Family courts: justice and any imbalance
Is any form of bullying tolerated in the family court? These are a few notes by one who has appeared in family courts as advocate throughout a forty year career as a solicitor. They are written at speed, and will need to be developed in a number of the controversial areas which this subject throws up.
It is surely important to recall that bullying – is it not? – is, like discrimination. It is a matter for the perception of the object (victim) of the bullying; and therefore anyone with the ability – eg a judge because of his/her position – needs awareness training on the subject as part of the qualification (and continuing assessment: continuing assessment for judges?) for the job.
If both sides appear in person, they are in conflict of some sort, by definition. I do not know what training judges have to deal with bullying or imbalance as between the parties. What chance does the system provide to enable parties to state that they have worries about bullying and imbalance? None, I suspect. Should it do so?
Perception, fear etc of imbalance, bullying is an area which must be fundamental to a fair trial; or at least the perception that you have been fairly dealt with (however the court may have dealt with the law). The need for judges to consider – themselves or through others, say an advocate to the court – taking on examination of parties, especially vulnerable parties, is only just beginning to be understood (see recent cases on Matrimonial and Family Proceedings Act 1984 s 31G(6)).
By judges: of parties or of advocates
By back-ground judges rise to their positions as a progression from junior to increasingly senior barrister (mostly; there are some solicitors); and then they become a judge. Judges are obsessed by rank: who can do what in which level of court. And ranking gives scope – increasingly as you climb the judicial pole – for a feeling of superiority and of bullying (in the wrong person).
Many judges are well able to compensate. They know they have wide powers; and that they need – more or less – only listen to what they want to listen to, consistent with giving parties a fair trial. Some judges are almost unfailingly courteous. Others make their rudeness, at times, a hall-mark (or so you feel).
Their job is to listen. If they fail reasonably to do so, that too is a form of bad behaviour; it may be unlawful; and at times it may be bullying.
Mostyn J: seven minutes of rudeness
I reproduce in full my exchanges with Mostyn J over his short disposal of a recent application, namely Mr L’s application for permission to appeal against a district judge’s decision. It shows – it seems to me – a judge shamelessly trying to override court rules; and – thus far – being able to do so. They are not major rules, it must be said; but like lying it is better not to do things which are unlawful (especially if you’re a judge). Once you do, you know you are on a slippery slope. One day you may be found out.
As to my short case (only a couple of points):
- First Mostyn assertion: I have not yet been told of the system whereby a judge in the county court (or Principal Registry of the Family Division equivalent) gives a decision and then is asked for full reasons later. Were this so Mostyn J refused permission without knowing in full the judge’s reasons. He is hoist on the petard of his own misrepresentation (if that it be) of procedure there.
- As to the second: there is no simple means – in the heat of the moment I agreed with his point (wrongly) – for the police to apply to the family court to seek evidence for their own prosecution.
These may be only slight points; but they advance when you know that Mostyn J knows that I write books on procedure. He would – or should – know that I know where he is making up the law. What chance has the lay person or the more junior lawyer against this sort of behaviour?
As soon as a judge – with his/her unique authority in court – starts to make up the law, surely that is a form of bullying (not of me, but of private parties), by any definition. The judge is using a position of power which s/he believes to be unassailable?
By advocates and other lawyers
The common law adversarial system of litigation – for good or ill: I do not take on that point, for now – is based on a formalised medieval joust where each side takes it in turns to strike verbal blows. (I grew up when El Cid, the film, was popular; so I am fully versed in the means whereby the kingly neighbour dispute over Calahaura (I reproduce what I heard Charlton Heston call it) was conducted).
So yes, I delight in knowing the law – that is my job – and, I hope, knowing it as well as anyone else. I am much older than was Charlton Heston as the Cid; and my might (in terms of knowledge of the law) may not compare with that of the medieval champion. It is still the championship approach which counts. My knowledge is there to help the court – that is where my first duty lies; but can that knowledge intimidate? If it does can that become bullying. I cannot imagine it would; but till I wrote the above I can honestly sya I’d not given it a serious thought.
