The Barrister Series S5E5 | A Passion for People and Family Law with Frances Irving

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TRANSCRIPT

Tune in for Series 5 of the HIP talks, a podcast series of discussions on legal issues hosted by Hugill & Ip Solicitors, an independent boutique law firm in Hong Kong providing bespoke legal services and exceptional client service to individuals, families, entrepreneurs and businesses, both locally and internationally. The forthcoming podcasts are The Barrister Series. Over six episodes, the team sits down with preeminent Hong Kong barristers to discuss contentious issues related to civil litigation, employment, family, trusts and estates as well as increasing awareness about the importance of the role of barristers in court proceedings and the relationship between solicitors and barristers when acting for clients.

Hugill & Ip provide expert advice across a variety of dedicated practice areas both contentious and non contentious and outstanding team of solicitors who have achieved exceptional results and recognition in the areas of dispute resolution, probate & trusts, family & matrimonial, corporate & commercial and employment & immigration. Hugill & Ip applies modern thinking to legal services, uses technology in a contemporary office environment and is fully committed to giving back to the community.

Caroline McNally  01:16
Hello and welcome to this podcast series. I’m Caroline McNally, and I’m the head of the family law team at Hugill & Ip Solicitors. I’m delighted to be joined by barrister Frances Irving of Des Voeux Chambers. Welcome Francis

Frances Irving  01:29
Thank you, Caroline, thank you for asking me.

Caroline McNally  01:31
Francis and I have worked together on many cases over the last 10 years, which we’re going to talk about. But let’s start at the beginning of your career Francis, because something that we have in common is that we haven’t had conventional career paths. And although I believe that your father wanted you to be a lawyer, you took a different path. Can you tell me about that?

Frances Irving  01:54
Well, I think probably lots of teenagers who are told by their fathers they should be doing something will decide to do the exact opposite. And I was probably one of those teenagers, but I suppose it was because as a child, I was considered to be quite argumentative, but I was a third of three sisters, so that was my job, to be argumentative. And at university, I did a general degree of all sorts of different arts things, and then went on to train in social work, which I was studying for three years after, after my university degree, and then continued to work in social work in Edinburgh before I came to Hong Kong. So it was some years later that whatever dad had said to me back in the day had begun to take root, I suppose, and I ended up with a second career.

Caroline McNally  02:39
So do you think your father was ahead of the time because were there many female lawyers at that time?

Frances Irving  02:43
As far as I was aware as a child growing up, and it was a small Scottish town, the lawyers, the accountants, the doctors, they were all men. My dad had ambitions for all of us, me and my sisters, to be professionals. So in that extent, he was ahead of the curve. But I suspect probably he wanted a lawyer in the family, because he got free legal advice and an accountant, because he’d have free accountancy advice. And at one point he had his eyes on the butcher’s son, I think, to provide his business with cut price produce. But he was an ambitious person himself, and both of my sisters had inherited that, I think. My older sister is still running her own business in London. The other one runs a business with her husband. So we all, none of us, are shy of working, if I can put it that way.

Caroline McNally  03:3
And you certainly seem to have a sense of adventure in your family, because I know that in 1975 you moved to Hong Kong with your husband, Terry, which must have been a very big adventure back then. Had you ever even been to Hong Kong before?

Frances Irving  03:43
I had not, but he had. He had worked here some years before, and it was just literally an adventure, two-and-a-half-year adventure. And Hong Kong had never seemed to me a strange place, because my mum was here straight after the war with an armory unit, and she’d always spoken about it. So it was something that was part of our storytelling when we were growing up. So when we were coming for two and a half years, that seemed like a grand plan. We rented a flat, our flat in Scotland, told my job I was coming back and off we came to Hong Kong, never to return. Actually, it’s a familiar story. It is a very familiar story, particularly of that era when my husband came out to work in a role with the government, and it was a two and a half year contract rolled over every two and a half years. And the first tour that we were here, our children were born, and then we became a family in Hong Kong, and that sort of seemed it. We never, never even discussed going back. Hong Kong is now home,

Caroline McNally
And you’ve been here nearly 50 years.

Frances Irving

Caroline McNally  05:09
Yes I often wonder what would have happened had my parents not moved to Hong Kong for their two years.

Frances Irving  05:14
Of course. And I wonder the same thing, would we be in the suburbs of Edinburgh now, as opposed to living in a fabulous city like Hong Kong.

Caroline McNally  05:23
I mean, I think that I probably would not have been a lawyer.

Frances Irving  05:26
Oh, do you think that’s interesting? Why’s that?

Caroline McNally  05:29
Because I don’t think that the opportunities would have come their way in the way they have.

Frances Irving  05:32
I agree with you, I wouldn’t be I’m quite sure I would have continued to be a social worker, which was a great job. I would have continued to do that in Edinburgh, probably, and I suppose, diversified a bit within that profession, but I doubt very much I’d have gone into law. I don’t know it was an opportunity that arose here, because I was working as a social worker in Hong Kong. I had been doing my job for 15-16, years in adoption for the social welfare department, and I saw an advertisement in the paper for a law course at the university, Hong Kong University, and I thought, I think I’ll do that because the kids were older, they didn’t need me weekend. This was a weekend course that I could do while I was working. So I did it just really out of interest.

Caroline McNally  06:20
But you weren’t planning at that stage, were you to actually become a barrister?

Frances Irving  06:23
I was not. I was not at all. I was planning just to do something away from husband, children, dog, house at weekends, doing something different on my own for a change, one evening a week and one afternoon a weekend. And it suddenly evolved, really, to now.

Caroline McNally  06:41
Yeah, I was going to ask you what changed. But was it something that just was organic and it just evolved?

Frances Irving  06:47
To an extent. Yes, I did my law training in the mid-90s. I was working for the government at that time, and it was a great job. I loved my job as social welfare, but there was a great push for localization. And I can see that although I loved that job and I’d been doing it for a long time, Social Welfare couldn’t use me anywhere else, only adoption within lots of English-speaking clients, they couldn’t put me in probation, in family training, Family Services. So I could understand that they would kind of look at my position and think maybe we should have somebody Chinese in that job. I can quite get that. And that sort of coincided with I’d passed the bar exams in London, which, of course, in those days you had to qualify as a Barrister in London.

