 It's a great pleasure to introduce Rosemary Hunter, who's a professor at Kent Law School, and works in the area of gender sexuality, human rights, family law. I'm going to do human rights. Don't you? I wish some of the things on access to justice and human rights. That comes in my mind, my wide vision of human rights. Everything's still online. Feminists at law. I don't know if you've seen this online. Journal, fantastic. And lead with Claire McGlin and Erika Ratley on the feminist judgments project. Which you have come by today. Okay, all right. Thank you very much. Thank you, Gina. Thanks very much for the invitation to come and speak. And of course, when you see the invitation, it's a very long time ago, and I thought, oh, this is a good excuse to make me think about a certain issue that I have been to. I have been floating around in my head. And I converted those things that I had been floating around in my head onto a piece of paper. And then of course, I didn't have time to think about it. Until last week, when I found that I'd lost the paper. This is more in progress than I had planned it to be, but you don't have to know that. So, yeah, obviously it's built as being that feminist judgments project. I'm going to stray from that a little bit, but it's more around those theoretical reflections that have been prompted by the feminist judgments project. And it's very much thinking in progress. So I hope that your feedback at the end will help to push my thought process a bit further along. But I will begin with the feminist judgments project, which has been said as one of the organisers. And it involved a number of feminist legal scholars, mostly academics, but a few practicing lawyers as well, setting out to write additional feminist judgments in a series of existing English legal cases. So instead of just critiquing the judgments from a feminist perspective, we thought we'll actually rewrite the judgment as we think it might have been written by one of the judges who was on the bench at the time, had they been a feminist or a different feminist from the one who was there. And so the judgment writers were subject to all the same constraints as the original judges. They had to decide according to law, they had to decide by reference only to the material that was available to them at the time, and in response to the issues that were identified in the arguments put to the court by the opposing parties. And the resulting judgments actually demonstrate quite powerfully, even those constraints, how even at the time that they originally decided to these cases could have been reasoned and or decided differently. And so in doing so, the judgments kind of demonstrate the contingency and the lack of inevitability of the original decisions. And they also expose, I guess, seek to correct some of the biases and predispositions of the judges who made them and of the law itself. The actual idea for the feminist judgments project came from Canada. So there was a group that had set themselves up as what they called the Women's Court of Canada, which grew out of their legal education and action fund, which is an organisation that had been intervening in Canadian Supreme Court cases, who advance a particular substantive vision of equality in section 15 of the Canadian Charter of Rights and Freedoms. So section 15 is the clause that guarantees equality before and after the law, and they wanted the court to specifically have a program to try to encourage the court to adopt a substantive view of equality, rather than a formal view of equality. And they had some initial success in their interventions, but found themselves having a really dwindling impact. So initially the court had said, oh, you know, take a notice of their arguments, incorporate some of them, follow some of them, but they had got the impression that the court had said, well, okay, we've done equality now. You know, we've heard everything you've got to say, though obviously novel issues keep coming up, but the court had really stopped taking much notice of what they were saying. So they were trying to sort of nut out how to get the court to pay attention to their arguments, and they hit on the idea of, well, if they weren't taken in notice of a brief that we submitted in the case, why don't we just show them how they should have written the judgement, and show them how to do it by rewriting the judgements in which they disagree. And so that's where the idea of rewriting the judgements came from. The English project, of course, is much broader than the Canadian one, so the Canadian one was focused right on a particular body of jurisprudence, which is the Supreme Court's case law on section 15 of the Charter, and the English project was much broader, it was basically taken across the whole body of English law, just whatever people wanted to write about, or whatever cases people wanted to choose. So whereas the Canadians subtitled their project, Rewrwriting Equality, the subtitle that we used for our project was from theory of practice, so it was really about putting feminist theory into practice in the form of judgements, and to see whether it could be done and how it could be done. Now, obviously writing judgements is a very different genre from writing academic essays, so we had to think about how to write judgements, and also what it means to write feminist judgements, what kind of things might make the judgement count as feminist. Now, and it's that sort of problematic that we've been sort of worrying away at, or that I've been worrying away at both before