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Evidence, Practice and Procedure: Rule of children law, and of control in children proceedings

Date:27 MAR 2013

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsI attended court recently as little more than an observer of the end of a mother's unsuccessful application to remove the parties' children from the jurisdiction. The judge had already handed down a judgement which disposed of the mother's application. You might think that would be the end of it all. But no. The judge then allowed the father - after the case was all over - to make a series of applications to the court. The applications were not on notice, the mother had no idea what cases she was meeting. It was all, as far as I could tell, sort of tacked on at the end of the permission to remove proceedings. And another whole day was permitted in court.

The impression I had was of two things: the process was only tangentially related to legal principle (and therefore unlawful); and the male judge had little concept of the extent to which he was being used by the father as an agent to control the mother. And this was in circumstances where the judge had already refused her application; and another earlier judge had dealt with defined contact in an order which the later judge was unpicking at will.

The great thing about a rule of law, if everyone sticks to it, is that you all know more or less where you are. Courts deal with cases on certain procedural data: that they have received an application which defines the issue which the claimant seeks to have tried; that evidence has been filed; and that, very often, evidence is tested before the court. The ancient principle of notice enables a person to know what case s/he is meeting (something King John was persuaded to understand in 1215). And if one judge has made an order another judge does not make another order which overrides the first (save on appeal or application to set aside).

The law in children proceedings - in the hands of some who attend children courts, at least - seems not to adhere to these principles. The judge in this case rejected the only application, as a matter of law and of procedure, before him. So be it. His job was over: he was functus officio. Not so. The parties had a day and a half more in court, where the father was in effect allowed - by judge and mother's leading counsel - to make a series of further applications, of which no notice was given, no application made and thus - hear ye, oh Chancellor of the Exchequer - no court fee paid. His lawyers were no doubt paid handsomely for the further time in court; but the tax-payer profited nothing.

The judge gave him everything for which he asked; and in so doing insouciantly overturned the previous judge's earlier order under Children Act 1989 s 8. The husband had successfully opposed the mother's hopes to return to her family abroad. To rub it in, and acceding to the father's wishes for further control of his former wife, the judge in effect allowed an appeal long out of time and made fresh orders, where in any normal court an application and notice of appeal would have been required.

That said the mother had been represented by a QC, and the father by a QC and then a junior from London. None of them or the judge seemed overly concerned with legal principle, only with the ‘proper exercise of the judge's discretion' (as the lawyers called it). No one reminded the judge that discretion can only be exercised in statutory jurisdiction, where the law permits it; and the judge seemed unaware of the point.

Is this a sign of future times: those who can afford legal representation will more and more bully those without; and judges, often ignorant of - or ignoring - the law, will know no different, and give the bullies what they ask for? I only ask.

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).  

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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