Sir Andrew McFarlane was promoted to the Court of Appeal in July 2011, the most recent appointment in a meteoric career that began in the drama department of Durham University. As he explains in conversation with Family Affairs, his preferred activities at University involved drama, student politics and the church. Law seems to have been an after-thought and he is (probably) the only member of the current Court of Appeal able to boast of a third class degree. Beware the temptation, however, to assume that Andrew has a third class mind; his progress from provincial practice in the West Midlands to a glittering leading career at 1KBW, authorship of the leading text book on Child Law, a raft of committee appointments including Chairmanship of the FLBA, the High Court bench at 51 and the Court of Appeal at 57 bear testament to a distinctly first class brain with application to match.
Lord Justice McFarlane was called by Gray’s Inn in 1977, became an Assistant Recorder in 1995, took Silk in 1998, and became a Recorder in 1999, a Deputy High Court Judge in 2000 and a Bencher of Gray’s Inn in 2003. He was Chairman of the FLBA between 2003 and 2005, a period of intense political activity over fees and other changes in the structure of Family bar work (plus ca change!). He went onto the High Court bench shortly after stepping down from the FLBA chair in 2005, and became the Family Liaison judge for the Midland Circuit from 2006. He has been a long serving member of the Norgrove committee, whose report was presented earlier this year.
The term popular may be over-used in the context of judicial appointments but in Sir Andrew’s case it is entirely apposite. Our research (which, admittedly fell short of phone hacking) has come up with not a bad word about him – save from those who have had the misfortune or temerity to enter his court with an ill-prepared brief. We have heard a number of anecdotes about magic, his Tommy Cooper impressions (he was apparently once presented with a fez by his then clerk as a Christmas present!) and his love of Sherlock Holmes but none of this disguises a deep concern for family justice in the true sense of those words and a steely determination to see it achieved.
He spoke to Philip Cayford.
Q Congratulations on a very rapid rise to the ranks of the Court of Appeal. Did you expect to perform such a spectacular leapfrog?
Q How did it start? Were you an academic child, did you have a legal tradition in your family and why did you come to the Bar?
A I am sorry to have laughed during your question, but the idea that I had any academic interest at all when young would I suspect raise a grin amongst anyone who knew me then. My 3rd Class Hons in Law from Durham indicates that I spent many hours away from the Law Library and immersed in the theatre, the revue group and in student union politics during my time there.
There is no legal background in my family and I am the first member of my family on either side to have gone to university (so my 3rd put me well ahead of the relatives!). At school I was very interested in acting and debating. A wise hand steered me towards interest in coming to the Bar and indeed I signed up as a potential member of Gray’s Inn before completing A levels. At Durham the prospect of the Bar was kept alive and, having by then joined Grays, I carried on in that direction after graduation.
The aspects of life at the Bar which I now regard as placing it head and shoulders above most if not all professional experiences, being self employed, being part of a loose but close professional college in chambers and the ability to craft a career in your own way, were not known to me at that time. I suspect that I chose the Bar through a process of discarding any choices which involved commerce or industry, but at the same time positively favouring a career which valued working with words and standing on ones feet and spouting – the regular opportunity for dressing up must also have been a big draw.
Q Did you have a particular influence in your early legal career?
A Apart from my pupil master, Michael Mott, who remains a great friend and role model, the very clear influence on my career in the early years, and it is an influence which remains strong to this day, was the strong and positive ethos of the Birmingham Bar and, beyond that, the Midland and Oxford Circuit. The local bar was not much more than 150 in all and our small chambers (2 Fountain Court, from which Sir Stephen Brown had recently departed to the High Court bench) was no more than 20. Legal Birmingham was a close community in which high professional standards were prized and policed by the fact that everyone knew of everyone else and no one wished to be seen to step out of line.
Q In those early days in Birmingham, did you from the outset specialise in child law?
A No, not at all. I was in a ‘common law’ set and we turned our hands to all areas of the law. Indeed, prior to coming to Birmingham, I had undertaken a first six at a Chancery set in Lincoln’s Inn was thus willing (as opposed to able) to take on some of the more esoteric cases. My diet was largely crime and PI, interspersed with housing, employment, licensing, planning and low grade commercial cases. Within that broad basket of work, I undertook my share of matrimonial injunctions and straight forward A/R and private law family cases, but did not feel particularly drawn to the family work
Q How on earth did you end up as a specialist in children’s cases from that start?