and since. Now, obviously the outcome is one clear thing that might make a judgement feminist, so the judgements are generally concerned to correct some form of injustice to a woman or to women more generally, but not all of them ended up, not all of the judgements in the project ended up with a different result from the original decision. About two-thirds of them did, but the others didn't, and in a couple of cases that was really because of what the judgement writers found to be the constraints of the law, so they just couldn't make it go where they wanted it to go or to produce the result that they wanted to produce despite their best efforts, and that was sort of a really important lesson about the limits of feminist judging and the fact that the law isn't completely contingent and open and that it does have sort of boundaries. But in other cases, the feminist judge actually agreed with the result but wanted to reach it by a different route. So, in other words, the feminist intervention was in relation to the reasoning adopted by the other judges or the court rather than the result per se. And that alerts us to sort of some other ways in which a judgement might count as feminist. So, a judgement might be feminist by virtue of the feminist theoretical position that underlies both the reasoning and the outcome. But the key word here really is underlying because, how many of you are lawyers, law students? Some, but not a lot. Okay, all right, that happens. So... Okay, and some of you aren't admitting to it. That's all right, thank you. I'll hopefully explain sufficiently to those who are to get the picture. So, a legal judgement has to consist of three basic elements. So you've got the facts of the case, the relevant law, and then applying the law to the facts. And you'll notice, of course, that feminist or any other kind of theory doesn't come into that list. So feminist theory isn't a source of legal authority and hence it can't really form any part of the reasoning process that the judge employs in reaching a legal decision. And so there might be some scope for citing feminist theoretical literature as background material that might assist the judge to interpret the facts, but otherwise the judge's theoretical approach has to remain fairly implicit rather than being obvious on the face of the judgement. So even though it might have quite a strong influence on how the facts are understood and categorised, how the relevant law is framed and interpreted, that's all sort of implicit in the judgement rather than being explicit on the face of it. And it was quite interesting, in fact, the difference between some of the drafts of the judgements, which quoted feminist theorists, so great thing. And then, as edited, we kind of took the red pen to those bits and said, well, you know, Catherine McKinnon isn't a source of authority. And I'm just going to cut that. So we have to kind of bury that. And I mean, we just sort of adopted that 90s flag and just do it. So don't say what we're doing. Just actually put it into practice and operationalise it through the legal requirements of this particular decision. So that was an interesting process. In fact, there's been some argument about, well, how do you identify feminist judgements and the sort of obvious answer that is, well, you would do a word search and look for the word feminist. But that's almost, by definition, the word feminist isn't going to appear in a feminist judgement because the judge is not flagging their theoretical position. They're just doing it. So nonetheless, there might be a sort of feminist theoretical or philosophical underpinning to the judgement, which might be what's making it feminist. And then there's a sort of third element, which is that the literature has identified, I guess, certain procedures of feminist judgement, which might not lead to any determinate result that are about the way the judge approaches her task of judging. And it's these procedures of feminist judgement that I'm going to focus on for the rest of the seminar. So in an article in 2008, I reviewed the previous literature, which suggested various ways in which a feminist judge may or ought to approach her role. And these included doing things like what's called asking the woman question. So examining and highlighting the gender implications of apparently neutral rules and practices. So if you've got something that appears neutral, what are the gender implications, what are the gender impacts of this particular rule and also then you might extrapolate to that to think about the race, the impacts, religious sexuality and so on. Including women, which includes taking into account women's interests in the framing of legal rules and norms, rather than only male interests or male interests masquerading as universal human interests. And also hearing and understanding the stories that women litigants tell and recounting those stories in decisions. So putting gendered experience into legal discourse in a way that hasn't previously been included. And also it might involve the judge informing herself about the diversity of women's lives, talking to other women, referring to relevant research and so on rather than simply relying on their own experience. Another process might be ensuring that gender bias doesn't go a challenge. So resisting hegemonic discourses of sexism, racism, heteronormativity, rejecting stereotypical assumptions and myths about sexual difference or particular gender behaviour and critiquing other judgements that adopt or fail to question those myths and