Sir Mark's aim in this book is to be frank rather than scholarly about judging. The trial judge is in a very different position to the appellate judge. The trial is where the facts are determined and it is essentially a trial judge who exercises the powers of discretion which modern society increasingly vests in its judiciary.
As society becomes more complex, so does the law. However, law cannot provide for every circumstance and so its application often involves the exercise of discretion. Criminal sentencing, child welfare, the protection of those who lack mental capacity and disputes about medical treatment are obvious examples. How do judges go about that? How far are judges influenced or affected by their backgrounds, beliefs and own life experiences? And, if consistency is an aspect of public justice, can that be achieved? And what about the conflict between public justice and personal privacy? Many see these as pressing questions in a society where judges have perhaps greater effective power than ever before.
Sir Mark Hedley conveys in a very short compass the fruits of a lifetime in the law, and displays the wisdom that made him one of the most respected family and Court of Protection judges. In a series of short chapters, originally delivered as lectures at Liverpool Hope University, Sir Mark asks profound questions as to the place of the judge in society and to the basis and justification for their role in determining cases involving the welfare of children and those falling within the scope of the MCA 2005.
Although he disclaims any attempt to characterise the book as a scholarly text, reflecting instead his own experiences at the Bench, it does not need to be festooned with footnotes in order to achieve its goals.
For me of most importance, perhaps, was the clear identification of the role of judge as individual human being, seeking to exercise a discretion granted to them, the width of which is very little understood by members of society more generally. Sir Mark is very right to ask whether this model is preferable to a model based on clear rules (or the administration of an algorithm). He is also undoubtedly correct to note that whilst rules have the benefit of certainty, they have the ability to generate harsh results in some cases; whilst, conversely, discretion can avoid this outcome, it can also lead to uncertainty and difficulty in predicting the outcome of taking any case to court. Further, the greater the discretion granted to judges, the more significant the role of their own value-systems and the greater the obligation upon judges to be self-aware as to the “baggage” that they are bringing to the determination of any case.
On balance, he makes a convincing case for discretion, not least given the fact that as our society continues to evolve and become more diverse, what might constitute generally acceptable norms upon which rules can be founded becomes ever more difficult. But he is absolutely right to identify that leaving judges with such discretion (or indeed actively imbuing them with it) does commensurately increase the need to identify a real basis on which the trust is warranted. The twin qualities that Sir Mark advocates for judges, of humility (recognising the inherent fallibility of the system) and confidence (in navigating a way to a decision), are undoubtedly ones that he displayed throughout his judicial career. To the extent that other judges reflect such qualities, I would suggest that such does indeed represent a sound basis for reposing trust in them.
I would very strongly recommend this short but profound to book for anyone concerned not just with the role of the judiciary in the context of children and incapacity, but also with the wider balancing exercise between protection and autonomy that is required in both of these spheres by others outside the courtroom ...Read more >>
Alex Ruck Keene
THE MODERN JUDGE AND FACT FINDING: “TRUTH IS STRANGER THAN FICTION”
There is a full review of Sir Mark Hedley’s book The Modern Judge
on Pink Tape
, where Lucy Reed explains how the book mysteriously appeared in her hotel room the morning after the Family Law Awards. (Lucy speculates that Sir Mark Hedley donned his robes and snuck it into her room, it is not for me to comment – I bought my copy.) Lucy gives a full review of the book. Here I have a much more limited task: I concentrate upon one aspect of the text – how judges find facts.
“What is the purpose of a trial or enquiry? Surely it is to get to the truth: that is why we have them”
“Truth is a difficult concept” ...Read more >>
Gordon Exall, Barrister
Civil Litigation Brief
I did very much like Sir Mark Hedley’s little book, The Modern Judge
. It is really little more than an extended essay, but it is characteristically humble, thoughtful and thought provoking. It asks some very important questions, and they are questions that we ought to be asking – amongst ourselves within the legal community, and discussing with other members of society. I hope that LexisNexis will market this outside the legal community.The Modern Judge
does not only cover the Family Court and Court of Protection, but it does take those jurisdictions as its main focus, and it is through a conscientious consideration of the wide ranging and really very draconian of powers that Hedley is able to ask wider constitutional questions about the rule of law and the societal consent that is required for judges to exercise their powers ...Read more >>
Based on a series of public lectures given in 2015, this little gem of a book on the modern art of judging should be required reading for anyone seriously interested in law and the judicial system. As a former High Court and before that circuit judge, Sir Mark Hedley brings to his reflections a vast experience of criminal, civil and especially family cases. His observations on his role as a judge are timely and illuminating ...Read more >>
What a pleasure to read! It’s great to be able to hear from members of the Judiciary what they think in 21st century, especially on matters such as family law. And The Modern Judge
gives us a particularly powerful statement on what the public expect of their judges in 21st
In the Foreword, Sir James Munby writes that “some judges write memoirs, a rather dubious literary genre” but that is not the case here, thank goodness! ...Read more >>
Phillip Taylor MBE and Elizabeth Taylor
Richmond Green Chambers
I have always had a deep respect for those involved in the family and mental capacity justice systems, whatever their particular role or discipline. As a barrister and judge (who has served at all levels from Assistant Recorder to High Court judge), I have dealt with matters from the everyday to the dramatically unique. I am therefore very aware of the pressures upon both individuals and the system, pressures that have increased over the last few years. It was only on retirement, and the opportunity for reflection that that offers, that I have begun to be able to articulate the basis for that respect. This book, though more specific in its concentration on judicial discretion, was born of that reflection.