A Whilst it was not quite a Damascus Road moment, I can very clearly recall a particular moment when the penny dropped that this work was both highly important, in human terms, and legally interesting. One morning I was unexpectedly sent up to Nottingham to act for a mother whose children had been summarily removed from her care on the issue of Wardship proceedings. With little time to look up the law and, as this was before Lowe and White’s excellent book on Wardship was published, little resource in which to look in any event, I could not believe that the state could simply walk into someone’s home and remove their children before giving them notice and allowing them to be heard in court. I assured my distraught client that this must be a mistake and that once I had explained all to the Registrar (ie DJ) he would be bound to put things right. How naïve could I have been. The impact on me of realising that, not only could this happen under the law, but that it was a fairly regular occurrence is hard to understate.
At around the same time, a local firm who used to instruct me on PI cases, were contracted to undertake all the contested adoption cases for Birmingham City Council and, because I knew the solicitor, he sent me this work. Again, I found both the profundity of the power of the adoption order, and the human stories behind the cases began to hook me in a way that no other area of legal work had hitherto achieved.
A final memory of around this time, is of appearing in the Birmingham Juvenile Court (where all the care cases were heard if not in wardship) in a case concerning ‘Brittle Bone Disease’. There I met a young consultant radiologist (Dr Stephen Chapman) who explained his opinion in such a way that even my non- scientific mind absorbed it and began a fascination with the content of medical expert testimony which is, for me, another major draw to these fascinating cases.
Once I became a family law regular, I also took on more and more A/R work so that my time was split almost 50/50, prior to the publication of ‘the book’, between the two.
Q You became widely known in the field of child law with the publication of Hershman and McFarlane – an immediate success and the practitioners’ bible from the outset. How did it come about?
A In short, the arrival of David Hershman in 2 Fountain Court, Birmingham. David was a very dynamic individual and he set about focussing on establishing a practice in child care and wardship, which by then I was beginning to regard as my own territory. Not content, as I was, with simply doing the cases, David soon decided to write an article for Family Law. I recently looked it up. It is at  Fam Law 399 and called ‘Access to Children in Care: Challenging the Local Authority’. It is in David’s own name and is said to be the ‘first in a series on child-care law’.
Any barrister who has perceived a fellow member of chambers moving onto ‘their’ patch will readily understand my thought process at this time. Suffice it to say that by the time the next two articles in this series were published in early 1988 the joint authorship of Hershman and McFarlane was firmly established in the byline!
Chuffed by the ease with which these three short pieces had been penned, we decided that a short book on care proceedings might be useful and within our capacity. We were great fans of a new book of personal injury damages which had recently been written by Iain Goldrein and Margaret de Haas, which broke the mould of legal texts by being practitioner orientated and clearly formatted. We also thought that Lowe and White on Wardship was superb. Our plan was to give the degree of focus of Lowe and White and the clarity of Goldrein and da Haas to the topic of Child Care proceedings in the Juvenile Court.
By the time our proposal had been taken up by Jordans, and Sir Stephen Brown had twisted the arm of his newest judge, Sir Alan Ward, to be our mentor, the Children Act 1989 was a Bill and it was clearly no longer relevant to write a book about child care cases in isolation. With Alan’s encouragement, and with absolutely no idea of the scale of what we were taking on, we readily acceded to the idea that as any court would now be able to make any order about a child, our book should cover the whole gamut of the new Act and, if we were doing that, why not bring in adoption, abduction and anything else beginning with A for good measure.
Our proposal was agreed. We each purchased an Amstrad PC and, although neither of us could type, we began tapping away in late 1988. The book was published on the day that the Children Act 1989 came into force on the 14th October 1991. Miraculously we had finished it and wonderfully we had remained on good terms with each other, forging a very close friendship that was to give me the greatest of pleasure in the years that were to follow until David’s tragic early and sudden death in September 2004.
Q You moved to chambers in London in 1993 when you were still a junior. How did you take to life in The Temple?
