What does a new President of the Family Division mean for family law?

April 2018 saw the announcement that current Appeal Court Judge and family law specialist Sir Andrew McFarlane would succeed Sir James Munby as President of the Family Division of the High Court.

Munby’s incumbency at the Family Division has framed a period of considerable change for the Court. This has included the introduction of the Children and Families Act in 2014 and the double-whammy of budget trimming and increasing caseload. This perfect storm is a combination of what Sir James described as ‘the Baby P effect’ and the fallout from the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which significantly curtailed access to Legal Aid.

McFarlane will therefore be stepping into the role at a time of change and challenge, but what can we expect his tenure to deliver?

In one respect, Sir Andrew is fortunate that he has already had influence over the shape and practices of the Family Division. The Children and Families Act 2014 was the Coalition Government’s response to the 2011 Norgrove Report. Sir David Norgrove’s Family Justice Review panel were tasked with considering radical reform of court procedures relating to children in both private and public law. McFarlane, at the time a Lord Justice in the Family Division, was the only legal member of the panel.

Human Stories

McFarlane’s career did not initially focus on family and children’s law. After being called to the bar in 1977, he enjoyed a well-rounded early career in common law. However, Sir Andrew’s interest in family law grew during a 15 year spell in the Birmingham Chambers.

In an interview with the Family Law Bar Association (FLBA) magazine, Family Affairs in 2012, McFarlane described a number of cases that ultimately influenced his career path, including a distraught mother whose children had been summarily removed from her care on the issue of Wardship proceedings, and a number of Birmingham City Council adoption cases. He asserted that “the human stories behind these cases began to hook me in a way that no other area of legal work had hitherto achieved.”

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His work on these cases highlighted the need to establish practice in some of the more esoteric areas of child welfare. He therefore set about writing a number of journal articles on the topic with a similarly focused colleague, the late David Hershman. These articles eventually grew into Hershman and McFarlane’s Children: Law and Practice, which was published on the same day that the Children Act 1989 came into force in 1991.

The Good Book

The book was an immediate success, quickly establishing itself as the practitioner’s bible and significantly enhancing McFarlane’s reputation and profile. From here he took Silk in 1998, became a Deputy High Court Judge in 2000 and did a stint as the Chairman of the FLBA between 2003 and 2005 before moving to the High Court bench.

This brings us back to the Norgrove committee. McFarlane’s Family Matters interview, published shortly after both his appointment as a Lord Justice of the Court of Appeal and the publication of the Norgrove report, made it very clear that McFarlane hoped that the proposals would be adopted. He did however assert that successful adoption would “turn upon there being a very significant change in culture by the family judiciary and the legal profession”.

Whether McFarlane will encounter a significantly changed culture when he takes up his new position is not clear, but the report and the subsequent 2014 Act have had positive effects on procedures, particularly with regard to the expeditious handling of child welfare cases and the ‘user friendliness’ of Family Court services, an area that McFarlane still focuses on.

In a lecture to the Family Justice Council in 2017, he alluded to an accessible, down to earth and straightforward “Family Court Information” website produced by Bristol Family Court. With the cost of this simple but effective information point coming in at under £1,000, McFarlane could not “understand why it has not been replicated by each and every one of the other 40 or so family hearing centres around the country.”

McFarlane is a supporter of the charity The Transparency Project, which aims to make family law clearer to the public. He penned the forward for their most recent book, Transparency in the Family Courts: Publicity and Privacy in Practice, which was published in April this year.

Trial by media

One area of concern that Sir Andrew has repeatedly made reference to is the portrayal of the court system in the media. At an address to celebrate the Bicentennial of Birmingham Law Society, he referred to the coverage of Gina Miller’s Brexit challenge, expressing concern over phrases such as ‘The Judges versus The People’ and ‘Enemies of The People’ appearing in the press.

With child protection being one of the few areas of discourse to rival Brexit for sheer passion, McFarlane found himself at the centre of further media scrutiny for the judicial system. Sir Andrew headed up the panel of three Court of Appeal Judges who presided over the emotive case of Alfie Evans in April of this year, which inevitably garnered huge press attention.

Again, the judiciary was criticised by supporters of the Evans family and some sections of the press, but these concerns chimed with McFarlane’s own feelings about the need for more transparency. Although referring to Family Court rather than the Court of Appeal, McFarlane has been clear in recommending positive steps to engage the mainstream media and encourage them to carry material which accurately describes the Court processes and goes some way towards explaining how and why such decisions are made.

Only Sir Andrew will know whether the Family Division currently meets his expectations around culture and transparency and it is not clear whether he will be able to build bridges with the press and the public at large. However, as a passionate advocate for the fair treatment of children and families in the court system, many will be expecting his impact in the Family Division to be a positive one.