Fifty years in family law: Staffordshire University Law School’s Annual Family Law Conference

Family Law|March 27th 2012

I visited the Staffordshire University Law School’s Annual Family Law Conference this weekend. It is a jewel of a day and is always brilliantly chaired by Dr Sue Jenkinson, whose own achievements in the face of adversity I have previously featured on this blog. This year, the conference was dedicated entirely to Stephen Cretney, FBA QC. An Emeritus Fellow at All Souls College, Oxford, Stephen has served the family law field in this country with distinction for more than fifty years. And during that period many developments in the law have taken place for which he was directly or indirectly responsible.

Educated at a secondary school in Cheadle Hulme, Manchester, followed by Magdalen College, Oxford, Stephen Cretney entered practice as a solicitor in the City of London. Soon after, he decided to change direction to become an academic lawyer, securing appointments in Kenya, Southampton, and as a Fellow and Tutor in Law at Exeter College, Oxford. Between 1978 and 1983 he became a Law Commissioner, responsible for the Law Commission’s family law programme.  On leaving the Commission, he became Professor and Dean of the Faculty of Law at Bristol University, and in 1993 was elected Senior Research Fellow at All Souls College. He has also served on a number of official committees dealing with the prison system, the administration of family law, judicial training and legal education.

Not only as a Law Commissioner, but also as an author, Stephen Cretney is the acknowledged leader in his field. Every family law student will at some point have come across his textbooks. His work entitled “Family Law in the Twentieth Century: a history” was described in The Times Literary Supplement as “the book of the century” and writing in Family Law, Lord Justice Munby observed that “this was a truly remarkable book…of consuming interest…to everyone who seeks novel and illuminating insights into the social and political history of the last 150 years. It is a staggering and triumphant achievement.”

All of the academic speakers at this weekend’s conference are contributors to another book, which is hot off the press. Launched at the conference, it is entitled “Fifty years in Family Law: Essays for Stephen Cretney” and is edited by two leading figures in the field of family law, Professor Rebecca Probert and Professor Chris Barton.

Together with Dr Sue Jenkinson – another contributor to the book – Chris Barton is one of the stalwart supporters who have made the conference what it is today. As is Lord Wilson of Culworth, a Supreme Court Judge who has written the foreword to the book. Other contributors attended simply as members of a distinguished academic audience. In fact, looking around the room, there was a virtual galaxy of the best known academics in the family law field. And they were all so strikingly friendly and normal. Of course, inside they all possess fiercely intellectual brains – as became apparent as each took their turn to speak.

Professor Rebecca Probert of the University of Warwick started  off with “Fifty years in Family Law”. She gave a fleeting but truly fascinating insight into the radical changes that have occurred in society and morality over the last fifty years and the approach of the law, which is often assumed to be trailing in its wake, trying to catch up. This was followed by “Openness and Transparency in the Family Courts”, a full on, no holds barred speech delivered by Mavis Maclean of the University of Oxford and a research consultant at the Ministry of Justice. This is a topic that evokes understandable emotion; while political debate on the subject may have died down, it still wages on in the field. She was involved as an adviser between politicians determined to see openness, and lawmakers concerned to protect the parties and the professionals involved. For what it’s worth, my view is that public courts, making the immense and often irrevocable decisions that they do, should be transparent but with protective safeguards in place for children. Expert witnesses give evidence in public in criminal cases which is subject to public scrutiny.  In private law cases, I think the parties should always be entitled to anonymity, even in the Court of Appeal where they are currently not.

The last speech before lunch was delivered by Professor at Cardiff University and editor of Family Law, Gillian Douglas, entitled “Simple Quarrels”. The title of a book written by Stephen Cretney in 1994, Professor Douglas looked at the two potentially competing factors of autonomy (free will) and vulnerability (often protected in law by a paternalistic approach), which may conflict with each other in matrimonial property settlements. Autonomy, the right to make an agreement and be held to it, is currently a big issue in terms of upholding nuptial agreements. Cretney was boldly advocating autonomy and rejecting a paternalistic approach years ago, although he did not go on to consider the fairness of the outcome, which is now (and rightly) preoccupying current thought too.

After lunch came Professor Christine Piper with “Child focussed legislation: for the sake of the children?” Her speech pointed out that not all child legislation is actually in the best interests of the child. This was followed by Professor Sonia Harris-Short with “Holding onto the past? Adoption, Birth Parents and the Law in the Twenty-First Century”. This made a similar point, particularly regarding safeguarding the rights of birth parents in streamlined adoption processes, which may be coming soon.

