Judicial Conduct – what about the context?

As is increasingly often the case, Gordon Exall beat me to the writing up of this case on his excellent Civil Litigation Blog - it is a judgment containing important lessons for both family and civil practitioners - and indeed for judges in both jurisdictions. The case is the ominously titled C (A Child) (Judicial Conduct) [2019] EWFC B53, and it is an appeal from a named District Judge sitting in Birmingham to a Circuit Judge sitting in Nottingham - the appeal was against a decision made in care proceedings (a placement order), and the appeal was allowed because of the judges shockingly inappropriate conduct.

I'm going to try and offer something that complements rather than simply repeats what Gordon's blog covers. I want to think about what we might not know, about what the context to that conduct might have been, and to think a bit more deeply about what lessons we should take from it. Hint : I think we can go deeper than headlines such as the one appearing today in the Gazette 'District judge ‘sarcastic and shaking with rage’ in flawed family hearing', and I think we can do better than the glib take-away : 'Judges should never behave this way!'. Nothing I say here should take away from the very obvious proposition that what is described in this judgment is both shocking and badly wrong - and that it is not okay. But I think that when judges get things wrong they are entitled to the same sort of consideration we do (or should) give parents whose parenting has gone awry - to look at why things have fallen apart, and to think about whether they can be put back together. The problem is that in this case we are rather left guessing about some aspects.

I don't know any of the advocates or judges involved so I am going on only what is in the public domain, and my best efforts to think about what may be in between the lines.

 

A broader context - the family justice system

I'm going to set my own generic context here before looking at the appeal judgment at all. Firstly, we are at a time when pressures on judges, lawyers, guardians and frankly every one involved in the system are high, sustained, increasing, and chronically unsustainable, particularly in care work. It has been this way for some time - successive President's of the Family Division have called it an out and out crisis and a more euphemistically phrased 'workload challenge'. Secondly, only this month District Judge Claire Gilham won her appeal in the Supreme Court enabling her to bring (finally) whistleblowing complaints about her treatment as a District Judge which centre around overwork, safety and bullying - her complaints emanate from between 2010 and 2015, and although they have yet to be adjudicated upon in their specifics, paint a general picture familiar to many lawyers and judges of more and more pressure on the system including judges - and there is no reason to think that the sort of environment she describes is any less prevalent now than it was then - in broad terms most working within the system would say things are worse rather than better. The judge in our case was experienced as a part timer but appointed full time in 2016 to one of the largest and busiest court centres in the country.

Alongside that there have been growing movements in respect of both wellbeing (for) and judicial bullying (against). I've written about both before on this blog. We (professionals of all sorts in the family justice system) are at a stage of our emergent wellbeing awareness where we are being better at talking about it than making it work in practice. Wellbeing is aspirational and difficult to square with our pressing responsibilities to children, for whom (we repeat, mantra-like) delay is inimical. So whilst we now might acknowledge we need a break in order to preserve our longer term wellbeing and functionality, we do often still just keep putting it off until a better time.

My post about judicial bullying is here : Me too - judicial bullying.

 

The case being appealed

There were two children - N and M. The issue was whether M could be placed with the Grandparnet (GPs) or whether a placement order should be made. M's sibling N was older and in residential care and there was a plan for his rehabilitation to the GPs, but apparently some uncertainty about whether this would ever happen. As a general proposition it seems reasonable to think that the question of whether the GPs might have had to cater for N (A child with challenging behaviour) as well as M might be relevant to the question of whether or not M could or should be placed with them - indeed the appeal judgment records that by the time of the appeal the plan for N to return to his GPs had been abandoned and so 'the perceived impediment to M being placed there was removed'. Anyway, that wasn't so clear when the original decision was made, and the District Judge rejected the idea of placement with the GPs and made a placement order for M. The mother appealed against the substantive decision to make placement orders. The guardian appealed essentially on procedural unfairness grounds related to the judge's conduct. They each supported one another's appeals.

The appeal judge sets out that the judgment itself is a model judgment, but that unusually he has been provided with the recordings of the hearing conducted by the District Judge. He says

'I have read the transcripts and, notwithstanding the volume of material, one theme stands out. The Judge was not prepared to consider or even explore the practical realities of the case. She pointed out repeatedly the substance of N's care plan and refused to investigate whether it might not be implemented. She regarded that as outside the scope of the enquiry and an issue over which she had no jurisdiction or control. Mr Bainham submits this was a fundamental error leading to a flawed approach in law and factually. Ms Hobbs submits that the Judge's insistence upon her view throughout the hearing to the exclusion of any contrary argument meant that a fair hearing was impossible and, in fact, that the hearing degenerated into a tense and confrontational environment where no-one could perform to the best of their ability....

There is no doubt that the Judge had to have regard to N's position as it potentially impacted upon M's but axiomatically his welfare could not be the focus of her judicial determination, however compassionate or sympathetic she might have felt to his plight. As I have already said, the judgment itself does not suggest a misdirection. However, in my judgment, an analysis of the entire process leads obviously to a different conclusion...