Caroline McNally  07:35
I saw that on your CV. Actually, I couldn’t quite understand that, if you were living in Hong Kong, why you were qualified in England and Wales?

Frances Irving  07:42
There was no route in Hong Kong to qualify as a barrister. You had to sit the bar exams in England and be admitted in England and then be admitted in Hong Kong later. And so I think any barristers older than me and of my era, should I say, in Hong Kong, will have gone that route. They’ll have qualified in London and then returned to Hong Kong. So I had done that again, because it was interesting to do. But I continued to work for another year in social welfare after that. And then it was time to do something different. And I thought, well, I’ve got this qualification. I’ve been admitted in London. Let’s try it. Let’s give it a go.

Caroline McNally
It was a leap of faith.

Frances Irving
It was a leap of faith, but quite a big leap at that time, because you give up a paying job, you take on a place in Chambers that you start paying for straight away. So you’re paying rent for Chambers. You’re paying Chambers expenses. You’ve got no income from your work because you don’t go work straight away, and you’ve given up a salary. So it was a leap of faith, but sometimes you just have to take them.

Caroline McNally  07:55
And it was that at Des Voeux Chambers, you’ve been there through your whole time?

Frances Irving  08:49
I was very fortunate. I did pupillage in Des Voeux Chambers with Mairead Rattigan, now Mairead Rattigan SC, and did a criminal pupillage with Michael Poll, who’s no longer in practice in Hong Kong. It was David Pilbrow a family barrister. And then I returned to Des Voeux as a squatter. I didn’t have a room there, but I sort of hung around until they got so sick of seeing me, they thought they might as well give me a room, I think is what happened, and I’ve been there ever since. So it’s really been my home as a barrister,

Caroline McNally
And you imagine, have had mentors there which have helped.

Frances Irving
Oh, very much. So, I mean, I mentioned Mairead, who, if you ask her, will tell you that she was horrified to have me as a pupil because I was older than she was, and she told me much later that she’d complained bitterly that she had to have me. But actually, she’s been, it’s been fantastic to be in the same Chambers as her, and it’s also good to have somebody we often work against each other, and that’s quite constructive, because we can try to smooth off the rough edges of some of the cases.

Caroline McNally  09:55
And so as a pupil, you would have gone into court and watched barristers, for advocacy. And you learn that way.

Frances Irving  10:04
That actually that’s the way, that’s the traditional way of doing it. I mean, I think nowadays, there’s far more advocacy training within the training of being a barrister than it was back in my day. I mean, when I was admitted in London, I’d never been into court. You sit the exams, then you’re admitted. That’s it.

Caroline McNally  10:21
I find that terrifying. And I must have thought about your first time when you go into court on your own.

Frances Irving  10:26
Yeah, you wouldn’t be allowed to do that till you done pupillage. But in England, you were admitted in through, through your inner court. You’re admitted as a barrister, then you do your pupilage. Then I suppose it’s when you’re supposed to start, you know, learning what you’re supposed to learn. But also in Des Voeux, I was quite fortunate in that people who were doing different kinds of cases would kind of take me long to court with them. So I saw a range of stuff, not just family stuff. So that was very, very interesting. And of course, these are very skilled people been doing this job for a long time, and they’re very good, but scary to watch, because you think, oh my God, will I, you know, will I be able to do that?

Caroline McNally  10:59
Well, I’m going to come to the topic of the differences between barristers and solicitors. But, but what do you think really makes a very good advocate?

Frances Irving  11:10
If I say preparation, that’s, that’s, I think, terribly important, because you have to be on top of your papers, whether it’s two files or 20 files. You need to know what’s in your files. So preparation, and of course, you have to understand the case, the law, I suppose, commitment to the case you’ve got. And also, I think you have to be realistic if you’ve got a bad case, really, you have to be saying to your client, well, I know this is what you want, but realistically, are you going to achieve that? And that can sometimes be, I think the hardest role is having people accept the limitations of what a court can do, because you may have a very frustrated husband or wife complaining about the other party. Thinking I just want the judge to make the order. Well, okay, the judge can make the order, but that is not going to change the personality of the person you’re dealing with. If it’s a difficult and obstinate other parent, they’re likely to remain difficult and obstinate, and a court order will give you a framework that will give you some protection, but this is the person you have to deal with realistically over your children until your children are 20-21-25 whatever it might be. So I think you have to assist your clients in being realistic as to what they can expect from the outcome, because giving people aspirational views of something that simply can’t be achieved. I don’t think that helps anybody.

Caroline McNally  12:39
We’ve both heard various judges use the expression, “I haven’t got a magic wand”.

Frances Irving  12:44
I haven’t got a magic wand. Exactly. And it’s, it’s, it’s, for absolutely sure, and that’s, it’s a nowadays, I find judges say that first off, the day you go into court the very first time. Do you know what this is going to cost if you keep fighting? Do you know how it’s going to harm your children? And I haven’t got a magic wand, and all of those things are true.

Caroline McNally  13:04
And so you’ve had a very long career at the bar, and I’ve instructed you on many occasions, and have seen you in court, and you are a very formidable advocate, undoubtedly, but what actually I think sets you apart in your approach is I’ve also seen you be incredibly kind to clients. And so why do you think that’s an important quality in a barrister?

Frances Irving  13:27
When you meet people as a solicitor or a barrister for the first time, particularly, I think as a barrister, because as a solicitor, you could meet people who have quite straightforward matters as well as very complex and so some people you see can be dealt with quite efficiently and quickly, and this will take longer. By the time people come to me, they’ve had a very difficult road. And actually, I was thinking about this a few days ago. Do you know the first line of Anna Karenina, “All happy families are the same, but all unhappy families are different in a different way“. So there’s always something different. Every, every client you meet, there’s something different about them, about their case. But they’re all at a crisis in their lives. It’s always something it might be the children. That’s, of course, the most critical,  money … divorce. The divorce is the end of your expectation of your future. It’s a massive thing to happen to people, and they’re at a crisis, and I think they do sometimes need people just to say to them, that’s okay. Well, tell me about it, and we will. We can understand it, then let’s see what we can do about it. Maybe that comes from having a social work background, because I’ve been accustomed over the years to dealing with people in crisis in their lives, and so this is kind of a continuation of that. Obviously, the role is entirely different, but it’s, I think it’s important to be kind to people in any walk of life.

