A family affair

The press has labelled her a ‘liberal’ judge, while law reform campaigners believe that as president of the High Court’s family division she should be doing more to help their cause. Jon Robins searches for the real Dame Elizabeth Butler-Sloss

A small group of placard-wielding protesters gathered this weekend at the Devon farm home of the president of the High Court’s family division. It is part of a ‘Summer of Discontent’ tour of the homes of the great and good to rail at the perceived bias of the family court. Chances are Dame Elizabeth Butler-Sloss will have chosen the weekend for an away-trip, but her absence will not dampen the ardour of the demo’s organisers.

“We don’t normally catch them in,” Matthew Mudge, the coordinator of many such protests, readily concedes. “I doubt Dame Elizabeth will be there, and at the end of the day it doesn’t make a difference. Part of the point is to let her know that we know where she lives.” He insists that his fellow demonstrators are “just normal people who would prefer to be at home with the kids at the weekend”, but their tactics are nevertheless pretty crude. On a previous demo a sample poster read: “If BSE-infected meat is bad for the kids, why is this mad cow in charge of our courts?”
Normally, such an event would attract only four or five hardcore single dads, plus sympathisers. But its organiser hopes that the added pulling power of Dame Elizabeth will swell the numbers to around 40. The protestors have already visited Mrs ‘Injustice’ Bracewell and Lord ‘Injustice’ Munby on the July leg of the tour. So what is it about the UK’s most senior female judge that makes people from groups such as Family Needs Fathers (FNF) and the Equal Parenting Council give up their weekends? Is it what she does or what she represents? It is “a combination of the two”, Mudge replies. “As a figurehead, rather than as an individual, she is in a position to set the tone for the rest of the lower courts to follow.

“If Joe Public knew what was going on in the name of justice in our family courts, I think he’d be appalled,” the estranged father of two continues. “The more widespread these demos are, the more public knowledge there’ll be of what’s going on, and one day there’ll be hundreds turning up.”

Such views could not be more at odds with the near universal appreciation felt by the family law practitioners in the field. “Dame Elizabeth is very, very sensible and matter-of-fact. That’s not to suggest that she isn’t sensitive – she is extremely sensitive,” comments Rosemary Carter, a partner at Barnett Sampson who has worked closely with the judge during her time as chair of the Solicitors Family Law Association (SFLA). “She brings to the job such a great fund of common sense and pragmatism.”

According to the secretary of the Family Bar Association Anthony Kirk QC, she “wears her judicial mantle with considerable aplomb” and is “engagingly self-deprecating to work with”. Most experts in the family law field give the more strident critics short shrift. “Some of them can be fairly bonkers – and those that aren’t don’t read her judgments and haven’t a clue what she’s about,” is the view of one lawyer.

Dame Elizabeth’s media profile, always high, has never been quite so high as when she chaired the crown appointments committee that recently selected the liberal Rowan Williams as successor to George Carey as Archbishop of Canterbury. The 69-year-old judge’s hands-on approach as boss of the family division has always ensured a high recognition factor.

As one lawyer puts it, Dame Elizabeth likes to “lead from the front” and never ducks the emotionally-wrought cases. She was the judge who ruled that the killers of Jamie Bulger should be entitled to lifelong anonymity. In another case she overrode the wishes of the parents whose 15-year old daughter, already a mother, sought an abortion. This year she hit the headlines when she ruled that Ms B, paralysed from the waist down, could have her life support machine switched off so she could “die with dignity”. She also dismissed an appeal by millionaire racehorse owner Ivan Allan against an order that his former mistress, Glory Anne Clibbery, should be allowed to reveal details of their stormy relationship.

Dame Elizabeth was first thrust into the public eye when she chaired the Cleveland child abuse inquiry in 1987-88, for which she received much acclaim. It was with that work, according to Kirk, that she “revolutionised social and legal work practice in care cases. As she frequently reminded us, a child is a person and not merely an object of concern,” he adds.

Dame Elizabeth was born into the law: her father, Sir Cecil Havers, sentenced Ruth Ellis, the last woman to be executed in this country, and she was sister to the late Lord Chancellor Lord Havers (which makes her aunt to the actor Nigel Havers). She was called to the Bar in 1955 at Mitre Court, made a High Court judge in 1979 and won a judicial first when she became first female Lord Justice of Appeal in the Court of Appeal. Clearly, the judiciary was unprepared for women and for some time etiquette demanded that she be addressed as ‘My lord’ until the Master of the Rolls allowed her to become ‘My Lady’.

