Shared Parenting in Australia - Notes from the Chief Justice's Talk

The Chief Justice of the Family Court of Australia, Diana Bryant AO, spoke about the lessons to be learnt from the Australian shared parenting reforms of 2006 at the Annual International Family Law Seminar in London on 1 May 2012. The Judge highlighted possible dangers of following a similar path in England and Wales, and offered practical tips to avoid the major pitfalls. This is an unofficial report of the Judge's paper based on the notes that I took; Bryant CJ will, I believe, be publishing her full paper in International Family Law later this year.

It is hard to imagine a more timely moment to hear Australia's most senior family court judge talking about the lessons that would-be law reformers in England and Wales can learn from the Australian experiences of shared parenting legislation. In her excellent paper, Chief Justice Bryant reflected on the 2006 changes to Australian family law, and commented on their relevance to current proposals to amend the law of England and Wales.

Before we get to the Chief Justice's talk, a very brief summary of the Australian law relating to children after parental separation may be helpful. The Australian law is complicated, so this is a rather simplified account (i.e. don't rely on this for anything - it's just to put the rest of the post in context) but in summary the 2006 reforms had the following effects:

• parents are presumptively given equal shared parental responsibility for their child, meaning the legal powers and responsibilities of raising him or her [which is basically the same as the law in England and Wales]
• if both parents have equal and shared parental responsibility, legal advisers and mediators have to discuss with the parents, and the court must consider, in turn each of the following options and decide whether they would be in the child's best interests:
• spending equal time with both parents
• spending 'substantial and significant time' with both parents (meaning at least some of all the following time: weekends, holidays, normal weekdays, and significant days like birthdays or Christmas)
• having other contact with the non-resident parent.
• through all of this, the child's best interests are informed by two "primary considerations", namely:
• the importance to the child of having a meaningful relationship with both parents
• the importance of the child's safety

Somewhat alarmingly, these last provisions had to be amended in 2011 to make clear that safety is more important than the meaningful relationship provision, which one would have thought to be so obvious as to go without saying - but apparently not.

So, what did Bryant CJ have to say about all this? After discussing the background to the Australian shared parenting reforms, her Honour offered three key pieces of advice for those seeking to reform the law in England and Wales:

1. Be clear what is intended by any reforms. Without clear and well-explained aims, any reform would risk misinterpretation by the public, regardless of any official interpretation by judges and lawyers.
2. Have available and make proper use of good research evidence. Bryant CJ was concerned that the Australian government had not had a good evidence base for its 2006 reforms and had instead relied on unrepresentative anecdotes. She also noted that the findings of the excellent Australian research done since the 2006 reforms [much of which I summarised in my post on shared parenting last week] have been resisted by many pro-shared parenting advocates because it does not match up with what they wanted it to say - and they have been effective in that resistance because the findings go against an established narrative that shared care is always good for children which those anecdotes had established before the reforms. Much of that research is important here, but Bryant CJ highlighted the importance of protecting children from violence and other conflict as being especially relevant. [I wrote about the importance of using research and not anecdotes when looking at law reform last week, so you can imagine that this was music to my ears!]
3. Avoid complex language in the legislation, because complexity leads to confusion. I won't go into the details about the Australian law that the Judge gave, but it covered the intricate relationship between "the best interests principle", the "primary consideration" of the importance of "meaningful relationships", and the statutory guidelines about "equal time" and "substantial and significant time". [If you're bored and have 5 minutes to spare, take a look at the complete pig's ear that is the much-amended Family Law Act, starting at s 60A and with a focus on the key provisions of s 60CC, s 61DA and s 65DAA.]

Bryant CJ then turned her attention to David Norgrove's Family Justice Review (2011) and the relevance of the Australian experiences to the shared parenting debate in England and Wales. Norgrove noted that the Australian focus on "meaningful relationships" had led to a degree of confusion and, in particular, was often conflated with there being a presumption of shared time. While the Chief Justice was quick to point out that the Australian courts have focused on the quality of parent-child relationships and not on time, she conceded that it was hard to know what the general population thought. She also observed, as Professor Helen Rhoades has noted, that many people saw the law as containing a de facto presumption of equal time.

