Interview with Baroness Hale

Published: 01/07/2024 07:00

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Whether you know her as ‘the Beyoncé of the legal world’1 or ‘call me Brenda’ (as she modestly introduces herself), Baroness Hale of Richmond is an exceptional woman and an exceptional lawyer. The first woman from her school to go to Cambridge – at a time when only 2.5% of women went to university at all – and the first to study law. Those facts would be exceptional enough but the stellar career which followed speaks for itself: barrister, law lecturer, professor, author, Law Commissioner, Queen’s Counsel, High Court Judge, Court of Appeal Justice, Lord of Appeal Ordinary, President of the Supreme Court – it is a breathtaking curriculum vitae.

She may be remembered most by the public at large for the famous prorogation case2 (which she admits was her most satisfying case as a judge) but her contribution to family law spans almost sixty years. She was first introduced to it in her final year at Cambridge, confessing that it was by no means her favourite subject. Back then: ‘the law was not kind to the home making wife if the marriage broke up – there were no financial remedies like the ones we have today. She could only claim a share in the home if she had a property right to it. She could only claim full periodical payments if she was not to blame for the breakdown – if she was judged one third to blame her maintenance might be reduced by one third. In the magistrates’ courts she had no claim at all if she was guilty of adultery, no matter how guilty her husband had been, and even long after they had separated.’

After graduating from Cambridge top of her class in 1966, she moved to Manchester and, undertaking the Bar Finals at the College of Law via correspondence course, she coupled academia with practice on the Northern Circuit. Whilst she dealt with some financial cases in practice – often maintenance applications in the magistrates court ‘because that’s what one did when starting out in the common law bar in Manchester in those days’ – the practice of family law was at that time wholly different: ‘… it hadn’t developed as a separate area of practice then, and the law had not developed … the new law only came into force in 1971. I left the Bar in 1972, so I didn’t have the opportunity of watching how things developed after that, except as an academic.’

But what a time to be a family law academic: the Divorce Reform Act 1969, the Matrimonial Proceedings and Property Act 1970 and the Law Reform (Miscellaneous Provisions) Act 1970 all came into force on 1 January 1971 and between them they revolutionised family law. She says it was interesting trying to make sense of what the courts made of those Acts in the first few years: ‘We were reading all the cases to see what happened and whether it was going to be business as usual or whether there was going to be a bit of a sea change. And there was a bit of a sea change before it went back to business as usual – family lawyers reverted to type after the sharing days of Wachtel v Wachtel3 and the rule was “reasonable requirements” and “the discipline of the budget”. Then came White4 and later, Miller and McFarlane5 – that again meant a sea change back to what I thought it always ought to have been when we were looking at it in the 1970s.’

Whilst she acknowledges that ‘things have changed quite considerably over the intervening many decades since I was actually in practice as a family lawyer’, it is fascinating, as a ‘modern’ financial remedies practitioner to consider the broader view that can only come with observing trends in financial remedies law over more than half a century. What Lady Hale does so well is to pull together strands from different aspects of family law and compare trends and concepts – as she puts it: ‘I just draw the parallel. As you’ll notice I keep on doing – drawing parallels between different parts of the forest.’

Turning to the start of her time on the bench (‘I regard being a family judge as being a family lawyer, but it’s from a rather different perspective’), Lady Hale was appointed a Recorder in 1989 and a full-time Judge of the Family Division in 1994. Throughout her judicial career, she enjoyed a steady diet of financial remedies cases, although she explains: ‘I tended to get what I thought were the interesting ones … the very big money cases tended to go to the big money boys but they were far less interesting than the ones where there was much less to share out, but much more to argue about’. The Court of Appeal followed in 1999 (only the second woman to be appointed to that court) and, in 2004, she was appointed as the first female Lord of Appeal in Ordinary.

She did not consider herself to be a financial remedies specialist. Despite a judicial career spanning over thirty years, culminating in 2017 with her presidency of the Supreme Court, she is surprised to learn that, in the At A Glance authors’ list of the ‘Leading Cases Top 20’ she was a judge in no less than a quarter of them. In addition, her other judgments are frequently relied upon by financial remedies practitioners including Foster6 (the short marriage ‘fair shares’ case), J v C7 (Schedule 1 and the child’s welfare) and Cornick8 (unforeseen and unforeseeable changes in the value of assets post-final order). There is no doubt that she has helped shape the law in relation to financial remedies, most particularly and significantly in Miller and McFarlane of which she has recently said that: ‘I still think that the principles we established then were sound. We were told at the valedictory for Mr Justice Mostyn, who was counsel for the second Mrs Miller, that he has been telling the world what we really meant by needs, sharing and compensation ever since.’

