The Marriage Foundation: playing devil’s advocate

The Marriage Foundation was launched by Sir Paul Coleridge earlier this week, and this experienced High Court judge is the organisation’s obvious champion. Sir Paul, who spent 30 years as a specialist family law barrister, has previously urged couples to “mend it, don’t end it”. There is no question that he is born to the job.

The Marriage Foundation is dedicated to “reaffirming marriage as the “gold standard” for couple relationships”, and its unveiling has brought a blaze of media attention. It has been featured in all the newspapers. Sir Paul even penned a piece of his own for the Daily Mail. A holiday snap of his smiling family ran alongside it.

Actually, the media coverage has been mixed. The Times, Telegraph and Mail have given their approval:

“How refreshing to hear someone in public life so robustly tell the un-PC truth like this. As a family law specialist barrister for some three decades before becoming a judge in the family courts, Sir Paul has personally stared into the heart of this particular darkness.

“So, too, have the other lawyers who have joined him as patrons of his foundation, including Baroness Butler-Sloss, former president of the High Court Family Division, and Baroness Shackleton, who acted for Prince Charles in his divorce from Diana, Princess of Wales.”

(Melanie Phillips, The Daily Mail)

The Guardian and Independent have been somewhat less generous:

“He doesn’t refer to the easy cohesion and pragmatic, quotidian bonds that cohabitation, civil partnerships and joint bank accounts can bring. Nor does he speak about the loaded misery and debilitating unhappiness of remaining in a bad marriage – a self-immolating act that will just as surely poison the minds of yourself, your spouse and any children you happen to have had.

“Coleridge’s view is one of a plague doctor, arriving in all his ceremonial garb and applying a poultice to your foot while one of your arms falls off. The solution to all these problems and more is to work on the individuals who might one day sleep in the marital bed, rather than forcing us all into it and shutting the door so that the conjugal necessaries can take place.”

(Harriet Walker, The Independent)

And as ever, my fellow family law blogger John Bolch has his own, irreverent take.

I have always liked and admired Sir Paul Coleridge, but I am going to play devil’s advocate here. I would like to pose another question. Is a High Court judge suited to heading such a high-profile campaign? What are your thoughts?

I am asking this question because earlier this year, in a Guardian poll, some 58.2 per cent of readers backed the proposition that judges should confine their contribution to public debate, to their own judgments.

The poll followed an important speech made by Lord Neuberger, Master of the Rolls, to the students of the Holdsworth Club at the University of Birmingham. In it, he called upon judges to uphold judicial independence and the court’s authority.

“Individual independence refers to each judge’s ability to decide any particular case by applying the right law to the right facts”, Lord Neuberger noted. “Judges must be independent of the parties, and must not be subject to any pressure or inducement from the parties. They must have no interest in the outcome and must be open-minded and impartial in their approach to the issues. A speech on a subject which may become the subject of judicial determination, and in which the judge’s views on the subject are expressed in a particularly uncompromising or trenchant way, could be seen as compromising this aspect of judicial independence. That is because it could be said that, if the issue on which they had spoken came up in litigation, they could not approach it with an open mind. Entering into the controversies of the day can result in a judge being unable to determine those controversies judicially.”

 He proposed seven “possible principles”, which I have copied in full below:

“First, it seems to me only proper that judges, with their wisdom and experience, should be free to comment extra-judicially on a wide range of issues. In doing so they play an educative role. In areas such as constitutional principles, the role and independence of the judiciary, the functioning of the legal system, and access to justice, and even important issues of law, this role cannot be underestimated.

“Secondly, any comment should be made following careful consideration of the impact which it might have on both aspects of judicial independence. The Scalia situation should be avoided as should the Harlan Stone situation.

“Thirdly, a judge should consider the effect on the judiciary generally of any view expressed. The judiciary’s claim to institutional independence depends in part on its institutional reputation and standing. An individual judge may regard a particular statement as justified and be prepared to take any consequent criticism, but the effect on the judiciary generally may render it inappropriate to make the statement. It may be inevitable that judges may disagree on a policy or constitutional issue when sitting in court, and it may occasionally be inevitable out of court (e.g. when appearing before a Parliamentary committee), However, it would, I suggest, be unfortunate if it frequently occurred voluntarily. If such a disagreement does arise, it should be argued in an entirely seemly way, as I believe the Sumption-Sedley debate has been conducted.

