Professor Rosemary Hunter is a lecturer in family law, jurisprudence and legal theory as well as being a specialist in socio-legal studies and gender at Queen Mary, University of London.
She is a fellow of the Academy of Social Sciences, the Chair of the Socio-Legal Studies Association (since 2011), a founding editor of the online open access journal [email protected], and one of the General Editors of the Oñati International Series in the Sociology of Law.
Professor Hunter kindly took time out to discuss what it’s like to be a legal intellectual rather than to practise, Australian family law, pronouns and judicial equality.
First things first: Can you tell me a bit about your background and what brought you to the law?
Goodness. Well, I don’t have any family connections or any contacts of people in law. I grew up in Australia, in Melbourne. I went to a school that was academic and expected people to go to university and expected them to be doctors or lawyers and I certainly didn’t want to be a doctor. And I didn’t at that stage think of being a lawyer, I just wanted to do an arts degree and that’s what I started out doing. I took a gap year and travelled and did all sorts of other things, and then at the end of that I literally woke up one day and decided that I wanted to do law. It felt as if it was out of the blue although obviously a lot of my experiences and background and so on must have filtered in at some point and led to that decision. So I swapped over. In Australia people often do joint undergraduate degrees…so I did an arts and law degree which was a combination.
Is it like a major/minor system like in the US?
Not really, it’s actually doing both, which takes forever! It’s five years, or six years if you do an honours year in arts. I had a wonderful time being as student, it was great. I really didn’t want to stop being a student which is probably why I became an academic.
Ah, my next question was going to be why did you decide to become an academic rather than to practise?
So I studied law and I hated it. I really, really hated it. I found it boring and depressing and dispiriting because I worked out pretty quickly that there was a difference between law and justice and that we were there to learn about law and not to care about justice. But I was doing my arts degree as well and I much more enjoyed doing that which was in history and English literature, so I mostly hung out in the arts faculty and turned up to my law classes and tried to stay awake, and turned up to the exams and tried to pass.
I took a couple of years out to do my honours in history and then I thought “well look, I’ve sat all those exams in law I might as well make it worth something”. So I went back and finished my law degree and in those last couple of years I started to do some optional modules and I found subjects that I was interested in: I did labour law and human rights and law and society and I got to write a dissertation. So at that point I thought “I’m actually starting to enjoy it” and I had some good teachers and people who inspired me and allowed me to think about justice as well as law. So by the end of it I think I was interested in it but I was interested in it academically, and I really wasn’t terribly interested in the practical side of things.
I also wasn’t entirely sure how to become a lawyer because I didn’t have that kind of family background or really any of what Bourdieu calls social capital or cultural capital, that would carry me through into the legal profession, so I got a research job, then I ended up teaching and then it went on from there.
You’re not just a lecturer in law but also a specialist in socio-legal studies, which as I understand it is how the law is actually experienced by those who are not practising it – bridging that gap between the law and justice, as you say. In family law, do you think there’s a gap between how the law actually works and how the public thinks it works?
Oh definitely, absolutely. And that’s one of the things we’re always dealing with in teaching family law is that students come in with a set of preconceptions about how family law works and then you have to try to dispel those preconceptions and give them a more informed view about how the law works and what it says. Sometimes we’re successful and sometimes we’re not.
It’s been actually made a little bit more difficult by that book that Ian McEwan wrote called The Children Act. It’s not about family law, it’s about children’s rights; it’s about a child who refuses a blood transfusion. This year, in the first tutorial, you go round and say “why did you choose to do family law?” and someone says “I read and I was really inspired” and I have to say “well, I’ve got some bad news for you: I think we’ll be spending about ten minutes on that particular issue.”
It’s more public law isn’t it really, or medical ethics. It’s not family.
Yes it is medical law but it’s children’s rights and the extent to which children under the age of 18 can consent and their consent be accorded respect and so on. So you could call it children’s rights but it’s certainly not family law.
Mr Justice Mostyn has just said that the book has the wrong title. He enjoyed the book, but it’s got the wrong name.
Exactly, that’s right.
How does English family law compare to Australian family law?
