Family Law

Last month Sir James Munby announced that he would be retiring from his role as President of the Family Division in 2018, citing 'depressingly little to show for over two years’ hard pounding' as one reason for his departure.

No names have been put forward for his replacement and we’re not likely to find out who the incoming President will be until next year, but one judge has begun to make waves inside the system ahead of the decision.

Lord Justice McFarlane, an appeal court judge who oversees family law cases, producing powerful political judgments and calls to action urging improvements inside the system looks like a contender for the position.

Sir Andrew McFarlane was called to the bar in 1997, and moved to chambers specialising in family law in 1993. He has appeared in the House of Lords and the European Court of Human Rights and was made a QC in 1998. He was then appointed to the Family Division of the high Court and was Family Division Liaison Judge for the Midland Circuit for a period of 5 years. Lord Justice McFarlane also sat on the Government’s Family Justice Review Panel, as the legal member of the team. In 2011, he was became a Lord Justice of Appeal and currently sits in London’s Court of Appeal as a full time judge. On paper, his credentials make him an ideal candidate for President. His willingness to take up Sir James Munby’s mantle and push for change inside the system also adds to his appeal.

Lord Justice McFarlane’s provocative speech to the Family Justice Council earlier this month, where he called on the government to rethink its adoption policies, and his overtly political judgments, which he is using to highlight problems inside the Family Courts (like this judgment where he talks about the lack of resources for social work teams and the impact this is having on adoption decisions), seem to be efforts at amplifying his own voice, as well as the courts’, and there is more than a little of Sir James Munby's outspoken style in Lord Justice McFarlane's approach.

Lord Justice McFarlane’s clearly taking part in the child welfare sector’s politics, too. Whilst his comments about the shake up of the adoption process will appeal to families who are going through child protection hearings and desperately trying to fight for support to keep their children, Lord Justice McFarlane is trying to tread a fine line between gaining the public's trust and reassuring child welfare professionals he is on side. That balancing act is evident in both his speech to the FJC and his comments to the media. Whether he would embrace Sir James Munby’s often direct and unflinching approach to more controversial matters like ethical malpractice and professional misconduct remains to be seen.

These developments are not entirely new, however. As a judge, Lord Justice McFarlane caused controversy in 2014 with his comments about mothers refusing fathers contact, a move which echoed the late Sir Nicholas Wall’s support for wronged fathers during his own Presidency. With his finger on the political pulse and a growing body of judgments which also offer new perspectives on old problems, Lord Justice McFarlane’s blend of activism and innovation mark him out as the frontrunner for President. That, however is no indication of whether or not he can effect change, in the wake of a President who was both driven and decisive about Family Court modernisation and yet, ultimately unable to bring it about.

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The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing.