Friday, 31 August 2018

The Children Act - A lesson for lawyers





Criminal lawyers deal sometimes with terrible cases involving devastated lives and distressing evidence.  However I always say the family lawyers have it worse.  The reason is that even the worst criminal case that ever happened involved a past event.  Every day that passes is a day further away from that event.  The majority of family law cases involve an event that is unfolding around the judge and the lawyers - a divorce, a child at risk of serious harm, a child gravely ill.  In divorce cases the involvement of the lawyers can sometimes be a fuel to the flames; aggravating not mitigating the event.

As the Charlie Gard case so prominently demonstrated family law cases occasionally involve judges making life or death decisions.  That places an almost unique strain on a human being.  The tragic reality is that the judge in Charlie Gard's case did not have life in his gift.  The somewhat false dilemma at the heart of The Children Act is that Mrs Justice Maye (Emma Thompson) does.  I say false dilemma because it would be an extraordinary judge that would allow a child's death to weigh on their conscience by concluding that respect for that child's conscience should eclipse respect for that child's life.

I am a legal latecomer to reviewing this film, which in parts veers close to melodrama, and I have no interest in commenting on whether court dress was rightly or wrongly being worn except to say that the silliness of wigs always seems magnified on screen and that's before a High Sheriff in full fig makes an appearance.  Despite the heroine of the piece being My Lady not My Lord and some efforts at diversity in the court scenes this film is an absolute vindication for those that believe the law is the preserve of the metropolitan liberal elite.  A posh white judge living in Dickensian gloaming plays the piano to operatic accompaniment in her downtime.  

One thing I will say for any student of the law is that the film exemplifies my belief that it is far more important to do work experience with a judge (marshalling) than it is with a barrister (mini-pupillage).  Watching Emma Thompson scythe through her cases dismissing advocates in front of her brought a grimace of recognition.  What some might call brisk others might call peremptory and, a foolish few, even bitchiness.  To paraphrase 1 Corinthians 13 When I was a barrister, I talked like a barrister, I thought like a barrister, I reasoned like a barrister.  When I became a judge I put the ways of barristers behind me.  Know your judge, know her instincts, know her thinking then you're persuading not provoking

What really interested me about this film though were two lessons learned by 'My Lady' of application to all lawyers and judges everywhere.  The first is a simple lesson to articulate but on occasion fantastically difficult to put into practice.  There is a line between the professional and the personal.  Sometimes it's as obvious as the Great Wall of China sometimes as indiscernible as a white thread on a marble floor.  End up on the wrong side of that line and catastrophic consequences can ensue for you but, even more dangerously, for your client also.

The second lesson is the great missed opportunity of the film.  There are no spoilers in revealing that Stanley Tucci plays the judge's unhappy husband nor that they have no children.  Indeed this provides the backdrop and context for the events that unfold in court.  This part of the film makes it absolutely essential viewing for families, partners and spouses of barristers and judges.  It reveals a domestic strain that plays out for me and almost every barrister I know that is not a child, husband or wife of a barrister.

On a really fundamental level your family do not care how serious, how taxing, how agonising your case is if it is taking you away from them.  In the film the judge is dealing with literally a matter of life or death but all her (intelligent, insightful, caring) husband knows is that it is yet another brick in the wall built between them over 20 years.  

It is the great irony of the film that this formidably intelligent woman who cares and thinks so deeply about families reveals herself to have thought and cared so little about her own.  Like a Michelin starred chef eating McDonalds at home.  She castigates her husband for his obviousness yet does not acknowledge how clearly he signposted the jeopardy her professional focus had brought into their marriage and their home.

In this respect the second lesson is actually the same as the first.  There is a line between the professional and the personal.  If lawyers allow their personal lives to be drowned by their professional obligations they should cry no tears when their nearest and dearest make for the nearest lifeboat.

I know all too well the wrinkled annoyance writ large on her face at her husband's complaining that she is giving her focus to something that is genuinely objectively important but there is a very big diary out there containing the dates of all the weddings, funerals, school plays and family holidays missed by barristers and judges because they were up to their elbows in a case.  It's sometimes said that life is what happens when you're busy making plans: for us lawyers life is often what happens when you're busy making submissions.

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