Dame Elizabeth is frequently attributed ‘liberal values’ by the press. In fact, she is guarded in her dealings with journalists and apparently does not trust the media, in the words of one lawyer acquaintance, “to represent her views”, preferring to let her formal speeches and judgments speak for themselves. Despite a brief flirtation with Conservative politics (she failed to take the Labour stronghold of Vauxhall, South London) she tends towards reform when it comes to divorce law. For example, in a rare press conference to mark the start of her term as president of the High Court’s family division in October 1999, she publicly signed up to ‘no-fault’ divorce and labelled the present system of divorce a “hypocritical charade”. A year later the Lord Chancellor ditched his proposed legislation for such a system in what was widely seen as a move to appease Middle England sensibilities in the run-up to the election.

Dame Elizabeth also took the opportunity to acknowledge a change of heart on same-sex relationships. “I was, when I started, surprised and dubious about the stability of children living in a family with two parents of the same sex. But over the years research has shown that, for some children, that’s the best available for them,” she says.
A year later she offered her most revealing pronouncement on the state of family law at the Mothers Union, of which she is a leading member. It was a wide-ranging speech with its central theme being the recognition that “traditional concepts of the family no longer encompass the whole range of family life”. It took in cohabitation (“there is no doubt that such relationships create a family, with or without children”), transsexuals (“we cannot shut our eyes to the fact that such couples create their own families”), as well as out-of-marriage adoption.

Such positive noises have endeared Dame Elizabeth to gay rights campaigners. According to Angela Mason, the solicitor-chair of the lobby group Stonewall, she “is an absolute commanding figure. British society throws up these wonderfully able and eminent women, and she’s certainly in that category.”

So what have the critics got against Dame Elizabeth? According to a spokesman for FNF, in one respect relatively little. “She appears to be fairly robust and fair in her judgments, but the problem is that so few cases go through to the Court of Appeal,” he argues. In fact, he believes that a strange irony of the family courts is that women judges give men a better chance in contact cases than their male counterparts – and Dame Elizabeth is no exception.
The head of the Family Court might well be fair-minded, but the FNF spokesman believes that the business of the Court of Appeal does not reflect the crisis in the lower courts. “They may be fair over some transsexual IVF cases, but these are issues that don’t touch the main stuff of their business,” he complains. “She’s really just removed from the humdrum nitty-gritty of the family courts.” It is one reason that FNF distances itself from the demonstrations, as it believes the problems are lower down the judicial chain.

The main point of the FNF spokesman is what he believes to be the court’s erosion of parental responsibility which lies at the heart of the Children Act 1989. “It’s like a withered arm and we need to return to that principle,” he says. “Butler-Sloss is one of the people who should look at the laws intended by Parliament, which have been misappropriated by the Court of Appeal.” Some 40 per cent of the children of separated parents lose touch with the non-resident parent within two years of separation.
As for the persistent accusations of gender bias in the courts, many lawyers believe the critics just have it plain wrong. “A lot of people seem to think that fathers always do badly in contact cases. Well, actually, that isn’t true,” says Carolynn Usher, a family law partner at Reynolds Porter Chamberlain. “Cases are dealt with on an individual basis and Dame Elizabeth’s determination is to ensure that, wherever possible, reasons are given publicly. A lot of people don’t actually read them, but that isn’t her responsibility.”

She cites the example, the case of Re G 2000, where there was a history of excessive drinking, arguments and violence by the father towards the mother, leading to the death of the mother after she had been beaten by the father. The court held that the father was unsuitable to have direct contact with the child. However, it did allow that the father could have indirect contact at Christmas and on the child’s birthday.

Mudge is chair of the Cardiff branch of FNF but he coordinates the demos for the Equal Parenting Council. His main gripe with the system is the delays that bedevil it: “My own case has gone on for five years and I still have trouble getting access to my son. I’ve got three High Court orders against my ex-wife and she still isn’t obeying them.”
The Lord Chancellor’s Department published ‘Making Contact Work’ in February, which attempts to tackle such problems in the system and suggests a range of remedies for parents who flout orders, such as being compelled to attend parenting programmes, referrals to psychologists or the imposition of community service orders.
One theme that the critics return to is the cloud of secrecy that, they argue, pervades the Family Court. Again, family law experts contend that such a criticism is unfounded. “Dame Elizabeth has been pushing the boundaries in ways that are little appreciated,” observes Carter. In particular, she sees Dame Elizabeth as keen to “demystify” the courts. It was the Clibbery case earlier this year that ruled there was no automatic bar on reporting family proceedings held in private.

“Much of the criticism is from people who just don’t understand what’s going on,” says Nigel Shepherd, a former SFLA chair and family partner at Addleshaw Booth & Co. He points to her enthusiasm for reading judgments in open but preserving parties’ confidentiality. “A pattern that comes through her judgments is one of firmness but compassion and a burning interest in doing the right thing for children,” he says.

Such endorsements are unlikely to persuade the likes of Mudge, who is digging in for a long fight. “I made a vow that I wasn’t going to let the system carry on and I’m going to do everything in my personal power to change the system before my son and daughter reach the age where they might marry,” he says.