Caroline McNally  14:53
I think one of the things that perhaps people don’t appreciate about a divorce situation is the crisis that people are going through. And how perhaps they can’t recollect things the same. And we talk, we hear clients talk quite a lot about the truth. And of course, they have their truth, of course, and their spouse will have their own truth. And one of the phrases, which I really like, and I think applies to family law, is that of the late Queen who said “recollections may vary“…

Frances Irving  15:22
Yes, yes, exactly yes. And that’s, I think that’s absolutely right. Everyone’s got their own truth. And things that are perfectly acceptable in a together family, even though there might be a little bit quirky, are the kind of things that are raked up in a divorce. And I think of that my daughter told me about her husband, who was taking one of my grandchildren to the beach, and he’d forgotten to take a towel, but he had taken a hat, and he didn’t have this, but he had taken that, and they came back sort of tired and sandy after a couple of hours on the beach having had a lovely day. And so she was kind of laughing at his inefficiency. Forgive me, Tim for saying that, but she said if she wanted to divorce him, she’d be citing that as evidence of his carelessness, of his negligence as a parent, yet when they’re together, so it’s He’s a lovely daddy who wants time with his child.

Caroline McNally  16:08
Certainly, people come through the divorce process with a different lens, and they do tend to, I feel, probably because it’s a time of crisis, to look at things through a very negative lens. Yes, and I think part of our job is to remind them about the past, where there was a positive lens, and they would have seen things exactly the same things happening, but they would have viewed it positive way.

Frances Irving  16:33
In a positive lens exactly. I mean, I was in court the other day when a very wise judge said to my client and the other client on the other side, parenting is difficult. Nobody can say parenting is easy, and even if you’re together as a family, there can be lots of disagreements, whether it’s about health care, should the child be vaccinated or not? Education, religion, all of your things can be difficult within an intact family. So you have to solve them. You have to solve them one way or another, whether you’re together as a family or you’re separated. But when you’re separated as a family, then it becomes a legal battle, and that’s when it becomes you’ve seen it. We’ve seen it together. It can become extremely ugly.

Caroline McNally  17:19
It can and the professionals involved can be partly responsible for…

Frances Irving  17:23
Oh, for sure, for certain, sure. I mean, which comes back to the point I was making or trying to make earlier, that having the having reasonable expectations is, I think, very important for the clients. And if they’re told you can achieve the sun, moon and the stars when clearly they can’t, and it makes it actually impossible to come to the negotiating table or to mediation or to any dispute resolution, because they’ve got completely unrealistic expectations, which may well have been engendered by the advice they’ve been given.

Caroline McNally  17:58
I mean, I know clients have been very grateful for me in doing what they call throwing a bucket of cold water over them.

Frances Irving  18:04
And I’ve seen you do it, and it’s an important thing to do, to say to somebody, well, I know we’re going to court next week, and you want this, and the next thing, but you’re not going to get it. Let’s, we’ll do this meantime. This will be our goal. This will be our timeline. We’ll work for this, but you aren’t going to get it next week, no matter how much you want to which means when you go to court next week and they don’t get what they want, they’re prepared for it. It’s not a massive rush of disappointment, because what they expected isn’t happening. Being realistic in your expectations, I think, is tremendously important.

Caroline McNally  18:37
And I think another thing about communication is it’s so important and making sure the parties are able to communicate early, I think, and so early mediation is something that I do push for. But also the communication between the solicitors involved can have a huge effect. And I think it’s helpful for people to understand, really, how the court views a more aggressive style of communication.

Frances Irving  19:05
Yes, yes, indeed. Again, this is something I’ve come across recently where a judge gave a very stern warning to one of the solicitors involved, saying, if the tone of the communication continued, the way it had been going, steps would be taken, including costs orders made against the solicitor personally… solicitors, barristers, all of us are there to try to facilitate and bring about, we have an obligation to do the right outcome for children, in these matters. We’re not there to fight to win, and if you’re fighting a corner, that’s really doesn’t bring about the right outcome for a child, and you know it’s not the right outcome for the child, then I think you have to sit back very carefully and wonder about what you’re doing and why you’re doing it. It’s not about winning for lawyers; it’s about ensuring that the best arrangements are made for these children. And I think everybody in the courtroom has an obligation to try and bring that about.

Caroline McNally  20:01
I mean, the whole concept of winning and losing in family law seems quite foreign to me.

Frances Irving  20:06
I know it does, because that’s not the approach you take. And I’ve sat with you many times where you have a client who’s got, you know, there might be some difficulty in the case, and you own the problem. You don’t say, no, this isn’t a problem. Let’s pretend it’s not there. You say, Okay, we’ve got this problem, so how do we deal with the problem? And then we can move on, and you have to do that. That’s the only responsible approach.

Caroline McNally  20:31
Yeah, I do think that our role as professionals is to get the family through the period of crisis that they’re going through and set them on a positive road for the future. Yes, rather than throwing in the bomb and then washing your hands of it…

Frances Irving  20:44
And leaving people to deal with the aftermath. I mean, I bumped into a woman at some drinks event recently who’d been a client of mine years before, and I had remembered her case, but I wouldn’t have picked her out of a crowd, if I could put it that way. And she came and spoke to me. It was really nice to speak to her, and she said that she and her ex husband have got such a good relationship. He’s in a new relationship. She went round to meet the new partner and the baby, her children, their children go back and forth between the two homes, and said, it’s just it’s worked. There was grief at the beginning, but they worked their way through that, and now they have this grown-up, proper relationship that their own children can see them having. How much better is that than kids who are scared to tell their mum they had a good time with dad, or scared to tell their dad mum’s got a boyfriend? You know it’s, it’s, you can see the damage it does…

Caroline McNally  21:41
Absolutely with I mean, I think that is the sort of Nirvana, shall we say, of what families might want to look like. One thing I see is perhaps people being a bit unrealistic about how long that takes and how much work you have to do to get there.

