The Modern Judge: Power, Responsibility and Society's Expectations

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The Modern Judge: Power, Responsibility and Society's Expectations
  Full Terms & Conditions of access and use can be found at Download by:  [University of Auckland Library] Date:  13 September 2017, At: 22:06  Journal of Social Welfare and Family Law ISSN: 0964-9069 (Print) 1469-9621 (Online) Journal homepage: The modern judge: power, responsibility andsociety’s expectations Henry Kha To cite this article:  Henry Kha (2017) The modern judge: power, responsibility andsociety’s expectations, Journal of Social Welfare and Family Law, 39:3, 352-353, DOI:10.1080/09649069.2017.1344397 To link to this article: Published online: 03 Jul 2017.Submit your article to this journal Article views: 20View related articles View Crossmark data  352 BOOK REVIEWS partly fulfilled, owing to the lack of consideration of the key piece of statutory guidance, ‘Court Orders and pre-proceedings’, within the framework of which local authority decision-making takes place.Bruce Clark  Formerly Director of Policy, Cafcass, London  © 2017 Bruce Clark  The modern judge: power, responsibility and society’s expectations , by Sir Mark Hedley, Bristol, LexisNexis, 2016, 97 pp., £20.00 (paperback), ISBN: 978-1-78473-279-0 Quite o󰀀en retired judges produce memoirs or tomes on their life in the law or legal juris-prudence, respectively. Sir Mark Hedley, a retired High Court Judge in the Family Division (2002–13), offers instead a succinct and pertinent account in plain English of some of the challenges faced by a modern family judge. As Sir Mark states, ‘e purpose of this book is a frank, rather than scholarly, reflection on judging, focusing in particular on the trial judge’ (p. 1). Indeed, the book succeeds in this aim and is accessible to those outside the legal profession and academia. e book is short (97 pages) and divided into eight brief chapters based on lectures delivered at Liverpool Hope University. Despite its brevity, Sir Mark ably and lucidly describes some of the challenges associated with delivering justice in a time of great medical technolog-ical advancement and cultural change. He questions the late Lord Bingham’s contention that legal right and liability ought to be resolved by the application of the law rather than judicial discretion (p. 47). e book provides great insight into the mind of judges as imperfect and fallible human beings and the kind of factors that contribute to a judgment. Sir Mark advocates a discretionary approach in deciding judgments with a nuanced defence. He recognises that although discretionary judgments mitigate the harshness that strict application of the law may bring, they also create more uncertainty in predicting outcomes (p. 60).One of Sir Mark’s most notable contributions on the bench was his leading judgments on surrogacy law. ese kinds of cases have drawn judges to make important value judgments, an issue which has not o󰀀en been considered. Sir Mark provides interesting and insightful com-mentaries on many of his own judgments and how he reached his conclusions. In the leading foreign commercial surrogacy cases Re X & Y   ( Foreign Surrogacy  ) [2008] EWHC 3030 (Fam) and Re L  ( Commercial  ) [2010] EWHC 3146 (Fam), Sir Mark explains how he considered the competing interests of upholding public policy against the practice of commercial surrogacy and the paramount consideration of the best interests of the child. Both of these cases were concerned with commercial surrogacy agreements made in foreign jurisdictions that were illegal according to English law. Sir Mark explains that in these cases a real choice was made to allow welfare to prevail over the law (p. 58). Here, he makes a salient case for the exercise of discretionary power in circumstances where the profound nature of upholding the welfare of the child trumps the public policy consideration of denying any sort of legal recognition of commercial surrogacy agreements. is is one example among many where he explains the necessity to exercise discre- tionary power in sensitive and controversial cases relating to the law of persons. ese include the capacity of an elderly individual to refuse treatment, the difficult decision of turning off life    D  o  w  n   l  o  a   d  e   d   b  y   [   U  n   i  v  e  r  s   i   t  y  o   f   A  u  c   k   l  a  n   d   L   i   b  r  a  r  y   ]  a   t   2   2  :   0   6   1   3   S  e  p   t  e  m   b  e  r   2   0   1   7  JOURNAL OF SOCIAL WELFARE AND FAMILY LAW 353 support for a terminally ill child (e.g. the Charlotte Wyatt case), the question of fitting a long-term contraceptive device into a young mother with learning difficulties, determining whether neglected children should live with foster or biological parents and the issue of abortion for mature minors. He quite rightly recognises the need for proportionality to be one of the leading principles in determining these sorts of discretionary cases.e reflections of Sir Mark also have a wider interest beyond the scope of England. Sir Mark states, ‘Actually it is not internationalisation that makes the difficulty, so much as the fact that most effective means of regulation, public financial control, and enforcement are constrained by national boundaries’ (p. 83). Many other nations are grappling with the issue of family law disputes involving different foreign jurisdictions. In Australia and New Zealand, the issue of foreign commercial surrogacy continues to present a major policy issue. Commercial surrogacy is prohibited in both of these countries. Domestic legislation excludes the regulation of foreign surrogacy commercial agreements which complicates decisions relating to the best interests of the child. Sir Mark identifies internationalism, technological advancement, changing cultural and reli- gious values, the doctrine of the mature minor, the right to privacy and the tension between Parliament and the judiciary as prescient issues for the future in his final chapter. Despite the challenges of this brave new world, Sir Mark offers the reader hope that is built upon trust. In his concluding remarks, he calls on judges to act not only with integrity but also humanity (p. 97). By doing so society can repose trust in judges as they exercise wide and extensive discretionary powers, especially over the most vulnerable people in society. e Modern Judge  introduces the reader to the innate mysteries involved in delivering a judgment and provides important insight into the role of the judiciary in their work of delivering fair and just outcomes in the family justice system.Henry Kha Faculty of Law, University of Auckland © 2017 Henry Kha     D  o  w  n   l  o  a   d  e   d   b  y   [   U  n   i  v  e  r  s   i   t  y  o   f   A  u  c   k   l  a  n   d   L   i   b  r  a  r  y   ]  a   t   2   2  :   0   6   1   3   S  e  p   t  e  m   b  e  r   2   0   1   7
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