An unfair hearing
And two other family judges who delivered justice firmly but fairly
A hearing before a High Court judge earlier this year was “blatantly unfair” and the judge’s ruling demonstrated “a complete failure of proper judicial process”, the Court of Appeal said three months ago. With remarkable speed, a further appeal will be heard next month by the Supreme Court. What’s going on?
Our starting point is a decision last year taken by District Judge Solomon in the Family Court at Worcester. After hearing evidence of drug and alcohol abuse, domestic violence and a father’s criminal history, she made an order under the Children Act 1989 taking children away from their father and placing them in the care of Worcestershire County Council.
Understandably, the father wanted to challenge this judgment.1 But instead of launching an appeal or returning to the family court, he went to the High Court in London and applied for a writ of habeas corpus. The judge dealing with urgent applications was Ms Justice Russell.2
He didn’t get very far. Russell chose not to deliver a formal judgment but a transcript of the hearing was published by the Court of Appeal. Here it is, suitably anonymised:
Russell J: Mr [X]?
X: Good morning. I'm a bit hard of hearing.
Russell J: What is it you're asking me to do?
X: I'm asking for the writ of habeas corpus.
Russell J: You cannot have it.
X: What?
Russell J: You cannot have it. It is an ill-conceived application.
X: Why is it ill-conceived?
Russell J: Because it has no application in this case. The orders have been made lawfully. If you wish to deal with these orders, you appeal or you make other applications under the Children Act. The writ of habeas corpus is hardly ever used anymore, because there is statutory provision that you have to use first.
X: Well, I've tried everything.
Russell J: No, you haven’t appealed or tried to appeal.
X: Every appeal that I filed was turned down, my lady.
Russell J: Well, doesn’t that tell you something? You are not getting a writ of habeas corpus. It is inappropriate, it is wrong, it is not the correct process.
And that was it. The ruling may well have been right as a matter of law. But it’s not the way judges are meant to behave. As Lord Justice Lewison and Ladies Justices King and Falk put it:
The interchange we have quoted demonstrates a complete failure of proper judicial process. The judge had clearly made up her mind before the father had said anything; and the father was hardly allowed to say a word thereafter…
In addition to her blatantly unfair conduct of the hearing, the judge also failed to give adequate reasons for her decision in terms that would have been intelligible to a litigant in person.
Since the hearing before Russell had been unfair, the Court of Appeal had to set it aside. That would give the father another chance to seek habeas corpus. But the appeal judges thought that Russell had reached the right result. So they used their own powers to dismiss the father’s application.
Can they do that? Does there need to be a retrial if a judgment is, as Lord Reed once said, “written in water”? Those are presumably the questions that Reed and his colleagues in the Supreme Court plan to consider at a hearing on 15 October.
And what of the children? The appeal judges were told in June that increased contact with their father was under discussion and the "direction of travel" was aimed at returning the children to their father's care.
I have a better understanding of these disputes after spending a day at the East London Family Court recently. The two judges I observed behaved with much more patience than I could ever have managed.
These hearings are not open to the public. Until recently, they were closed to reporters too. You can read my coverage in this week’s Law Society Gazette.
Update 2 October: Russell retired from the judiciary today.
A judgment of Solomon?
Russell was the first judge in England and Wales to insist on a title that sounds like “misjustice”. She was joined last year by Ms Justice Henke.
In April 2017, the Court of Appeal held that Russell had committed a series of "gross and obvious" irregularities in the way in which she had dealt with alleged contempt of court in a case about the alleged abduction of a child. Russell had imprisoned the father of the child for 18 months, holding that he had been in breach of an order which she had not in fact made, and did not have power to make. In doing so, she had made various serious procedural errors. The Court of Appeal awarded damages for wrongful imprisonment against the Lord Chancellor under the Human Rights Act 1998.[9]
In May 2017, Russell allowed an appeal from a relocation decision of Her Honour Judge Owens in the Family Court at Oxford. However, in December 2017, the Court of Appeal held that Russell's decision was 'both wrong and unjust because of serious procedural irregularity', because the 'main basis on which the appeal was allowed by Russell J arose from a legal argument that had not been raised in the grounds of appeal, had not been addressed by either party, and was in any event incorrect'.[
What is the point of introducing the style Ms Justice as an alternative to Mrs Justice, when the latter (unlike Mrs) does not indicate the holder’s marital status?