A father was treated like the main character in Franz Kafka’s famous novel The Trial by the Family Court, a senior judge has declared.
Mr Justice Peter Jackson said that, due to the “Draconian way” his case was handled, the man “could be forgiven for feeling like the hapless protagonist” of the novel in which the character of Josef K is prosecuted for a crime which is never revealed to him or the reader.
In R v R, the father was married for 20 years and lived in a jointly owned house with his wife for 14. During their marriage, they had six children. However, the marriage began to experience difficulties and in May the couple discussed separation “that would involve [the husband] moving out”.
When the father, identified only as ‘Mr R’ in the judgment, did not move out of the house his wife applied for legal aid through a “well-regarded firm of solicitors” claiming she was the victim of domestic abuse.
Shortly afterwards, the Family Court issued a very strict non-molestation order against the father which forbade him from using or threatening violence, damaging property, communicating in any way with his wife, or entering the street on which the family lived.
The hearing which led to this order “cannot have lasted for more than five minutes” and was held without Mr R’s knowledge. His wife’s solicitors claimed their client would be “at risk of significant physical and emotional harm” if Mr R was informed.
Mr R did not find out about the order until he was served with it upon his return home from work on 20 June.
Sitting at the Family Court, Mr Justice Peter Jackson said that the order also effectively deprived the father of contact with his children for five months. Additionally, because he did not leave home immediately on the night he was first presented with the order, something the judge described as “an innocuous breach”, he acquired a criminal record. The father did not receive legal advice when dealing with this breach so he pleaded guilty.
Had Mr R been represented, Mr Justice Peter Jackson posited, he would not have pleaded guilty to an offense that was “of the most technical and insignificant kind”. However, now he is “a man of good character who now has a criminal record”.
The judge had previously set aside the non-molestation order following an appeal. In a new ruling, he said that the case highlighted important principles. These included the fact that the default position of a judge considering such orders should be “Why?” rather than “Why not?” and that the court should be “on guard against the potential for unfairness” as a result of the cuts to legal aid.
Mr Justice Peter Jackson concluded that the judgment was also “to attempt some reparation to Mr R for a series of events that should never have occurred”.
To read the full judgment, click here.