Frances Irving
And in this case, I’m talking to you, but it took some years. Yeah, you know, people are hurt, bad things are said, which is why, again, settle your case early on, and the bad things don’t get said, the complaints as grumbles. But once you start firing affidavits, and again, the judges will say this, once you’ve sat in a witness box and been cross examined by your husband’s or wife’s barrister, you will never want to speak to him or her again.

Caroline McNally
Yes. I mean, I think that people don’t really appreciate that things get worse.

Frances Irving  22:31
Oh, and we spend a lot of time telling our clients that things are going to get worse…And emotionally worse and financially worse. This is not a cheap business. To take a case through court is a very expensive thing, but the damage it does to you, and it brings your children into it. They have to be interviewed by a social welfare officer. Sometimes they meet the judge. Usually that’s to be fair. That’s if they asked to or if the social welfare officer will ask, do you want to meet the judge? And they might say yes, um, maybe that’s a cathartic thing for them, because at least they’ve they could, the children can feel they’ve been hurt, which I think is probably important for them, but we’ll see the damage it does and the hurt it causes. And kids who are confused and mixed up so early mediation, you know, we’ve got loads of very good mediators in town, send them off to mediation.

Caroline McNally  23:20
I mean, I think that time is a healer. I think that is, it’s just true. But if you’re using your time as you go away from the separation, and you’re in litigation, you’re not healing during that period.

Frances Irving  23:31
And we’ve all got cases where, you know, five years down the line, six years down the line, people are still fighting. The children are I’ve got one case. The children are now in their 20s, and they’re still, they’re well beyond any orders being made, but they’re still fighting going on between the parents. Really, that’s not because of that’s just because of psychological enmeshment. They can’t cut the cord and separate from each other, there’s something that draws them into the fight… negative intimacy, I believe it’s called, yeah, it’s that, how can that be healthy for anybody not getting on with your life?

Caroline McNally  24:12
So during your career you might have, you will have noticed a lot of changes, particularly in relation to children cases. And one of the reasons for that might be because the roles that people are playing in children’s lives have changed during that period.

Frances Irving  24:25
I think that’s right. I noticed that even walking down the street nowadays, I’ve been here for almost 50 years, and you’d seldom see a father out with children on their own, with little children, with babies. Nowadays it’s very common dads with the babies in the little front carriers papoose on their own, or taking the toddler by the hand. So I think fathers are playing, this is just observation on the street and by seeing family friends and these fathers seem to play a lot greater role in in bringing up the children. And it used to be called your dad’s babysitting the children. And as one of my nieces says to her mother “he’s not babysitting, he’s parenting”. And that’s true, but that’s and women expect that this is not my baby, it’s our baby, and we bring them up together. Dads enjoy it once they realize it’s not just a job for women. But I think also that’s reflected very much in the social welfare reports we see.  They used to be children to be with mum. That’s kind of the belief in the community, and it was very often reflected in, I think, some of the professional reports that the normal thing would be for children to be with the mother, and the report would reflect what was happening at home, but also, if you like, almost societal expectations. But I think, I think the social welfare reports we see now are much better than they were, much more thoughtful, much more analysis going into them, and much more recognition of the importance of fathers in the lives of and particularly young children, not just, not just the 10 or 11 ear olds who can speak up for themselves, but for the little children. And I think that’s new, and I think it’s very, very positive.

Caroline McNally  24:29
One of the issues I think we see where conflict occurs in children cases is that as a family, there’s been a dynamic in the family, and it may well be they’ve the parents have taken on particular roles, but that’s when they’re living under the same roof, and that can change, because when you’re living separately, people step up, they take on a different role.

Frances Irving  26:28
And it does cause conflict. It does cause conflict, and it’s almost like, and I’ve referred to this before to clients like the Super Dad thing, that the dad who never before would be taking the kids to school or picking them up or taking them up or taking them into activities suddenly, is doing it, and the mother will say that’s only because he wants to look good in the eyes of the court. And you know that may be right initially, that may be right. But on the other hand, your child now has a father who’s involved. Is that not a benefit? That’s a good thing. So maybe having a super dad is a good thing for the kids.

Caroline McNally  27:01
I think the difficulty with that is that probably the pattern before is that one of the parties made a lot of the decisions, and now they’re having to make these decisions jointly, and they haven’t actually had the skill set to do that at a time where things were looked through the positive lens that we talked about.

Frances Irving  27:18
Exactly right. They haven’t developed the ability to do that. So the person who’s always who’s used to making those decisions, when I’d be saying he typically, he is interfering with my management of the children.  I’ve been the one who’ve done all of I’ve always sorted the ECAs. I’ve done all of this, and now I can’t because he’s messing with the timetable and makes life more difficult part of the learning curve. I think you have to learn to parent separately…

Caroline McNally  27:42
And you also have to learn to have a different relationship with somebody who you had been in a romantic relationship with, for sure, but now is a co parent.

Frances Irving  27:51
And you have to, reluctant, as some people are, give some credence to the views of somebody else. You know, the kids might be better with tennis rather than football. They may prefer to go swimming rather than fencing, or whatever it might be. If you’re used to holding the reins of authority or power in respect of the arrangements for the children, it’s quite difficult to let that go, both in terms of letting go and also acknowledging that somebody else’s views might actually be as worthy as your own.

Caroline McNally  28:25
So we’ve talked about some changes in the law in relation to children. But actually I reminded myself again, when I was looking at your profile on that Des Voeux Chambers website that you were part of the team in probably the most well known family case in Hong Kong, which is LKW v DD, which, for those people who don’t know it was Hong Kong’s case that changed the law in relation to financial remedies and effectively put in place the starting point of 50-50, and I remember as a four year qualified solicitor in London, when White v White, the judgment in that case was delivered, and it was just a seismic shift in the law. And Hong Kong had to wait 10 years.