stereotypes and hegemonic discourses. So in some cases you will find a dialogue between the judges in the case where you might have some stereotypical things about women which the feminist judge might think correct. The idea of contextualisation and particularity and attention. So using some of this comes out of a very old article now by an American academic called Catherine Bartlett. She referred to this notion of feminist practical reasoning which is reasoning from context rather than in the abstract which might influence referring to social framework evidence so in science research literature and policy documents as a context for both the facts and the law and then also producing particularised decisions. So treating the people before the court with equal respect and dignity, paying close attention to them, avoiding categorisation, rendering fresh judgement in every case and referring to a Derridae or Llemonasi in the Canterbethics and focusing on the realities of people's lives rather than just a power of doctrinal issues and often you can see the difference in the way that the judge might begin a judgement whether they begin it by saying this is a legal issue or this is a very difficult issue for the judge to decide whether they begin it by saying this is a case about this person that's an illustration of that difference and then also making feminist choices so where there are different feminist possibilities or all of the options are invidious in some way not judging other women adversely because they made different choices from the ones the judge might have made thinking carefully about the consequences of decisions this might be good for this person but doesn't have adverse impact somewhere else so it doesn't recognise those impacts being open about priorities and trade-offs that you may be prepared to justify your choices and being accountable for the result so having laid that out in that article then formed part of a background material on judgement writing that we provided to the participants in the feminist judgement project and was specifically used as a reference by at least some of the judgement writers when we came to analyse the judgements that were produced by the project they sort of quite strikingly exhibited these characteristics or procedures of feminist judging and I talked about that in one of the introductory chapters in the book and so what seemed to be distinctive about the feminist judgements that were produced in the project were four things in particular so first of all the judgements often told the story differently so they recounted the facts in a way that differed from the original judgements and they included paying close attention to the person involved and giving voice to women who had been silenced or sidelined in the other judgements secondly use of contextual materials so almost all of the feminist judgements introduced additional social framework material to place the particular facts of the case and all the legal issues involved in a broader context and that those materials were derived from research evidence legal materials from other jurisdictions policy documents, committee reports parliamentary debates, will commission reports but also what I have called feminist common knowledge which you might be familiar with the concept some of you will be familiar with the concept of judicial notice where rather than requiring evidence of facts that are absolutely so notorious that they don't really need to be evidence like the sun will rise in the morning and the sky is blue then a judge can take what's called judicial notice of these notorious facts so they're really sort of but judges do tend to stretch that concept rather beyond that so they make assertions about the state of the world about all sorts of things not necessarily things that are particularly notorious and so some of the things that feminist judgements do is to make these statements about the world backed by judicial authority using feminist knowledge so it's what we know what is well known about the difficulties of reporting child sexual abuse the difficulties of leaving a violent relationship or the fact that victims of rape might react in a whole range of different ways and are certainly not necessarily likely to tell the first person who comes along so those kinds of feminist knowledge get sort of incorporated as assertions backed by judicial authority in the judgements which of course again introduces feminist knowledge into the text of the law fairly the thing about challenging gender bias both in legal doctrine and in judicial reasoning so a couple of cases where the facts of the case raise particular issues where women were being judged by the original judges in particular ways the feminist judge calls a hope to that and draws attention to the stereotypical view that is being taken of wives or what wives do or should do or what to do and how mothers are to be hated and so on and also in the stereotypical gender bias in legal doctrine so some of the the sort of classic case about the assumption that the victim's sexual history is relevant to determining whether she can centre them in a rape case which is directly challenged or the way in which the defence of provocation has been framed in such a way that it's much easier to access for their beliefs and their temper than for women who have been subjected to systemic abuse so they're sort of particular examples and then also the judgements challenge other kinds of biases so class, bias, cultural or religious biases heteronormativity, other kinds of taper