I’ve actually studied family law in Australia and America and in England, because I did my graduate study at Stanford and I did family law as part of that as well. Australian and English law are quite similar, so it’s really the details that differ. There are some respects where I think that English law is actually better: so I think that English matrimonial property law is much better than the Australian one – the emphasis on equal sharing, needs and compensation and so on I think is a much better framework than the Australian one which is still very fixated on contributions.
But then there are things about English law that I find completely baffling. So domestic violence: the fact that there are different rules for getting an occupation order if you’re married or cohabiting, just doesn’t make any sense at all to me, or that you have to have a separate thing called an occupation order which is different from a non-molestation order and harder to get and all those kinds of things. So in Australian law, you go to court, there’s one kind of order – it’s called an intervention order – and you can have any conditions on it which might include: removing the perpetrator from the house and it’s not a problem.
And then also the distinction here between married and cohabiting property issues and the fact that if you’re a cohabitant you’re still subject to the tender mercies of equity – is really strange. But then, we have same-sex marriage here, not in Australia.
Do you think there should be greater rights for cohabitees?
Absolutely, I just think it should be the same: the marriage model should just be extended to everybody.
You’re an expert in gender and the law. There’s been another demonstration by Father 4 Justice recently where they got onto Royal property. Do you think family law in England is unfair to fathers, or has been?
No I don’t, I absolutely don’t. I think it’s very fair to fathers; I think it gives fathers an awful lot. And I think that the statistics speak don’t they – that in the vast majority of cases, even when you’ve got contested issues of contact, that contact will be ordered – it’s incredibly difficult to get a no-contact order. So, the notion that women always end up with residence – well, I suppose we shouldn’t talk about residence and contact any more, but child arrangements – the fact that the children often end up living with the mother is most usually done by consent and by agreement and that’s what people want, and again if it’s contested the fathers have equal chance of getting a shared care order which might not actually be in the best interests of the child. So I think that the courts bend over backwards to make sure that fathers maintain contact with their children. And if they don’t, then it’s because there’s a really serious problem.
I heard a lawyer suggest recently that these protesters may be shooting themselves in the foot because they’ve scare-mongered to the extent that fathers get divorced and worry that they’re never going to see my children again.
Yes it’s almost a self-fulfilling prophecy, isn’t it: people think that they’re going to be discriminated against in the family court, whereas in fact that’s not the case at all.
I wonder whether also it’s just the logical conclusion of stereotypical gender roles: that if during a marriage you’ve fallen into those roles, they’re likely to be perpetuated afterwards. Do you think that the shared parental leave laws that came into force in April 2015 will start to even out the division of labour?
I don’t, and the reason that I don’t is because in other countries that have had shared parental leave for an awful lot longer than we have, it hasn’t made that much of a difference. The gendered division of labour is so strongly entrenched, and it’s not just the gendered division of labour, it’s also the gendered valuation of taking time out to care for your children. So men might have the right to do it but they don’t take it because they know that they will be penalised in terms of their career prospects, that people who don’t demonstrate 100% commitment to work will not be promoted or will not be valued in the same way as people who do. So I suspect that it won’t actually make that much difference. There has to be more than just having shared parental leave, I think we need actual encouragement and demonstration that you won’t be penalised by taking it. I think in the Netherlands they have a really high rate of fathers working part time and taking parental leave and that’s perfectly accepted, but you need societal change at that level in order to make that possible.
There’s a trend, both here and in America, in family law firms specialising in ‘men’s’ or ‘women’s’ divorce and there’s now a charity called Maypole that’s specifically designed to help women through divorce and separation and there are various forums for men too. Do you think it’s a good thing for the legal and emotional support for family law matters to be divided along gender lines?
It’s hard. I think you need to acknowledge the fact that marriage and divorce are gendered experiences and that we live in a society that treats people differently according to their gender and you have to take those kinds of things into account. So if you’re dealing with a post-divorce situation you have to be aware of the fact that, women, for example, if they’ve been out of the workforce for a long time they’re not just going to be able to walk back into a job or a job that’s going to pay them enough to live on, or those kinds of things. So this notion about treating everyone as if they’re the same when they’re not is equally fallacious. But I’m not sure about specialising. I think you certainly need specialisation in things like domestic violence or children with disabilities or whatever it is, but I don’t know about polarising in quite the way that you’re suggesting. Because that then tends to essentialise. That then tends to say that all women are the same and all women have the same experiences, and all men are the same and all men have the same experiences, and I think we have to resist that.