Frances Irving  29:12
Had to wait until there was a case that would this new approach could be applied to. Because previously, as you know, the approach was that no matter how much money that typically was in the hands of the husband, even if it had been a joint endeavor to accrue those assets, if they were in the husband’s name, the wife would only be entitled to what she reasonably required. She wouldn’t be entitled to a share in the assets accrued by the husband unless, of course, she was a legal owner of them. I mean, the reasonable requirements in a wealthy family might have meant, you know, two houses and a set of stables, because that was reasonable in terms of the standard of living the parties had, but he all, all the surplus was kept by the husband. And as you mentioned, the White case, that’s when the court said, well, that actually the proper thing is to split things equally between parties, unless there’s a good reason not to, and then Hong Kong lagged a long way, as you say, 10 years behind. And the judges did try to approach financial cases in a sort of equal sharing arrangement as best they possibly could, but there needed to be a proper Hong Kong case in the Court of Final Appeal. And DD v LKW was, was the case, and it wasn’t a big money case. I think the assets were no more than HK$5 million, and the parties were both representing themselves at first instance, and then in the Court of Appeal. So the word went out within the profession that these people need to be properly represented, the legal arguments need to be presented to the Court of Final Appeal. So can we put together teams to represent both of the parties? And I was one of the teams in that case, on one of the teams, should I say? And it was interesting, because we looked at the law in many different jurisdictions. I mean, in fact, the Court of Final Appeal was very ready to say, yes, of course, we’re going to adopt but they had to write the judgment, and they needed to be given the ammunition and the research to assist in writing the judgment, but yes, and since that time, how often do we refer to LKW? I mean in every single financial case…

Caroline McNally  31:31
And it is a judgment that has absolutely stood the test of time, because when you re-read it, it’s so well written.

Frances Irving  31:36
It is extremely well written, and it draws on all the important, judgments from other jurisdictions. And essentially says, Yes, things should be 50-50, unless you can persuade the court it shouldn’t. And you might persuade the court it shouldn’t be because, well, I inherited this from these assets from my grandmother. I had them before I was married. They weren’t accrued through the marriage. And it’s all there. Everything you need is in that judgment, which is why, as you say, it has stood the test of time, and week after week, day after day, it’s referred to in the in the in financial cases in the courts.

Caroline McNally  32:13
So I’m going to move on now, and we’re going to talk about the differences between solicitors and barristers, because I do think that there is a lot of a lack of information out there, particularly because different jurisdictions have different systems. And I can well imagine clients wondering why they have to have both of us involved in the case.

Frances Irving  32:33
Yes, and people ask the whole time, why can’t I come straight to you? Or why do I need to come to you at all? That would be the two sort of questions. Well, of course, as a solicitor, you’re the first port of call. The client comes through your door with the story, the problem, the issue, and you’ll then mould the case. You’ll be the one who really works out the strategy, how you should be, what needs to be done, first steps, what needs to be done, and can it be achieved through the through the initial stages as a solicitor, or do you need to have somebody to who’ll go into court for you barrister to do the kind of stand up and arguing kind of part of it.

Caroline McNally  33:25
I think that’s one of the main differences, isn’t it? It’s the skill set, because as a solicitor, we spend a lot of our time with the client, doing the paperwork, yes, but we don’t necessarily spend a lot of time advocating on our feet, and it is a skill that you need to learn and own, and that is what you do every day.

Frances Irving  33:44
Well, that’s right. And as you say, you you’re the one who moulds the case, a strategy of it but I think it sometimes comes to the point too, when, when you’re, when you’ve been in the case of some time, and realize that it’s likely to go to a proper fight, and you want a barrister to be involved, then I have always found it very, very helpful in practice, if the solicitor is somebody like you and I will do but you sit in a room with a client say, Okay, well, let’s discuss what we need to do here. So it’s not just here’s a set of papers with an argument, with an affidavit. Go to court and argue, it is let’s work out how collectively we think this case should be presented to the court.

Caroline McNally  34:29
I think that might be one of the differences between a client instructing a specialist family solicitor, because when we work with barristers, we work very much in a team, and we collaborate together, whereas I might be wrong, but I think that if a client goes to a solicitor who’s more a General Practice practitioner, they won’t necessarily be very hands on in a family case.

Frances Irving  34:54
I think that’s very true, which is why I say it’s really helpful to be able to sit down with the team. With solicitor, client, and you know, and anybody else on your team who’s involved and work out how we progress, as opposed to somebody who doesn’t know the approach of a family court, has no experience with that and doesn’t have much to offer in terms of how, what can we expect from the court outcome that kind of, that kind of collaborative discussion can’t take place. It did kind of essentially hand the case over to the barrister, as opposed to say to the barrister, will you become one of our team?

Caroline McNally  35:34
Yeah. I mean, we definitely work well together, collaborating, working out strategy for our clients, and a lot of things are judgment calls, and so we discuss those with the client for sure to work out the best approach.

Frances Irving  35:47
And you know, it’s lots of these things. Are no right and wrong. It’s most things in life. There’s no right and wrong. It’s just chew it over and see what feels right within the context of the experience of the client, and what the client, what they wish the family set up, and it chew it over and see what, see what feels, what is going to be the right, what we think is going to be the best outcome in the end of the day.

Caroline McNally  36:18
I’ve had clients who’ve asked me whether I would do their trial. And frankly, that question sort of fills me with dread, but I think it also probably highlights that perhaps clients don’t understand the amount of work that goes in and also the skill that is required to do an effective cross examination, which I would put my hand up and say, I just don’t have that experience.

Frances Irving  36:40
I think it would be tremendously difficult for a busy solicitor like you to set aside the time to prepare for a trial, for a four, five day trial. I mean, I would certainly expect to have at least the week before the trial completely set aside and the weekend before the trial, and, of course, lots of time before that as well, because you’ve already probably been involved in earlier court hearings and looking at documents and affidavits and court reports and that kind of thing. It’s absolutely full time, 24/7, for the whole time you’re in court and for the time before. So it’s in terms of time commitment, because that will be the only case I’m involved in for that time, you will have other clients who want your attention. They want to come through your door, have a meeting with you. You’ll have other things to prepare for different cases to go to court. I won’t have that for that time.