Later...and clearly exasperated the Judge says:

"No. No. No. Oh my God, I am sorry. I am sorry. I am really sorry. I am going to try one more time and then we are just going to carry on with the hearing. I do not know how many ways in which to say this. I cannot interfere with N's plan."

The difficulty with that interjection... is that no party was suggesting the Judge could or should interfere with the plan. Simply she was being asked to bear in mind the reality that there was credible evidence... that the likelihood was that the plan would never be implemented.

I am quite satisfied that the Judge failed to drill down into the realities of this complicated situation and failed, notwithstanding her direction to herself, to ensure that M's welfare needs were paramount. Her understandable anxiety about N's situation blurred her analysis.'

So, quite apart from the procedural aspects of the appeal - this was sufficient to ensure the appeal was allowed without even 'going there' on judicial conduct. Moreover, because of the change in circumstances in relation to N's return to his GPs there was not even any dispute any longer about placement for adoption - and indeed the LA argued that there was no need to deal with the appeal as everyone could just agree to revoke the placement orders to enable placement with the GPs. The appeal judge said though, that

'Having heard argument, I accepted the importance of hearing the appeal and of delivering a judgment come what may.

The benefit of hindsight is easy. The irony of what has in fact happened is not lost. Precisely what the Judge was being urged to consider has come to pass.'

The problem is we are now left with the 'what went wrong' bit, but none of the bits that tell us what has been done about it - apart from the reversal of the decision in the individual appeal. Which is far from an adequate reassurance in respect of the broader concerns raised.

 

The appeal - some questions

The first question is why this appeal was handled by a judge from 'out of town'. It's common for a Circuit Judge to rule on appeals from her fellow judges in the tier below who sit in the same court - even bias type appeals (the term bias isn't used in this appeal but its akin to a bias appeal in that serious criticism is made of the judge's conduct during the hearing). These appeals don't usually warrant being moved to a 'clean' judge in order to ensure that judge can approach the case without influence. So why was this course of action taken?

The judgment tells us a bit, but I'm not sure its a complete answer :

'Recognising the potential sensitivity, the Designated Family Judge for Birmingham, Her Honour Judge Thomas, directed at an early stage that the appeal should be conducted by another DFJ on the Midland Circuit but at a Court distant from Birmingham and by a Judge without any significant day to day working relationship with the District Judge. Also, the slightly unusual direction that the digital recordings should be made available was given. Those were, in my judgment, prudent precautions in order to achieve absolute fairness and transparency in the appellate process. That notwithstanding, I have not found it easy to scrutinise critically a colleague's approach to a difficult case such as this.'

To me it feels significant that the appeal judge moves straight from his remark about how difficult it was for him to 'scrutinise critically' to the following passage :

'It is worth remembering the pressures under which the judiciary at all levels operates. Public law or care work is enormously important and difficult. Family Judges, at all levels, make life changing, profound decisions in relation to children on a virtually daily basis. Very often the subject matter underlying the cases is grim, highlighting the worst in human nature. The relentless and gruelling nature of the work for all involved, including Judges, can take its toll. My experience, however, is that there is not a single Judge or Magistrate undertaking this work whose aim is not to improve the lot and future of the child or children in question.'

The second question is what is behind this passage :

'As to the procedural appeal, [the LA] indicated it preferred to make no detailed submissions, adopting a broadly neutral position. I expressed mild surprise at that stance but, upon reflection, having heard [counsel for the LA] explain the sensitivities and importance of the working relationship between LA B and the Court, I understand why it does not wish to associate itself proactively with the more severe criticisms of the Judge's conduct of the case.'

There is most definitely a back story here. We can only speculate on what it may be, but there is a real sense of judicial empathy with the judge in spite of what is objectively egregiously bad conduct. The vibe one picks up is that some involved in this appeal took the view bashing this judge over the head was not going to be helpful. One view of that is that the local authority are lily livered sucker uppers who don't want to upset the judiciary or a judge who they know might behave this way in their direction in future - but another respectable view is that the Local Authority know that this judge was under huge pressure and her behaviour was out of character rather than a chronic problem likely to affect other cases (I think the former proposition would make more sense in a single judge or small court centre where a high proportion of the LA's cases had to pass through the hands of one particular judge - not the case in Birmingham). I am speculating here, but I think it is legitimate to do so because I worry when something like this is published that people fill in the gaps in the least charitable way possible (and they are already doing so on twitter). I think it is sensible to at least hold open the possibility of another perspective.

We can observe that feelings were running high in other corners of the courtroom : it is perhaps more common for fresh counsel to argue a bias type appeal because when judge and lawyer have butted heads at a first instance hearing its really difficult to run an appeal without it sounding like sour grapes and hard to retain your objectivity. The delicacy and awkwardness of such a task is noted in this passage where the judge records :

'The Judge's conduct of the hearing has been the subject of sustained criticism by Ms Hobbs. She, as counsel, understandably told me it was a most uncomfortable position to be in. Nonetheless, she pursued her points fearlessly with the considerable support of Mr Bainham and the lay parties.'