for granted assumptions and social and political prejudices and then the fourth thing which really hadn't come up in the previous literature was a kind of persistent anti-essentialism so the judgements display much resistance to universal or essentialist categories and classifications and so for example just the idea of in one of the cases there's a question about whether a particular vulnerable young woman has the capacity to consent to marriage and the issue is that she wants to marry a much older man who has a history of violence and sexual abuse and the local authority is trying to prevent this marriage and she's like hang on, I'm an autonomous human being I should be able to consent and the judge who dealt with the case took a very simple thing to understand so the question is does she have sufficient capacity to understand this very simple notion of what a marriage is and the feminist judgement de-essentialises marriage so it says marriage isn't always the same thing but what we have to do is look at the particular marriage that is in issue so does she have the capacity to consent to this marriage and the consequences of marrying this man which doesn't necessarily deprive her of the capacity to consent to a different marriage with a different person in the individualised circumstances of the case so that sort of anti-essentialism is really a kind of new phenomena a new feminist theoretical concern manifesting itself in the judgements in the way that I've talked about before without being spelled out as such but something that seems to be coming through in the way that people were writing and thinking about what she's involved now in that 2008 article I did note some similarities between the idea of producing particularised decisions and the feminist ethic of care in terms of the notion that women's different moral voice is relational, connected, caring nurturing, responsible and just rather than abstract, distant, calculating disengaged and legalistic however in that article I quite quickly dismissed the ethic of care as a model for feminist judging on the grounds that it was stereotypical and essentialist and then last year I actually had occasion to re-visit to go back and re-read the feminist ethic of care literature and actually began to wonder whether I had been rather too quick to dismiss it in my earlier thinking so I've got to sort of move on now to think about the ethic of care and how that might be relevant to my concerns about feminist judging so while 1980s versions posited the ethic of care as a specifically feminine ethics derived from women's experience of maintaining relationships or more specifically of mothering later versions attended to as Jews such essentialist foundations and have seen it rather as a feminist ethics offering prescriptions for moral action which are capable of attending to and addressing gender power differentials and inequalities so according to Selma who's last name I've never heard of so you know who I mean Selma Sefydhuysen the ethics of care as a moral activity requires judgments about what is the best cause of action in specific circumstances which is a question which engages situated contextual reasoning rather than abstract reasoning or the application of a set of predetermined principles so moral problems are approached from an attitude of caring, a willingness to deploy emotions such as sympathy, empathy sensitivity and responsiveness and a commitment to see issues from different perspectives so caring involves sustaining relationships and ability of willingness to see and hear needs and to take responsibility for those needs being met and recognition of differences in need so all of this sounds rather like the feminist procedures for judging that I outlined earlier the idea about including women challenging gender bias contextualisation, particularity and attention making feminist choices and it also has a particular resonance with a strategy that was employed by some of the feminist judgments which was to kind of sidestep dilemmas about competing rights such as the clash of interests between the defendant and the victim in a rape case or between the fetus and the mother when having abortion debates by reframing them as issues of multiple responsibilities so the traditional legal approach in that situation of clashing rights is first of all to see it as an issue of clashing rights and then to construct a hierarchy of rights and decide these rights are trunks and strangely women often come out as the losers in that calculus so understanding the issue is one of multiple responsibilities means less reliance on abstract rules and principles of presumptions in favour of a contextual analysis that pays attention to relationships needs, dependency co-operation and care so I started to think might it be useful to think about feminist judging or indeed any judging as a practice of care now one immediate objection to that idea is the kind of theoretical opposition between the ethic of care and the ethic of justice and particularly the notions of strict neutrality impartiality decision making according to law by which judges are absolutely bound and so some theorists have seen the ethic of care and the ethic of justice as simply incompatible others have tried to find some accommodation between them so for example Virginia held says that well yes they're both important but some of them one has more salience in different fields so care is more important in these areas justice is more important in these areas but she concedes the legal field entirely to the ethic of