One real danger of law reform, therefore, lies in the effect that it can have on people who make arrangements outside the courts, based on what they think the law is. If the law's message is not entirely clear, a perceived presumption in favour of equal time can take hold in the public consciousness, even if that is not what the law says.

Shared Time Parenting After Divorce - What the Research Says

This post comments on the government's plans to legislate about parenting arrangements after separation or divorce. I talk about the research evidence and show that introducing a legal presumption that families involved in court cases should split their children's time between two homes is likely to be bad for most of the children involved.

Introduction:

The Government has recently announced that it intends to introduce legislation about parenting arrangements after the separation or divorce of parents, contrary to the recommendations of its own independent report. The aim, it seems, is to emphasise the importance to children’s well-being of having both parents involved in their lives after separation, just as we assume they are both involved if the parents are together.  

As Professor Liz Trinder of Exeter University wrote in a comment piece on the Guardian website in February 2012, that sounds perfectly sensible – but it’s important to keep sight of the big picture in order to see why some of the plans being proposed are a bad idea from the point of view of the children involved.

First, let’s clarify what this debate is about. So far as I am aware, it's a fairly universally-held view that, if it is safe, children should have a strong and on-going relationship with both of their parents regardless of the status of the adults’ relationship with one another. That being the accepted position, this isn’t really a debate about the principle that children should have strong involvement from both parents – it’s a debate about the practical ways in which that principle should be applied.

In this post, I explain some of the recent research that has been done into the working of the family court and the effects of different care arrangements on children’s lives. The aim of this is to demonstrate why changing the law to promote shared time for children of separated parents is a misguided idea that will harm children.

Family Law – Facts and Myths:

A lot of people know someone who has been involved with the family courts, either as a parent or as a child. Despite this, research consistently shows that only about 10% of separating parents go to court about issues to do with their children. The large majority of parents sort things out without help from the court, either entirely privately or with other assistance from professionals (usually family solicitors, who are skilled at negotiating and settling cases).

It doesn’t take much imagination to realise that many of the 10% who do end up in court are the most conflicted, the most bitter, and the most complicated cases. After all, these are the people who were unable to negotiate a settlement. Research shows that the cases that go to court have very high rates of domestic violence, drug and alcohol abuse, mental health issues and problems which often come close to needing intervention by social workers to safeguard the welfare of the children involved.

Despite these complications, the family courts adopt a strongly pro-contact position. They bend over backwards to promote relationships between parents and their children in the most challenging of circumstances, and have done their best to deal with the tricky problem of non-compliance with orders. (These cases are very complicated, because most of the ‘remedies’ that the law has impact badly on the children involved.)

Regardless of that, family law is repeatedly accused of being ‘anti-father’ and as excluding men from their children’s lives. Led by some fathers’ rights groups like Fathers4Justice and Real Fathers for Justice, the rhetoric that has taken hold is of the court colluding with hostile and vengeful mums to stop loving and blameless dads from seeing their kids. If that were true, it would be shocking and a matter for immediate and serious reform. But it’s not true – it’s a myth.

I’m not saying that there are no cases where something a bit like that might happen. I’m sure there are. The family justice system is very large and the courts deals with the best part of 100,000 cases about children’s relationships with their parents every year – no doubt there are a few cases where the judge gets it wrong (that’s why we have an appeal court!), or where not enough is done to stop mothers from keeping good fathers away from their kids. But these cases are a tiny and unrepresentative minority, and it is wrongheaded to call for reform of the entire system based on these examples. As I said in my last post, anecdotes make powerful stories, but they're a bad basis for making decisions when we have good research available.

Looking at the research, what we see is very different. The records for 2010 (the latest available) show that 95,500 cases went to court about children's contact arrangements. Of those, only 300 ended with the court specifically refusing to allow the father to see his child. That’s 0.31% of litigated cases – or, when you take into account that only10% of cases go to court in the first place, 0.031% of all separating families. In a few other litigated cases the application was withdrawn (2.29% of litigated cases) , and in a few others (0.88% of litigated cases) the court made ‘no order’ (which usually happens when the parents agree about the outcome during the course of the case). But in 96.52% of cases that went to court, judges made orders which involved at least some contact between both parents and their children.

