Looking back at the Ancillary Relief Procedural Scheme | Part 6 - Rebecca Bailey-Harris

REBECCA BAILEY-HARRIS

Then: an academic, Professor of Law at the University of Bristol. Joined the Ancillary Relief Advisory Group in July 1995.

now: Barrister at 1 Hare Court. Bencher of Inner Temple

When I had the honour to be invited to join the Ancillary Relief Advisory Group in the Summer of 1995, I had been in England less than a year since my return from almost 20 years as an academic in Australia. I came back because of the needs of my elderly parents who lived in Bristol and I was fortunate to secure appointment to a chair at the University of Bristol. Stephen Cretney had recently moved from the University of Bristol back to All Souls College. No successor could aspire to be a true replacement.

Stephen and I were invited to strengthen the Group by providing academic perspectives. Stephen was the greatest family law scholar of his generation. His publications throughout his academic life were incomparable, from the classic text Principles of Family Law to articles of matchless erudition combined with elegance and wit such as “The King and the King’s Proctor: The Abdication Crisis and the Divorce Laws 1936” which was published in the Law Quarterly Review in 2000. Stephen was my academic mentor and taught me the importance of an historical perspective on family law: only by appreciation of the contemporary societal context of legal rules can we assess their quality and envision the future of reform. Stephen wore his brilliance lightly and was an approachable as well as inspiring teacher. In public fora he often ventured to state that he had little to add to the debate and then contributed the gem. This was true of the Ancillary Relief Advisory Group: Stephen had a profound understanding of the wider social implications of the procedural reforms which were being advocated. Further, ancillary relief (as it was then called) was one of his areas of specialisation. While a Law Commissioner he was a major contributor to The Financial Consequences of Divorce (Law Com No 112, 1981). That Report recommended amendments to the Matrimonial Causes Act 1973 in three fundamental aspects of public policy: the removal of the “minimal loss principle”, making the interests of children “an overriding priority” and emphasising the objective of “a smooth transition from the status of marriage to the status of independence”. The reforms were effected by Part II of the Matrimonial and Family Proceedings Act 1984 and the rest is history. All these distinctions Stephen brought to the Group. I was invited to join the Group partly to provide a perspective from Down Under. My arrival in Australia had coincided with the Family Law Act 1975 (Cth) and the establishment of the Family Court of Australia. No-fault divorce was introduced and a specialist court created, with a strong emphasis on conciliation and early settlement of family disputes. Although I never practised in Australia, I benefited from the association between academia and the practising profession and judiciary which at that time was closer than in England.

I vividly recall my excitement in travelling up to London from Bristol (by Great Western) to attend meetings of the Group. I must confess to an initial degree of trepidation because of my lack of professional practice experience, but this was quickly dispelled by the collegiate and welcoming atmosphere. I recall not infrequent convivial refreshments at the conclusion of meetings. I made firm friends and the experience undoubtedly contributed to my subsequent decision to move from academia to practice at the bar. 2000 was the year in which the new procedure was implemented nationwide and the year in which I began my pupillage at Mitre Court. Here too, the rest is history.

That Stephen and I regarded the procedural reforms of great importance is reflected by the account of the Group’s work which first appeared in the seventh edition of Principles of Family Law which we co-authored with Judith Masson. The account appears in the chapter on the financial consequences of marital breakdown under the heading “Facilitating Settlement”. It describes the objectives of the reforms and the history of their implementation. Thus the Group’s work was revealed to law students.

Times have unsurprisingly changed over 25 years, in some ways for the better and some ways for worse. The just disposition of financial remedy cases has been enhanced this year by the creation of the Financial Remedies Courts. Developments in Australia provide a stark and dire contrast. Controversial legislation has now been passed effectively abolishing the specialist, stand-alone Family Court and collapsing it into the generalist, under-resourced and over-burdened Federal Circuit Court. The merger proposal was widely opposed over three years by family law practitioners and by judges both present and former, including former Chief Justices the Hon Elizabeth Evatt and the Hon Alastair Nicholson. To no avail. Back home in England, Dame Margaret Booth’s concerns about disproportionate costs voiced so tellingly in Evans v Evans more than thirty years ago regrettably ring true today. What is the solution? Reform of the rules to introduce cost-capping may appear unlikely given vested professional interests, but there is a more subtle but deadly weapon in the judicial armoury. There are clear signals that judges in the Financial Remedies Courts are being encouraged rigorously to enforce FPR PD 28A para 4.4 by imposing severe costs penalties on those who fail to negotiate reasonably, and furthermore to publish their judgments. This may signal the demise of the dogged pursuit of wholly exaggerated financial remedy claims.