Baroness Brenda Hale of Richmond, President of the Supreme Court
Yesterday (20/7/17) it was announced that Baroness Brenda Hale has reached the very pinnacle of her profession: she is now President of the Supreme Court of the United Kingdom. Rejoice! Hale has been Deputy President since 2013. She has previously been a High Court Judge in the Family Division, a Lord of Appeal, and Professor of Law at Manchester. Hale was Chancellor of the University of Bristol for 12 years until last year. Here I review a few highlights of the good Baroness’s career, by way of celebration. I have stolen material shamelessly from Nick Langford’s “An Exercise in Absolute Futility: Whatever happened to family justice?” (a book you should read, by the way). All quotes are therefrom unless otherwise stated.
Both Brenda Hale’s parents were headteachers, her siblings were two sisters, no brothers. She was educated at the all-girls Richmond High School and Girton, Cambridge – which was then also women only. She had one child, a daughter, with the husband she divorced in 1992 (Anthony Hoggett). Hale spent 18 years in academia, whilst also working part time as a barrister. I don’t think she would object to being labelled a feminist academic by background.
In 1984 Hale became the first women (and the youngest person) ever appointed to the Law Commission. She declared herself, “a feminist of the kind who would like to see changes in the way society is organised”. Quoting Langford,
“She seems to have owed her position to a fellow Commissioner, Nigel Farrand, whom she later married 9 days after divorcing her first husband. In a collection of essays she had written,
Family Law no longer makes any attempt to buttress the stability of marriage or any other union….Logically we have already reached a point at which, rather than discussing which remedies should be extended to the unmarried, we should now be considering whether the legal institution of marriage continues to serve any useful purpose (Eekalaar & Kats, 1980)“
Try telling a blue pill friend that feminism has been against marriage and working towards its destruction from the start. You will simply not be believed. It matters not how many Germaine Greer etc. quotes you throw at them. It is also interesting to reflect that the same body of opinion which is so opposed to heterosexual marriage – or, at least, in favour of its emasculation as a social force – is also so adamant that same-sex marriage is an essential feature of a decent society. How can this apparent contradiction be resolved other than by hypothesising that the true motivation behind both views is the desire to unravel the social fabric? And what about the contradiction between Hale’s view that the legal institution of marriage has ceased to serve any useful purpose and the fact that she clearly regards it as having served a useful purpose for herself personally, having been married for 49 years? Perhaps the former view is meant to apply only to less elevated mortals.
Noting that Hale was using the surname Hoggett at the time, Langford writes,
“Hoggett was the first Law Commissioner to introduce her personal take on hugely controversial social issues into statute law. A politically savvy feminist who embraced the usual collection of fashionable causes, she used her position as a political soap-box from which to broadcast her contentious views, making her ‘the most ideological. politically-correct judge ever to have been appointed to the highest court in the jurisdiction’ (Phillips, 2003). She attempted to turn the Law Commission, and thence the law itself, into an instrument of social change. Her Children Act incorporated into statute law the new practices introduced by the judiciary and consolidated the principle that the child’s interests were paramount. Hoggett considered the Act her greatest achievement: the law no longer supported marriage because, ‘it has adopted principles for the protection of children and dependent spouses which could be made equally applicable to the unmarried’ (Amneus, 1999).”
The Act which is referred to above as “hers” is the Children Act 1989. This is the Act which contains the epochal clause,
“The rule of law that a father is the natural guardian of his legitimate child is abolished.”
Since equality of opportunity is not enough, and only equality of outcome will do, I have to ask: where is my uterus? It is forbidden to acknowledge that the lack of child gestational and nurturing equipment puts men at a huge biological disadvantage. If society were truly interested in equality, this biological disadvantage would be offset by appropriate cultural and legal arrangements aimed at tying father and child more tightly together – arrangements involving paternal rights and responsibilities to the benefit of the individual father as well as society. This used to be the case, however imperfectly. The above single sentence quote is one of the most significant blows in eradicating these provisions – to the detriment of both the individual father and society as a whole. Dwell upon this the next time you hear the phrase ‘deadbeat Dads’, or hear news about poverty stricken single mothers living in man deserts, or debates about the rate of male suicide. Thanks, Baroness Hale.
In contested cases of child contact which come before the Family Courts, the use of domestic violence allegations is a widespread tactic. Referring to a 2000 report by Claire Sturge and Danya Glaser, which was instrumental in the development of the CAFCASS practice direction on domestic violence, Langford writes,
“The report is fundamentally driven by the doctrine that the position of the ‘primary carer’ is unimpeachable and her moral supremacy incontestable. The crime of domestic violence is considered a transgression against her, and so its impact on the child is viewed in the context of the effect on her rather than directly on the child…..Brenda Hale contrived to incorporate this doctrine into the Children and Adoption Act 2002. An application by the father to have contact with his children is viewed with suspicion because access to the children can take place only through the mother, and the impact on the mother of the application is what matters to the authors, whilst the right of the child to have contact with his non-resident parent is secondary…. Contact is reinterpreted not as the child’s right but as a father’s unreasonable, domineering intrusion into the mother’s new life…..The authors conclude that contact within a contested contact case will always be harmful, and should only take place where it is supportive to the resident parent, i.e., the mother.” Langford quotes Sturge and Glaser thus,
“If anything the assumption should be in the opposite direction and the case of the non-resident parent one of proving why he can offer something of such benefit not only to the child but to the child’s situation (i.e., act in a way that is supportive to the child’s situation with his or her resident parent and able to be sensitive to and respond appropriately to the child’s needs), that contact should be considered.”
