Sir Paul Coleridge vs the Smug generation

Sir Paul Coleridge is a British family law judge (in the divorce and custody division) dealing with divorce issues week after week. In 2012 he took the unusual step for a serving High Court judge of setting up a charity, the Marriage Foundation, highlighting the overlooked benefits of stable marriage. The foundation says its fundamental concern is family breakdown and the destructive effects this has on the lives of children.

As a result, this enlightened concern has been attacked from many quarters including by the legal profession. He has been maligned and scorned by the ‘chattering classes’ for apparently exceeding his remit.

But has he ?

If he has overstepped the mark then what about Brenda Hoggett (aka Dame Justice Hale)?

Marilyn Stowe’s family law blog site is worthy of a visit capturing as she does both sides of the argument as they appear in The Times, The Guardian and Daily Mail. (http://www.marilynstowe.co.uk/2012/05/04/the-marriage-foundation-playing-devils-advocate/).

Missing the point perhaps is Zoe Saunders, a family barrister at St John’s Chambers, who states she is concerned to see that the Marriage Foundation has missed the opportunity to support gay marriage !

‘The Lawyer’ journal also asks whether “gay marriage” is the Marriage Foundation’s blind spot ?”  [1] Editorially, The Lawyer is pleased to see that Coleridge’s views fit in with that of many family lawyers:

  •  “ . . . who would love to live in a society in which they were entirely redundant. .. .”  

Most of the condemnation stems from, as the “Law Gazette” puts it, his stated preference “ . . . for one kind of family relationship in preference to another.” [2] It is a view given additional weight in a report by Lord Neuberger who said, in March 2012, that judges must be vigilant when talking about public matters or risk compromising judicial authority [3] and tested in a ‘straw poll’ of The Guardian’s readers. However, the proposition posed in the straw poll  was of necessity simplistic:

  • “Should judges confine their contributions to public debate to their judgments ?

The result was that 58% agreed with the proposition that judges should constrain their contributions to public debate, and 42% did not.  Indeed, Lord Neuberger enounced his “seven principles” to empower judges to speak out on matters of public interest.

However, what the anti-marriage ‘carpet baggers’ fail to realise is that the law already expresses a preference and it is for marriage (and always has been). It is the non-marriage fraternity that is seeking to upset the apple cart, to reset priorities, and invent new preferences.

The law has always preferenced monogamy and not polygamy, constancy of marriage over the ethereal transience of cohabiting.

There are points or ‘heads of public policy’ (principles of law) at stake here which few seem anxious to realise in their pandering to an illusory vision of Utopia painted for them by a lobby minority.

Smug generation

Who can forget or be in ignorance of the destructive work and opinions of Benda Hoggett now Lady Justice Hale ? [4]

Did she not shape law that was detrimental to the cohesion of marriage for 20 years ? Did she not actively promote her views at seminars, at colleges in books and in pamphlets ?

Let’s just remind ourselves of what Brenda Hoggett has said and supported over the years.

  • “The courts have abandoned the concept of breach of matrimonial obligations – and their powers of adjustment of property interests in the long term are now so extensive that ordering one spouse from his own home no longer seems so drastic. Far from ordering spouses to stay together, courts are increasingly able and willing to help them separate. [5]
  • “The piecemeal erosion of the distinction between marriage and non-marital cohabitation may be expected to continue”.
  • “We should be considering whether the legal Institution of marriage continues to serve any useful purposes.”

Speaking of the Children Act 1989, she said Family Law no longer buttressed marriage because: [6]

  • “It has adopted principles for the protection of children and dependent spouses which could be made equally applicable to the unmarried.
  • Do we still think it necessary, desirable or even practicable to grant (marriage) licences to enter into relationships? Do we now think it necessary or desirable to grant licences to engage in parent-hood ? And how far do we still think it necessary, desirable or practicable to delay the ending of relation-ships ?” – Kings College Law Journal (1992).
  • “If we abandon the increasingly futile attempt at [marriage] licensing, the other objectives of family law are just as valid for unmarried couples and their children as they are for the married… In many ways I would like to see an end of family law.” – Kings College Law Journal (1992).

Hoggett drew strength for these view citing the then Lord Chancellor (Lord Mackay of Clashfern [Conservative]). [7] Her article continued:

  • ‘ . . . . the Lord Chancellor himself has said that it is not the business of the state to enforce or promote any particular style of family life. It is simply unrealistic to attempt to return to anything which looks like a set of rules about how people should conduct their private lives.’

