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Judge’s ‘immoderate’ language leads to successful appeal

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March 28, 2024

The Court of Appeal has overturned the dismissal of a DNA test application on the basis of the judge’s “unrestrained and immoderate language”.

In Re A, care orders had been made for the 13 year-old child in question, along with her four siblings. The parents had applied for the care orders to be ‘discharged’ (cancelled) or at least them to be able to see the children more often. During the subsequent proceedings, the girl told her legal guardian that she doubted that the man was really her biological father, so the guardian applied for a DNA test on the child’s behalf, in order to try and establish paternity under the Family Law Act 1986. Section 55A of this legislation deals with ‘declarations of parentage’. The girl’s parents agreed to the test.

The parents’ and child’s applications came before the same judge. He dismissed the parents’ applications for cancellation of the care orders, and then turned to the child’s application for a DNA test, making a series of remarks which became the subject of her subsequent appeal. He told the teenager’s counsel that she should “put her crash helmet on”. He suggested that the girl could pay for the DNA test herself, rather than the Legal Aid Agency, saying he might make an order to that effect.

The Judge asked if she had told her legal representatives that the moon was made of green cheese, would they have answered ‘yes sir, yes sir, three bags full’? The comments continued: the lunatics had taken over the asylum, he claimed, but they should not necessarily be given whatever they wanted. The Judge “resented” having to spend some of his Saturday reading “codswallop” he continued, and he was inclined to make a costs order against the child – that is to say, require her to pay the costs of the case. There was no evidence to support her application, he concluded, and so refused it.

The girl’s legal representatives launched an appeal, claiming that the Judge’s comments had constituted a “serious procedural irregularity”.

The Court of Appeal agreed.

The Judge’s early threat to impose a costs order had indicated that he had a closed mind about the case, said Lady Justices Black and King, along with Lord Justice Aikens.

He had not allowed proper submissions and not given proper reasons for dismissing the application. The Judge’s use of language was to be “deplored”, the Court ruled.

“ Appointment as a judge was not a licence to be gratuitously rude to those appearing before him.”

The case was sent back to the lower courts for a rehearing.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. Andrew says:

    In the words of A.P. Herbert: Gosh! and Gosh again!

    If the girl’s suspicions turn out to be right, what then? DNA from her siblings?

    If the “father” is not the father of any of them, what follows then? Are they married?

  2. anon says:

    Please may we have the link to the judgement put in the article?

    • Marilyn Stowe says:

      Dear Anon
      Please follow this link-

  3. anon says:

    Thank you very much. I wonder if this judge is about to go on gardening leave.

  4. Nordic says:

    But what happened to the judge? Is he still out there playing king in his own court? Is there any independent governance to deal with something like this?

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