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Judicial appointment is not a licence to be gratuitously rude

 

You may recall His Honour Judge Dodds, who has not had the best time with appeals in the lifespan of this blog.

https://suesspiciousminds.com/2015/02/02/sentence-first-verdict-afterwards/

where he made full Care Orders at the first hearing, when none of the parties were expecting that or asking for it.

 

and

https://suesspiciousminds.com/2014/07/02/go-on-then-appeal-me-i-dare-you/

 

Where the Judge refused to assess family members largely because they were in Poland and offered the remarkable sentence of “If you don’t like it, there is always the Court of Appeal”

 

And this is the one that I’ve been waiting for.

Re A (Children) 2015

http://www.familylawweek.co.uk/site.aspx?i=ed143386

 

This was an appeal, arising from the conduct of a hearing. The Judge was asked for several things at that hearing. The mother and father both applied to discharge the Care Order and for more contact. The child SA, asked for DNA testing, saying that she had always had doubts that the father was really her biological father.

It is quite a short judgment, and practically every line of it is remarkable. This is the sort of thing that people who disapprove of the family justice system can rightly point to and say “This is the sort of thing that goes on”

In this case, the appeal was probably the easiest that the Court of Appeal have ever had to deal with – every single aspect of the hearing was wrong and improper. So in this case, the system screwed up royally, but then worked because an appeal put things right. But what we can never know is how many times something a bit like this happens and the advocates don’t appeal. Either they can’t get funding, or their client doesn’t want to, or they take the view that appealing a Judge who approaches things in this way is going to be counter productive in the future  (the “don’t poke an angry bear with a stick” argument)

 

It is a terrible indictment and this case makes sorry reading. The only consolation really is that the child herself was not in Court.

 

5. The importance of and the right of children to know the identity of their biological father has long been recognised and has only recently been restated by the President in Re Z (Children) [2014] EWHC 1999 Fam. Para 5. An application under section 55A is the proper procedural route in order to determine the parentage of a child. It must therefore have caused Ms Roberts and Mr Saunders (who acted on behalf of the Local Authority), considerable consternation when the judge, having dismissed out of hand the father’s application to discharge the care order as, “Factious” and the mother’s as, “An affront”, turned to Mr Saunders and told him that in relation to the section 55A application, “You may want to put your crash helmet on”.

6. Mr Saunders and Ms Roberts valiantly tried to explain to the judge what they sought and why they sought it, only to be met with evermore intemperate responses from the judge. In relation, for example, to the cost of the DNA testing, Ms Roberts told the judge that Legal Aid would paid for it. The response was, “You can pay for it if you want, I will let you. In fact, I am half minded to make an order that you do so”. Judge Dodds continued, “If she (meaning SA) told you that the moon is made of green cheese will you say, ‘Yes, S, no, S, three bags full S?” He continued: “The lunatics have truly taken over the asylum” and “For heaven sake, in this day and age especially, just because the lunatic says, ‘I want, I want’, you do not have to respond by spoon feeding their every wish”. The judge went on to comment, “Can I tell you how bitterly resentful I am at how much of my Saturday I spent reading this codswallop”.

7. Finally, the judge in dealing with the actual application said, “There is not a syllable of evidence before me to warrant making the order you seek and so it is refused”. He went concluded:

“At lest there be a nanosecond’s doubt as to the application for an order under section 55A of the Family Law Act 1986, I am nothing short of appalled that it was thought that public funds could be expended upon such nonsense. And I tell you I am within a hair’s breadth of ordering that any costs incurred in respect of that application should be paid by you.”

 

 

The Appeal Court, as indicated earlier, had no trouble in deciding that the appeal had to be granted and the case sent back to a different Judge for re-hearing.

 

9. In my judgment, it is not necessary to consider the merits of the application itself. The submission that the hearing amounted to a serious procedural irregularity is unanswerable. Each of the points made in the skeleton argument are made good when the transcript is considered. The judge did not allow proper submissions to be made; the premature threat of costs inevitably, and rightly, gave the impression that the judge had a closed mind in relation to the application and no proper reasons were given for the decision to dismiss the application. The manner in which the hearing was conducted went far beyond anything that could be characterised as robust case management.

10. In the event, neither parent attended the hearing, fortunately, although not surprisingly, SA was not there either. Even so, the unrestrained and immoderate language used by the judge must, I am afraid, be deplored and is wholly unacceptable. Such bombast can only leave advocates seeking to present, on instructions, their cases to the court feeling browbeaten and impotent and, rightly, as though their lay clients have been denied a fair hearing.

 

 

and

 

The transcript of the hearing makes embarrassing reading and I hope that Judge Dodds will read it for himself and be ashamed of his behaviour on that particular occasion. Appointment as a judge, at whatever level, is not a license for intemperate language or for being gratuitously rude to advocates and others appearing before you. Judge Dodds’ behaviour on that occasion was beyond what is permissible. It meant that there was a serious procedural irregularity. That particular hearing was not fair. I do emphasise that my remarks concern only that one particular hearing. However, this appeal must be allowed.

 

I am aware that the newspapers in Liverpool made enquiries about whether there was an investigation or complaint into judicial conduct as a result, and were told that there was not, because no complaint had been received.  One does not want to see judicial complaints made each and every time a Judge loses an appeal or gets something wrong, but you might think that an appeal judgment as serious as this might be a trigger for an investigation without a formal complaint being made.

 

[In case you are ever before a Court and this sort of thing happens, and I very much hope that it never does, there is a formal body who deal with complaints about judicial conduct, as a separate body to the appeal process which deals with the decision made.

 

http://judicialconduct.judiciary.gov.uk/making-a-complaint.htm

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