The next question is whether those orders were for ‘meaningful’ amounts of contact, or whether they were token amounts. A high-quality piece of research by Joan Hunt and Alison Macleod investigated this question in 2008 by going to courts and looking through all the files from individual cases. This is incredibly time-consuming research, but it meant that Hunt and Macleod could say with absolute certainty what was going on in the courts.

And what did they find? Well, in almost all cases, the courts gave fathers exactly what they were asking for. If they asked to have the children stay with them one night a week, that’s what they got. If they asked for half the school holidays, that’s what they got. 

So what does all this tell us? That the family courts of England and Wales are not biased against fathers. The courts almost always make orders for contact, and those orders almost always reflect exactly what the fathers were asking for. Indeed, the bigger concern is that the courts are systematically downplaying the dangers to children and mothers of domestic violence in their zeal to promote father-child relationships.

Parenting Arrangements – Sharing Rights and Responsibilities:

A large part of the rhetoric around the post-separation parenting debate is about ‘sharing’ and ‘fairness’. It is sometimes said that, because the law ‘discriminates against fathers’, it would be better to have a rule that parents automatically share the upbringing of their children after separation. Again, that sounds sensible, but it’s important to unpack what it means.

The first thing to ask is about the extent to which parents who live in the same household actually share the everyday parenting responsibilities for their children’s upbringing. Some do, of course, but the more common pattern is for one parent to take responsibility for the majority of childcare. For a number of reasons too complicated to cover here, that person is more often the mother. (I am stating this simply as a fact, not trying to give it any normative endorsement.)

Next, we need to know something about the law. When the last major reform of child law took place in 1989, a split was made between the legal rights, responsibilities and authority about children’s upbringing – which was termed ‘parental responsibility’ – and the practical everyday aspects of children’s upbringing – where they should live, how much time they should spend with each parent, which school they should go to, whether they should have a religious upbringing or not, and so on.

Following reforms to the law in 2002, almost all parents have parental responsibility automatically – and those who do not have it automatically can usually get it easily enough. In fact, research shows the courts are often willing to give parental responsibility to parents who have absolutely no involvement in their children’s lives as a ‘label’ or ‘badge’. (One particularly revealing case involved giving parental responsibility to a man who had been convicted of paedophilic offences and who was deemed so dangerous to his children that he was forbidden from contacting them in any way. Cases where PR is refused are rare and extreme.)

The fight cannot, therefore, be about shared parental rights and responsibilities as a matter of law, because these things are already shared in virtually all cases. Just in case this needs to be made any clearer (though I can’t really see that there is much room for misunderstanding), the provisions in the law on parental responsibility could be changed to state explicitly that parents share it. This change would make no legal difference at all – that is already the case – but if it makes the message clearer then I cannot see the harm.

Parenting Arrangements – Shared Time?

Where I do see real dangers, though, is in making any legislative changes at all that start to dictate particular outcomes in favour of shared time for children between their parents. The law at the moment says simply that the court must make the welfare of the child the paramount consideration. The focus is all on the child. Parents’ rights are not the issue – the only thing that the court thinks about is what is best for the kids. Shared time legislation, on the other hand, is about adults – it treats children as things that can be split in half and divided up equally so as to be fair to the parents.

It’s particularly important to remember how few cases are decided in court, and how conflicted they are. If people who get on well and who can reach amicable agreements want to organise their childcare with a more or less equal division of time between two households, that can work quite well. Recent research in the UK shows that about 3.1% of separated parents outside the court choose to do this. Large-scale research in Australia shows that where parents get on well and can be flexible about the arrangements from one day to the next, shared time can work well for the kids involved.

However, two characteristics rarely found amongst parents who end up litigating in the family court are an ability to get on well with each other, and a flexible approach to the other parent. These 10% of people are highly conflicted and have major difficulties with their parenting – and the government is planning to introduce a presumption that these people, of all people, should split the care of their kids 50/50 between two households?? This is a recipe for disaster, and flies in the face of huge amounts of robust and careful research.

Research shows that shared time can be a good option for some kids, though it is not clear that shared time is any better or worse than having primary care with one parent and contact with the other. But for other kids – and this is the important part – shared time is clearly worse than primary care with one parent and contact with the other. So who are the kids who do worse with shared time?

Put simply, shared time is bad for children when any of the following characteristics is present:

• there are concerns about violence (either directly towards the children or, more commonly, by one parent towards the other)
• there is high conflict between the parents
• there is a very rigid and inflexible arrangement of sharing the child’s time between the two households.