“The 2005 Act makes it clear that the Lord Chief Justice is head of the English and Welsh judiciary, and I would have thought that it would require very exceptional circumstances before a judge expressed views out of court on a policy or constitutional issue which is inconsistent with his position. Of course, this is normally a self-denying ordinance as, provided that they do not bring the judiciary into disrepute, judges are independent and free to express their views, as even Lord Kilmuir accepted.

“Fourthly and more specifically, a judge should think carefully about how any statement about politically controversial issues, or matters of public policy, might affect, or be affected by, the separation of powers, and comity between the three branches of the State. May it be said, for instance, that the statement trespasses into forbidden territory, and, if so, can it be justified on the basis that it falls within the appropriate ambit of judicial speaking out? And, if it can, is it expressed in terms suitable for a judge entering the arena in a non-judicial capacity? The same considerations arise when members of the executive or legislature seek comments from serving Judges. Comity and the separation of powers may well call for reticence.

“Fifthly, judges should think carefully of their audience, and the impact their comments might have upon it, and upon any wider audience, including the media. Might that impact, or potential impact, call into question their independence, their ability to carry out their fundamental role of doing justice according to law? Could it call into question judicial independence? In particular, if a judge is proposing to discuss a point which may subsequently come to court, care should normally be taken to make it clear that the judicial mind is not closed.

“Sixthly, and in this I agree with Justice Mason, judges should not seek publicity for its own sake, or use their ‘office as a springboard for causes (however worthy).’

“Seventhly, there are rather a lot of judicial speeches being made at the moment. I wonder whether we are not devaluing the coinage, or letting the judicial mask slip. In the light of the fact that I may be characterised as a serial offender, perhaps the less I say about that point, the better.”

Sir Paul Coleridge is a serving judge. This means that in the future, there are likely to be people who appear before him having initiated a divorce by leaving their spouse, having an affair, behaving unreasonably – or even all three! If you were that person, how would you feel if your divorce was to be heard by the head of The Marriage Foundation? Personally, I have no doubt that justice would be done. But would that spouse have grist for a grievance, were they dissatisfied with the outcome? Isn’t neutrality the most important feature of a judge’s job?

Sir Paul is a wonderful advocate and he has amassed many admirers. He has powerful supporters and substantial funding. He made a charming and thoroughly persuasive case for his Marriage Foundation on the Today Programme on Radio Four. His argument is that his position as a family judge gives him an ideal platform to speak out, given the family disputes he witnesses in court.

Lord Neuberger’s principles will guide the way. But it’s a tricky question, isn’t it?

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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14 comments

JamesB - May 4, 2012 at 12:09pm

If not him, then who would you suggest.

DT - May 4, 2012 at 12:56pm

Obviously, as a very experienced practitioner, Sir Paul will have undoubtedly had his views and opinions coloured by what he has seen in his practice, and this is of course inevitable. What is more, experience and sound judgement amongst other features are qualities which have made him the expert he clearly is.

Nevertheless, I think one needs to be exceptionally careful when it comes to one’s own personal views infiltrating one’s practice – particularly given status and position. All said and done though, I fully appreciate how difficult this is to avoid without being a robot!

I have just read Sir Paul’s Daily Mail article.

I am opposed to the awful “Hello! Magazine culture of marriage”. I think it does for marriage what size zero models in the media do for teenagers’ self-esteem. However, I think it’s extremely important not minimise peoples’ rationale for divorce; we’re all different.

Of course marriage is about compromise, patience and playing to strengths and admittedly, some people do see divorce as an easy option; however, many don’t and only consider it as a last resort. I am very much in favour of working through relationship problems, but there are times when a divorce is the only option.

Also, I think that discouraging people from divorcing is as unrealistic a discouraging them from marrying in the first place. People will do what they see fit without first consulting Sir Paul’s rose-tinted views!

Lord Neuberger provides an exceptionally intelligent, thoughtful, informed and well-rounded view – ‘beautifully pitched in every way. I think point 4’s coverage of the ‘separation of powers’ is at the crux of my concerns – you can’t have fingers in all of the democratic pies! I hope that Sir Paul can give these wise words at the very least the same amount of careful thought he affords to his holiday guidebook!

