WHY THE RIGHT JUDGE MATTERS – Especially in #Parental Alienation cases!

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This is case from 2014 so it is not a very new case but the contrast between the behaviour of the respective judges is like the difference between chalk and cheese. At appeal the right judge turned out to be HHJ Peter Jackson.

The press pounced upon one of his comments:

‘All in all, Mr R could be forgiven for feeling like the hapless protagonist in Kafka’s “The Trial”. 

https://www.telegraph.co.uk/news/2017/07/27/judge-writes-teenager-explain-cant-live-father/

http://www.dailymail.co.uk/wires/pa/article-2874572/Street-ban-order-Kafkaesque.html

In Kafka’s novel the protagonist is a bank employee called Joseph K. After his sudden arrest ‘K’ undergoes a court process where the laws are unknown and so are the charges he faces. It is a tale of woe and abject misery. A few conversations I have had recently have revealed, somewhat remarkably, that, 800 years after Magna Carta this brand of arbitrary justice is sadly not yet dead and burried. R v R is a rare example because this is a case where an appeal was actually allowed and this in itself is reportedly becoming a rare spectacle in some districts of the family court. Therefore, it is a great credit to HHJ Peter Jackson that he published this case in which he shone a light on some very dark areas of the family justice system.

HHJ Jackson penned a potted summary of Mr R’s predicament:

3]  In a nutshell, on the evening of Friday 20 June 2014, Mr R returned from work as normal to the home at No. 23 X Street where he lived with his wife, Mrs R, and their six children. Soon afterwards, he was served with a Family Court order obtained by Mrs R that day which, amongst other things, forbade him with immediate effect from entering or attempting to enter X Street. The order had been made at a hearing of which he had no notice in proceedings of which he was unaware. Mr R duly vacated the property and, having done so, attempted over a period of months to challenge the order through proper court procedures. However, on the basis of an insignificant procedural failing, the court refused to hear his challenge. In the meantime, he was arrested for an innocuous breach of the original order to which he pleaded guilty without receiving legal advice and in consequence acquired a criminal record. And as if that were not enough, the effect of the original order was to deprive him of contact with his children for fully five months. All in all, Mr R could be forgiven for feeling like the hapless protagonist in Kafka’s “The Trial”. 

Mr R’s immediate problems seem to have been solved quickly once the case entered the courtroom of HHJ Jackson who modestly attributed this to the passage of time but anyone reading the judgment, especially Mr R, would also likely conclude that the wrong guys had been sat in the big chair. By the time HHJ Jackson heard MR R’s appeal I think it is fair to conclude that Mr R was wondering whether the only way left for him to see his children involved illegal means. Admittedly, district judges are very busy but judges are amongst our most highly paid public servants and we should be able to expect them to do their jobs. Therefore, when HHJ Jackson says at para 56 that;

‘The judge conducting a busy list does not have the time to pore over every detail in the way that can occur on an appeal.’

I think many users of the family court would respond indignantly along the following lines:

‘Why not? What the hell have I paid an extortionate court fee for if not for a judge to actually read the bloody documents I have spent hours researching and drafting because this is the only means left for me to have a relationship with my kids. Sorry pal, THIS JUST IS NOT GOOD ENOUGH.

This is how the involvement of a decent calibre of judge made all the difference

[55]  At the time of the appeal in November, a solution was inevitably much easier to find than it had been in June. By now, both parents accepted that the marriage was over. Mr R was, without prejudice to his account of events, prepared to give a non-molestation undertaking and an undertaking not to return to the family home except to collect and return the children. A child arrangements order was made so that he could see the youngest child, and the older children were to be allowed to see him when they wanted. On this basis, the proceedings were brought to an end, at least for the present. 

HHJ Jackson justified this complete change of course by the family court, stating:

[54]  I granted permission to appeal and allowed the appeal, setting aside all previous orders, on the basis that each of the following steps in the process was wrong: 

  1. A without notice application should not have been made. 
  2. A without notice order should not have been granted on this evidence. 
  3. The order that was granted did not reflect the judge’s intention. 
  4. The orders preventing access to the street and banning direct communication were unnecessary and disproportionate. 
  5. At the first hearing attended by both parties, the court did not review the without notice order to ensure that there were no obvious errors of the kind that existed here. 
  6. The date given for a contested hearing of Mrs R’s application was too distant to be meaningful. 
  7. Mr R‘s request for extra time to file his statement should have been granted at the outset. 
  8. The hearing date for Mrs R’s application should not have been cancelled. 
  9. The application for relief from sanction should have been considered on paper and granted. 
  10. The date given for a contested hearing of Mr R’s application for relief from sanction was again too distant to be meaningful. 
  11. The District Judge did not correctly apply the rules governing relief from sanction. Had she done so, she would have concluded that there was no good reason for refusing to admit Mr R’s statement.

That is quite a rap sheet that on appeal looks like a final score of 11 – nil in favour of Mr R. But, although that sounds like a resounding victory, Mr R and his children have been cheated out of 5 months of contact together and this is something that they will never get back. Childhood is too short and precious to miss even a minute of it needlessly. At the same time as Mr R and his kids lost out the judges, who erred, continued collecting very fat pay cheques and a legal representative was paid by the taxpayer to play no small part in treating Mr R and his kids abysmally.

Another thing which seems to have contributed in no small way to Mr R’s plight was the fact that his wife was easily able to get publicly funded legal representation that was prepared to take advantage of Mr R’s unrepresented status. Another representative may well have remembered their duty to the court and offered to advise the court early in the proceedings before an error or two turned into a catalogue. We do not know how true or false the allegations were that Mr R faced however we are aware that some legal representatives appear to operate a conveyor belt system that incentivises false allegations and establishes a kind of ‘first to make a meaty allegation of domestic abuse allegation’ Olympics where the first out of the blocks gets the legal aid, the kids, the house and a massive power advantage. It does not seem to matter how historic the events relied upon might me.

If you are currently involved in the court process – especially if you case involves false allegations and the prospect of non-molestation orders – then I would recommend that you read this judgment which, because it has been drafted by HHJ Jackson, is much more readable and user friendly than many others.

Here is a link:

https://www.familylaw.co.uk/news_and_comment/r-v-r-family-court-procedural-fairness-2014-ewfc-48#.Wxz1Ry-ZNBw

Note: The commentary from Family Law is worth reading. What is your view?