Okay, so now think back to the characteristics of the separating parents who end up in court. What did we see? High levels of violence, high levels of conflict, high levels of inflexibility. The research clearly shows that most people who end up in court arguing about parenting arrangements will not be well suited to a shared time arrangement, because the people who end up in court tend to have problematic relationships which make shared time bad for their kids.  

To be honest, none of this surprises me. If I had to pack a bag and move house every 3 days, I wouldn’t be very happy and I wouldn’t do so well at work either. Adults who do this as part of their job find it very dissatisfactory and, in general, try to avoid doing it for any prolonged period.  Then add in the high levels of conflict, inflexibility or violence between people in the two households, and it sounds like a nightmare. Why on earth do we think that kids, whose worlds are still developing and who find it harder to think about things in a long-term way, would find this a good way to live.

Conclusions:

Constant moving from one household to another is hard work, physically and emotionally. The research shows that the kids who do well with split time find their living arrangements manageable and do-able if they feel at home in both houses, and where both parents work cooperatively and flexibly to make the arrangements child-focused. If the parents can do that, then great. But if the parents can’t even be cooperative and flexible enough to make arrangements without going to court, there is nothing that the court can do to help, and imposing shared time arrangements on uncooperative and inflexible parents will be damaging for the children concerned.

In general, kids should have strong, on-going relationships with both their parents so long as it is safe to do so. The irony is that trying to encourage an equal split of time amongst the conflicted parents who end up in court is likely to lead to the exact opposite. All children are different, of course, but the consistent message from research around the world is that kids hate rigid clock-based care arrangements. Moreover, there is no reason to think that more time equals a better relationship between a parent and his or her child. What matters is the quality of the time that the parents spend with their children and whether they are good parents – better to have a really great weekend than a really stressful week.

So, despite the attractive rhetoric of sharing and fairness, it is important that the law not be changed to favour shared time parenting. Sharing and fairness are about adults. When we keep our eyes on the children whose lives we are discussing, shared time is demonstrably a bad option.

Research Versus "The Anecdote"

This is a post about the challenges of communicating research findings which have to go up against compelling but unrepresentative anecdotal stories, taking as an example the anecdotal attack on the family courts.

My colleague Peter Clarke used to joke that his students would "never let the facts get in the way of a good argument". In this post, I offer some thoughts on the difficulty that researchers often have in dispelling myths when they have to challenge an established public or media narrative that is supported by the all-powerful anecdote. Just as facts didn't stop Peter's students' arguments, research can struggle to overcome the rhetorical appeal of the anecdote. To paraphrase Peter, the media and the public "never let the research get in the way of a good anecdote".

Why anecdotes are compelling and research is not

Anecdotes have a number of qualities which make them great stories. First, they have human interest – we get to learn about a real person and to pry into their personal experience in some way. Second, they are usually quite simple – events unfold in an understandable way, and the consequences are easily explained. Third, they are believable because they (at least supposedly) actually happened. And finally, anecdotes are usually dramatic and extreme – after all, that’s why the story is being told. It’s like the news – only unusual or dramatic events are worthy of being reported, so you never hear:

“This morning, a woman got into her car, drove to work, and arrived there 20 minutes later without incident. On arrival, she picked up the post, made a coffee and started work. In other news, James Smith aged 8 has successfully learnt the six times table.”

Those aren't news stories, and they wouldn't be good anecdotes, because they are normal events. On the other hand, car accidents or mail bombs are news and would make great anecdotes - they are dramatic and extreme.

Research struggles to compete with any of this, no matter how interesting it is. But if the research is relevant and well done, why should this be?  Part of the reason might be that research findings rarely have any of the qualities that anecdotes display.

Most research does, in fact, have a huge amount of human interest, which seems like a good starting point. But the problem for researchers is that we struggle to tell people about the human interest in our findings because, for ethical reasons, we anonymise our work and try to make sure that the people who help us with our work are not identifiable in what we say about it – so we don't talk about individual people and we don't reveal personal experiences.

Then there’s the problem that research findings are rarely simple. We find complicated things, and as researchers we are nervous about over-simplifying what our evidence shows. When asked a question about our findings, often the instinctive (but perhaps unhelpful) response for many of us is: “well, it depends”. We find it almost painful to have to give straightforward answers, in case we look like we are misrepresenting the evidence.

