A glance at Lady Hale and her impact on family law

On 2 October 2017, Baroness Hale of Richmond will succeed Lord Neuberger of Abbotsbury as President of the UK Supreme Court. Deputy President of the Supreme Court since June 2013, Lady Hale was the first woman in the Supreme Court, and at the time of her appointment, the Court’s only family law specialist. She has played a major role in the introduction of statutory law in her previous role as a law commissioner, including the Family Law Act 1996 and the Mental Health Act 2005 and had a profound influence on caselaw.

In a highly important step for the UK judiciary we will see the first female president of the UK Supreme Court as well as the introduction of it’s second female judge, Lady Justice Black, also specialised in family law. Her presence alongside Lord Wilson, a former matrimonial finance practitioner, and Lord Hughes, who sat in the Family Division of the High Court, gives the nation’s highest court a strong flavour of family law.

As we await her succession we consider Lady Hale’s role in the development of family law.

Re D (Contact: Reasons for Refusal) 2 FLR 48

Lady Hale’s first important decision was a children case concerning a couple who had never been married or co-habited. There were allegations by the child’s mother (M) that their father (F) had acted violently towards her and therefore the mother was refusing to let the child and father have any contact. F appeal to the Court of Appeal following the refusal of his application for a contact order by a lower court judge. F’s appeal failed, with Hale J (as she was then) finding the M’s fear was genuinely held and it did not matter whether or not it was well-founded. This case established that where a parent could have genuine and rationally held fears for the child or the parent him/herself, this was enough to refuse contact. The assumption that a resident mother’s objections to contact are without justification is implicit in the term ‘implacable hostility’ that is often applied to describe a mother’s attitude. However, it is now accepted that a resident parent is not necessarily being irrational or vindictive if she opposes contact. This case recognised that domestic violence towards a child’s mother can be damaging to the child.

Stack v Dowden UKHL 17

This House of Lords case concerned a co-habiting, but unmarried couple who purchased a property together in joint names, but failed to specify the entitlement of the beneficial interest in the property. The majority of the £190,000 purchase price had come from Ms Dowden, with her contribution amounting to £167,000 plus the payment of all utility bills. Mr Dowden had contributed £27,000 in mortgage payments. The parties had separate finances throughout their relationship, however, Mr Stack brought an action for the sale of the property and an equal share. The House of Lords established that the starting point for determining beneficial interests where the legal title was held jointly is that beneficial interest will also be held jointly. This presumption may be displaced where there is evidence that this was not their intention. Baroness Hale (as she was then) held that that:

“In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection. At the end of the day, having taken all this into account, cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.”

This case was very significant in the law of co-habiting couples as it broadened the scope for deviating from the strict legal terms of ownership of a property. The court held that factors other than financial contribution may be relevant to deciding what the couple understood their shares in the property to be. The court was particularly swayed by the fact that Miss Dowden and Mr Stack had kept their finances rigidly separate during the course of their relationship.

Lady Hale further impacted the law for co-habiting couples in the Supreme Court in 2011 in Jones v Kernott. Though the court reached a unanimous decision that the property, despite being conveyed equally into joint names, should be held 90:10 in favour of Miss Jones, the judges differed in their reasoning. Lady Hale, with whom Lord Walker agreed, suggested:

“The following principles apply: (i) the starting point where a family home is bought in joint names is that they own the property as joint tenants in law and equity; (ii) that presumption can be displaced by evidence that their common intention was, in fact, different, either when the property was purchased or later; (iii) common intention is to be objectively deduced (inferred) from the conduct and dealings between the parties; (iv) where it is clear that they had a different intention at the outset or had changed their original intention, but it is not possible to infer an actual intention as to their respective shares, then the court is entitled to impute an intention that each is entitled to the share which the court considers fair having regard to the whole course of dealing between them in relation to the property; and (v) each case will turn on its own facts; financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended or fair .”

R (Gentle & Or) v The Prime Minister & Ors UKHL 20

In this case the House of Lords refused an application brought by the mothers of two dead soldiers for an independent inquiry into the Iraq War on grounds of Article 2 of the European Convention on Human Rights. Lady Hale was the only member of the Law Lord who the applicant mother’s felt empathised with their position. Lady Hale herself put this down to her training as a family law judge:

“We bring a different dimension because of our different judicial experience – rather than passing judgment on the past we have been trying to rebuild shattered lives for the future. We are bound to pick up a concern for the vulnerable and defenceless.”

We look forward to her extending this wisdom and empathy into her term as president of the Supreme Court.