The importance of judicial independence by John Bolch

Family Law|November 7th 2013

We live in times when politicians increasingly involve themselves in the work of the courts. Hardly a day seems to go by without some politician or other criticising a decision of a court, be it the European Court of Human Rights or one of our own courts.

Such interference is fraught with hazards. It should not need saying, but it is essential that judges and courts are independent from government.

A case that has just come to light in Ireland clearly illustrates these dangers.

Mr Justice Henry Abbott, a judge of the Irish High Court, claims there was “entirely improper interference” involving a politician and a judge in a family law case he was dealing with in 2010. The case concerned a custody dispute, in which he had ordered that custody of the child be given to the father.

Mr Justice Abbott told a judicial inquiry this week that a few days after this decision he was approached in the yard of the Four Courts in Dublin by a Circuit Court judge, who asked him if it was true that he had ruled in favour of the father in the case.

Mr Justice Abbott then asked the mother in the case whether she had approached a member of the Irish Parliament after he had made his decision. Specifically, he asked her if she had “asked a Dáil deputy to make inquiries for her in relation to the matter from the judge, and that that Dáil deputy sought the services of a Circuit Court judge to ask me was it a fact that Edward [not the child’s real name] had been sent away to the primary care of the father.”

Mr Justice Abbott said that the mother admitted that she had made such an approach to a Dáil deputy. She apologised for this, explaining that at the time she had not been represented.

A Dáil deputy subsequently confirmed that she had been contacted by the mother, but categorically denied making an approach to any judge about the matter.

Meanwhile, the Circuit Court judge told investigating judges that he was unable to recall the conversation. He didn’t dispute that he may have asked Mr Justice Abbott “in a casual way” about the case, but he was satisfied that he had “no solicitation or request to that end from any politician”. He said there had been “absolutely no intention” of interfering with the case or influencing its outcome, and he deeply regretted that his query may have given rise to such concern.

Okay, so perhaps there was no political interference, but the case still illustrates how easy it can be for things to go wrong. What if the judge dealing with the case had felt pressured into changing his decision? Suddenly, justice is thrown out of the window, and with it the welfare of the child.

And it is no good being complacent and saying it couldn’t happen in this country. Over here it is already common for aggrieved parties to family law cases to complain to their MP. It only takes a ‘bad’ or misguided MP to try to use their position to influence a court’s decision.

We must be ever-vigilant that our politicians do not cross the line, and ensure that judicial independence is maintained.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Stitchedup says:

    Difficult to see how the judiciary can maintain independence for the government when much of the law they administer is politically motivated/influenced.

  2. Luke says:

    Politicians need to be accountable – so do Judges – who seem to make some very bizarre judgements indeed at times.
    I don’t see a problem here.

  3. Paul says:

    Politicians interfere with the law all the time, particularly when they dislike the way things are going. Whether good or bad depends on your point of view. Look at the Austrian custody case here where the consensus appears to be for political intervention of some kind.

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