Research ought to be believable, though – but perhaps the problem is that the way we try to convince people that our findings can be trusted is to tell them about our methodology – and let’s face it, that’s boring. Anecdotes don’t have to convince you of their veracity, because they come pre-stamped as being “actual events”, whereas research is an overview which can be harder to understand if you aren’t a professional researcher.

And then finally, dramatic and extreme? No, research findings are rarely dramatic or extreme. In fact, a lot of the time what we see is the exact opposite – we’re finding empirical confirmation of normal and everyday things. If you did research on people’s morning routines, most people’s would be as unexciting as my non-news story of a woman’s drive to work.

So all of this means that researchers can find it hard to give their findings traction in the public consciousness, particularly when there’s a good anecdote or two which contradict what the researcher is trying to say. Sometimes these mismatches between empirical reality and anecdotal rhetoric are annoying but insignificant - but at other times, they are dangerously misleading and potentially very damaging.

I'm going to use the second half of this post to illustrate what can happen when anecdotes trump research by taking an example from my area of research, the family justice system.

A practical example - the family courts 

The thing that has got me thinking about this at the moment is the on-going attack made by Camilla Cavendish and The Times on the family courts of England and Wales, the latest instalment of which appeared last week. This has been going on for some years now, with Cavendish writing about what she calls the "scandal" of the family courts of England and Wales. The cause of this problem, Cavendish thinks, is that the family court cases are "secret", because they are heard in private and the media are not normally in attendance. The answer, therefore, is to “open them up” to allow the light to shine in by allowing the media (and perhaps the general public) to go to family court hearings and then tell people about what they see.

I think that Cavendish is probably well-meaning, and perhaps genuinely sees herself as some crusader for justice, but her ill-informed criticisms of the family justice system based on anecdotal stories which ignore consistent research findings are wrong-headed and dangerous. Her ideas might sound sensible, but I think that the idea of "opening up the family courts" is truly misguided.

The reason that the media and the public are kept out of family court hearings is not because they are “secret” but because they are private. We are talking about incredibly sensitive, personal events in people’s lives – divorces and separations, allegations (which might or might not be true) about parents neglecting or abusing their children, questions about whether a child should have a dangerous medical operation or not, women seeking protection from physical, mental or emotional abuse by their partners or other family members, and so on. These are things that people are entitled to keep quiet, and they should be able to get help from the court without the rest of us standing on the sidelines gawping.

Leaving the merits of the debate aside, though, the real problem here is the way that the rhetoric has been taken hostage by anecdotes and stories. Cavendish and others have constructed this debate as being about "secret justice", frequently using individual cases to make vast sweeping statements about the family courts of England and Wales. Cavendish’s most recent rant damned the entire system based on one extreme case (which, incidentally, was largely taking place in the public gaze of the criminal courts, not the private sphere of the family courts) and, for great comment on that I'd recommend Lucy Reed on the Pink Tape blog. As Reed says, one complicated case where it turned out that the medical evidence that the court had to rely on was wrong does not indicate that there is a systemic problem with the family courts. There are thousands upon thousands of family court cases every year, and the vast majority proceed carefully and correctly.

Obviously sometimes people aren’t happy with the outcome of their case, but that seems unremarkable. When people go to court, sometimes they lose and sometimes they are unhappy about that, especially when the case was about something that was personally important to them (their children, for example). But just because people aren't happy doesn't mean that the system is broken. In cases where something has actually gone wrong, we have appeal courts – and, if you look at those cases, appeal judges are not shy of criticising their junior colleagues when things go wrong. (Most Court of Appeal cases are available free of charge on the British and Irish Legal Information Institute’s website.)

The reason that this matters is that the anti-family court narrative that is currently in vogue is undermining public confidence in an important institution. The family justice system isn't perfect, but in the vast majority of cases it does a good job in difficult circumstances. The independent Family Justice Review in 2011 made minor suggestions for changes to the system, but on the whole was positive in its conclusions about the workings of the system. The people who work in family justice - lawyers, judges, social workers, mediators, financial advisers, guardians and others - are mostly dedicated and hard-working, and they are doing their best to find reasonable solutions to complicated and highly conflicted problems. We shouldn't allow unrepresentative anecdotes to lead us to think that there is some scandal in the family courts, no matter how good the story sounds.