So an understanding of bullying and its significance by the professionals – judges, lawyers etc – who staff the family court system is an essential first step for the sake of the family court litigant. That people who feel bullied are listened to (within reason) on the subject is a next step. Could these two improve our family court system for the parties to family disputes in any way?
Appendix 2 – transcript of hearing
- D. BURROWS (Solicitor advocate ###) appeared on behalf of the Appellant.
THE RESPONDENT did not attend and was not represented.
P R O C E E D I N G S
- JUSTICE MOSTYN: I do not know anything about this case.
- BURROWS: I am very sorry if the bundle had not arrived until this morning. It was turned back by the DX, I am told.
- JUSTICE MOSTYN: What does that mean?
- BURROWS: It was sent to the document exchange last week by the solicitors in Yorkshire and apparently it returned to their DX address, document exchange address, yesterday. So they sent it to me care of a firm of solicitors across the road here, and I brought it with me this morning. I am very sorry.
- JUSTICE MOSTYN: I have not read it, so I do not know anything about the case at all.
- BURROWS: It is a very, very short point, my Lord.
- JUSTICE MOSTYN: I have gathered it is an application for permission to appeal.
- BURROWS: It is, my Lord.
- JUSTICE MOSTYN: I see.
- BURROWS: But it is not because — permission was not asked of the judge below.
- JUSTICE MOSTYN: Is there a judgment?
- BURROWS: FA3. It is behind a tab which has been entitled “FA”.
- JUSTICE MOSTYN: I see.
- BURROWS: At number 1 there is a note of the proceedings before District Judge Gordon-Saker and at page 3 you will see what District Judge Gordon-Saker said … the application, which was for permission to disclose documents to the police.
- JUSTICE MOSTYN: What documents?
- BURROWS: The documents, basically, that are in the rest of the bundle and rather more. I have pruned some out. We see a lot of case reports at the end. But, back to the tab FB, the solicitors were asking for those documents to be disclosed to the police with some others. I have tried to prune it back a bit for today, but essentially he, with criminal lawyers, wants to be able to disclose documents to the police.
- JUSTICE MOSTYN: Why?
- BURROWS: He was interviewed by the police because the mother of their child had said that he had anally raped her on at least two occasions. For reasons the police will not say, the charges have been dropped. He denies that anything like that happened. This has been dealt with by criminal lawyers, my Lord. I have merely come into it at this stage when permission was refused by District Judge Gordon-Saker.
- JUSTICE MOSTYN: I see. So where is the application notice that —-
- BURROWS: That they put before District Judge Gordon-Saker?
- JUSTICE MOSTYN: Yes.
- BURROWS: I cannot find it.
- JUSTICE MOSTYN: I see.
- BURROWS: But it is plain from the — there is a statement by the solicitor who dealt with the matter at FA4.
- JUSTICE MOSTYN: Mr. Justice Bodey gave a lengthy judgment on this very subject recently, did he not?
- BURROWS: He did a series of them, my Lord, yes.
- JUSTICE MOSTYN: Very recently he gave one, in which he said there should not be a disclosure to the police.
- BURROWS: Is that not in care proceedings, my Lord?
- JUSTICE MOSTYN: Schedule 1 proceedings.
- BURROWS: In Schedule 1, in terms of financial —-
- JUSTICE MOSTYN: Yes. The mother wanted to disclose all the papers to the police to show that the father had been lying his head off in proceedings, and Mr. Justice Bodey said that that would not be allowed, among other things, because it would be contrary to the interests of the child. Is there a child in this case?
- BURROWS: Indeed, my Lord.
- JUSTICE MOSTYN: I see.
- BURROWS: Forgive me, my Lord, I do not think I have read that
- JUSTICE MOSTYN: I think that is rather relevant.
