Case No. BV19D14014

24.I deal first with this element in this judgement. For the simple reason that the former wife will feel disgruntled and unhappy that I myself raised the issues. Because the former husband didn’t at all. I don’t think he had any awareness of the simple mathematics namely that having taken out a large amount of the marital pot for costs by the wife, the amount left for sharing of which he got one half was consequently much reduced. He might but didn’t show it. I don’t think he even put his mind to the differential of the amounts they each owed to their lawyers about which again he would lose out if it was fully brought into the sharing equation. When I made the costs order, I tried to explain in simple language but I fear some was beyond him. As I said, funds were there for him to pay a lawyer but he was in person25.So what should a family court judge do? One easy answer is that if an aspect isn’t already raised, don’t raise it! Deal with the issues raised in submissions and arguments and give an adjudication on the facts and a decision on law and a fair outcome accordingly. Judges are already busy enough. It’s a matter for litigants if they act in person when, as here, there were funds for legal representation for both. The traditional adversarial approach of our common law system. An obvious unfairness of which our friends practising in the civil law continually remind us and of which root and branch law reformers castigate us. How much does the duty of fairness imposed on family court judges take us beyond the adversarial and into the inquisitorial?26.This is not easy for the party that has chosen to have legal representation and paid a substantial amount for that undoubted benefit. There are criticisms that some judges in some cases go too far in helping the litigant in person when the other party is sitting there having paid good money for their own lawyer. It’s not an easy balance. It also places a huge burden on the judge in being alert and aware of issues, in law and practice, which might have been raised if the litigant in person had had good representation. It is yet further argument for the importance of having specialist financial remedy judges. It was also transparently obvious to me that although every professional respect and courtesy was shown, the wife and her legal team were not particularly impressed when I raised the issues of costs being dealt with here. In fairness, counsel did a very good job in the closing submissions in addressing me on the points, after I gave him notice of my concerns at the end of the first day.27.I decided and was satisfied that my duty as a judge of the family court was to produce a fair outcome according to law, both statute and case law, including as appropriate in circumstances in which a party, very probably without representation but possibly with poor representation, simply is not aware or alert to distinctive issues. I explained this in my oral judgement so that the former wife could hear, however unhappy she may be that I went down this course of action. I consider the Family Court of England and Wales has a quasi/hybrid inquisitorial role and status28.As it happens, after the oral judgement and before finalisation of this written judgement, I saw the decision of Mr Justice Mostyn in Clarke (2022) EWHC 2698 at 27 – 30 when he said this27Curiously, although Sir Jonathan [Cohen] granted the appellant permission to pursue the argument that the judge was in error for not allowing a higher annual amount than £26,000, she has shown little interest in it. This raises the question of how much encouragement the court should give to a litigant-in-person to take the right points and to eschew the wrong ones.28.A judge will be criticised as having abandoned impartiality and independence, and of having descended into the arena, if he or she takes a point favouring one party’s case which that party has not raised: see Villiers v Villiers