JUDGE. And boy, what a time of it in the legal press on THIS topic. What’s been going on? Well, there was a case reported on 16 October 2019 which was an appeal from the decision of a District Judge. The case was about care proceedings (where social services or Children’s Services are involved). The District Judge decided that a care order should be made and permission was given for the local authority to start looking for adoptive parents for the child.
The mother was appealing the order saying it was wrong. The children’s guardian, however, had the more unusual appeal in that they were saying there was ‘a serious procedural irregularity denying the parties an opportunity for a fair hearing and thereby breaching the fundamental Article 6 Right under the European Convention.’
Now this case was a difficult case, no doubt about it. But we ask our judges to deal with these sorts of cases and for the most part, they do without an issue about the manner in which they deal with a case. As the judge said ‘Public law or care work is enormously important and difficult. Family Judges, at all levels, make life changing, profound decisions in relation to children on a virtually daily basis. Very often the subject matter underlying the cases is grim, highlighting the worst in human nature. The relentless and gruelling nature of the work for all involved, including Judges, can take its toll. My experience, however, is that there is not a single Judge or Magistrate undertaking this work whose aim is not to improve the lot and future of the child or children in question’.
The judge giving a decision like this is very unusual. He said ‘I have already dealt extensively with the Judge’s erroneous approach, as I have found it, to the central issue. She effectively prevented a proper debate. By intervening as she did, she distracted everyone from the proper focus. Even if she had her misgiving about the relevance or practicality of the discussions, she should, in my judgment, either have held back expressing a concluded view until her judgment or resolved the matter, subject to appeal rights, at an interlocutory stage.’
Well, judges are not perfect. They do make mistakes but then comes the more unusual bit…..’Of much more worrying effect are the criticisms of the Judge’s demeanour. I do not regard it as necessary or fruitful to read significant amounts of the transcript into this judgment. In her Grounds of Appeal Ms Hobbs refers expressly to the Judge’s improper conduct as being exemplified by “blasphemous words, shouting, storming out of Court and general intemperate behaviour”. In the course of her submissions and with reference to the transcript, she also referred to sarcasm, the Judge shaking with rage, the Judge turning her chair away from the Court and sitting with her back to everyone for several seconds, mimicking the advocate’s words and to intimidating the Guardian.
I could analyse each of the matters referred to but need not as, sadly, I am satisfied they are all well-founded. I myself listened to the recording and heard, with dismay, the anger and tension in the Judge’s voice. I also heard her banging her desk. Her exchanges with Ms Hobbs were sharp and substantially inhibited counsel from doing her job.’
The reason why there was an intake of breath across the legal commentators was that it is really unusual to see a decision like this and also for the district judge to be named. Everyone has a bad day – but this was a five day hearing which is worse and really inexplicable.
The legal world is carefully looking at well-being at work – whether that is balancing work and home life, mental wellness or calling out bullying. Yes, that does happen, whether it is in the workplace from a partner in the law firm or by a judge to a barrister or solicitor appearing in court before them. Sometimes it is a bad day but other times, it is a way of behaviour and that is more serious.
Being a judge is not easy. I was reading a good blog by Gordon Exall, a barrister, about what the judge does. He was referring to a case previously decided where the judge set out what a judge does. An extract from the case said:
First of all, judges are not superhuman, and do not possess supernatural powers that enable them to divine when someone is not telling the truth.
Instead they look carefully at all the oral and written material presented, with the benefit of forensic analysis (including cross-examination of oral witnesses), and the arguments made, to them, and then make up their minds
Decisions made by English civil and family judges are not necessarily the objective truth of the matter. Instead, they are the judge’s own assessment of the most likely facts based on the materials which the parties have chosen to place before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to. And, whilst judges give their reasons for their decisions, they cannot and do not explain every little detail or respond to every point made.
This is a tricky point to get across, particularly in family matters. ‘Evidence’ could be a document, letter or form but more likely, it will be oral evidence – what each person says/tells the court happened. It is the job of the judge to make the decision of what most likely happened and then to go on from that base and decide what should happen in the case. Of course, one person will not be happy with the decision the judge makes. If one person says XX happened and the other says YY happened, if the judge says they think XX happened then the other person will not be happy – and vice versa. This is what makes litigation so risky. You never quite know how it is going to unroll at a final court hearing.
It must have been very stressful for the barristers and solicitors involved in the court hearing with a judge banging the table, interrupting and generally being very unpleasant. A positive has to be that it rarely happens and that is why the court report was of such interest. Let’s hope the district judge involved is getting some training and guidance. After all, judges are not superhuman and we can’t expect them to be either.