Judge’s low regard for the law
A client (A) asked me today if I could give him certain information so he could manage his own expectations concerning his case. It was a fair question. He wants to release information about a family case he is involved in. He considers he has been unfairly threatened with prosecution by the police because of information provided maliciously (it seems) by the mother of his child. Before I could respond I reflected on the anarchic state of family law as 2014 progresses; and on how difficult it is to advise clearly when the law is held in such low esteem by the judges who should support it.
Prior to the mother’s involvement of the police, in response to a contact application A had filed she was permitted to extend a case management appointment to nearly an hour (he was absent: he lives in Asia) and to file evidence over thirty pages or so (much of it highly critical of A). In all of it there was not a word of the allegations she later made to the police. Was her later contact with the police malicious?
His criminal lawyer failed to obtain permission to release the family court papers; though between the lawyer and the judge they found none of the voluminous law and case work on the subject.
An appeal by A to a Family Division judge has been refused permission, but the judge has agreed for the order not to be drawn up, perhaps with the intention of the judge reviewing his refusal. He will look at a transcript of the short permission hearing. In that hearing:
• He asserted that there is a procedure whereby A’s solicitor should have asked the district judge for further details of her judgement. This is normal practice in the PRFD (it was said). Where information as to this normal practice can be found I have yet to be told.
• The police could have applied to the court for the documents, said the judge. When he was asked by what formal procedure, he moved on quickly.
• His final remark (mentioned also in his short judgement) was to cite a case which supported his refusal of permission; but he will not – or cannot? – provide details of the case.
Near anarchy: uncertainty and misrule
Anarchy is an absence of rules. Near anarchy is some rules but, for the rest, uncertainty (or misrule as it was termed in medieval times). At least with anarchy you know where you are: you’re on your own. With near anarchy, sometimes rules apply, sometimes not. This state of affairs characterises the new family court.
We are told:
• Local practice directions can apply; but presumably – though there is to be a ‘single’ family court – at any time this could change. If practice directions can come in on a whim, perhaps they can disappear or be altered on a whim also.
• Many ‘rules’ now appear in practice directions which emerge without any real democratic accountability, and – like the rules and the practice direction under it for family mediation information and assessment meetings – bear little relation to the statute which put them in place (ie they are probably unlawful)
• Whilst litigants (and their advocates) must tell courts the law on which they rely, some senior family court judges do not, it seems form my example, have to undergo the same discipline.
• Court guidance can be issued at will by judges without any real basis in law or practice (I think hear of documents said to have been ‘illegally’ obtained by one spouse from another: Imerman documents); and parties and their lawyers must follow the guidance regardless of the consequences for them or their clients.
So where does this leave the family lawyer who is asked, entirely understandably, to manage his client’s expectations? I understand and can explain to a client where judicial discretion can be applied. A understands that in the case of the district judge and the judge – who has thus far refused permission have exercised a discretion to refuse. But a judge can only exercise discretion where there is no law, and only when such facts and law which apply to a case have been established; or where the common law or statute sanction an exercise of discretion.
Refusal to release: the Convention balance
In A’s case the district judge did not consider the law. The judge regarded this lack of consideration of the law as a correct approach to the case. He did not consider what the law was (though it was set out for him in a short skeleton argument). If judges refuse to consider and to follow the law; and if in doing so they make up other law (which may or may not exist), we are truly getting to a point of near anarchy in the family court.
Because it is a refusal of permission to appeal (if the judge holds to his view on permission to appeal), the question in A’s case can go no further. One parent – mother or father – can prosecute maliciously (in tortious or criminal law terms) knowing at least that the family court will impede the parent who may have been maligned. As an alleged tax dodger you may or may not get away with it before the family court (an unsatisfactory state of affairs and of uncertainty, in itself); but if a parent may have been maliciously implicated to the police, the Family Court will not help.
How to manage A’s expectations? If the judge will not set out the procedural rules and case law he has cited my hands are tied in terms of my advice. Till the order is sealed – if it ever is – my advice remains: suitably redacted (to exclude the name of the child) release of the papers to the police or in any court proceedings should as a matter of balance between the mother’s Art 8 rights, and the father’s Art 6 and 10 rights, have fallen on the side of A. His application should have been granted. A human rights balance, in the family court’s semi-anarchic state, was not attempted by either judge in the two brief hearings before them. As a matter of law this should have been central to what both judges did.