The last fifty years in which Stephen Cretney has worked have certainly seen enormous changes in family law. In the 1960s, the patriarchal rights of fathers held sway, which is hardly the case today. As the years have passed, society, and law have dramatically altered. Fathers were the acknowledged heads of each household. Marriage was the norm, rather than the aspirational “gold standard” it has become today. A mother’s adultery with a third party would usually automatically disqualify her from caring for her children. Fathers were the accepted default custodians of their children. Spousal support was nowhere near as generous as it is today and child centred welfare legislation did not exist. In fact, if the judges of the 1960s were transported forward fifty years they would not recognise or understand the decision making of family law courts today, or indeed the law itself – with much of which they would clearly disagree.

Then came the 1970s and everything began to change very dramatically indeed. The decade began the rise in the number of children born to single parents, increasing numbers of cohabitating couples, declining figures for marriage and increasing numbers of couples divorcing. It also heralded new legislation making divorce easier, and divorce settlements fairer for women.  Listening to the speakers this weekend, I wondered how much of what has changed, due to a liberal attitude in today’s society, has been for the public good?  Has society – less religious, arguably far less moral and less committed to an intact family at all costs – gone too far? Are the families and our society of the 21st Century an improvement on the 1960s?

I suspect this debate will continue at All Souls College on 20th April when the book has its Oxford launch, with panel speakers at the event including  Baroness Deech, Baroness Butler –Sloss, Baroness Hale and Professor Sanford Katz – who has contributed a chapter on American family law for the same period. I have an invitation to attend this event and I am looking forward to it immensely.

Back to the Staffordshire conference, if I have a criticism of the weekend’s academic speeches, I would say it struck me that much of the content was viewed from a feminist perspective, there was an underlying assumption that all women and their children are vulnerable and in need of protection. Academics are however only arguing their opinion, and as they are not practitioners, how can they be so certain they are right? Where was the other side of the coin? Women can be vulnerable, yes. But so can men. The assumptions made at the conference, particularly in relation to domestic abuse seemed to discount this possibility. Women can be abusers in many different guises. They may appear as sweet as a daisy yet underneath they are far from it.

I once had a similar argument with Baroness Deech, another contributor to the book, with whom I had a debate a couple of years ago on Woman’s Hour. I didn’t agree with her points because my practical experience of the issue at hand (law reform for cohabitants) was so vastly different to her opinions as an academic. While academics formulate law and social policy, practitioners carry it out and know how it works in its intended setting, with real people. Therefore, we are the first to become fully aware of its deficiencies and injustices.  And so surely our opinion counts too?

Academics seem to forget there are practitioners out there. No practitioner has contributed to the book, which is a pity. Perhaps next year, Staffordshire University might consider having an observer from “the coalface” (although may I add, I don’t mean me! ) I was more than happy to relax, listen and think about the subject matter at hand.

The conference would not be what it is without the participation of two stalwart supporters: Professor Chris Barton, who sits almost anonymously in the audience as though it has nothing to do with him (when it absolutely has!), and Lord Nicholas Wilson, who ends the conference with his “View from the bench” Contributing from the audience, he suggested a fascinating idea: a study of how judges may have shaped decision making in family law over the last fifty years. He gave examples starting with Lord Denning, Lord Bingham and then Lord Justice Thorpe – he modestly didn’t mention his own not inconsiderable contributions!

Finally, I bought a souvenir of the day: the book! And as Ben and I used to do when he was a little boy and we visited Disney collecting the characters’ autographs, I whizzed round the room at lunchtime asking the contributors to kindly sign my copy of their book. They all did so with gusto and their inscriptions were wonderful.

Jens M. Scherpe of the University of Cambridge who gave me a sneak preview of his own book, which wonderfully launched today at the Supreme Court, sent me his good wishes, as did Stephen Gilmore of King’s College London. Simon Rowbotham of Cambridge, and now a pupil barrister at Deans Court Chambers Manchester, told me that he had been on a case in our Harrogate office recently. Professor Barton, clearly ever prone to exaggeration, wrote: “For Marilyn Stowe, my heroine of family law” and Professor Gillian Douglas wrote exactly what I asked her to write: “I think you are a fantastic lawyer!” However, the best came from Lord Wilson. He wrote: “Marilyn – a voice with such authority in the field of financial remedies”. My excitement was mirrored by the reaction of my niece Abby, a trainee solicitor at Mayer Brown, who when I showed her the book said: “OMG Aunty Mara! OMG!”

I’m sorry if this review seems overly long – there is actually far more I could have written. It was a challenging, thought-provoking day and a long drive each way over the Pennines, but without doubt, roll on next year. For all those family law enthusiasts willing to give up a day over the weekend, I cannot recommend a better way.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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  1. Joy Spence says:

    I enjoyed meeting you at the Family Law Conference and I am finding your thoughts upon the huge sphere of family law very interesting. It was a fabulous day.
    Best wishes,
    From Joy

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