This is the product of lifelong conversations with colleagues, court staff, other professionals, neighbours, fellow church members, members of Liverpool Hope University and indeed anyone whose ear I could engage. I have learned from all of them and am grateful to all. Should anyone see an unacknowledged idea of theirs in the text, they may well be right! I am only sorry that I had forgotten its true origin. I am grateful to the President for making time in an impossible schedule to write the Foreword and for what he says. As an innocent abroad in these matters, I have much appreciated the guidance and encouragement from Jordan Publishing’s staff. Although she will deeply disapprove of my saying it in public, my chief gratitude must go to my wife Erica who has born with me and my baggage for over 40 years and whose critical encouragement has renewed energy whenever it has flagged.
One final comment on the text. I am aware that, whenever a general noun like judge, parent, child, party or protected person is used, it may represent male or female – usually both. To avoid clumsiness and confusion, I have opted to use a specific pronoun, usually the masculine. I hope that the reader will take this to cover both male and female.
Sir Mark Hedley
Some judges write memoirs, a rather dubious literary genre. Some very senior judges write books on the higher jurisprudence. This book by Sir Mark Hedley is, dare I say it, both more interesting and more important.
It is a truism of family law that there is no such thing as the perfect partner or the perfect parent. Likewise, there is no such person known to the law as the ideal judge. Sir Mark is a modest man – though, truth be told, with little to be modest about – and he would never think, let alone say, this, but he came as close as any first instance judge can to the ideal. When he came to the Family Division of the High Court in 2002 he brought with him vast experience as a Circuit Judge, having sat not merely in criminal, civil and family cases but also as an official referee – experience from which we and everyone who appeared in front of him hugely benefitted. It was his good luck and our great fortune that he arrived in the Family Division at a time when its work was expanding into areas that previous generations of family judges would have thought inconceivable but for which he was ideally suited.
Sir Mark’s judgments, indeed, everything he did as a judge, both in the Family Division and the Court of Protection and on the occasions he sat in the civil and criminal divisions of the Court of Appeal, exemplified his wisdom and humanity and reflected, as does this series of lectures, his deep understanding of both the forensic process and the human condition. His impact on the development of the law, particularly in novel and complex areas such as surrogacy, was profoundly significant. He had a remarkable ability to distil legal concepts and fundamentally important principles in spare, non-legal and seemingly simple language. His judgment in Re L (Care: Threshold Criteria)  1 FLR 2050, the key passage in which he sets out in Chapter 4, is a justly celebrated statement of the proper role of the state and one of the most frequently cited passages in the contemporary canon. The reference to ‘our fallible humanity’ is both striking and so very characteristic of Sir Mark’s view of the human condition.
There are many other similarly insightful passages I could cite, but one must suffice. It comes from Sir Mark’s judgment in Re R (Care Proceedings: Causation)  EWHC 1715 (Fam),  2 FLR 1384, para , and merits quotation in full:
‘I have been impressed over the years by the willingness of the best paediatricians and those who practise in the specialities of paediatric medicine to recognise how much we do not know about the growth patterns and what goes wrong in them, particularly in infants. Since they grow at a remarkable speed and cannot themselves give any clue as to what is happening inside them, and since research using control samples is self-evidently impossible in many areas, perhaps we should not be surprised. In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.’
The very apt quotation from Psalm 139 encapsulates a truth as relevant to our modern secular society as to the world in which the words were first sung.
There is much in this fascinating, humane and insightful book from which all of us, judges, lawyers and lay people alike, can learn and benefit. We are much indebted to Sir Mark for sharing with us the matured fruits of his time on the Bench.
James Munby, President of the Family Division
27 October 2016
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