- BURROWS: It is entirely relevant. I accept that, my Lord. The more I have looked at the law, the more it seems to me to be the case – you may disagree with me fundamentally – that it is for a parent — or the way the law seems to be moving is that parents are entitled to disclose documents and they must take the risk if they are prosecuted or they are before the court for contempt, not the other way around.
- JUSTICE MOSTYN: No, I do not think so.
- BURROWS: Reading s.12 — the difficulty in this case, my Lord, is it does not look as though the district judge was told the sort of cases that you are talking about, and I have to confess —-
- JUSTICE MOSTYN: We need a proper judgment from her, do we not?
- BURROWS: I think what we —-
- JUSTICE MOSTYN: She should be given an opportunity to set out her reasons before I can — that is what the rules say. Has anybody applied to her for a judgment?
- BURROWS: She dismissed the application and made the order in the terms that you can see on page —-
- JUSTICE MOSTYN: If you want to appeal it, you then go to her and say, “Can I have the reasons, please?”. That is what you do.
- BURROWS: I had not realised that that —-
- JUSTICE MOSTYN: In the registry that is standard procedure. I would say, “I refuse it. If anybody wants to appeal it, I will give full reasons”. They do that all the time. Then, of course, it takes ages to get them and the appeal takes forever to be determined.
- BURROWS: Forgive, my Lord —-
- JUSTICE MOSTYN: Hang on. Let me just have a look at what she says:
“I cannot see it will assist this child in any way for these documents to be sent to the police. He could have dealt with these matters in this court, but he chose to withdraw his application.”
What is that a reference to?
- BURROWS: That was because he had applied for contact and he chose to withdraw his application.
- JUSTICE MOSTYN: I see. It is a contact application:
“I am concerned that these parties are using another arena to deal with … themselves. The court has a duty to safeguard the well-being of the child and it should not be used to assist the parties in this way. You can write to the police and they can decide where to go next. This is not a case where I should exercise my discretion. I … refuse your application.”
So why is that an incorrect exercise of discretion?
- BURROWS: Because there has been no attempt to balance the rights of an individual to publicise information in terms of Article 10 as against the Article 8 rights of the child. There has been no attempt to do that. I confess, I do not think that it was put to the district judge in those terms.
- JUSTICE MOSTYN: Why do you describe the right of the child under Article 8 as a secondary right?
- BURROWS: Because it is subsidiary to the rights in Article 6 and Article 10.
- JUSTICE MOSTYN: What about the United Nations Convention on the Right of the Child then?
- BURROWS: Indeed, I accept that. In terms of —-
- JUSTICE MOSTYN: What about the decision of the House of Lords in the Tanzania case?
- BURROWS: Indeed. That is one of the factors that the court has to consider.
- JUSTICE MOSTYN: It is here. You have got Tanzania.
- BURROWS: I did cite that, yes.
- JUSTICE MOSTYN: Where is the mother?
- BURROWS: We do not know, my Lord. I think she is in this country, but we do not know where. They could not serve her and, so far, no attempt has been made by the solicitors instructing me to serve her.
- JUSTICE MOSTYN: Just a second, this might be interesting. (After a pause): If the police thought that there was evidence of a crime having been committed by the mother, they could ask for disclosure for the court, could they not?
- BURROWS: They could.
- JUSTICE MOSTYN: But they have not.
- BURROWS: They have not. How easy is it for them just to come in as a stranger to those proceedings? It is one thing where there are concurrent care proceedings or criminal proceedings, but for them just to come in to your court and say, “We would like to see a file, please”, on an application in these proceedings — I do not actually know if it is that easy for them to do that, is it, my Lord?
- JUSTICE MOSTYN: Thank you. I am going to refuse you permission to appeal. I am not satisfied that you have demonstrated that the decision made by the district judge was outside the remit of that which is available to her.