Caroline McNally  37:39
I mean, time is one of them. But also it’s just skill. I’ve seen you cross examine in court, and it really is something to behold.

Frances Irving  37:47
Well, that’s very kind of you to say we must have been there on a good day. It’s, it’s, this comes back to something you asked in the beginning, and it’s about knowing your papers. I think that’s got an awful lot to do with it, because if you do know your papers, then you know you can think on your feet. You’re not scrambling around trying to find out what the responses from me should be. Or maybe it comes back to dad, I was saying I was argumentative for the cross examination point. Yes, I don’t know. I’m quite sure if you if you wanted to do it, you could, well, again, it’s a skill that you can learn. Of course. I think that’s right, that’s right, yeah, and you practice it, and you hone the skill, and you realize what you did wrong. And I remember years ago talking to a London silk who was out here helping on one of my cases, and somebody said to me, when you leave court, do you still he’s very, very experienced guy. When you leave court after your trials, do you still worry about what you did throughout the day? He said, of course, I do. I’d go home and I think about it, you know, for ages, because that’s how you learn, that’s how you get better. What did I do wrong? What did I do right? What should I have done? Should I have said that or not said that? And I think all the barristers I know that do my kind of work will tell you they wake up in the middle of night haunted by something that happened in court, thinking, Oh my God, should I have said this? Should I not have said that? It’s just it goes with the territory, I think. And if it doesn’t, if you’re not thinking that at the end of the day, that seems to me to be a bit unusual.

Caroline McNally  39:30
They talk about adrenaline and saying about, you know, healthy adrenaline is what you need, because if you don’t have any adrenaline, that’s when you should worry.

Frances Irving  39:38
Oh, I think that must be right. I mean, it’s scary every time. Does anybody not have adrenaline? I don’t know. Do you ever see it?

Caroline McNally  39:49
Well, it’s difficult to tell, isn’t it, because professionals doing their job, they look very composed. Yes, sometimes the feet are going very fast under the water.

Frances Irving  39:59
I suppose, like the yes, what is it the swan or the duck looking calm above come above water, and the feet paddling? Yeah, I think maybe, maybe exactly that.

Caroline McNally  40:08
So you’ve been involved in too many cases to remember, I would imagine, but there must be some cases that have left their mark on you.

Frances Irving  40:14
Yes, yes. Some, there are some, some I remember, kind of with a smile, and some with respect for the people involved, most of the latter, of course, what I remember that always makes me smile and slightly chuckle when I think about it was when we had an interpreter in court, and the one of the clients the other party, kept on interfering and interrupting the interpreter because he wanted the interpretation to be more in favor of his case. He didn’t like the answer that the witness was giving, and was trying to reinterpret it for the interpreter. So there ended up being a screaming match between the interpreter and the other party, and unbeknownst to either of them, the judge spoke the language in question. It ended up being a complete circus on a Friday afternoon. And that was one that I think of as just a like a bizarre happening, but in terms of cases that kind of stick with me as things that I remember one case in particular where a little girl of she must have been five or six. Her father was trying to make her say that the mother abused her, and it was a very domineering father. Gosh, she was domineering… people, the kids were scared of him, but this little girl, the siblings, were different. They were still a bit scared of him, but this little girl said resolutely to anybody who would listen to her, my mummy doesn’t hurt me. He keeps telling me to say that she does, but my mummy doesn’t hurt me. And I think now, man, what courage that child had that took a lot. He was a big guy. He had a loud voice, scary. And I think of that little girl now she’s must be 20, what respect to be able to stand up and do that. But I think of other cases too, where kids have been sufficiently cowed by either by a parent who wants to ensure they have no relationship with the other parent or by a domineering parent, that they will be kids. We know it. We said, as we started off talking, damage for life. By the way the litigation, the damage has been done to them during the litigation. And it’s tremendously sad. But I look back on a lot of the cases of the work I’ve done and people I’ve worked with, actually generally speaking with respect for their resilience, and I hope, I hope that most of them not because of my efforts, because of their own. I most of them kind of come through and think… Well, that’s in the past, and I’m now, I’m now moving forward, because we know the old rule, a happy life is the best revenge.

Caroline McNally  43:13
Absolutely, I do say that to my clients. Yes, we find clients very, very focused on their spouse and a lot of the time, you know. And a rule of litigation is focus on your own case and focus on yourself and your own well-being, yes.

Frances Irving  43:26
And as I say that, there was a client came in to see me, an old client should be, it must be, more than 10 years ago, now, living in America, and she came back to Hong Kong to visit one of her children. Was living here, and she just dropped I was in Chambers, and I got a call to say this woman was in reception, and she’d been a woman who’d had a very domineering husband who’d sworn that he would never give her a penny. And indeed he’d after she left Hong Kong, he didn’t she got some assets out of him, but she never, ever, ever got paid any maintenance. So she went back to where she came from, she went to university, she got a degree, she got a job, she bought a house, she was happy, and she was a perfect example of living a happy life is a best revenge. She just said, I’ll look after me. I can’t I’m not going to spend my days fighting him, going through courts. I look after myself. And it was great for her to do it, because she never had been able to do that in the past. I thought it was fantastic. I was very proud of her.

Caroline McNally  44:36
Now I’m going to ask you a difficult question. Then, right, when you look at your own career, what are you most proud of in your career?

Frances Irving  44:44
Can I say survival? Is that the right answer? Resilience? Yes, resilience. I’m pleased that I enjoy what I do and that I’m still doing it. And funnily enough, you’re started off asking about, you know, my father, having thought I should be a lawyer when I was younger, I think he’d be proud. I think he’d be pleased. Mum certainly was. I suppose I’m proud to still be standing, still be doing it.

Caroline McNally  45:18
You certainly have a curiosity for it. Otherwise you wouldn’t be doing it.

