Sir Mark Potter was hailed as the man to shake up the family division. Yet his presidency has been plagued by delays in cases. Catherine Baksi listens to his solutions


His appointment two years ago as Britain’s most senior family judge caused a furore. The former pupil master of the man who gave him the job, Lord Falconer, and with a commercial law background, Sir Mark Potter did not appear to everyone the natural replacement for Dame Elizabeth Butler-Sloss as head of the Family Division. Others, however, maintained that he was the ‘new broom’ needed to sweep away the cobwebs in the family courts.



So, how is the spring cleaning coming along?



‘The family justice system is under strain. There’s a lot of delays in the system over and above what parties to litigation like, expect and – children, in particular – have the right to demand,’ he says.



He puts this down largely to a matter of resources against the background of a rise in the volume of work, especially in public law care proceedings, which have increased nationally between 5% to 10% annually.



But he says the picture is grimmer than that because the worst strains come in particular areas, where there are concentrations of inner-city deprivation, and an increase in the influence of drink and drugs.



Added to that are more cases involving members of immigrant communities in respect of whom language, cultural and other difficulties arise, which lengthen proceedings. By way of example, he says: ‘If you are obliged to have an interpreter at the trial of care proceedings, you’ve got to increase the time it takes by between 50 and 100%.’



The problem is exacerbated by the rising number of litigants in person, who notably in the private law field are too well-off to afford legal aid, but not sufficiently well-off to afford to pay for legal representation.



‘Without more judges, more court space and more judge-days being made available to hear the steadily increasing number of cases, the problems of delay will inevitably continue,’ he says.



And then there are the Carter proposals, or rather the Legal Service Commission’s plans for legal aid reform, which Sir Mark regards as a betrayal of Lord Carter’s report. The proposals, he suggests, will accelerate the flight of specialists away from publicly funded work, and increase the number of unrepresented or poorly represented litigants.



In the gloom, there is, he says, ‘one great beacon of light’ – conciliation appointments in private law cases, which in some parts of the country have seen an 80% success rate.



One solution he hopes will bear fruit is enlarging the jurisdiction of district judges in the county court, and encouraging the retention of less complex work in the Family Proceedings Court (FPC), where, he says, there is spare capacity.



This in turn requires increasing specialisation of family magistrates, and a general overhaul of the system to improve the distribution of business. ‘In this respect, a shortage of specialist legal advisers in the FPCs is the most immediate problem to be resolved,’ he says.



Improved judicial case management and co-operative working with the Children and Family Court Advisory and Support Service would also go some way to ensure cases were expeditiously resolved, suggests the president.



To this end, Sir Mark has set up a judicial review team to simplify and improve the operation of the public law protocol, which has hitherto governed the conduct in care proceedings, and to incorporate the recommendations of the child-care proceedings review.



Judicial initiatives have been set up in Liverpool, Hampshire, Cardiff and London to trial ways of speeding up cases, with a view to incorporation into a revised protocol, which will be completed by the end of the year. Together with other measures, these are to be included in a complete overhaul and re-issue of the Family Proceedings Rules, currently being undertaken within the Department for Constitutional Affairs (DCA).



‘All these tasks are having to be conducted simultaneously, but should be in place and complete by April 2008 – the current target date for the new rules and then for a national roll-out in family court centres generally.’



Sir Mark’s tenure has seen a raft of government consultations to reform the family courts, including one aimed at improving transparency and privacy – tackling what the DCA described as the public perception that the courts operated in an unjustifiably secret manner. Is admitting the press and public into the courtroom the right way to put the record straight?



‘It’s difficult to say, because in my experience you have to separate out the confidence of members of the public from criticisms of the press, based on what are the exceptional or newsworthy cases. I don’t think that, unstimulated by the press, the public are particularly troubled by notions of “secret justice”, when a moment’s thought or acquaintance with the subject enables them to realise the need for privacy,’ says Sir Mark.



He sees no overwhelming reason to allow access to the general public, but accepts the media should be admitted to all family proceedings, except adoption, provided the court has a wide discretion to exclude them or limit reporting.



Sir Mark is unconvinced by the motives of the press for wanting access. ‘It is not unduly cynical to observe that the intense interest of the press is reserved for cases which for one reason or another are sensational, peculiar or involve celebrities.’



One subject that has excited the press in recent months has been a series of big-money divorce cases. These decisions have prompted mutterings from some family lawyers that the law regarding ancillary relief has become too unpredictable, particularly since the Miller and McFarlane judgments, which introduced the new concept of compensation.



‘The difficulty in current law becomes greater the further you move away from a simple criterion of what the reasonable needs of a divorcing partner are, and move into the area of what is “fair” when the means of the parties are relatively large and a split is necessary.’ He continues: ‘The preoccupation of the press and the “golden circle” of solicitors who deal with these big-money cases does not reflect the problems which face the court in most cases. While the laying down of principles in these cases… is intellectually interesting, it is scarcely related to the real needs of 95% or more of the litigants who come before the family courts.’



Children are another issue that often needs to be resolved by the courts on divorce. The government has proposed that children be allowed to speak to a judge in person in section 8 proceedings. Sir Mark observes: ‘While most just want the dispute to go away, let alone participate in it, where a child is of sufficient age and understanding and wishes to speak to the judge, they should be permitted to do so.’



Some child welfare professionals are concerned that speaking to a judge with insufficient understanding and limited time may harm a child, but Sir Mark suggests this can be overcome with training.



‘Many of the experts who are fearful of this notional “fuddy-duddy” unsympathetic judge under-rate the ability of children to appreciate kindness and concern in the individual judge. This whole idea that if they come in and see a middle-aged to elderly chap like me, they’re going to be terrified [is wrong] – they’re not, even if he speaks in old-fashioned language.’



Which leads to another proposal – modernising the language of family proceedings. Sir Mark is adamant that this is unnecessary. ‘People who suggest that judges conduct proceedings in old-fashioned or archaic language or behave in a way that illustrates unfamiliarity with the ways of the world simply do not know the modern family judge.’



And just what do these affable creatures look like? ‘They are well trained, almost certainly have a family of their own and would not wish or seek to specialise in family law unless they were genuinely interested in children and family matters.’



He continues passionately: ‘The fact is that the family bench has far higher and more stressful work than in any other area of judging, and the judges do it because they believe in it and not because it’s just a job.’



Some judges, he notes, make an effort to keep up with youth culture, and he admits to a keen interest in pop music. But he says: ‘I’m not certain that an intimate acquaintance with youth culture or a close following of the pop scene are absolutely necessary where you are dealing with the welfare of children in terms of residence, access and matters of that sort.’



He adds: ‘If you display any symptoms of being hip on the bench, it simply causes the same embarrassment that it would to any child whose grandfather came in and started to dance rock and roll with granny. This whole idea that we have to know who’s top of the charts in order to be qualified to act as family judges is just rubbish.’



What does the future look like from his expansive room behind court 33 at the Royal Courts of Justice in London? ‘The family justice system will continue to be faced with constraints on resources. While I do anticipate that the various measures which I have described will introduce considerable improvements in case management, and the dispatch of business over the next two years, my fear is that the rise in the volume of business on the public law side and the increase in the number of litigants in person on the private law side, will in effect counter balance the improvements made. It remains to be seen whether that is the case.’