I wanted to ask you about the judiciary. At the Law Society Awards back in October Baroness Helena Kennedy gave the keynote speech and there was a moment where she issued quite a strong rebuttal to Lord Sumption and his statements about female judges and equality – she clearly feels we should not be waiting around forever and should take positive action. And you and a colleague wrote a letter to the Law Society Gazette about the same issue. You’ve also lectured on the subject of judicial diversity. How do you feel about positive discrimination and quotas?
I’m in favour, I’m definitely in favour. I think we’ve sat around waiting for long enough really. And every new person who comes along says “It will be fine in five years. We just have to wait, we’ve just got to wait for the trickle-up. Women have been in the legal profession for almost long enough to be senior enough.” Well, they’ve been there for absolutely ages. There’s a much higher rate of attrition which makes it harder to get to the top, but there are plenty of good women out there who are perfectly suitable for judicial appointment. And this continually making excuses has just got to stop.
Do you find it quite difficult to convince people that it’s a good thing?
Yes, and it’s partly because people have such entrenched expectations. I think that people can see the way that the system works and so they expect to be able to get to a particular point. And then if you say, “well actually, we have to let some women in”, then they think: “I might have to wait longer to get my appointment!” And so it’s hotly resisted. I really like the kind of analysis that Kate Malleson and Rainbow Murray are offering which is about how we need to be focusing on men’s privilege rather than women’s disadvantage or discrimination. What possible basis could there be for continuing to have a system in which men are so grossly over-represented?
I think the reason that people are so resistant to the idea of quotas is because as soon as people hear that they start saying: “It needs to be about merit!” But that assumes that the system we have now is based on merit, when it’s not necessarily.
Yes, so number 1: we don’t have a merit system at the moment, we have a system of privilege, and if those men had to compete with women on an equal footing they might find it harder to get appointed. And number 2: that’s also assuming that there aren’t meritorious women out there who simply don’t apply because they think they don’t have a chance, or for whom judicial appointment is a really unattractive proposition and so you could be appointing them and they’re perfectly meritorious, but you might also have to do some other things about the institution like not having circuits, but having judges based in different parts of the country permanently; I know that’s one particular disincentive. And they’ve just been decimating judicial pensions which might well be putting some people off!
You mentioned the idea of gender essentialism earlier, and when it comes to family law there’s an incredible amount of judicial discretion and scope for a wide interpretation for the law. Do you think that the gender of a judge plays a role in how they might do their work without bringing gender essentialist ideas into the equation?
Yes, we can’t assume that women will judge in a particular way and men will judge in a particular way. And I would hope that all judges were sufficiently socially aware and informed and educated to be conscious and reflective about their own biases and their own preconceptions. But we know that they’re not. And in that situation we also know that a judge’s personal experience is going to affect the way that they interact with the people in front of them. So a female judge might have more understanding about the decisions that a woman is making or a woman’s particular experience than a male judge might and vice versa; I think that’s almost inevitable.
But I think also that one of the benefits that you get from having a more diverse judiciary…so if we’re looking say at the lower levels of the judiciary – I did a big judicial training thing over the last year or the year before about the new child arrangements programme and particularly about dealing with litigants in person – and we talked to all 1300 family judges: district judges and circuit judges. It is a very mixed group, and I suppose the benefit of that is that it’s not just who the judge is who’s presiding over a particular case but the fact that the judges behind the scenes talk to each other, and talk about how they dealt with cases and particular issues that came up, and others listen and say “I never would have thought about it like that”. But having that conversation is a really important way of expanding the realm of judicial experience.
I wonder if it’s difficult to pinpoint what exactly is a feminist judgment. Because one person might say for example “A big payout on divorce is supportive of women because it recognises their contribution to the marriage in looking after the children”. But then on the other hand you may have someone like Baroness Deech in the House of Lords who would say the opposite…
Yes, she would say: “that’s a terrible message to send!”