I don’t know if Sir Paul has made reference to civil partnerships (cp/cps) elsewhere, however, he doesn’t in his Daily Mail article. This was also noted by Harriet Walker.

Now, I’m not about to get my pink soap-box out, but, as I have said before, those of us in a (cp) are conspicuous by our absence, and now you see it from a top judge! No reference is made here to a large and significant chunk of people! What should we do if our relationship hits the rocks?

Whether this is an over-sight in his terminology and Sir Paul meant to include (cps) or whether they just don’t count in his opinion, or whether he hasn’t come across that many in his practice, I don’t know – however, I would like to know the reasoning behind his omission!

Whatever the answer is, if same-sex couples could marry, they would automatically feature in the stats!

To answer your question Marilyn, no, I do not think Sir Paul is suited for such a campaign; he is a judge and needs to remain impartial. Indeed, I think Sir Paul’s words are more likely to irritate rather then have a cohesive affect. Many will (rightly or wrongly), perceive him as a wealthy, white, well-educated, middle class male, pontificating from his privileged world, untouched by many of the issues facing the ordinary man/woman on the street.

However, it has to be said that I admire him for coming out and expressing his views. Too many people at the top sit on the fence, and while I don’t agree with everything he’s said, that’s ok, because he’s raised some interesting and thought-provoking points.

‘Quite inimitable John Bolch!

DT

DT - May 4, 2012 at 1:03pm

James B

I don’t have a problem with the campaign as such, however, there are a whole host of people who would be better suited; after all Sir Paul is a HC Judge.

For me this is not a matter of who should do this, but who should not.

Certain people need to avoid certain subjects, so as to avoid accusations of bias, improper involvement and encroaching upon domains they shouldn’t.

The balance of powers need to remain in balance, and when a HC judges start getting involved in such matters, it upsets our democratic equilibrium.

DT

JamesB - May 4, 2012 at 1:48pm

Well, if neither of you can come up with a better suggestion then him then you can’t really disagree with him. You should come up with a better alternative rather than the normal media response of building up knocking down simplifying and exagerating. I’ve had enough of that this week, The Sun’s unprovoked vicious attack on Roy Hodgeson at a time when we should all be getting behind him really narked me.

If noone else is willing or able to do it then fair play to him (the Judge, not Roy). Like Princess Dianna, or others who do, I think it’s the easy option to criticise and think constructive criticism would be better, i.e. giving a name. I’ll give one, Prince Charles.

DT - May 4, 2012 at 2:10pm

He must remain apolitical.

JamesB - May 4, 2012 at 3:26pm

Barry McGuiggan then.

JamesB - May 4, 2012 at 3:27pm

Barry McGuigan.

DT - May 4, 2012 at 3:56pm

James B

What qualities do you think he could bring to the role which would make him suitable?

DT

JamesB - May 4, 2012 at 5:20pm

Seems to talk a lot of sense and have a good marriage and people have respect for him.

DT - May 4, 2012 at 6:05pm

I have just been on the MF website (see the Q&A section).

Evidently, they do not wish to enter into the current debate around the definition of marriage. 

I guess I have my answer.

I believe that undertaking such a task comes with certain responsibilities and so to ‘over-look’ quite a large group of people will reinforce some negative views and misconceptions people have about the project, which, in my opinion, is unfortunate.

DT

Marilyn Stowe - May 4, 2012 at 7:55pm

James B
Thanks for your comments.
DT
Have you read this:- http://www.thelawyer.com/is-gay-marriage-the-marriage-foundations-blind-spot?/1012407.article
Regards
Marilyn

JamesB - May 4, 2012 at 8:13pm

yes to gay marriage and hetro civil partnerships and pre nups i say. Not sure on the question, though sorry.

JamesB - May 4, 2012 at 8:16pm

that’s fair enough of them DT. I’m sure Barry wouldn’t either.

DT - May 4, 2012 at 8:18pm

Hi Marilyn

Thanks for that. No, I hadn’t seen/read it – just have now though. It’s very good.

My thoughts entirely.

Thank you.

DT

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