High Court judge Mrs Justice Baron has expressed formal disapproval of visits made by a district judge to the home of a woman involved in a residence case.
The judge was considering an appeal in the case of AMV v RM, which concerned care arrangement for two children. The mother claimed that she mainly lived with the children in a rented three bedroom house in London but said she also spent some time at her parents home nearby. The latter was a three-bedroom council house.
The father claimed that she in fact spent of most of her time at her parents’ home and said he was concerned about living standards in the latter house.
The district judge hearing the case decided to make an unannounced visits to both the woman’s home and that of her parents in order to investigate the situation. The judge gave the mother and her legal team just 15 minutes to decide whether they consented, and they could not reach her parents to alert them in time. The judge travelled to two sites immediately in a car belonging to the father’s lawyer.
The judge and accompanying legal team made a close examination of both homes – “opening doors, looking in cupboards, fridges and even wastepaper baskets”, to quote Mrs Justice Baron, before returning to the court where the hearing resumed.
In her ruling, Mrs Justice Baron was highly critical of the judge’s decision:
“To my mind, this entire procedure was wholly unacceptable. In the first place, it was a suggestion which came within or shortly after the opening of the case and did not permit time for proper consideration of the implications. In reality it gave the mother and her adviser little effective choice but to agree for fear that a negative response would draw an adverse inference from the court. It was, in effect, litigation by ambush.”
Entering the home of the mother’s parents effectively breached their rights under Article 8 of the European Convention on Human Rights (ECHR), she added. Article 8 protects the right to “private and family life”.
“To my mind, a judge’s job is to consider the facts presented, weigh up that evidence after cross-examination, make findings and a determination. If the methodology adopted by this District Judge was correct, it would lead inevitably to breaches under the ECHR.”
She concluded:
“A Judge cannot seek to determine who is telling the truth by a surprise or unannounced visit in relation to disputed facts. That is not an appropriate way to litigate….I deprecate [express disapproval of] the method used by the District Judge and would urge that nothing similar occurs in the future.”