Thirty years ago, in her essay entitled ‘Ends & Means: The Utility of Marriage’ (1980), she wrote that:

  • ‘Family law’ no longer makes any attempt to buttress the stability of marriage or any other union .… Logically, we have already reached a point at which rather than discussing which remedies should be extended to the unmarried we should be considering whether the legal institution of marriage continues to serve any useful purpose.”

Singularly unlucky

That might have been the end of it but after her 10 years tenure at the Law Commission (1984 – 1994); she was made a High Court judge and in that post held forth on her views upon marriage and divorce. In 2003 as the first female member of the Law Lords, Dame Brenda Hale, held a press conference (Nov 2003). She gave vent to a variety of fashionable but deeply controversial opinions.

  1. she was in favour of gay adoption
  2. wanted legally recognised gay partnerships
  3. wanted improved legal rights for heterosexual cohabitants
  4. and wanted to see the concept of fault removed from divorce law

At the time Melanie Phillips described these issues, which were among the most divisive in our society [at the time], as ‘all political topics’. They were the subject of heated debate in Parliament and among the general public. What, therefore, was one of our most senior judges therefore doing in making known her own opinions on these matters ?

Melanie Phillips rightly pointed out that judges are not supposed to enter the political fray, i.e. we should not really know what their views are. And what, indeed, was Dame Brenda doing having a Press Conference at all ? She is/was a judge, not a politician.

Superficially, the same complaint can be laid at the door of Sir Paul Coleridge – with the exception that he is not trying to re-write the law and invert social customs but rather to endorse what is widely accepted by the public as the right sort of regime and value system for a stable society to adopt.

His “judicial sister” Dame Brenda Hoggett (nee Hale), who then reverted to Lady Justice Hale and has since remarried and is now ‘Mrs. Farrand’, is on the record as having left a litany of disasters in her wake. She was, for instance, behind a bill in the 1990s which would have given live-in girlfriends who had left their boyfriends home the right to move back and have their boyfriends evicted from his own property. Fortunately for this scared woman, the Bill was eventually withdrawn.

As a society we have been singularly unlucky in that the disagreeable researcher Mavis Maclean has been a friend of Brenda Hale for 30 years and the self-confessed feminist is close to the “radical” former Lord Chancellor Lord Falconer (who made her a High Court judge). Thus we should not be surprised to learn that Hale’s opinion is that:

  • “Deep-rooted problems of inequality persist and the law continues to reflect the economic, social and political dominance of men.”

It is perhaps difficult for many to cast their minds back to the 1980s and recall the rather toxic political and cultural atmosphere of the time. An allegedly ‘influential book’ of the time “Women and the Law” (1984), which was comprehensive survey of women’s rights at work, in the family and in the state, was supposed written by Brenda Hoggett and a fellow academic, However, the only other names appearing as authors are Brenda Hale i.e. Brenda Hoggett’s maiden name and one “Susan Atkins, RNT” which Google is unable to trace and for which RNT appears to stand for the Royal National Theatre (so more detective work is required here).

But then, Dame Brenda is well versed in influencing the development of policy, first as the driving force behind the Law Commission, then inside Whitehall, and now in the Supreme Court. Arguably she does bring a knowledge rare among judges of the workings of Whitehall and the ‘ins and outs’ of the legislative process yet despite her acknowledged theoretical knowledge of the law one retired Law Lord confided: “She’s a bloody awful judge, you know.” 

Logically indefensible

This is exactly what Dame Brenda was doing when in 1980 she made her now infamous remark about marriage.

If as Dame Brenda maintains, ‘Family law no longer makes any attempt to buttress the stability of marriage and logically, we have already reached a point at which…we should be considering whether the legal institution of marriage continues to serve any useful purpose’ then it follows that the form of no-fault divorce we currently endure is purposeless and should be made redundant (leaving the church and courts with no useful purpose).

If, as appears to be the case, that the argument now accepted in Whitehall that ‘alimony’ is not a rationale demand or expectation to make in a culture of no-fault divorce where petitions can be brought by the offending or transgressing party against the innocent party then it follows that the same is true for CSA payments (a fact borne out by the recent DWP Consultation Paper on reforming the CSA regime).

To re-quote the Lord Chancellor “It is simply unrealistic to attempt to return to anything which looks like a set of rules about how people should conduct their private lives.’ Are ‘they’ at last realising that people’s live are the property of that individual person and not the state’s ?

Safe pair of hands ?

Whenever Whitehall is looking to appoint a successor its prime consideration is to acquire the services of “a safe pair of hands,” someone they can depend on not rock the boat or cause then to have to consider matters of principle. So it is something of a mystery that Brenda Hoggett should have been hand-picked for positions of power.

