Intractable contact case hampered by lack of legal representation

Family Law|November 23rd 2015

The difficulties faced by the court when neither party has legal representation seems to have become the latest recurring theme in my posts here. Just a couple of weeks ago I wrote about the case PS v RS, in which Mr Justice Moylan lamented that the evidence in that case was not that which would have been available if the parties had been represented.

Mr Justice Holman has now joined the ranks of High Court judges to recently comment upon how problematic it can be for the court to get to the truth of a matter if both parties are unrepresented. In Re D (Children) he was faced with an “intractable contact” case which, as we shall see, was seriously affected by the fact that the judge at an earlier hearing had not had the benefit of legal assistance from lawyers for the parties.

The case concerned unmarried parents who had two children together, now aged almost four and about 19 months. It seems the parties separated around the time that the younger child was born and litigation regarding the father’s contact with the children has proceeded between the parents ever since.

In the course of the proceedings the mother had made some very serious allegations against the father, claiming that he had been aggressive and violent and even that he had raped her. The allegations were investigated by a district judge at a fact-finding hearing in March this year. As indicated, the district judge did not have the assistance of lawyers. He only made one finding regarding the mother’s allegations (and that a relatively minor incident), and concluded that the father was not a risk to the children.

The case was then transferred to the High Court and went before Mr Justice Holman earlier this month. Before him the mother’s “strongly stated position” was that the district judge had made mistaken findings. Mr Justice Holman therefore re-visited the district judge’s findings, and by the end of the hearing he was left with “a deep concern as to the reliability of the conclusions reached, with the best of intentions, by the district judge.” Accordingly, he set aside those findings and directed that the case be allocated to a circuit judge for a complete re-consideration of the true facts.

In the course of his judgment Mr Justice Holman had the following to say regarding the parties’ lack of legal representation:

“The reality of the matter is that the mother makes very considerable allegations of serious aggression and violence by the father towards her, and separately the children, including her daughter. This case is a very serious one. There are very serious allegations and issues at stake; and, subject to means (but she says she is entirely dependent on state benefits), this mother desperately needs proper legal representation and the court desperately needs the mother (and ideally also the father) to be properly legally represented if it is to get to the bottom of the truth of the matter. To date, however, neither parent has had any legal representation.”

Clearly, he felt that the district judge would have been able to do a better job had he had the benefit of assistance from lawyers, both in terms of analysing the evidence and of reaching conclusions regarding the mother’s allegations.

The result of all of this is that some seven months have been lost since the district judge made his findings. That is a serious delay, which could have significant consequences for the outcome of the case. Of course, it may be said that it could have been even worse if the district judge’s findings were erroneous, and the court had proceeded on the basis of those findings. Either way, the case is another clear demonstration of how things can go seriously wrong if the court does not have lawyers to assist it.

The full judgment in Re D (Children) can be read here.

Image by faungg’s photos via Flickr

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  1. Russell Armstrong says:

    Yet again Mr bloch avoids the elephant in his closet. What has legal representation got to do with evidence that cannot be there????
    The difficulty is that in an adversarial fact based forum such as in a court room and there are behind the doors allegations of “abuse” what “evidence” can there be?
    Sure an assault leading to a bruise (or worse) could be documented by a medical practitioner but assault by “harsh and loud words” cannot be evidenced unless recorded (another can of worms there)
    So in these circumstances what possible benefit can there be to “legal representation”
    Of course the legal representative can always encourage the accuser to drum up some (hem fabricated) evidence, “oh so you do have that then? That’s good we can present that in court” or else in cross examination a “confession” may be tricked out by an unwary accused.
    But what if, just what if the accusation is FALSE and the reason there is no evidence is that the accusation is FALSE
    Just because the mother makes “very considerable allegations of serious aggression and violence” does not make them true.
    So given that there is either evidence available and can be presented to the court or not, what difference could legal representation possibly make in the above issue?
    I am sure that the judge can direct the parties to offer into evidence any documents that supports their allegations, ie medical records, witness statements etc and given the state of gingerbread and all their cohorts I am sure that support for fabricating a story, sorry producing a credible witness statement would not be that far away.
    And how can lawyers possibly assist the judge in analysing the evidence, does that mean the judge cannot do that for him/herself? Shame on the court system if it employs judges who can’t analyse evidence (I thought that was their job anyway?)
    In Mr Bloch’s synopsis he ” often wonders how he ever became a lawyer” and guess what? So do many of us

    • Luke says:

      +1 Russell – in my view your comment on the adversarial system we are stuck with (primarily because it makes more money for the profession) is particularly well made.
      In reality I think John is just outraged because in such a case lawyers were unable to “wet their beaks”.

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