justice so that doesn't help me terribly much but by contrast Robin West in the first chapter of her 1997 book caring for justice takes a strong and I think defensible position that justice and care are necessary conditions of each other so she says justice must be caring if it is to be just and care must be just if it is to be caring so she argues that the goal of adjudication should be not only to achieve justice but also to exercise compassion or care for litigants and she contends that the judge litigant relationship imposes caring constraints on decisions including the requirement to take into account the individual circumstances and particularity of the parties rather than universalising or modifying and she goes on to provide numerous illustrations from US case 4 of justice without care which is ultimately unjust and she contends that many instances of glaring injustice in judicial decision making could and should have been avoided by a more compassionate interpretation of the applicable law and she also provides a similar set of instances of care without justice which is ultimately caring so we might put in that category for example care for defendants in rape cases against the lack of justice for their accusers in those cases so if we follow then Robin West the idea that caring and justice are necessary conditions of each other a second objection to thinking about judging as a practice of care might be the argument that judging is not a moral activity calling for judgment but a legal activity calling for legal judgment which is a very specific and bounded thing and it's a bit like the ethical care versus the ethical justice point and I give a similar answer so I think that legal judging requires both legal and moral judgment so there are many aspects of judging particularly at the Pellar at all where the law doesn't compel a particular conclusion as demonstrated graphically by the fact that you can have feminist judgment projects so I mean obviously if the law did always compel the inclusion then we wouldn't have any cases there would be no point going to court and wasting money on something where the solution was simple so obviously the feminist judgment is a collection and critical and post structural theory more generally clearly demonstrate considerable scope for moral or what critical legal scholars would see as political judgment by judges for example in exercising discretion in judging the credibility of witnesses in interpreting the meaning of words and statutory provisions in following or distinguishing precedents in classifying facts as falling within or outside particular legal categories or when called upon to extend the law to novel situations or even in deciding whether a situation is novel in the first place so that's not a claim that the law is entirely opened and contingent as I said earlier but it's clear that both judicial experience and judicial philosophy form important elements of legal decision making and that's another possible theoretical objection to thinking about judging as a practice of care is the questionable status of the ethical care as a feminist construct and Maria Drakapulu has argued quite persuasively that once the ethical care became detached from its moorings in women's experience as mothers and carers then it ceases to be a distinctly feminist ethics and simply becomes another humanist ethics now if I want to argue that all judges should adopt this approach then perhaps that's not a bad thing in that judges might be more amenable to something called humanist than to something like a feminist and why would I want to promote something that I didn't really think was feminist in the first place and leave that one hanging and move on to some more practical decision I mean whatever the theoretical correctness of Drakapulu's point I think the concept of the ethical care is inextricably associated with feminism which I discovered when I flirted the idea of judging as a practice of care with some Australian colleagues who are studying the word magistrates now in Australia the magistracy is salaried and professionally qualified which is different from the voluntary lay magistracy that's found in English magistrates courts and some of my colleagues have been doing on this work around the work of magistrates and they suggested that we collaborate in thinking about whether there is such a thing can be such a thing as feminist judging in the magistrates courts and if so power might be manifested so the magistrates courts deal with the vast majority of criminal cases large proportion of civil cases they're high volume courts they deal with matters quickly reflection or creativity and much of the work of magistrates is about managing the courtroom and the people in it rather than decision making as such but given the importance of interpersonal interactions in that context it seems to me to be quite a good site to see if we could identify magistrates engaged in practices of care now it's suggested that we should do this and we have the whole set of transcripts if we were going to read and see what we thought so I said well let's look and see if they're doing care so a couple of reactions that might suggest and receive so first these colleagues being liberal feminists at best they sort of instinctively recoiled from the concept of care so they were happy to investigate specific behaviours such as courtesy, patience, empathy problem solving looking and speaking directly to litigants and they were happy to sort of assume those behaviours under labels such as engaged judging