- BURROWS: Are you going to give me a chance to ask her to give reasons so that I can bring them before you?
- JUSTICE MOSTYN: I have read enough now to satisfy myself that it was a decision she was entitled to make.
- BURROWS: Would you give a judgment, my Lord?
- JUSTICE MOSTYN: Okay. That is the end.
Appendix 3 – Transcript of Mostyn J’s judgment
- D. BURROWS (Solicitor advocate, ###) appeared on behalf of the Appellant.
THE RESPONDENT did not attend and was not represented.
J U D G M E N T
(As approved by the Judge)
- JUSTICE MOSTYN:
- This is an application for permission to appeal a decision made by District Judge Gordon-Saker on 6th March 2014. The bundle containing the relevant documents was not filed with this court, in accordance with Practice Direction 27A, three days before the hearing and I have received no skeleton argument from Mr. Burrows, who represents the proposed appellant, at the due time (i.e. 11am yesterday) in breach of Practice Direction 27A. Accordingly, my acquaintanceship with the case has been extremely limited and my ability to deal with the case justly has been impeded by virtue of lawyers’ maladministration with which this court is increasingly afflicted.
- The decision that is complained of is a refusal by District Judge Gordon-Saker to permit certain, unspecified papers (at least unspecified to me) to be disclosed to the police for the purposes of encouraging the police to pursue criminal proceedings against the respondent, ##. The reason that the applicant for permission to appeal made this request is because he believes that the mother has made a malicious complaint against him to the police. The circumstances are set out in a witness statement produced by his then solicitor, which is in the papers, Mr. Corker, where he explains that in the earlier part of last year the police contacted the applicant to investigate a complaint of forcible sodomy, I think, among other things, that was made by the respondent against him. That complaint was investigated and was found to be groundless, and this has led to the applicant wishing to make a counter-complaint to the police that the complaint was criminally malicious, for which purpose he wishes to disclose a number of documents within the papers relating to a contact application which was made by the applicant in respect of his child, which he later withdrew.
- The documents in question are intrinsically private. They are so classified by the rules, but there is, of course, a discretion given to the court to permit publication. In deciding whether to permit publication, a balance has to be struck between the interests of the child, as expressed in the United Nations Convention of the Rights of the Child and, at least implicitly, in Article 8 of the European Convention on Human Rights as against the right of freedom of expression in Article 10 of the same Convention. In a recent case, Re X and Y  EWHC 278 (Fam), Bodey J. conducted just such an exercise in Schedule 1 proceedings where the mother wished to disclose all the papers to the police, those papers apparently revealing extreme non-disclosure and perjury on the part of the father. Justice Bodey decided to reject that application, principally in the interests of the child.
- Although District Judge Gordon-Saker did not refer to that decision, it is clear that she conducted the same balancing exercise. The note of the hearing before her concludes with these words by her:
“I just cannot see it will assist this child in any way for these documents to be sent to the police. The father could have dealt with the matters in this court, but he chose to withdraw his application. I am concerned that these parties are using another arena to deal with the issues between themselves. The court has a duty to safeguard the well-being of the child and it should not be used to assist the parties in this way. You can write to the police and they can decide where to go next. This is not a case where I should exercise my discretion. I therefore refuse your application.”
That seems to me to be a perfect exercise of discretion where the relevant considerations have been properly balanced. Had I been hearing the decision at first instance, I would have reached the same decision, but that is not my role. My role is to decide where there is an arguable case that the district judge was wrong. I am not so satisfied. The application is therefore dismissed.
Appendix 4: DB note and letters to the court
I do therefore ask please
- That the court identify the CFC procedure to which the judge referred at ‘Court procedure’ below.
- That the judge identify the ‘Bodey J’ case to which he referred.
- That the judge kindly confirm by what procedure he envisaged the police could have made the application which he said they could do.
… and there has been no answer to this, from court or judge
 No he didn’t: Mostyn J got that wrong as well