A I loved it. I had always wanted to practice in London, but had gone back home to the Midlands for family reasons. Obviously from what I have already said, I regard my 15 years in Birmingham as being of the greatest value. Had I not gone to Birmingham, I would probably still be in Chancery chambers and I would certainly not have become hooked on family law or met David, with all that was to follow. That said, the publication of the book spurred me on to wish to join specialist family chambers and, as I had written the section on child abduction, I particularly wanted to experience that work, which was just not available in Birmingham.
I was very fortunate that One Kings Bench Walk offered me a place and I became part of a very happy and hard working team, supported by a clerk’s room that I still miss to this day. At the same time as becoming involved in London work, I maintained quite a bit of the practice that I had had in the Midlands and I was therefore a very happy bunny.
Q You acceded to the Chair of the FLBA in 2003; what are your recollections of that two year period?
A Endless meetings with the civil servants over fees. Limitless admiration and gratitude for the FLBA Fees Team under the leadership of Pam Scriven, supported by Liz Lawson, James Roberts and Carol Atkinson. It was an exhausting time, but one in which every day brought new matters of interest and ‘challenge’.
Being a member of the Bar Council GMC was a bit like joining a long- running soap opera that you had heard of, but never previously seen. A few months are spent in working out the storyline, the other characters and finding out where your own character fits in. After that, I found each episode to be unmissable.
Q You were appointed to the High Court bench in 2005, aged 51; were you ready to leave the Bar by that stage? And how did you find the transition from Bar to Bench?
A I had been very fortunate during my time at the Bar to appear in the full spectrum of courts, including Strasbourg, and to experience involvement in the life of the profession at large through the FLBA. The offer of appointment came at a time when I felt ready for a change, but, to deal with the second part of your question, I had not really taken on board just how much of a change the transition to the Bench would be. It took me a good couple of years to begin to feel comfortable as a full time judge and also to develop a life out of court which replaced the very happy time that I had had amongst friends in the legal profession.
Q What is your view of the state of family law in Britain today?
A Well that is a question and a half! Having just completed 18 months as a member of the Norgrove Panel I have been exposed to a very wide range of views and information about the Family Justice System. The short way of answering your question is simply to refer you to the Norgrove Report as that does indeed represent my view of the current state of family law in our jurisdiction.
The Norgrove review, and more importantly the political discussion that will now follow the Government’s response to Norgrove, must present the best opportunity since the passing of the Children Act to look at what we do and to make significant improvements. Obviously it is my hope that many of the Norgrove proposals will be adopted. Some involve legislation or changes elsewhere in the system, but a fair number of the more important proposals in fact turn upon there being a very significant change in culture by the family judiciary and the legal profession. It is very significant that The President has recently used his lecture to the Bar Council Law Reform Committee to lend his own highly influential voice to the call for a cultural change. The President’s lead, coupled with the work now being undertaken by Ryder J, as the Judge in charge of the modernisation of the family judiciary, indicate that the senior judges are not waiting for the response of government or, in time, legislation, but are looking to make changes in a shorter time span. These developments are, to my eyes, very welcome.
Contrary to the current of ideas that were prominent when the Panel first started its deliberations, the recommendation is that judges should retain the jurisdiction to determine public law and private law children cases. This validation of the importance of the role of judges and courts, however, comes with an acknowledgement that it is just not tenable for care cases to take, on average (and I stress on average) 60 weeks in the county court. Something has to change and our recommendation is that the change should be a major refocusing on the role of the court, back to that intended when the 1989 Act first came into force.
Q How would you describe the quality of advocacy you have witnessed from the Family Bar?
A I think the standard, with only one or two infrequent exceptions, is very high. That this should be so in publicly funded cases, with all of the highly negative features that this now has, is a real tribute to the vocational dedication of those who undertake the work. Recently, in the Court of Appeal, the two non-family judges I was sitting with, spontaneously commented very favourably upon the quality of advocacy of the three family law juniors who had advocated before us. This praise came from judges well used to high quality advocates, who are paid handsomely to prepare thoroughly to present high- rolling civil work; their views accorded to my own experience up and down the country over the past six years.
Q You must have seen huge changes in the work of the Family Division since you started?