Frances Irving  45:22
I think you have to have, if you, if you, if it doesn’t matter. I mean, I think if you’re working with ships or with companies, I mean, it’s all very interesting and academic and intellectual, do you really care? Obviously, you care about the outcome, because it’s your profession, and you have a professional obligation to do, obviously, do your best, and people want to do their best in that, but do you actually care about the ship. Probably not so much. But that, I think, in our work, and you have exactly the same thing, you know, solicitor or barrister makes no difference. You really have to care about the outcome. It’s not, it’s not a paper exercise because of people at the end of it, which is partly why lots of people in my Chambers, people who do commercial work, would say, Do not ask me to do a family case. I’m not. I went to family court once. I’m never going in again. It was terrible. People were crying. I’m not doing it. You’ve got to be prepared to deal with that, and to think, Well, yeah, it matters. It does matter, and you care about the outcome.

Caroline McNally  46:28
So looking at the younger generation of family lawyers, one of the concerns I have is we do see people leaving the profession because, in actual fact, it is a difficult job, and you do need a lot of resilience for it. But in a law firm, the younger solicitors are part of a team, and they can be mentored, and they can be supported. But it might be quite lonely as a junior barrister.

Frances Irving  46:50
I think that could be right. Des Voeux Chambers is now very, very big. We’ve got, I think, 100 members. I mean, to my shame, I don’t know a lot of them, but I think there’s quite a lot of support, kind of collegiate or support, among the younger end of the members of the Chambers, but not many of them are family lawyers. I think it’s certainly, certainly true that you do need to have some kind of support the right word, I suppose, I suppose it must be for community, yeah, well, yes. And of course, as a barrister, you can get that from your solicitor, because you’re working with a solicitor very closely over these cases. You’ve got the same goal, you’ve got same ambition for the case. You know the same glitches with it, you know the same issues or problems that might be cropping up so to that extent, yes, but some, some of the cases and the outcomes and the things that happen are pretty miserable, miserable and unhappy, and that could be very hard to deal with. So I have been talks to the Family Law Association here from people who, and I think particularly those, some woman from London, and also at a conference I attended in London, saying all people doing this kind of work should have a very, very secure and structured support network. It may be that you have somebody you go and talk to once a week, once a month about your work, somebody who can with whom really, you can let off some steam, to an extent. I have that in Chambers. I’ve got people who do my kind of work in Chambers, and we can have a good grumble after work. More likely it would be with a solicitor who’s involved in the case, but it’s the I quite often have young people in Chambers who are doing family work, and there aren’t so many of them, but there’s some will come and knock on my door and want to ask things about the case, but that’s more like, what should I do about this problem? As opposed to, I’ve had a terrible day, and I don’t know how to how to get beyond it. So maybe actually, what we should be doing within Chambers now that I think about, and I’ve never thought about this before, is sort of put out some feelers to the, I mean, those of us who’ve been doing the work for some time, put out some feelers to the younger people who are doing family work, and say, Okay, would you like us to have a every couple of weeks? Have a coffee morning, you know, coffee get together, or a glass of wine on a Friday, or, you know, would you like us to do something, to form some kind of group of interested or people interested in this kind of work, actually, that that that really might be worth doing, because we’ve got a very dynamic practice development manager now within Chambers, but she’s great, and think if I discussed it with her, she’d be exactly the kind of person who would say, Okay, well, let’s, let’s put out some feelers and see if there’s interest for that, because I think that would be really worthwhile doing. Actually, I’ve never thought about it before.

Caroline McNally  50:12
I mean, I think definitely the profession has changed. When I started out, it was very much stiff upper lip, and you just had to cope, and it’s difficult work, and I feel it’s moved on now, and I don’t think you just have to be a robot and cope with these sorts of things.

Frances Irving  50:27
No, I think that. I think that’s absolutely right. I mean, it’s yeah, exactly what you say we should, rather than have people just come and randomly knock on your door and say, can ask you about this if there was something like, I say, you know, right? Of course, everybody’s busy or out of court, but whatever, half past five and a Thursday, let’s get together and have half an hour together. I think that might be really worthwhile doing. It is stressful work. It is stressful because what happens in these courtrooms, changes people’s lives. It changes their relationship with their children. It changes their financial outlook. It changes their expectation for the future. And they have already lost what they expected to be their future. The marriage is gone. They’re sharing their children, as opposed to living with their children full time. They don’t have the financial resources they had before all of these things have changed, and it’s enormous for them, huge for them, and inevitably, has a knock on effect on the people who are working with them, in terms of, if it’s a bad outcome and an outcome you had hoped not to happen, it can be pretty depressing, actually. And we’ve all had days of leaving court thinking, Oh my God, that’s, you know, I don’t want to talk about this ever again. This is the last time I’ve talked about this case. You know, the kind of feeling that you’ve just.

Caroline McNally  51:54
Well, that’s one of the things that we do say to our clients, is that to avoid those types of situations, to control the process. Don’t leave it in the hands of a judge and try to find alternative dispute resolution, methods of resolving their disputes.

Frances Irving  52:09
And of course, as judges will say time and time again, if you mediate and you reach an outcome you can live with, at least you control that outcome. If a judge decides you’ve got no control, you might get what you want, but you might get nothing that you want. At least with mediation, you can, it’s bit like in the market. You can bargain. I’ll give you this if you give me that. And we can have that. We can cooperate in this way. And so it will be something you can live with.

Caroline McNally  52:43
I’ve been really taken by times we’ve been in court, and we might have quite big legal teams on either side, and so there’s a lot of legal brains in court, and then the judge will say something that nobody in the courtroom thought of or expected. And so you’re out of control in that time.

Frances Irving  53:01
I mean, for absolutely sure that and the judge will say, Well, if you want me to decide, I’m going to decide something either one of you wants, or, you know, it might be something both of you hate. So why don’t you go outside and work out something that will be manageable for both of you, because it can often be such a small thing the fight is about, you know, will the pickup of the child be a five o’clock or six o’clock on a Friday? Can it be Tuesday rather than Wednesday? These are not life changing events in the big picture, but in the moment for the client, they seem like they’re massive. Then to fight over those things just seems to be destructive.