This battle still rages, the latest attacks upon fathers’ contact being via Women’s Aid’s Child First campaign and the attempts to prevent a man facing a domestic violence allegation without legal representation from cross-examining his accuser. The reversal of the presumption of innocence takes on the added urgency in these cases that any ongoing relationship with a man’s children may depend upon his success in proving his innocence of invented charges, without the benefit of legal representation, legal aid or, it may transpire, even being allowed to cross-examine his accuser. All this is accepted by the public only because they are kept largely in ignorance – until it happens to them – together with daily reminders from all directions that men are inherently dangerous.
The Children Act 1989 Section 1(2A) directs the courts to, “presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare”. Accordingly, judicial Practice Direction 12J states that “The Family Court presumes that the involvement of a parent in a child’s life will further the child’s welfare, so long as the parent can be involved in a way that does not put the child or other parent at risk of suffering harm”. Whether this direction remains within Practice Direction 12J is currently under debate following the above feminist attacks on the principle.
One of the pernicious aspects of allegations of domestic violence in the context of the Family Courts is that the standard of proof required is not “beyond reasonable doubt”, as it would be in the criminal courts, but “balance of evidence”, i.e., just very slightly more likely than not. Baroness Hale was also influential in consolidating this standard, Langford quoting her thus,
“I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold…is the simple balance of probabilities, neither more nor less.”
As a lay person it puzzles me that an allegation of a criminal offence is not dealt with in the criminal courts, where the fundamental principle of innocence until proven guilty beyond reasonable doubt would prevail. But Langford tells us that, “family judges resist the transfer of allegations to the criminal courts: most wouldn’t stand up“. So the allegations remain within the Family Courts in which the standard of proof is far lower but the punishment much harsher: removal of one’s children.
Another issue in which Baroness Hale has played a role relates to cases where there is a shared residence order, the child spending a substantial amount of time in the care of the parent, usually the father, who is not the main carer. There are several ways in which the non-resident parent, usually the father, is financially disadvantaged in these circumstances. There will be readers of this article far better acquainted with the minutiae of these matters than myself, but roughly it is as follows. Firstly, child support payments are exclusively from the parent designated ‘non-resident’ to the parent designated as the resident parent. A reduction in this payment is made in the case of shared residence. However, logic would suggest that equal time spent with each parent would result in no payment being required, since both parents then bear equal costs. But no. Instead the child support payment is simply halved, the notional ‘non-resident’ parent receiving nothing despite his costs being the same. Where residence is equal, you might well ask what determines which parent is notionally designated as the resident parent – and hence is gifted the better financial position. Well, in this case the resident parent is defined as the parent receiving Child Benefit – but social security rules mean that this is always the mother. Stitch up? You bet.
In addition to child support and child benefit, a separated mother as a resident parent can also receive chid tax credits, none of which the non-resident father can receive. The vicious effect of this financial strangulation can be to frustrate the father’s ability to share care of the child. Quoting Langford again, “If they are unable to afford appropriate accommodation for their children the family courts will not award fathers overnight staying contact. Coalition changes to housing benefit rules made this situation worse by ensuring that parents not in receipt of Child Benefit were not allowed bedrooms for their children. If there are distances between fathers and mothers – and fathers usually bear the cost of travel – this can mean that fathers end up with little or no contact with their children because they simply cannot afford it“.
A number of legal challenges to these glaringly inequitable arrangements have been made by fathers over the years but with little or no success, the Government appearing, as Langford puts it, “determined to continue grotesque discrimination against fathers“. For example, a legal challenge in 2012 concerned a father who was responsible for the care of his two children for 3 days per week. He had no funds to meet his children’s needs, and was seeking the Child Tax Credit payments for them to be split with the mother. Langford again, “The issue was not that the regulations were discriminatory, which the HMRC could not dispute, but whether the discrimination was justified. In the Supreme Court, Brenda Hale ruled that the Child Tax Credit scheme had been introduced to tackle child poverty which is measured according to household income; Government targets on poverty would be easier to meet if financial support were given to single households and not split“. Nice rationalisation, Baroness.
One does not need to be especially cynical to argue that the financial difficulties of shared parenting faced by the parent who is arbitrarily designated ‘absent’, despite not being, seems to have been engineered to discourage the arrangement.
It is not only in the Family Courts that Baroness Hale has spread her feminist message. Perhaps her most famous quote relates to the comparative treatment of men and women in the criminal justice system. It originates from her 2005 Longford Trust Lecture and is quoted in the Equal Treatment Bench Book. Its appearance in the latter, the guidance to the judiciary on how to treat people equitably, confirms that it is now regarded as official policy – worryingly. Here it is,
“It is now well recognised that a misplaced conception of equality has resulted in some very unequal treatment for the women and girls who appear before the criminal justice system. Simply put, a male-ordered world has applied to them its perceptions of the appropriate treatment for male offenders…. The criminal justice system could … ask itself whether it is indeed unjust to women.”
In other words, the Baroness is claiming that it is unjust to women to treat them like men. If women were indeed treated like men in the criminal justice system, this sentiment would still be unacceptable. But women are treated far more leniently than men, as I have covered at length in previous posts here and here and here and here.
This same feminist perspective on the nature of equality is unambiguously expressed in Baroness Corston’s 2007 report, “equality does not mean treating everyone the same“.
It still makes my head reel. This is the mindset of these feminists, and accepting that this is so is a red pill moment. There is a reason why the mantra is “men’s rights are human rights”. It’s because, staggeringly, this principle needs asserting.