A Huge changes – I remember having an argument with Laws LJ because I had claimed to him that there was no other area of law that had changed so much as had family law over the last 40 years and his argument was that on the contrary it was in the area of public law that the most changes had been wrought. But when you consider, Philip, that when I began at the Bar a wife presented with a divorce petition by her husband had successfully to fight it, and had to avoid being a “guilty respondent” to a decree on pain of forfeiting all her maintenance rights – save possibly what was called a compassionate allowance – one can see the seismic shift in what the Family Division work consists of. In those days it was defended divorces fought tenuously at enormous expense and enormous length whereas now we get down to the matters that we regard as important.
Q Do you support the Silk system?
Q Presumably you will have communicated a vision of the Court of Appeal during your interview process. Can you share that with FA readers?
A Without disclosing what was or was not said in interview, I do have some fairly clear ideas on this topic. Firstly, for a long time, going back to my time at the Bar, I have questioned the wisdom of having a constitution for some family cases in the Court of Appeal comprised of three family experts. One of the values of a three judge court at that level is the potential for cross fertilisation to occur from non-specialist judges. That is the norm for all other areas of the law, outside crime, and even in crime the judges are normally those who sit in a range of other areas of the jurisdiction.
Secondly, I know that Lord Wilson and others have found the burden of work on the family LJs in dealing with litigants in person seeking permission to appeal at an oral hearing is almost untenable. Having now experienced the task of preparing for these 30 minute hearings (which often involve three or more hours of heavy reading and then delivery of a short judgment), I share Nicholas Wilson’s view. In addition to the task itself, the sheer number of these applications (which will surely increase if legal aid is removed from private law) is disproportionate to the small number of family specialist LJs. There is therefore a strong argument for this work being shared by some other LJs who are not currently family specialists.
Q Where do you stand on the leave to remove debate?
A In the wings.
Q You are still only 57, which allows you a potential 13 more years on the Bench. Do you have a longer term judicial ambition?
A Steady on Philip; I am only just beginning to develop my repertoire of 10 different ways of saying “I agree” in an interesting and enigmatic manner.
Q On a personal level, I believe you are a member of the Magic Circle. How long have you been a magician and what do you do?
A Sadly I am in no way up to the standard of being a Magic Circle member and have not performed magic at all for the past 15 or more years. Magic was my hobby when I was young. Once I became a parent I dusted my ancient box of tricks off and performed at children’s parties from time to time for friends under the stage name of ‘Mr Magumbo’. I was not very good and, with the growing sophistication of the young, I found that I was required to lower the upper age at which I could get away with performing. When it got to the stage that any child much over the age of 18 months could see through my tricks, I realised that it was time to hang up my wand!
Q Oh well, now that the magic has gone from your life, what are your hobbies and pastimes?
A Vegetable gardening; being out in the countryside; trying to communicate with our dogs, cat, sheep, pigs, donkeys, goose and chickens; church architecture; going to the theatre; (and above all) spending time with my family and friends.
In addition I have a lifetime project which involves determining whether the proportion of left-handed family lawyers is higher than in the general population. Interest in this important area was sparked on a day when I was appearing against David Hershman in the Court of Appeal in front of Elizabeth Butler-Sloss and Nicholas Wall. During one of the quieter moments, I noticed that all four of us was left-handed. Now, from the perspective of the Bench, I spend many happy hours counting up the sinister-handed lawyers in front of me!
Q My mole in your old chambers tells me that you are notorious for bad jokes – do you have a favourite you could share?
A I think that there has been a mistake in your information; to my knowledge I have never, ever, told a bad joke.
Q What is on the iPod?
A My iPod is used only in the gym and is therefore full of long familiar and energetic favourites drawn from the usual suspects (Phil, Rod, Cher, Eagles, Joel, etc, etc). I also (and it is traditional to say “sadly” here, but I would say “happily”) have an encyclopaedic knowledge of the work of Elton John and Bernie Taupin from the earliest time up to the present day.
In contrast, when I am working at my desk and in the evenings at home, Radio 3 is my constant companion. We are truly blessed in this country to have such excellence available at the flick of a switch.
Q If you had not gone to the Bar, what would you have liked to have done?
A I was a very keen student actor, and in particular enjoyed writing and performing in revue. I was sorely tempted to follow a career in that direction. In contrast, I now feel that I should have given more thought to becoming ordained than I did in those early years.
Q How will you be spending Christmas?
A With my family … and next year’s vegetable seed catalogue.
This interview was originally published in Family Affairs (Spring 2012).