She is clearly a fan of Sir Nicholas: some of the issues he has spoken of most passionately are a useful jumping off point for our discussions. We consider his comment about ‘apocalyptic’ costs9 in financial remedies cases and whether she shares his view that ‘steps must be taken’ either by way of statute or procedure to limit the scale and rate of costs incurred. She reminds me: ‘I go back before the Divorce Reform Act, before the Matrimonial Proceedings and Property Act and so I remember what it was like then. There was a lot of fighting that went on, but we fought about different things – mainly what had gone on in the marriage – and things have changed quite considerably over the intervening and many decades since’. She goes on to say however that ‘we mustn’t forget that the vast majority of cases do settle. It’s very unfortunate if we think about what might be wrong with our law on the basis of the very small proportion of cases that fight. They’re not typical of the great majority of cases. And of course the very big money cases are also not typical of the great majority of cases.’

Whilst she agrees with the generally held view, wishing ‘it was not so disproportionately expensive in those cases where sensible agreements can’t be reached’, her first thought is often ‘Surely that could have been sorted out with a bit of goodwill and common sense on both sides’. However, she is alive to the reasons why that might be impossible to achieve: ‘of course it does need both goodwill and common sense on both sides. And the thing about family cases is that people’s emotions are involved, people’s self-esteem is involved. And they also have their own ideas about what’s fair … which are governed by all sorts of things in their personalities and backgrounds. And that makes it hard for some people to accept what one hopes is sensible advice about how the case should be settled. There used to be a perception that family lawyers wanted to fight cases and I think there are probably people who still think that’s the case but most of the research that goes into what solicitors do suggests that they are very settlement focused.’

This leads us to an interesting discussion of transparency in the Financial Remedies Court and opening it up to ensure the wider public can be informed by what happens there. She opened a 2016 Supreme Court leading judgment10 by stating: ‘The principle of open justice is one of the most precious in our law … there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on … The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge.’

Whilst that was not a financial remedies case, the first of those aspects – to enable the wider public an opportunity to see what goes on – is being addressed by the successful moves to publish more judgments in ‘ordinary’ cases which do not necessarily involve ‘big money’. In the context of financial remedies work and in particular the recent pilot, she makes it clear that open justice is the desired end game and that ‘these transparency experiments are in the context of the rules that already exist, the fact that journalists are able to attend has been sitting there in the rules and has been since 2009’. She nevertheless sounds a note of caution when it comes to the potential loss of anonymity: ‘Parties are not named in children cases. But they are named in financial cases, even where there are children involved. So, none of it has been thought through in the sort of depth that it ought to be thought through. Clearly the principle of open justice in the sense that what goes on in court should be visible, known about and capable of being reported to the wider world, because the wider world has an interest in what goes on in courts and transparency is a discipline for the courts and everybody who’s involved in the courts, not just the judge, but for everybody. But at the same time, of course, all the family cases are dealing with very personal, private matters. And how to balance those two considerations is, I think, complicated and difficult. My concern is for the interests of any children. I know there is really huge concern amongst children about mere anonymity not being enough because of the problems of jigsaw identification and the like, especially in certain types of case, and there’s also a worry about details of the facts, particularly in child abuse cases, where the judgments that are published might be almost treated as a sort of pornography. There are those considerations that have to be taken into account and treated very seriously.’ She also recognises that, the issue of children aside, financial remedies cases bring with them their own specific concerns: ‘we want full disclosure. A lot of time and effort is given to getting full disclosure, and if there is too much publicity, getting disclosure will be even more difficult than it already is. So balancing each of those considerations I think is extremely tricky. I think it’s got to be done. I’m not sure that there’s one-size-fits-all for it’.

Turning to financial remedies law more generally we considered the issue of potential reform of s 25 MCA 1973. The terms of reference for the scoping paper currently being undertaken by the Law Commission includes consideration of whether the discretionary basis of the current law allows for sufficient certainty as to legal outcomes and whether there may be ways to structure the discretionary basis of the current law with a clear set of underpinning principles, in order to create more certainty as to outcomes. Lady Hale’s view is that ‘our current system is a good one, provided that it is properly exercised by the family lawyers. In other words, tailor made solutions are a good idea for coping with the multitude of different factual situations that you can come up with. The principles of need, sharing and the compensation, for all the reasons that we said in Miller and McFarlane, are good principles. We shouldn’t be so distracted by the few cases that do fight into thinking that the system is in need of radical reform.’

