure, the use of video links, and to see how such cases are run generally. In particular, he is concerned that if he only did the short or ‘highfalutin’ cases he would have a distorted view of how the system really works.

During his first year as President, Sir Andrew acknowledged that the balance between administration and judging had been out of kilter because his priority had been to understand and try to address the massive increase in the case workload across the system. But he now usually spends two or three days each week hearing cases in court and intends to sit three times per year for three weeks on Circuit with the aim of having completed the whole country within two years. During a recent spell on Circuit he had spent time doing an ordinary short list.  He saw a lot of the young Bar, and tells me he was really impressed with their efficiency and the sensible way in which they had presented their cases in court and in their documentation.

I ask Sir Andrew (perhaps impertinently) whether he thinks it is still realistic for a single ‘working judge’ also to take on the administrative and managerial burden of running the Family Division. He reminds me that the last of the ‘old’ (ie traditional) Presidents had been Dame Elizabeth Butler-Sloss, and that Sir Nicholas Wall had taken on an entirely different job after the Lord Chancellor’s Department was effectively abolished by Tony Blair, and then his answer is customarily transparent but understandably circumspect. He does question whether it is possible now for one person to be expected to be both Head of the Division and also Head of Family Justice, in addition to being the Head of the Court of Protection (which was not a very big court even 10 years ago) and also Head of Probate (which is currently undergoing massive changes). These, he says, are all big jobs. Neither of the other Heads of Division are heads of a jurisdiction. As President of the Family Division, Sir Andrew says he could easily be a President who never sat in court and would still not find himself with any slack time; or he could sit in court hearing all of the cases that the President ought to hear and undertake none of the administration and still not find himself with any slack time. And so he does question whether it’s still possible for one judge to undertake both roles without a properly recognised deputy to assist with one or other of these tasks.

I also ask Sir Andrew to what extent (if at all) judges should be outspoken or proactive or seen to take the lead on controversial matters of law reform. I have many examples in mind: no fault divorce; cohabitees’ rights; transgender issues (which Sir Andrew recently had to consider in court).  Sir Andrew’s response is very clear: he doesn’t think judges should (and he deliberately hasn’t said anything over the years to the contrary). Judges are here to interpret and to apply the law, but not to lobby. While Sir Andrew is clear that judges might properly highlight the need for reform (for example, in the transgender case he had recently decided), he certainly would not express an opinion as to what the answer should then be. These, he says, are social and political matters to be decided by Parliament. In keeping with these careful responses, Sir Andrew hesitates to identify any one particular area which is in need of reform, save for cohabitation (which he describes as ‘the Cinderella’ of family law given there is still no specific statute dealing with cohabitees’ rights at all).

He is equally careful when I ask whether he felt able to speak out in relation to the impact of LASPO 2012 (which has had a disproportionate impact on the Family Court after almost all areas of private family law were removed from scope, with only very limited exceptions). Again, Sir Andrew thinks it is not proper for the President to speak out about this, given it is a matter of policy, although he is anxious to emphasise that as a long-term supporter of both the Legal Aid Lawyer of the Year (LALY) Awards and of the Legal Aid Practitioners Group, he is well aware that the courts rely on these professionals, who undertake very hard work for very modest fee income, and has had the opportunity to speak positively about legal aid in the past. We discuss a recent article in The Times in which he was reported to have sought funding for a charity called Support Through Court under the rather emotive headline ‘Judge begs for donations to ease family courts crisis’. Sir Andrew says that in his opinion we have to be entirely realistic in a world with far more litigants in person than ever before and that they (and the courts) are better assisted with organisations like Support Through Court, Advocate (formerly the Bar Pro Bono Unit) or Citizens Advice to offer support. He is upfront in saying ‘we are where we are’ with legal aid and that there is a need to find resources to prop these units up. I ask him about this, and he recognises there is room for tension but, as President, his priority must be to ensure the courts function as effectively as possible in 2020 and in the absence of an effective legal aid system he sees organisations such as these as important and valuable.

In the course of an hour-long discussion, we chat about many other topics (some less profound than others). Does Sir Andrew think judges should be able to respond to criticisms in the press? No (and they risked losing the independent, out of the fray role they occupy if they do). Should judges be more ‘media-savvy’? No (although as President he recognises he should be willing to speak to the press about the big issues facing family law to try to promote better understanding and transparency).  Should judges be allowed to Tweet? A definite no. What book is he currently reading? How to Recover From Open Heart Surgery by Steve Corkhill. His Desert Island Discs castaway selection? Something by Elton John and Bach. His favourite magic trick? The torn and restored card trick ‘Reformation’ performed by Guy Hollingworth, barrister and conjuror of One Essex Court. What does he do to relax when not judging? He tends his vegetable garden and talks to his geese. Reluctantly he also mentions the donkeys. (and his role as the proud pursuivant to one of them at twice yearly services at Worcester Cathedral). Those who already know the story require no further elaboration; those who don’t can imagine the details for themselves.

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I have been fortunate to know Sir Andrew for more than 25 years. I have appeared in cases with him and against him, and before him both as a judge and now as President of the Family Division. So I declare an interest. He is both kind and conscientious; compassionate and always personally charming. He cares passionately about the welfare and wellbeing of those who work within the family justice system and those who appear before it.

The subsequent impact of the COVID-19 global pandemic has, of course, been enormous. The impact on the family courts was both immediate and hugely disruptive and potentially deleterious (not least having regard to the interests of the very many vulnerable children whose cases were progressing through the family justice system). The challenge posed to Sir Andrew, as Head of Family Justice, and to all Family Court judges has been massive. On 9 June 2020, Sir Andrew issued a document entitled The Road Ahead charting a possible return to something resembling normality (hopefully) by the spring of 2021.

Sir Andrew concludes The Road Ahead with the following:

‘The task ahead for the Family Court in the coming months is a daunting one of continuing to strive to make correct and timely decisions for children and families, in a just and fair manner, despite very severe restrictions on ordinary working. It is impossible not to have been profoundly impressed by the endeavour of all involved in the past 10 weeks, be they staff members, professionals, lay parties or judiciary, in working so hard and so effectively to deliver an outcome in as many cases as possible. A ‘can do’ approach has been evident at all turns despite the very real difficulties that have been thrown up by the current crisis.’

I am pleased to report that since we met, Sir Andrew has successfully undergone open heart surgery and is now recuperating at home. We very much look forward to welcoming him back in the Autumn.

An abridged version of this interview appeared in the print issue of Counsel September 2020.

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Philip J Marshall QC

Philip J Marshall QC,1 King’s Bench Walk, Temple.