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“As a matter of justice, everything must be conducted openly”

It may be a hackneyed saying, but it is nevertheless still true: justice must not only be done, it must be seen to be done (or variants on that wording!). In the recent case SC v TC justice may, or may not, have been done, but it certainly was not seen to be done.

The case concerned an appeal arising from an interim residence hearing in November 2018 concerning the child arrangements for a 14 year old boy. This was one of those all-too-familiar ‘litigation without end’ cases, as Mr Justice Newton, who heard the appeal, explained:

“Litigation between the parents in relation to the boys has continued more or less without cease since 2011. The current chapter started in 2018 when the mother sought to enforce the existing child arrangements order (which was that the children should live with both of their parents, with scheduled time between them). The current application is the father’s application for a change to the living arrangements of both boys.”

The history of the case, briefly, was that the parents married in 2002, separated finally in 2008, and were divorced in 2010. They had two sons, born in 2003 and 2004. Between 2011 and 2015 the boys lived with their mother, and had alternate weekend contact with their father, who lived in the north, the mother living in the south-east.

Then in May 2015 the father returned to the south-east. Since then, as a clearly somewhat exasperated Mr Justice Newton also explained: “despite the court’s best efforts, the children’s lives have become unregulated entirely as a result of the vicissitudes of the parental relationship.” From September 2015 to December 2017 the boys effectively lived jointly with both parents, but nonetheless still mostly with their mother during term time.

In December 2017 the older boy went to live with his father, since when he has had no contact with his mother. This change was confirmed in March last year, when the court varied the existing ‘joint residence’ order, to provide that the older boy should live with his father.

In June last year the case was allocated to the children’s charity National Youth Advocacy Service (‘NYAS’), and in November last year they recommended that the judge then dealing with the case consider a change of interim residence for the younger boy also. At a hearing on the 28th of November the judge followed this recommendation and ordered a change of residence. The boy moved to his father’s home, and he has also stopped seeing his mother.

The mother appealed against this order, and the appeal was heard by Mr Justice Newton in the High Court.

The mother had a number of complaints about the judge’s decision, but the appeal centred on just one point, which arose from the disclosure of emails and attendance notes which came to light between the judge and the NYAS. It was contended that the judge behaved in a way which was “unfair, lacked transparency and was procedurally irregular”: specifically, “the sending of emails to NYAS, not copying in the parties, seeking advice by telephone, even suggesting how evidence might be sought or held, and instigating discussions about whether applications to amend orders and outcomes should be made.” As Mr Justice Newton said: “These are serious charges against an experienced judge, endeavouring to do her very best for this boy … It is, I regret to say, a matter which has caused me very considerable anxiety.”

I won’t go into the details of the communications between the judge and the NYAS, but the most troubling for Mr Justice Newton took place in the course of the hearing itself on the 28th of November. An attendance note by the NYAS explains:

“A telephone conversation with the Judge who had called a short break in the hearing. She wanted to discuss matters with me. She’s concerned about the reaction of the mother on receiving the judgment, which will provide for a change of residence. She as concerned about the logistics. She will give judgment first thing tomorrow whilst [the boy] is in school. NYAS can then make the arrangements with father for the change of residence before mother is served. She confirms she was content to me to email the caseworker and counsel setting out her intentions.”

The break in the hearing took place partway through the evidence. Obviously, it appeared that the judge may have already made her decision, without hearing all of the evidence. More worryingly (as Mr Justice Newton said), it was also clear that the judge was seeking the advice of the NYAS. As Mr Justice Newton explained:

“There needs to be openness and transparency. The communications could suggest that case management and even possibly the decisions themselves were in fact being made by NYAS, not the Court.”

It was evident to him that the communications influenced the judge’s decisions. He went on:

“I am extremely anxious about what appears to have occurred. As a matter of justice, everything must be conducted openly. No doubt, sometimes it is necessary for communications to occur of a routine nature, but it is necessary that everyone should know about it. With any other question, if there is an issue – and in this case, there are any number – then the matter has to come back to court, and be conducted in court, no one can be accused of conducting business behind closed doors, without the other party knowing it. There is a real issue here, because in this case the Judge had been in communication with NYAS for several months. It is unclear to what extent that might have affected her mind and the decision making process, let alone the decisions themselves.”

Accordingly, the hearing was fundamentally flawed, and the order could not stand. The appeal was therefore allowed.

You can read the full judgment here.

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, with his content now supporting our divorce lawyers and child custody lawyers

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