or non adversarial judging but they didn't want to call it care and secondly they pointed out that what I seem to be talking about sounded very much like so called therapeutic jurisprudence which is implemented in problem solving courts and sees the court system as responsible for addressing the problems that lead people into court in the first place such as alcoholism, drug addiction domestic violence rather than simply processing them through the revolving door of imprisonment release and imprisonment so on and now I actually don't think feminist judging is the same as therapeutic jurisprudence although possibly therapeutic jurisprudence might be a subset of feminist judging but I need to do more work to tease out the similarities and differences and overlaps but what was interesting in this dialogue with my colleagues was the notion that if something already has a label therapeutic then that precludes it from being feminist or from being care now obviously I don't agree with that I mean I think if other people appropriate our ideas and call them something else then that doesn't automatically make them into something else but that is a sort of point that I will know can't be feminist because it's called this and I don't think those two things are necessarily mutually exclusive but the episode did suggest that I was right to suspect that something labelled humanist is likely to be more acceptable to the legal audience and something labelled feminist and particularly something labelled care but it also made clear to me that I'm not yet ready to give up either feminism or care no matter how strategic that might be then a further challenge to my thinking came from different which is the work that I'm now doing feminist judgments project so this is similar to the English feminist judgments project in that it's rewriting judgments across a wide area but it's got some extra elements in it including interviewing real feminist judges about their judicial practice and seeing what they say about what it is to be what they perceive to be a feminist judge and it's actually because of the federal structure of the judiciary in Australia that there's more superior courts because they're both federal and state level and the intermediate courts tend to have a higher profile so there's actually quite a lot of women high proportion of women judges then in England many of whom pan out of the community legal centre of the feminist movement in the 1980s so judges who self identify as feminists are not that hard to find and so we're in the process of doing a number of interviews and the set that we've done so far are all from one state so this is very much preliminary data but the judges that we've spoken to broadly break down into three groups so there's one group which rather disappointingly says I'm a feminist and a judge but I'm not a feminist judge and there's a number of reasons for why they say that which I won't which is a bit of a diversion but I'm happy to answer questions about that if you'd like to ask them and then there are those who are happy to admit to being feminist judges and describe their practices in different ways so a handful of them are definitely quite clearly care feminists so they emphasise empathy, understanding particularity, respect, responsibility one even refers directly to caring for the parties who come before her and they come across in these transcripts and interview transcripts as warm and lovely people now a couple of the others take a more intellectual approach they focus more on feminist issues rather than sort of feminist process and they talk a lot about how difficult and challenging it is to be a feminist judge and how they've been treated badly by their colleagues as a result and they come across as a bit dramatic a bit angry somewhat embittered now I know all of these feminist judges very well and I know they're different personalities and I know that some of the nice ones have also experienced a pooling disrespect as judges but she's not to mention it and I know that the angry ones are angry for very good reasons but my younger colleagues on the project who don't know everyone so well and are a bit questioning of their own feminism decided they really like the style of the warm lovely judges and they wanted to embrace them as models but they found the angry dramatic ones off-putting and that actually gave me some cause for concern because by positing feminist judging as a practice of care I don't want to valorise a particular feminist style or approach above all others I'm not sure if I think there might be different ways of doing care or if I think there's a caring way of doing feminist judging and other way or other ways and there could also be a matter of presentation because obviously what someone says in an interview might well be different from what you'd find by reading their judgements or what you'd see observing their courtroom it's interesting too that one of the angry judges has done a lot of work both on and off the bench in the area of child sexual abuse which is an area in which she would probably say as I suggested earlier that there has been far too much care for defendants and too the justice for complainants so perhaps that might be why she doesn't embrace that particular approach so that that sort of made me think harder and then finally I want to turn to an appellate judge who might seem to exemplify the notion of judging as a practice of care which is Brenda Hale who's previously the only woman ever to sit on the hazard boards and still the only woman on the