…because she wants women to be economically independent. I can see where both sides are coming from on that, but they’re two sides of the same coin.
I don’t think you could ever say that there’s a single feminist judgment. There might well be different feminist approaches to things. But in that particular situation, I would say that there’s a difference between encouraging women to be economically independent from the start, and maintaining their own income and not giving up work and all of those kinds of things; versus what you do with them when you’ve divorced and you have given up your income and haven’t worked for years and sacrificed everything for the sake of the family. You don’t then punish that woman for making the choices that she did. It’s the difference between making a judgment and having a policy.
You edited the book Feminist Judgments: From Theory to Practice, where a collection of lawyers rewrite various judgments. In the introduction to it you talk about divergent feminist approaches, and I wondered if you had any thoughts on orthodoxy in those sorts of discussions, and the idea of ‘no-platforming’ people who don’t conform to that orthodox way of thinking?
Well I’m in a difficult position there because I think people would see me as someone who has no-platformed other people! I object to the whole concept of ‘no-platform’ because the concept of no-platform to me is like the concept of political correctness. It’s a way of shutting up someone. So if you’re saying to me “no-platform”, that’s a way of not listening to the argument that I’m making. It’s just like “you’re politically correct” is a way of saying “I’m not listening to you, your argument has no credibility.” So I think that there are circumstances where it is appropriate not to give someone a venue or an avenue to repeat views that are known to be offensive and that will injure and distress people and make them feel inferior. And if that’s the message that’s going out then I wouldn’t be doing anything to encourage that. I think that speech has to be exercised responsibly.
Could you tell me more about the book Feminist Judgments, given that it’s been a few years now since the book was published in 2010. What you have taken from working on the book, looking back now, and is there anything you would change about it?
Yes there are a couple of things that I would change about it, although I think it’s been quite amazing the way it’s taken off in other parts of the world. We took the idea originally from the Canadians and then there was the English project, then the Australian project which has published a book. There’s an Irish project currently going on which is the Republic of Ireland and Northern Ireland together, there’s an International law project which is rewriting judgments from several international courts and tribunals, there’s an American project that’s just doing American Supreme Court cases, there’s a New Zealand project that’s just starting. So it’s really taken off as an idea around the world. And then there have also been a number of other projects that have taken the concept but rather than doing feminist judging have taken another philosophical approach. So there’s a children’s rights judgments project that is currently going on which is rewriting cases as if children’s views really mattered and there’s a wild law project which is rewriting cases as if the earth’s views really mattered – a sort of ecological project! I think it’s great the way this has expanded out and really captured people’s imaginations; that people have taken the idea and run with it in all sorts of different directions. And I think there’s loads of scope for more to be done: I’d love to see a post-colonial or a critical race theory version of it being done, a queer version and so on and so forth.
But what I would do differently about the English one…well I think that we did a pretty good job really! But a couple of things that would have been interesting to do that we didn’t think of at the time: the idea of having different people rewriting the same judgment. Again, just to reinforce that point that different feminists might have different points of view – and we did actually have some offers, some people offered to write the same thing and we said “no, no, we can only have one!” And actually I think we missed a trick there a bit and it would have been interesting to see two different feminists writing about the same case.
You could do a second edition…
Yes. And I suppose also it would have been nice to get more reaction from the judges. Baroness Hale was incredibly supportive of the project and a really good sport in terms of the fact that we rewrote several of her judgments and she was very gracious about that! But it would have been interesting to get more of a response, to have more of a dialogue around what we were trying to do and how that might change the way that people think about actually doing their job.
Speaking of Baroness Hale, how do you feel about prenuptial agreements?
Aha! I agree with her. I think that her point is absolutely well taken and it was confounded by the fact that it was a role reversal and it was the woman who was incredibly rich and it was the man who had given up whatever. But I do think that her point is that the whole point of prenuptial agreements is to reduce someone’s entitlements, is to diminish something that someone would be entitled to and it’s usually going to be the woman – it’s certainly going to be the one who’s in the less powerful financial position and that’s usually going to be the woman, and so I do agree with her dissent in that one rather than the majority.
