The news broke this week that Sir James Munby, towering figure in family justice, died suddenly on New Year’s Day. I have been thinking since about what to say here about him. He was often the subject of posts on Pink Tape, right the way back to its inception before 2010, and I have spent the morning down a rabbit hole reminding myself of all the things I have written about him – from the exasperated or irreverant posts, through to more serious posts where his judgments, speeches or ‘Views’ were analysed and pored over. In turn, that has led me back to the judgments and other writings, and of his work as President which my posts were marking.

There are already some lovely tributes available, some gathered together in this Gazette piece, some arriving in our inboxes from the Chairs of various associations and carrying the message from the current President of the Division Sir Andrew, and some on social media – and I am sure there will be others in coming days. I only appeared in front of Sir James once or twice, but he has been a big part of my professional life, and so I wanted to add some personal reflections of my own.

I know Sir James read Pink Tape (amongst other blogs). Sometimes he would tease me about the fact he knew exactly what I had been writing, on one occasion referring obliquely to my legal commentary in a judgment by adopting a short quote of mine. He never chided me for being – on occasion – a bit too cheeky. He took it all in good humour. He read widely and continuously and was always interested in different people’s viewpoints.

We kept in touch after his retirement. His brain was always fizzing with ideas, and he was forever researching or drafting something. He was also almost always right, whether in his judgments or his speeches or his essays published online post-retirement – although humble enough to acknowledge that no person and no system is ever right all the time. Sometimes he would ask me for my view on something, and more often I would ask him for his view. Our discussions about s12 were invigorating, but he never pulled rank. It is largely to his credit that the Law Commission belatedly decided that the could not ignore s12 when undertaking their reform project on contempt. And so it is that there is now a recommendation for the repeal of s12, finally.

Fellow barrister Sam Singer wrote today on LinkedIn about Sir James’ moral courage. She summed it up perfectly, and she included this quote from Sir James in Re B (A Child) (Disclosure)[2004] 2 FLR 142 :

That persistence and moral courage is something that every barrister should strive towards – doing what is right and saying what needs to be said, not simply taking the easy path. And the quote Sam selected has inspired and underpinned much of the work across the last decade by those of us involved in The Transparency Project. It was Sir James whose words in the ‘Italian C-Section case’ (Re P), galvanised us into action, resulting in the formation of the Project.

Before parting from the case there are two points that require to be addressed with honesty and candour. Both relate to the fact that, when this story first ‘broke’ on 1 December 2013, none of the relevant information was in the public domain in this country.

The first point is this: How can the family justice system blame the media for inaccuracy in the reporting of family cases if for whatever reason none of the relevant information has been put before the public?

The second point is, if anything, even more important. This case must surely stand as final, stark and irrefutable demonstration of the pressing need for radical changes in the way in which both the family courts and the Court of Protection approach what for shorthand I will refer to as transparency. We simply cannot go on as hitherto. Many more judgments must be published. And, as this case so very clearly demonstrates, that applies not merely to the judgments of |High Court Judges; it applies also to the judgments of Circuit Judges.

Sir James had a habit of quoting himself in his previous judgments. No doubt, because his judgments were unimprovable prose. And so, in Re P he characteristically reminded us of what he had said a few months prior in Re J:

So far as concerns the relationship between the media and the court I can only repeat what I said earlier this year in a judgment that was widely reported at the time: Re J (A Child)[2013] EWHC 2694 (Fam). I forbear from extensive citation, merely repeating at this point, so as to emphasise, three key principles (Re J, paras 37-39). First, that “It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish”. Second, that “Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts [but the] fear of such criticism, however justified that fear may be, and however unjustified the criticism, is … not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar”. Third, that “It is no part of the function of the court exercising the jurisdiction I am being asked to apply to prevent the dissemination of material because it is defamatory … If what is published is defamatory, the remedy is an action for defamation, not an application in the Family Division for an injunction.”

And it was in Re J that Sir James said this:

In relation to the pragmatic realities, I repeat what I said in A v Ward[2010] EWHC 16 (Fam), [2010] 1 FLR 1497, para [133]:

The family lawyer’s reaction to complaints of ‘secret justice’ tends to be that the charge is unfair, that it confuses a system which is private with one which is secret. This semantic point is, I fear, more attractive to lawyers than to others. It has signally failed to gain acceptance in what Holmes J famously referred to as the “competition of the market”: Abrams v United States (1919) 250 US 616, 630. The remedy, even if it is probably doomed to only partial success, is – it must be – more transparency; putting it bluntly, letting the glare of publicity into the family courts. As I went on to say:

In short, the remedy is publicity, “more speech, not enforced silence.”

Those judgments paved the way for the decade of transparency reform that has followed. They have been my guiding light.

I once devised a whole transparency talk which was structured around a journey across Munby’s judgments, tracking the development of themes and ideas from one judgment to another and another. I did not need the judgments of any other. All of those judgments remain good law (and even Ward was restored to its rightfully approved position by the Abbasi appeals). I cannot tell you how many times I have gone back to the four judgments above for a steer on transparency, how many times I have deployed them to good effect. There are of course many, many other judgments covering similar ‘transparency’ themes in the Munby oeuvre – and each one is meticulous, compelling and unarguably correct.

There was very much more to SIr James than transparency of course, but that was the shared interest through which I came to know him best and so, for me, it is the lens through which I will remember him. And his drive for greater transparency was undoubtedly always motivated by the demand for rigour, fairness and improvement, so that the family justice system could be better, more humane, and safer (in all senses) for the families it served. Everything he did was about learning and getting things right for the best of reasons. He was demanding in leadership, but beneath it was always kindness.

The passing of Sir James will surely be felt profoundly by his own family. His passing is also a great loss for everyone in the family justice community, but there is no danger of him being forgotten. HIs legacy is huge, lawyers like me will be quoting and relying on his judgments for a long time yet, and the tectonic plates of family justice are still slowly shifting as a result of his words and actions.

If you are reading this, so long, Sir James.