UK Supreme Court now she's delivered some notable judgements which are at odds with her male colleagues in which she's engaged in situating contextual reasoning to express great empathy sensitivity and responsiveness towards women livings sustained relationships seeing and hurting against needs taking responsibility for meeting them recognising differences in them and I've got a whole series of examples here and probably not enough time to go through them but I'll just mention a couple probably a couple of the most famous ones so one is the gentle case brought by mothers of soldiers who were killed in the Iraq war and they took action what they were trying to do was to compel the government to hold an independent inquiry to establish whether it had taken reasonable steps to be satisfied that the invasion of Iraq was lawful under international law and Hale agreed with the rest of the court in holding against the claimants it was just legally impossible to reach the result that they wanted but in the course of her reasoning she kind of stepped out of the legal analysis to address the following paragraph directly to the families involved this is what she said not surprisingly the mothers of these young men want to know how and why their sons had died the circumstances surrounding their deaths must have raised many questions in their minds the army inquiries took time and they did not feel that they had been kept fully informed they felt with some justification that even in a situation of armed conflict these particular deaths might have been avoided but on top of those inquiries they wanted to know why their sons had been said to Iraq at all what they really want is an inquiry into whether or not the conflict in which their sons died was lawful if the use of force was lawful it would be of some comfort to know that their sons had died because if it was not there might at least be some public acknowledgement an attribution of responsibility and lessons learned for the future if my child died in that way that is exactly what I would want I would want to feel that she had died fighting for a just cause that she had not been sanctified a battle which should never have been fought at all and that if she had then someone might be called to account which is just such a that sort of makes me tear up actually it's such a sort of moving response to the families in which the families commented on afterwards and said she was the only one who actually looked at us and actually noticed who we were and what we were on about so it's possible to do that alongside doing a legal analysis of why they can't win but nevertheless to express that great empathy with them and at the end of the judgment she said for these reasons I would dismiss this appeal I do so with sorrow is nothing to that of the families and friends of soldiers who have died without knowing whether they were fighting a just cause history must be the judge of that so she just again makes that gesture to them which is so important and is undoubtedly a caring kind of response and the other sort of more recent case from 2011 is the McDonald case which is about a woman with restrictive mobility who was reliant on the assistance of a carer to help her get to the toilet during the night and the local authority which was providing this care decided that it was too costly she should use incontinence and the majority of the Supreme Court or men held that the counciller's assessment of her needs and their response to them was entirely reasonable and in this one Hale dissented and she absolutely a really trenchant dissent and she said that in this McDonald she's not incontinent her particular need is helping getting to the toilet and so in that situation it's completely irrational for the local authority to offer her incontinence pads instead of mobility assistance and she went on to say that a logical conclusion of the local authority's position was that it could leave people in their own feces as well as urine during the night or during the daytime and so again she was sort of really thinking about what this would mean for the person involved and what their concerns were and how it would be a horrible situation to be in and it's very interesting because mostly the relations between the members of the court is the Supreme Court very polite and cordial and respectful but in this case the majority she really wound them up in a couple of the judgements to specifically refute this point and she said feces were not part of the issue in this case and they got really upset about it they took great exception to that particular point and perhaps because as she has said afterwards as men they could suddenly imagine themselves in that situation they hadn't displayed much empathy with female anatomy in the matter of urination but if we're getting on to talk about lying in feces then but even suddenly we can see the consequences of that decision so that is a very interesting one but at the same time when it comes to actual mother-child relationships Brenda has orientation towards care it can become a bit troubling and in fact two of the rewritten judgements in the feminist judgements project concerned that particular issue so one of these is the case of EEM Lebanon there's a secondary state for the home department so here we have a failed asylum seeker in the UK who's threatened with deportation to Lebanon she fled a violent marriage with her young son and if she was returned to Lebanon then under the Sharia family law the father or his family would be granted custody in the child and