Author's note: I wrote a briefing paper on media access to family

court cases in 2009, funded by the Nuffield Foundation. While I

conduct research into family law and the family courts, I do not

work in the family justice system and have no personal interest in it.

Playing a Straight Bat? Financial Arrangements When A Civil Partnership Ends

This is a post about the Court of Appeal's decision in Lawrence v Gallagher in March 2012, which was the first appeal about financial arrangements following the dissolution of a civil partnership. I offer strong criticism of the Court of Appeal, but for reasons which apply just as much to many of its decisions in heterosexual divorce cases.


On the 29th of March 2012, the first appeal case was heard in England and Wales regarding the financial arrangements made after the breakdown of a civil partnership. The legal principles applicable to post-civil partnership financial arrangements are identical to those that apply when a heterosexual marriage ends - so the real question was whether the fact that the former relationship was between two people of the same sex, rather than between two people of different sexes, would impact on the way those principles are applied.


The facts of the case:

In Lawrence v Gallagher, the two men had been living together as partners since early 1997, and had entered into a civil partnership in December 2007. The relationship was formally dissolved in 2009. They agreed that the case should be treated as if they had been in a civil partnership for nearly 12 years since the legal option was not open to them during most of this time, and they would have availed themselves of it if it had been.

Before they met, both men had bought properties in London; Lawrence's was significantly more valuable than Gallagher's, since he worked in the City and Gallagher was an actor. They later lived in Lawrence's flat, while Gallagher's flat was sold. With the proceeds and additional money from Lawrence, they then bought a large weekend house in the country.

The financial arrangements that the court was asked to address were not straightforward, but the total assets being considered amounted to about £3.8m. By family law standards, this gets the case into the 'big money' category, especially as there were no children to consider. There were two properties, two pension funds (one very large), some shares (which had not yet been awarded), considerable cash savings and some valuable items. The men were also both working, with Lawrence earning considerably more than Gallagher.


The legal principles which applied:

The relevant legal principles for separating civil partners are set out in Schedule 5 of the Civil Partnership Act 2004. Paragraph 21(2) sets out 8 factors to which the court must give particular regard, and it is well known from the equivalent divorce cases under section 25(2) of the Matrimonial Causes Act 1973 that the overriding objective is to achieve a fair and non-discriminatory outcome, with all contributions to a family's well-being presumptively valued equally (see White v White). This overall objective takes into account three broad principles (see Miller v Miller; McFarlane v McFarlane):

1. meeting the parties' needs (generously interpreted)
2. compensating one party for losses incurred for the benefit of the family overall (such as giving up a career to look after house and home)
3. equal sharing of family assets

The decision in the High Court:

In the High Court, Mrs Justice Parker heard the case and gave a 'reserved' judgment (meaning that she went away to think about the case and write her judgment over a few days, rather than giving judgment immediately the hearing ended). She decided that Gallagher should get about 45% of the assets, totalling £1.6m. This included the country house, part of Lawrence's pension, a lump sum of £577,000, and part of the share value once it was obtained. Lawrence appealed to the Court of Appeal.


The appeal to the Court of Appeal:

The important thing to know about appeals in family law cases is that the Court of Appeal is supposed to have a very limited role. The appeal is not a second bite of the cherry for a litigant unhappy with the decision of the first court. The rule is that the Court of Appeal may interfere only where one of the following things has happened (see, eg, Piglowska v Piglowski):

• the judge failed to apply the correct law;
• the judge made findings of fact which were unsupported by the evidence which make the outcome untenable;
• the judge applied the law to the facts in a way which was "outside the generous ambit within which reasonable disagreement is possible".

Moreover, it is important that the Court of Appeal not assume too readily that the judge made 'sloppy' errors. As Lord Hoffmann explained in the Piglowska case:

"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. ... These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [which are identical to those applicable in the Lawrence case]."

So what did the Court of Appeal have to say about Parker J's decision in Lawrence v Gallagher? At para 19 of the appeal judgment, Lord Justice Thorpe described her judgment as "careful and conscientious", as referring "very fully and conscientiously" to the relevant authorities, and as "conscientiously apply[ing] the s.25 criteria".