We consider what that ‘radical reform’ might look like. Is it the Divorce (Financial Provision) Bill presented by Baroness Deech, which would limit capital sharing, enforce pre-nuptial agreements without a ‘needs’ get out clause and severely limit the ability of the court to make orders for periodical payments? She is keen to ‘point out that Baroness Deech is a very good friend of mine. We have disagreed about many things in family law over the course of now a long friendship, but it doesn’t stop us being good friends’.

However, long friendship aside, it is clear that Lady Hale is nevertheless against the kind of radical reform being proposed, citing the gender dimension: ‘it is likely that the people who would be most adversely affected by a much more cut and dried, rigid approach to things would be those people – usually women – who have compromised their place in the [external] workplace … in order to do what on the whole is in everybody’s interests: to look after their homes, their families, to have children, to help to bring them up, to [look after] elderly relatives … I think there is a public interest in this as well as the private interest in it. The public relies upon the family. I have described the family as its own little social security system, and that’s what it is. The public relies on the family to be the first port of call for resourcing the needs of the family members and that ought to be recognised by the law.’

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Baroness Hale with Women in the Law UK's Founder and Chairperson, Sally Penni

Again, she is able to offer a balanced view based upon her many years firstly analysing and then deciding the outcomes in financial remedies cases: ‘there are a lot of marriages that break up in late middle age … quite often the breadwinner going off with a new partner. And the person who is likely to lose out, who will lose out in any event, but would lose out even more were the law to be changed, is the left behind partner. And I think that would be a retrograde step. It was one of the things that came out well from the changes that came into force in 1971. That those people were better looked after than they had been by the law previously.’

Moving on to consider the plight of the ‘left behind partner’ in the context of unmarried, cohabiting couples and her position during the decades-long push for reform: ‘I’ve never made any secret of the fact that I think that there should be financial remedies available to unmarried couples. Very few people say there shouldn’t be, apart, of course, from the government … it’s almost as if because it’s so obvious that some such remedy is needed, they don’t want to supply it, because they don’t want to create more work for the courts’. She considers what reform might look like, referring to the Law Commission report on cohabitation published in July 2007:11 ‘I thought that the Law Commission’s recommendations were too complicated, too prescriptive. They were based on the comparative advantage and disadvantage from the relationship, which is, I think, the right principle. But they were very much trying to dot every I, cross every T, which as we know is not really very sensible in this context. You can’t be too cut and dried about things.’

I canvass with Lady Hale whether wholesale reform of the law relating to cohabiting couples might mean treating such claims in much the same way as we view financial remedies between married couples. Lady Hale is clear that ‘I go along with what has been the Scottish approach and the principle underlying the Law Commission’s recommendations, which was comparative advantage and disadvantage resulting from the relationship. That’s not automatic sharing … nor necessarily provision for need. It’s more compensation. And that means it’s a different principle from the marital principle. It’s less broad and will be likely to lead to less in the way of settlements. One could suggest that the disadvantage of that is that all the practical everyday knowledge that family lawyers have as to what is the sensible solution in a marital relationship would be lost because they’d have to start working out something which was very different and might result in very little happening. So why not just adopt all the same principles? That would be so unpopular with the press, media, politicians – not sure about the public, who knows? But it would be unpopular and so it’s not going to happen and you have to adopt a different principle.’

This leads to a discussion of Schedule 1 Children Act 1989 and whether the judicial interpretation of the statutory provisions is too narrow. She is clear both that ‘I don’t want to be telling today’s judges what they should be doing. I think that’s not my business’ but also that the purpose of Schedule 1 is to meet the needs of the child, not the parent with care. However, she again draws parallels with topics covered in our earlier discussion: ‘it does remind me of the days before White, which were dominated by the budget – reasonable requirements – and the view was taken that the recipient, the wife, usually, was not entitled to build up a nest egg to provide for her future; that she wasn’t allowed to build up assets so that she could give things to the children or to other people in due course and that’s the same attitude. It’s not treating that person as being economically equal, sensible, making provision for a future and doing things that anybody else would do.’