so she was arguing that deportation would constitute a gross violation of her rights under the European Convention on Human Rights and the House of Lords upheld her claim and they agreed that deportation would result in a gross violation of rights but the rights that they focused on were the child's right and then also the mother's right to family life under Article 8 of the Convention so the decision hinged on her relationship with the child and sort of really elevated the rights of the child as a vulnerable to family need and protection to be the most important consideration in the case and what the feminist judgement writer does conversely is to insist on the woman's independent right to equality and non-discrimination in the enjoyment of other rights which would be grossed in violation by Lebanese custody laws so the feminist judgement focus on sex discrimination something that applies to her as a woman rather than family life which is something that only applies to mothers and children so she sees her as a person in her own right not simply as the mother of a child the relationship is important because it still grants the violation but it's not all consuming of the identity of the person and the reason why their rights are violated and then the other case is Regie which is a family law case so it involved the a lesbian couple who had had children together and subsequently split up and after the split the birth mother took the children and tried to limit their relationship with the other mother and the other mother saw contact and shared residence order and at one point in fact the trial shifted the primary residence from the birth mother to the other mother and so the birth mother was appealing and her appeal was upheld by the House of Lords and Hale gave the leading judgement and in giving the judgement she made some points about the fact that the birth mother the fact that she was the biological mother or her biological mother was an important and significant factor in her favour which wasn't to be displaced without very good reason and she said if it had been a more traditional dispute between the mother and father in the same circumstances their residence wouldn't have been switched to the father but the feminist judgement highlights the very particular position of the other mother so she's not like her father because she's not biologically related to the children and any rule that places a significant weight on biological relationships is therefore always going to have an adverse impact on mother's interposition so in order to be fed to both of the mothers it's necessary to look at the actual relationship between the children rather than establishing a priori preferences based on biology so who actually gives care who does the day to day work with caring and nurturing and the evidence was that while the relationship was intact they shared care more more equally that since the brave puppet was the birth mother who'd been the children's primary carer although they had extensive contact with the other mother and so the feminist judgement agrees that the children's primary residence should remain with the birth mother but for different reasons and for reasons which emphasise the reality of care and the specific situation of lesbian parents rather than potentially discriminatory status relationships so those two cases also encourage me to think quite carefully about the possible consequences of the judges adopting an ethic of care which might have a tendency in some situations to collapse into a kind of unthinking and potentially oppressive kind of privileging of motherhood so in conclusion it seems to me that thinking about judging as a practice of care is useful in capturing some of the attributes and approaches that I we most admire and applaud in feminist judgements and appellate level and in feminist judges in their interactions with parties at first instance and these are attributes and approaches that we might wish other judges or perhaps all judges to emulate but at the same time there are dangers in a care based approach on the one hand concept of care has become associated with a devalued feminine stereotype and occasionally can conform to that stereotype and on the other hand too much of a focus on care can be a bad thing as well as a practice as well as care and we don't need any feminist approach to become hegemonic now that provisional conclusion of course needs a lot more work as I said at the beginning and some of the more work that I'm planning to do rather so there will be further material coming out of the judicial interviews conducted for the Australian feminist judgements project that project also includes an attempt to catalogue a range of existing feminist judgements that's in the project considered to be feminist judgements so it will be interesting to analyse the collection and see what kinds of things come out of that and Erin correctly and I are also embarking on a more systematic analysis of Brenda Hale's judgements so looking at them all rather than just the headline feminist ones that I mentioned earlier and trying to get a better fix on when and how she does and doesn't take the diversion approach from her male colleagues I've also been sent away by my strength collaborators on the magistrates project to do more work on therapeutic jurisprudence and other forms of non-adversarial justice and to develop the care framework more fully but so as I said at the beginning I'm grateful to have the opportunity to reflect some of the ideas here today and keen to hear your responses