This is high praise, though not surprising. High Court judges are the most experienced family court judges, well used to cases that are both factually and legally complicated - that is their job - and Parker J is widely regarded as a no-nonsense judge. Despite all this, the Court of Appeal interfered with her decision. So let's look back at the three reasons why the Court of Appeal is allowed to interfere:

Did Parker J make a mistake about the law? Clearly not.

Did Parker J make mistakes about the facts of the case? Well, yes, apparently she did make a few small errors, but Thorpe LJ was clear that "that neither individually nor accumulatively would they justify success" for Lawrence in his appeal (para 26).

So it must have been that Parker J made a decision which was "outside the generous ambit within which reasonable disagreement is possible"? Well, it's hard to see how. Let's look at the reasoning.

Thorpe LJ agreed with Parker J that Lawrence should get the London flat and Gallagher the country house. He agreed with her that there was then a need to give Gallagher something more to reflect the facts that (a) the flat was worth more than twice as much as the house, and (b) Lawrence had a much higher future income than Gallagher. (So far, so good for Parker J.)

Then we reach the crux of the case. Thorpe LJ criticised Parker J for not explaining more fully where the sum of £577,000 came from, on the basis that "the route that the judge chose to arrive at a fair outcome, followed too theoretical a map" (para 48).

What?! The Court of Appeal interfered with the discretionary judgment of a highly experienced High Court judge on the basis that she thought about the facts too theoretically in order to achieve a fair outcome? This judgment smacks of Court of Appeal judges doing precisely what Lord Hoffmann told them they were not allowed to do in Piglowska, namely "substitut[ing] their own discretion for that of the judge by a narrow textual analysis which enables them to claim that [she] misdirected [her]self". There was simply no basis for this interference by the Court of Appeal.

The end result was that Gallagher's original £577,000 award was reduced to £350,000, and the division of the shares was removed from the equation entirely.


Discussion:

There are two things to might be said about Lawrence v Gallagher. The first is that it is a little disappointing to see the Court of Appeal concluding the first post-civil parntership case by making the outcome less equal and giving more of the assets to the person with the high-paying job. The whole point of the post-marriage cases is that earning wages is not meant to be more valuable than contributing to family life in other ways. Homosexual couples are no different from heterosexual couples in this way - each brings what he or she can to the relationship - and there is a slightly mercantile feel to the Court of Appeal's judgment that leaves an unpleasant taste in the mouth.

However, that feeling is somewhat lessened by the second point worth noting, namely that this case looks like so many post-marriage cases. It is yet another example in a long list of the Court of Appeal interfering with trial judges for no legitimate reason in order to advance the interests of high wage-earners against their less well-paid former partners. Usually this works to the advantage of working men against their child-raising former wives, but Lawrence shows those principles to be annoyingly universal. 

It looks as if the Court of Appeal judges just can't help themselves. They see a decision that is not what they would have done, and they have to interfere - even though the law is, precisely, that they are not allowed to interfere on that basis. In the Lawrence case, the Court of Appeal changed Parker J's original division of 45/55 to a final division of 40/60. Parker J got the law right, and she made no material errors about the facts - so the Court of Appeal must be trying to tell us that, when the 'right' outcome was 40/60, it was not reasonable for Parker J to think that 45/55 was right?

Come off it. This was an experienced judge who thought about the case carefully and got the law right, and there was no legitimate justification for this appeal to be allowed.

Despite all that, there is no reason to think that Lawrence v Gallagher implies some different approach to civil partnership cases from marriage cases. In fact, it's business as usual - appeal judges sticking their oars in without justification. As Supreme Court Justice Lady Hale said in 2006, and as Lord Wilson repeated just 2 weeks before the Lawrence decision, the Court of Appeal's approach has the effect of "robbing the trial judge of the discretion entrusted to [her] by the law". It's certainly hard not to think that Parker J was robbed of her discretion in this case.

The title of this post was inspired by Jo Miles, Fellow of Trinity College Cambridge, but
she bears no responsibility for the views expressed here, which are mine alone. A fuller
version of the post has since been published in the Journal of Social Welfare and Family
Law, available here: http://www.tandfonline.com/eprint/H7aIPuZs27N2ePVrc7eW/full