Inherently Human: Volume 39

Snapshots of law, gender and sexuality news from the past couple of weeks.

Minister for Women Is Axing Feminism from A-Level Politics

Ella Dodd, Durham University

Nicky Morgan, education secretary and minister for women has drafted a curriculum dropping feminism from the A-level Politics syllabus. What’s more, the proposed new syllabus only features one female political thinker, Mary Wollstonecraft, heightening the ‘insulting and misguided’ actions of the Education department. This move has prompted individuals such as Jacquelyn Guderley to ask if feminism is removed from the syllabus, ‘how can we learn from them and progress? How can we be thankful but hungry for more?’

Perhaps the drafters of the change to the politics syllabus should read Mary Wollstonecraft’s first book, “Thoughts on the Education of Daughters”, which promotes female education and encourages mothers to teach their daughters. The removal of the feminist voice from the syllabus may mean the silencing of lessons passed down from generations before who struggled for equality.

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Inherently Brief: Volume 37

Snapshots of law, gender and sexuality news from the past couple of weeks.

Supreme Court Decides on Fraudulent Divorce Case

Catherine Ravenscroft, Durham University

On 14^th October 2015, the Supreme Court handed down judgement in the landmark case of Sharland v Sharland. This case concerned the division of assets upon divorce where one party, in this instance the husband, has fraudulently misled the court as to their future financial plans. Mr Sharland owned shares in a company which he told the Court he had no intention of selling. Mrs Sharland signed a consent order on the basis of this assertion. However, during the court hearing, it was discovered that Mr Sharland did indeed have plans to sell his shares, which would significantly affect the claim which Mrs Sharland advanced. She appealed to the Supreme Court on the basis that the consent order should be sealed. It was unanimously held that ‘fraud unravels all’ and the consent of Mrs Sharland was found to be vitiated by the fraudulent behaviour of her husband. The consent order was, thus, set aside.

The importance of this decision is to be found in its consequences. The decision of the Supreme Court has allowed Mrs Sharland to return her claim to first instance and have its value reconsidered by the courts. Although the full significance of this decision may not be felt for some time, it appears to create significant scope for the re-opening of divorce settlements on the basis of fraud. In contrast, there are also concerns that this decision may open the floodgates to couples attempting to revisit divorce agreements.

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A Ms Justice in the high court

 Erika Rackley, Durham Law School.

This post was first published in the Guardian on 22 May 2014.

 

What’s in a title? For Alison Russell QC, the first high court judge who will be formally addressed as Ms Justice, quite a lot it seems. Good for her, and good for the judiciary too. Though the use of Ms is hardly something new, feminists have been grappling with its meaning and significance for a while now. It’s about time the judiciary caught up.

Indeed, one might wonder whether we might do away with the gendered appendage to a judge’s title completely. Is it really necessary to continue distinguish between Mr, Mrs and Ms Justice Bloggs? Perhaps. One reason for doing so is that it reminds us that women can be judges too. When most of us think of judges we think first of (old, white) men. This presumption is problematic for a number of reasons, not least because it still fits the facts.

Just five years until the centenary of women’s admission to the legal profession, and almost half a century since Mrs Justice Lane’s ground-breaking appointment to the high court, men continue to outnumber women on its bench by around 5:1, and in the judiciary generally by about 4:1. Further up the hierarchy it is more than 25 years since Lady (then “Lord”) Justice Butler-Sloss’s pioneering appointment as president of the family division and just over a decade since Lady Hale joined the House of Lords (and the UK supreme court). Both remain the only women to have reached those positions.

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‘Uncomfortable truths’ and hollow victories: judicial pensions, Supreme Court appointments and diversity

Erika Rackley, Durham Law School

These are interesting times for judicial diversity. In the same fortnight as public pension cuts hit judges’ pensions and the three vacancies on the UK Supreme Court are filled, Lady Hale – the first, and so far only, female Supreme Court Justice – turned her attention to a number of ‘uncomfortable truths’ about judicial diversity including the (oft-unspoken) fear, that ‘a radical increase in the number of women and BME judges [would] lead in time to lower pay, lower status and ultimately to a less able judiciary’. (You can read her lecture here and as reported in The Guardian here).