It is not just the other aspects of financial remedies law in which she finds parallels, but within other areas of law entirely: ‘I think the more interesting question in a way is the view that was taken many years ago that children have no proprietary claims on their parents. That’s the reason for the comparatively narrow interpretation of Schedule 1 … it also works through into the Inheritance (Provision for Family and Dependants) Act as well, where of course, adult children can bring claims under that Act, but nobody has really worked out – as I said in Ilott12 – what the principles are that govern the claims by adult children.’ And there are not only parallels within different aspects of the law. This is an issue which, in Lady Hale’s view, has yet wider social and practical implications: ‘If you were to ask people in continental Europe, they would say that children do have claims on the capital assets of their parents. There are often rights of inheritance which are subject to a life interest from surviving spouses, but there are rights of inheritance … if you think about how much feeling there is in this country about people wanting to preserve the capital they have built up during their lives for their successors, that is part of the problem with funding social care. All the debate there is about how we fund social care has, as its premise, that people shouldn’t have to dispose of all their capital paying for their care towards the end of their lives because they want something to hand on to their children. So there are some big issues there that haven’t really ever been looked into.’

The discussion of Ilott turns us to the role of the appeal court. Of Ilott itself, Lady Hale comments: ‘It was ridiculous. The whole thing had gone too far. Too many stages and ups and downs and so on. And of course, we in the Supreme Court were never really in a position to rethink the whole thing.’ Which leads us back to White and the view often voiced by younger practitioners that, if this was meant to be the case which developed the yardstick of equality and current thinking about equal sharing, why did Mrs White not receive a full and equal share of the assets? Lady Hale agrees: ‘Really the whole thing needed rethinking. Mrs White said that the obvious solution was they had two farms, that one of them should have got one of the farms and the other should have got the other of the farms. That was so obviously the right solution. But by the time it got to the House of Lords, they really couldn’t do that. They had to decide whether the general approach of one side or the other was correct. But basically, all the House of Lords could do was either agree with the Court of Appeal or go back to the original monstrous finding at first instance.’

She goes on to explain: ‘This is quite often the case in the Supreme Court – you really want to tear it all up and start from scratch … and the same in a way was true with Miller and McFarlane. McFarlane was a bit easier but with Miller we simply decided that the figure that she’d been awarded could be upheld. We weren’t ourselves thinking “well, how do we apply our own principles to what the second Mrs Miller should get” because that’s not what we do. We’re a court of appeal.’

No interview with Lady Hale about financial remedies law would be complete without a discussion about her dissenting judgment in Radmacher,13 especially given that so many of the cases coming before the financial remedies court lately involve a pre-nuptial agreement. There is, as she often says, a gender dimension to such cases and that, of Radmacher specifically, she ‘couldn’t win them all’. Interestingly, talk of Radmacher arises after I asked Lady Hale whether there are decisions she has made in financial remedy cases which, on reflection, she wishes she had taken an opportunity to push harder to reflect the gender dimension. She responds: ‘Or the reverse? What I do now wonder about is the Privy Council case, MacLeod.14 It seems so obvious to say that the marital [post-nuptial] agreement ought not to be contrary to public policy, but of course that then led to the others in Radmacher saying, well, why didn’t you take it to its logical conclusion? So I think obviously [in MacLeod] I set in motion something that seemed sensible at the time, but sometimes beware what you wish for because it could be taken in a direction that you didn’t want it to be taken in, as in Radmacher.’

She has spoken, most famously in her speech at Girton College in 2019 to celebrate 100 years of women in law, of what was described, upon her elevation to the Supreme Court as the ‘Brenda Agenda’, which she explained was ‘quite simply, the belief that women are equal to men and should enjoy the same rights and freedoms that they do; but that women’s lives are necessarily sometimes different from men’s and the experience of leading those lives is just as valid and important in shaping the law as is the experience of men’s lives.’

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This is the ‘gender dimension’ of which she speaks when considering the issue of pre-nuptial agreements more broadly: ‘there is usually a degree of mutuality about it. The facts around Radmacher are a very good example of that. They came back from the States because she was unhappy there. He gave up his job to go and do something much more rewarding because he was unhappy with his job. This was all fine until the breakup. It happens with every relationship and it’s usually a matter of agreement, or at least, if not active agreement, acquiescence … and that will have its consequences for money-making opportunities for each of the parties. And, of course, who knows what children are going to bring. It’s very difficult to imagine before you have children what it’s going to be like after you’ve got them.’