The Law Commission as a body, is where she headed the reform of the family division from 1984 – 94. This has been consistently hostile to traditional marriage over the years, pushing for easier divorce and for cohabitation rights. It pressurised – when the public did not – for the abolition of the status of illegitimacy in 1987 – giving a green light to increased numbers (and costs) of to unmarried parenthood. [8] In 1988, the Law Commission said there was no more need to support marriage than ‘any other living arrangement’, and dismissed the high rate of divorce as no great cause for concern. This precedent was subsequently picked up by politicians with the various legal reforms we have witnessed in the last 5 to 7 years.[9]

Against this background then, it is in the opinion of the ‘chattering classes that a betrayal or a breach of duty to be impartial in legal matters has unforgivably occurred.

Yet ‘dear Brenda Hoggett’ was never challenged or attacked in the media or accused of being radical or a renegade by her comrades in the legal profession. Perhaps this is due to her unique status of being the only High Court judge to be appointed who had never ever first been a practicing lawyer ? Is this the result of nepotism, cronyism or skilful use of the corridors of power ?

A propos all the aforesaid, Lord Coleraine speaking in the Family Law Bill  debate  [circa 1996]  countered the quasi “intellectual argument”

  • There is an intellectual argument abroad which has been running fast since the 1960s. It is attractive to those who were first seduced by and then damaged by the ideas that were then fashionable. They deny the usefulness and necessity of civil marriage. They portray marriage as unfairly and unreasonably discriminating against those who choose only informal ties or perhaps no ties at all with the persons with whom they have chosen to live or with whom they may have parented children.”
  • “…… an average couple contemplating marriage ……. expects the marriage to be lasting, and is accustomed to look to the state to provide some support for it. ……  With such support there can, from the outset, be better confidence in the marriage and each other between the marriage partners. Without it, civil marriage will be, and will be perceived to be, no more than the temporary licensing of cohabitation on an ongoing basis. Such a cheap utility version of marriage can hardly command more than minimal respect. There will be less and less inclination to bother to enter into such a watered down minimal union.” – (Hansard, 20 Nov 1995: Column 196).

The architect of that ‘cheap utility’ and slashing of state support for marriage was no lesser person than the Law Commissioner charged with the responsibility for family affairs – one Brenda Hoggett, aka Lady Justice Hale.

Surely an instance of the fox being put in charge of the hen house.

The contradiction for her and the Law Commission is that Hoggett questions whether it is ‘necessary, desirable or even practicable for the state’ to grant licenses to enter into relationships, yet nonetheless wants to interfere by de-constructing it, while the Law Commission, for its part, wants to interfere in human free choice and regulate cohabitation which has been freely entered into but that then founder.

It would surely be more consistent for the state if it were to not support marriage to also fail to support cohabiting ?

Reflecting

‘Ends & Means: The Utility of Marriage’ is a title that prompts several questions. One is whether she uses ends and means within the ideological definition of the radical left, i.e. one justifying the other.

The second is Bentham’s definition of ‘utility’, namely the greatest happiness for the greatest number of people. If that was her aim it has not been achieved; her dream has soured.

‘Outcomes’ show that parties who divorce may feel an initial degree of happiness upon separation but it is short lived, superficial, and followed by increasing depths of poverty and mental stress. For the children caught up in the process, unhappiness and failure has been shown to stalk them into adult life.

This cannot be the utility ‘dividend’ Hogget was expecting – but is it one justified by an ideology ?

As Melanie Phillips writes in her book “The Sex-Change Society” :

  •  “The divorce laws … were reformed by unrepresentative groups with very particular agendas of their own and which were not in step with public opinion . . . . .Public attitudes were gradually dragged along behind laws that were generally understood at the time to mean something very different from what they subsequently came to represent.” 

END

Footnotes:


[3] Article by Owen Bowcott, legal affairs correspondent, The Guardian, 16th March 2012

[4]  Former Law Commissioner Brenda Hoggett (from 1984) – now Lady Justice Hale – who was one of the architects of the Family Law Act 1996.

[5] In “Ends And Means: The Utility Of Marriage As A Legal Institution”, edited by J.M. Eekalaar and S.N. Kats she spells out her, and the law’s, current views of marriage.

[7] Given his religious and legal background  he proved to be a real disappointment in upholding standards.

[8]  By 2011 DWP figures show that 45% of children under the age of 15 grow up in single parent households.

[9]  “The judicial sister” by Melanie Phillips, Daily Mail, 13th  Nov 2003 http://www.melaniephillips.com/articles/archives/000134.html

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