Caroline McNally  53:44
I think one of the more difficult areas that we deal with, which is cases involving relocation of children. I mean, they are the very, very difficult cases. And I know that you’ve actually had a personal experience of this recently, because your beloved grandchildren have left Hong Kong.

Frances Irving  54:01
They have and my daughter was unkind enough to leave Hong Kong, where she was born and brought up, and take my grandchildren with her. She sometimes calls me says, Do you want them back? Because they’re driving me mad, but they’ve lived close to me for all of their lives. But she went to live in England a couple of years ago, and I was broken hearted for them all to go not just a grandchild

Caroline McNally  54:29
It must have given you a view about what our clients go through in those cases.

Frances Irving  54:34
I can only say I got the tints of it because it felt, it felt to me like it was my heart broken, but they weren’t even my children. So how does it feel if they are your children, and you used to seeing them every week, and suddenly they’re across the world on the other side of that? I look at the arrangements they now have, and I think that it was the best thing for them. I mean, I, and I even admit, admit that to my daughter, that you did the right thing. Kids are happy. They’re settled. And, you know, I’m only their grandmother. I’m not their mother or their father. And of course, I’d feel, I’m sure I’d feel differently, but I can see that there’s a …. when you see that it’s been a good move, it’s been the best thing. And this is what judges have to do. They have to weigh up, is this going to be the best thing for these children? They are going to lose the daily or weekly contact with the other parent, but there will be the holidays. And it’s always said, well, now we can do FaceTime, yeah, yeah, yeah. FaceTime is not a cuddle, is it? It’s not a not a book at bed. Well, it can be a book at bedtime. Actually, that’s the smart thing. If you say to the kids, can you buy this book? And I’ve got this book here, we’ll read it together. Even though it’s in FaceTime, it’s better than nothing. It really is better than nothing. So it’s a very difficult, very difficult kind of application, a very difficult principle. But then, what do you do if you’ve come if you’re a lot of my clients would be people who’ve come to Hong Kong because of the marriage or the other party’s job. Marriage breaks up. So why am I remaining in Hong Kong just because of somebody else’s job? I suppose the answer to that might be where you can go if you want to, but the kids can’t go. It’s, it’s a tough one. And of course, because Hong Kong is such an international city, I think we probably have more cases, a higher proportion of relocation cases, than lots of other places would have.

Caroline McNally  56:37
Oh, I think we also have incidents of international marriages, yes. And so in those cases, if the relationship ends, you might have one party who wants to go to England and the other party wants to go to New Zealand.

Frances Irving  56:52
Yes. Yeah, exactly. And there’s the three different places involved. You know, American meets an English person in London, and they move to Hong Kong. So where’s, the family base? It’s, yeah, it’s problematic. It really is. And there’s no perfect answer is that, yeah, there certainly isn’t. And it’s difficult to know all if the relocation takes place, it has to be on the basis that the absent or the left behind parent is having as much of the holiday time as you possibly can. Of course, if you’re a working parent, is difficult. You can’t take three months off, a year, necessarily, to spend time with your kids. Or it has to be an acceptance Okay, the kids will come back and see the Hong Kong parent, and it may be some of that time, they’ll be in a day camp, or they’ll be with a helper. You can’t expect the parent, the working parent, to have all of that holiday each year. It’s difficult. They’re really, really difficult cases, and somebody’s heart is going to be broken as a result of the outcome.

Caroline McNally  58:05
One of the things I don’t really like that people say about Hong Kong, but there might be an element of truth to it, is that it’s the graveyard of marriages. Maybe, yeah, I think it used is it still? Do people still say that? I might say that, but I think part of it may be because Hong Kong is such a international, vibrant place. Perhaps couples come and then they change in ways that are different from each other, and they grow apart…

Frances Irving  58:36
That could be right graveyard of international marriages. You mean? Of, yeah, I really don’t know. So many of the people I have worked with recently, there might be an international marriage, but people who both intend to remain in Hong Kong. There’s no, there’s not a relocation that they both intend to be here, but the marriage has broken down here because of relocation or just because they would have done anyway. I really don’t know. I don’t know.

Caroline McNally  59:08
Well, perhaps people are looking around the rest of the world these days and thinking there aren’t necessarily better places to be.

Frances Irving  59:14
You’d have to look incredibly hard to find somewhere better. I mean, I think you should look around the world and be absolutely terrified of what you can see. And think, in that case, I’m staying in Hong Kong, I don’t plan to leave where looks better at the moment? I spend my whole days being completely terrified about what I see around the world. So Hong Kong, I think, is a fabulous place. I’ve always loved Hong Kong. I love the Hong Kong people. They’ve got a spirit, they’ve got a resilience, they’ve got the hard working, they’ve got the I think it’s a great place to be.

Caroline McNally  59:48
‘m going to wrap up now, but actually, you’ve just sort of led me to, perhaps the advice that you would give to young family lawyers and all of the things you just said, is really what they will need to have. They need to have resilience. Constantly, to work hard, to have a passion. I think that’s true.

Frances Irving  1:00:04
But you mentioned earlier that you know the young people leave the profession. I’ve known quite a few young solicitors who’ve done a few years as family solicitors and then said, I’m done with this. I can’t, I can’t deal with the unhappiness. Of course, there are solicitors who are getting it that they’re the first point port of call for the clients, so maybe, maybe different for them. But I think you have to be able to deal with that unhappiness without letting it overwhelm your life, because I think it could, it could lead you to be feel really miserable all of the time, which is no way to live your life. And those are the people who will then say, fine, I’m going off to do I’m going in-house. I’m going to work for some ….. I’m not doing this kind of work anymore. If that’s how you feel, then it’s a decision to make the right decision, do something else, do something different. I think you have to care about the outcome. And that’s not coming from kind of my social work side. It’s coming from the realistic side. And you have to care about people, yeah, and if you didn’t go work with a ship, you know? Yeah, I think you do have to, you have to care about the people, you have to care about your clients, and you have to care about getting the best outcome.

Caroline McNally  1:01:30
Well, thank you very much for your time. I’ve really enjoyed our conversation.

Frances Irving  1:01:33
Thank you for asking me.

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