Family Law and Judges’ Personal Opinions

norman dennis, 14 December 2004

No body of evidence in the social sciences points more plainly in one direction than that which deals with the welfare of children conceived, born and brought up by their own two biological parents within the institution of life-long monogamy, as compared with children brought up under other arrangements, or lack of them.
There are failures and successes in all situations that have to do with conception, procreation and child-rearing. The failures are far more frequently found outside marriage than within marriage.
The law of the land is one element in the complex of inculcated attitudes and of organisational support for the institutional family of birth and childrearing within formal marriage.

Other contributions to this site in the past few days have dealt with the conduct of the Home Secretary, and his beliefs about what the family in this country now is, and ought to be. They are crucial influences on what he will do to defend or dismantle the institutional family. In this area, his personal conduct is preeminently not his private affair.
But we have just been treated to a remarkable insight into the relationship between the personal and the public at the highest levels of the Family Division of the High Court. The President of the Family Division, Dame Elizabeth Butler-Sloss, gave an interview this evening in which she articulated the degree to which she supposes–and presumably acts on the supposition–that it is up to her to decide whether Parliament is being sluggish in making the necessary reforms in family life. When in her opinion and the opinion of her judical colleagues Parliament is being sluggish, she then claims, it is for the unelected judges to make the reforms in Parliament’s stead. How little respect they will have for the even more backward public can only be guessed at.
The courts for at least the last twenty years have consituted very nearly an avant garde in putting the most facilitative complexion on all measures that have tended to weaken the institutional family. The personal lives and moral beliefs of such family judges, therefore, have a public relevance that those of judges who deemed their duty was to strictly follow the text of the law, or at most to fathom the intentions of Parliament, did not have.
In one passage, the President of the Family Division of the High Court speaks (perhaps inadvertantly) for the whole of the Judiciary.
Apart from what she says in this interview, I have no idea what Dame Elizabeth Butler-Sloss’s personal beliefs and social experiences are or have been. But her manifesto tonight. claiming that (in addition to the Common Law) what she and her judicial colleagues say the law is, is the law, certainly thrusts her “private” life firmly into the public sphere. Her interviewer, Eddie Mair, leads her to disclose some of the personal details that become public matters where judges embrace judicial activism
The precise issue she is discussing is the Bill that was before the House of Commons today, the Mental Capacity Bill. But her claims in relation to this aspect of family law clearly cover all matters of family law.
On the Mental Capacity Bill, her comments are almost comically one-sided–her remark, for example, that the Bill is “the culmination of the work of many, many organisations, all wanting to help people at the end of their lives”.
There have been, of course, “many, many organisations, all wanting to help people at the end of their lives” that have worked in opposition to the Bill.
I am also unfamiliar with the current discourse of academic and advanced jurisprudence. For all I know, Dame Elizabeth’s views are the staple of contemporary articles in the learned law journals. But her attitudes were to me so fresh, coming from a senior judge, that at first I could not, as they say, believe my ears.
Having checked each section of the recording of the BBC “PM” interview several times, I am satisfied that what appears below is indeed what she was asked, and what her replies were.
Eddie Mair: I’m joined now by one of Britain’s most senior judges, Dame Elizabeth Butler-Sloss, the President of the High Court Family Division. What are your thoughts on the Mental Capacity Bill?
Dame Elizabeth Butler-Sloss: Well, I very much approve of it. It is the culmination of a great deal of hard work of many, many organisations, all wanting to help people at the end of their lives. I’m coming to be much older. I’m 71, and I’m also interested as an ordinary person in the opportunity that this should be made better.
In your view, is this a clarification of the law?
Yes, It is.
Do you think MPs should have been allowed a free vote, conscience vote?
I don’t think that it’s the business of a senior judge to comment on how Parliament should organise itself.
Ah, I wondered, too, then, what you think about the supremacy of Parliament in this issue. You’ll have heard there that the Lord Chancellor has written to the Archbishop of Cardiff, offering concessions. MPs were kept in the dark. As a citizen, does that worry you?
Well, I think all organisations are entitled to comment; and the Catholic Church, through the Archbishop of Wales, has been expressing its views for a number of months about this Bill.
I am interested that you say that–that the political aspect of this is not a matter for you.
It’s probably worth explaining to the people listening that this interview came about because a Press Officer at the Department of Constitutional Affairs called our programme to ask if we were doing this story tonight–and we said, yes, of course; and we asked if we could have a Government Minister. Now, we were told that there was nobody available, but that you would be.
Thinking of the separation of the Judiciary and the Executive, do you think that it is appropriate for the Government to offer a member of the Judiciary to push the Executive’s case?
I don’t believe that I’m pushing the Executive’s case. I think it’s entirely appropriate that the Head of the Family Division, the Divison of judges who try these cases particularly in relation to terminally ill people, whether they’re children or adults, should be able to say that this is a Bill that we as a Judiciary support.
But for the Department for Constitutional Affairs to suggest you as a guest while MPs are debating–that’s a different matter, isn’t it?
Well, I don’t think that’s a matter of which I have any comment.
But you agreed to be interviewed under these circumstances.
I am perfectly happy to be–to agree to be interviewed in relation to my support for a Bill which recognises the existing Common Law situation, but is making a lot of very important elements of clarification. It will make life [sic] much easier for those, um, who are ill and those who looking after people who are ill.
But just …
I very much commend the Bill.
But just finally on a point of fact. It was the Department of Constitutional Affairs that asked you if you would be interviewed?
Yes indeed. They did ask me. And I would have been happy to have been asked by the Press on this particular issue.
You said last month at the “Withholding Treatment” conference in London that the Parliamentary process was slow and often in the process of catching up. It’s therefore become the role of the judges–you said–to develop the law and give a liberal interpretation of the statutes when circumstances demanded them.
Um–some people–with respect to older [?all the] judges–might think that, really, we should rely on Parliament for these things, no matter how slow and cumbersome the process might be.
Well, there are gaps. Something has to be done. And in this particular, er, situation there were serious gaps about how mentally incompetent patients could be looked after [sic]. And the House of Lords in a famous case [indistinct], and in the Tony Bland case, filled the gap that had not been filled by Parliament.
Um. Can I ask you finally–and you’d be perfectly entitled to tell me to mind my own business–a more personal question, and it’s pertinent of course. Do you have–would you want–a living will?
Yes. I haven’t made mine yet, but I have been thinking about it for quite a long time.
Thank you very much, Dame Elizabeth Butler-Sloss.
[Interview concluded 5.14 p.m., 14 December 2004.]