We discuss the view of the High Court that parties are unlikely to have intended that a pre-nuptial agreement would leave a party in a predicament of need: ‘judges may be perfectly right to say, “well, the parties cannot have intended to leave somebody whose needs are not properly met” … however [a prenuptial agreement] usually intends to cut down on what the outcome would be if there were no prenup and [the paying party] ends up paying less than they would have if there was no prenuptial agreement.’

She is clear however that she is not against the principle of prenuptial agreements altogether: ‘it is also about providing a level of clarity and certainty and somebody might be prepared to settle for that. Although I must admit some of the models I have seen, paying a partner a certain amount per year of marriage … I found that very demeaning, really. But some people might be prepared to settle for that, for the sake of certainty, clarity, because they don’t want to make a fuss, because they like the relationship and so on, but it does remain the object that there should be less than there otherwise would be, and of course what that would be is more than or different from simple provision for need, however generously interpreted.’

Of her dissenting judgment in Radmacher, she has recently said of her fellow justices ‘They were mainly commercial lawyers and could not see that marriage is not like a commercial contract … the point of a pre-nuptial agreement is always to secure that one of the spouses will get less than he or she otherwise would. That is why every common law jurisdiction which has legislated to make them lawful has provided for procedural safeguards – full disclosure and independent legal advice – but my brethren said that they should be enforced without any such safeguards as long as they are not unfair … There is obviously a gender dimension which cannot be ignored.’

I am keen to explore that gender dimension and also what she has said previously, that one of her fellow justices is understood to have said that he did not think Mr Granatino should have made a claim at all. Does she think that a more generous approach to Mr Granatino’s claim might have been taken had he been a woman? ‘Oh, I think it’s very possible. I could put it no more than that. I think I have probably said that one of my brother judges did say that he thought the husband was a cad for making the claim at all. I am of course not going to invite anybody to speculate on who said that, but it was suggested that men should not be making claims on their wives. Whereas I doubt if that would have been said if the roles had been reversed.’

Lady Hale is keen however not to criticise her fellow justices and makes it clear to me that ‘in the days when the law was being developed, we wouldn’t have had decisions like White and Miller; McFarlane, if it hadn’t been for some really very good men who recognised that it was only right and proper that marriage be treated as an equal partnership, not only emotionally, but also economically.’

This leads us to another financial remedies topic with a clear gender dimension, currently being examined by a Resolution survey to establish whether practitioners consider whether the Financial Remedies Court takes sufficient account of domestic abuse. Does she have a view about that? ‘I’m afraid I’d rather not express a view about that because I actually have quite complicated views about the relevance of domestic abuse throughout family law. Because I think it is relevant in lots of different aspects, but the practical problems and the cost involved and the delay involved in taking it seriously in children cases, where it’s obviously relevant, should actually give us some pause for concern about its impact on financial remedy cases’ adding: ‘But as you know, I don’t think that these matters should be treated in silos anyway.’

Which leads us neatly, approaching the end of our interview, to her recent proposal to avoid the ‘silo’ mentality: a ‘one-stop family law shop’ involving one application form which sets out a short history and the remedies sought across all areas and a ‘court triage’ to decide the appropriate in-court dispute resolution process, which would include court-led mediation. We discuss the obvious objection there might be to such a scheme from financial remedies practitioners, having only relatively recently benefitted from a specialist financial remedies bench: ‘Well, of course there are people who disagree, because there always are people who disagree with the whole idea. I know the reason for having the Financial Remedies Court was to make sure that there were judges dealing with financial remedies who knew the law and knew the score, so to speak. Well, you don’t need a separate court to be doing that. You really don’t. All you need are properly trained judges and properly experienced judges.’

It was with some trepidation that I asked Lady Hale if I could interview her for the Financial Remedies Journal. My delight when she said ‘yes’ was tempered only slightly when she told me ‘but I don’t have a lot to say about financial remedies these days’. I have had cause to reflect on that statement whilst writing up this interview. At her valedictory, Lady Hale was described by Dinah Rose KC as ‘feminist, frank and fearless’. Those qualities were evident in spades during this interview. It is apparent to me, and I am confident it will be apparent to FRJ readers, that the breadth and longevity of her experience – the perspective that can only be gleaned from a lifetime at the coalface, and her ability to spot the similarities and trends between the different aspects of the family law ‘forest’ – is as unique as it is valuable. Far from not having a lot to say, we might reflect as financial remedies professionals on what she does have to say, frankly and fearlessly, about the gender dimension. We would be wise to take it on board.

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