And yet, while this and other ‘demons’ were deftly slain by Lady Hale, it remains to be seen what effect the pension cuts will have on quality of judicial applicants and the status of the judiciary as a whole. But what of diversity? Will the change in financial benefits make any difference to the diversity of those opting to become a judge?

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White, Male and Middle Class – is a diverse judiciary a pipe dream?

Kate Malleson, Professor at Queen Mary, University of London and an Executive Committee member of the Equal Justices Initiative, which seeks to promote the equal participation of men and women in the judiciary in England and Wales by 2015.

This week saw further discussion of the proposed changes to how judges are appointed in the Crime and Courts Bill 2012 (here and here). In this paper, delivered in response to a lecture by Sir Stephen Sedley at Mansfield College, Oxford earlier in the month, Kate Malleson asks whether a diverse judiciary is still a pipe dream?

Twenty years ago, around the time when I first became interested in the issue of diversity in the judiciary, the Lord Chief Justice, Lord Taylor said:

‘The present imbalance between male and female, white and black in the judiciary is obvious…I have no doubt that the balance will be redressed in the next few years…Within five years I would expect to see a substantial number of appointments from both these groups’.[1]

As we all know, that hasn’t happened. The judiciary remains largely white, male and middle class and it becomes paler, maler and more socially advantaged the higher up you go. England and Wales is not alone in this. This pattern is repeated around the world and in almost all liberal democracies is a cause of much scrutiny and concern. There is now a clear consensus, in many jurisdictions that, in the words of Lady Hale, ‘a diverse judiciary is an indispensable requirement of any democracy’ (p.2). Yet despite this, no democracy to date has achieved a genuinely diverse judiciary and in England and Wales there is no prospect that it will happen any time soon.

In the light of the intransigent nature of the problem, I want to put forward two arguments. First, that the issue of judicial diversity is inherently political and only a political commitment to change will bring it about. Second that diversity will bring problems as well as benefits and that we need to be much more honest about the implications of a more diverse judiciary.

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Inherently brief: volume 12

Louise McGolpin

In a few words….

“I don’t think it’s a matter of time. People have been saying it’s a matter of time for a very long time”

– Lady Hale is scrupulous in her call for diversity on the bench.

 

In a few more words…

Domestic Violence

The government is considering a “right to know” law in relation to perpetrators of domestic abuse. The proposals are a flawed response to the issue, however. Victims in domestic abuse cases may be open to blame if it can be shown that they either found out and ignored a partner’s past violent record, or indeed if they shun the option at the outset of the relationship. The onset of domestic violence is known to be incremental in the majority of cases, with incidents increasing in frequency and severity over the course of a relationship. Such history may lack meaningful corroboration in a victim’s experience at the start of a relationship and the mechanisms that hamper that victim’s inability to escape their abuser are not solved by the mere knowledge that their situation is history repeating itself. Furthermore, an abuser who had reformed may be inhibited in his or her ability to enter into relationships in the future by the restrictions that such a tool would carry. Enabling local authorities to effectively police and support domestic violence incidents, along with an appropriate response from the courts, would have far more significance than this proposal.

A council has been found vicariously liable for the harm suffered by four child victims of domestic abuse and ordered to pay £320,000 damages. Judgment was handed down in the case of ABB & Ors v Milton Keynes Council [2011] EWHC 2745 on 24 October 2011; the case is notable because

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The Gender Dimension of Prenuptial Agreements: Radmacher v Granatino [2010]

Andrew Hayward

(Durham Law School, Durham University)

The Supreme Court recently handed down a landmark decision in Radmacher v Granatino [2010] UKSC 42. The eagerly awaited ruling grappled with one of the hottest current debates in family law namely the enforceability of prenuptial agreements in England and Wales. From the late 1990s, the issue of prenuptial agreements has been perplexing the lower courts in this jurisdiction and their indeterminate status generated numerous calls for reform. Thankfully this has now been answered with the Law Commission investigating the various forms of marital property agreements. Yet whilst we await the Law Commission’s Consultation Paper, the Supreme Court on Wednesday 20^th October 2010 provided a significant ruling which arguably represented the most important family law case decided by the Supreme Court and the most significant judgment dealing with ancillary relief matters since Miller v Miller, McFarlane v McFarlane [2006] UKHL 24.

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