Some have suggested that the majority judgment in Radmacher might not have gone the same way if it had been the man with the money as is usually the case. But I’m not sure about that.
I think that was certainly part of it, the fact that these men looked at this man and thought “here’s someone who should have looked after himself”. But that’s not the principle really; the fact is that for whatever reason he was left in a very poor financial situation. It’s also interesting that the trial judge in that case was Mrs Justice Baron – another woman who had found for him – and then Lady Hale in the Supreme Court, so it’s interesting the gender split in the judicial reactions.
Female judges can sometimes seem less sympathetic to women.
They can be, absolutely; they can be in the Ruth Deech camp, punishing you for making the wrong decisions.
In a lot of your research you’re taking an empirical approach, collecting and using data. Does a feminist approach to the law mean you have to rely a lot on anecdotal information? I ask because I often see that as something that’s levelled at feminist researchers; for example, in response to the Everyday Sexism project, detractors will come back and say: “that’s just anecdotal, show me some statistics”. Have you encountered that?
Yes right, that people are saying “well that’s just your opinion”. And I think the statistics are there to speak to that. Five people might make it up, 20,000 probably don’t make it up! Actually I think the opposite in some ways. I think that the conventional views are supported by anecdote and conventional wisdom and no evidence whatsoever – like the idea that it is universally beneficial for a child to have ongoing contact with both of their parents – well it’s not always. The research evidence doesn’t say that, the research evidence says: if it is safe, and it has a big caveat. So I think as feminists we’re very careful to try to use research evidence and rely on research evidence; and that’s in fact one the hallmarks of the feminist judgments is that they do bring in a lot of social science evidence and actual research to lay the ground or set the scene for the broader social context in which the case is occurring and try to give it that scientific grounding if you like, rather than just relying upon anecdote. I actually sometimes think that it’s the conventional position that’s more likely to rely on anecdote; the oppositional position is always being challenged to produce evidence and so we do.
Is that what you refer to as ‘judicial notice’, which I understand to be a sort of taken-as-read statement, or an understanding of something that’s deemed to be self-evident?
Right, so there’s two different things. So one is actually bringing in existing evidence and the other one is taking judicial notice of a notorious fact. And although I’ve argued that feminists can and do take judicial notice of feminist facts, that that does tend to happen a lot in those “all right-thinking people would think…” or “everybody knows that…” and often it’s not. Things like when judges say “these days most couples share the housework…” well, that might be your experience, but it’s not actually true. Or “women often work until they have children”. Well again, where are your statistics on that? “Lots of men work part time”. Well 89% of part time workers are women, so…yes I think the anecdotalism is much more likely to come up on the conventional side.
You worked on a three year project called ‘Mapping Paths to Family Justice’ which investigated different forms of dispute resolution. Do you think that ‘out of court’ options are the way forward for family law and should alternative options be signposted better?
Good question, because what we’re actually seeing since the LASPO Act is a great rise – well they did dip but they’re going up again – a big rise in C100s – the child arrangement applications in the last six months or so. So I think that the major problem with the LASPO Act is that it took solicitors out of the picture for people who would otherwise have been eligible for legal aid, who are now not getting advice about out of court options. And what solicitors used to do was see them, send them off to mediation, try to sort things out out of court, rather than going to court as a first resort, and people don’t necessarily know about the options now. So I think that’s a real problem.
What we ended up concluding from that project is that people need more information about what the options are and need to be given real choices. So they need to be signposted in the direction of what’s the most appropriate form of resolution, but given the choice about should I go to mediation or should I use collaborative law or would solicitor negotiations be better? But it’s very difficult to actualise that in a situation where some things cost a lot more and people don’t necessarily have the money, or the advice that people are being given is not very informed advice and so on.
How do you feel about male pronouns being the default in statute?
It drives me bonkers! It really drives me bonkers. And it’s also in contrast to Australia where they got rid of sexist language out of statutes. They say “he or she” or they say “they” or they avoid the use of pronouns. And that’s been in place for as long as I can remember, it was a really early feminist victory I think. They just started writing legislation differently – gender inclusively or gender neutrally – rather than men as the model of everything. And so it really grates on me. Especially when they’re talking about pregnant women and they say “he”.
Also in the practice of law, legal letters are addressed “Dear Sirs” even if you have a female dominated firm!
What do you say to people who take issue with the term ‘feminist’ and instead insist on saying something non-committal like ‘humanist’? There are people who say that if you’re talking about equality then you should be talking about all people.
Well a humanist is a respectable thing to be, but that’s not what I mean! It’s not equality in an abstract way, it’s equality in a gendered world, and so, I think you have to use the word feminist. I certainly am aware of the bad name that feminism has and I think that that’s very much a product of the way that it’s been constructed in the media and that is not an accident. Feminism is dangerous, it can actually change how things work and so obviously it’s going to attract opposition and suppression even, and I think there’s been quite an organised attempt both to dismiss feminism and to give it a bad name so as to discourage people from thinking about it, which is why I’m happy to use the term feminist and I’m very happy that people like Lady Hale are happy to use the term feminist, and I think that we have to reclaim the title and be proud of what that stands for rather than creeping around and saying “Oh I’m sorry…what I really mean is…yes I believe in all these things, but I’m not a feminist!” Well actually yes I am a feminist.
The High Court in Northern Ireland has just made a ruling that only allowing access to abortion in very limited cases is contrary to human rights. It sounds like a watershed moment but will this be a tough nut to crack?
It’s hard, that is a really tough one. And what women have to go through in Ireland and in Northern Ireland is just unspeakable. It’s terrible, both the fact that if you want to have an abortion you have to either have the money to travel to England or you can’t get one and even if you’re dying you can’t get one and just the horror stories, you wouldn’t think that in the twentieth century this would still be going on in a first world country. So I really hope that this decision will make a difference, but they need to put in place facilities for making safe legal abortions readily available. And if that’s not going to be through hospitals then they have to allow family planning clinics like BPAS to provide services and facilities and do all of those things. So it actually has to be available on the ground rather than just in legal theory.
If you could unilaterally enact one reform in family law, what would it be? And how about one equality law?
Hmmm. Oh gosh, I gave you my list of three at the beginning didn’t I? I would make it much easier to get occupation orders – I would just make occupation orders very much more readily available; I would enact cohabitation reform so that the matrimonial property regime applied to cohabitants with some qualifying period or definition of what counts that was a fairly low threshold; and I would repeal the section of the Children and Families Act – the presumption that they put in last year about both parents.
That might not be a very popular one…
I would also abolish MIAMS, and get rid of the LASPO Act, restore legal aid for family law… Shall I go on…?
So lots of things! What about one reform in equality law?
I haven’t done a lot of work in equality law lately so I’m not sure that I know what my one reform would be there. Well there’s a couple of things that come to mind, one of which would be to enact the provision in the Equality Act that the coalition government withdrew, the bit about class or social origin as a protected ground. And the other thing I would do with equality law is abolish the enormous fees for bringing cases to employment tribunals.
Finally…there was so much hand-wringing about Atticus Finch in the newly published Harper Lee book. Do you have a favourite fictitious lawyer or social justice campaigner?
Gosh. I don’t. I can say quite categorically that I don’t. Well, I read a lot of fiction but I read fiction as entertainment and as escape rather than as moral guide. So I don’t really have an exemplar as far as a fictional character’s concerned.
Or a real one?
I’m a big fan of Lady Hale. I think that she has done an incredible job, an incredibly lonely job. Just imagine what her life must be like: always surrounded by men, always being the only woman, always having to hoe that row and yet she keeps doing it, and she keeps coming out with really strong statements and lectures and being supportive and all the rest of it, so yes, I’m in her fan club definitely.
And how long do you think it will take for her to have a female companion in the Supreme Court?
I’ve got a very bad feeling that she’ll never have companion. I’m very pessimistic about that. I think that if there was political will to make it happen it would have happened by now and I think the fact that there isn’t political will means that it’s not going to happen. It’s difficult now with the Judicial Appointments Commission and the fact that it’s a really bureaucratic process for appointment to the Supreme Court, it’s in the legislation. But enough people – important people, powerful people – have got to want to make it happen and that’s just not happening unfortunately.