Ms Hobbs was counsel for the guardian below and on appeal. From a reading of the judgment as a whole it is clear that it was not only professionals but also lay parties (some of whom had been litigants in person) who were pretty upset about all this.

We get a sense of quite how bad the courtroom experience was from the appeal judgment, where the judge is describing the criticisms of the judge's demeanour - framed in eyebrow raisingly forthright terminology by counsel for the Guardian, but apparently made out from the transcript:

'I do not regard it as necessary or fruitful to read significant amounts of the transcript into this judgment. In her Grounds of Appeal Ms Hobbs refers expressly to the Judge's improper conduct as being exemplified by "blasphemous words, shouting, storming out of Court and general intemperate behaviour". In the course of her submissions and with reference to the transcript, she also referred to sarcasm, the Judge shaking with rage, the Judge turning her chair away from the Court and sitting with her back to everyone for several seconds, mimicking the advocate's words and to intimidating the Guardian.

I could analyse each of the matters referred to but need not as, sadly, I am satisfied they are all well-founded. I myself listened to the recording and heard, with dismay, the anger and tension in the Judge's voice. I also heard her banging her desk. Her exchanges with Ms Hobbs were sharp and substantially inhibited counsel from doing her job.

The Judge's frustration, to use a mild word of description, seems to have stemmed from her view that the Guardian's analysis was non-existent or deficient. The Judge felt that the Guardian had not grappled with the central issue of the case, namely the interplay of care plans. Whether this is right or wrong, Ms Hobbs submits that her treatment of the Guardian was unacceptable. The matter came to a head when the Guardian gave her evidence. The Judge permitted examination in chief but then effectively prevented counsel from conducting it. It was, in my judgment, wholly unsatisfactory and degenerated into a critique of the Guardian's perceived failure of approach...Ms Hobbs reported that the Guardian felt considerably stressed and upset to the extent that her answers towards the end of her evidence became flat and virtually mono syllabic. It seems to me that the transcript broadly bears that out.'

(it goes on, but you get the gist). The appeal judge, by the way, does not tell us whether or not the judge had been right to worry about the quality of the Guardian's analysis - that is because for the purposes of the appeal it was not necessary to go there. It is possible that the judge was trying to resolve a complicated sounding case without the sort of assistance she ought to have had. If so her response to that was clearly inappropriate, but it may have been a contributing factor to what unfolded.

The remarkable feature of the hearing below is the interventions that were made DURING the trial, and which appeared to bounce off the judge without impact.

The guardian was upset, the grandmother (acting in person) was distressed to the point where she could not be persuaded to enter the courtroom, and attempts made by two experienced advocates to stop what was happening failed. The letter from the grandparents to the guardian shows just how impactful the judge's approach was to all present in court :

'The difficulties surrounding this hearing must have been obvious. It is of significance that they were mentioned explicitly. At E247 Ms Hobbs says "Madam, if I am frank, I am a little concerned about the atmosphere in the Courtroom. I really am and I do not know………". The Judge intervenes; "Well, please do not be." Later, Mr Bainham, although acting for the mother, informs the Judge on behalf of the unrepresented grandmother, who he has been told is highly distressed and will not re-enter the room, at E265;

"I think, madam, she also found that there was a lot of interruption of witnesses, a lot of interruption of the advocates. She found that difficult to deal with and I regret to say that she also told me that she thought it was unprofessional that there were certain outbursts from the judge which she found unprofessional."

Equally worrying is the letter that the grandparents sent to the Guardian before judgment was delivered which is reproduced at A53. I suspect the grandparents anticipated the probable outcome of the case, but I get no sense that the letter was written with any ulterior motive or to gain strategic advantage. The material passages read:

"1. I would like to recognise and give thanks for the care and consideration we received from Judge Mian whilst dealing with us personally throughout the week. However, we found the rest of the hearing highly distressing.

3. I wish to object to the constant barrage of interruptions aimed at professional witnesses and barristers questioning them………This in my mind brings into question the impartiality of the proceedings.

4. The way the Children's Guardian was questioned by the Judge for most of the day was in my view very wrong and particularly harrowing for both her and us. This seems particularly unprofessional."'

It is hard enough to raise these arguments on appeal before another judge, but for counsel to have raised them during the trial was a fearless thing indeed. My promise to myself after my own experience of judicial bullying was that even if it is impossible to speak out when I am the target of bullying I must do so whenever I see others being bullied. The advocate for the guardian spoke up even though she and her client were already in the firing line. Counsel for the mother backed her up and brought to the court's attention the distress she had caused the litigant in person grandmother. They did so fearlessly but courteously and I commend them for that. It must have been really tough.

What the judgment describes the judge saying and doing is not normal. Judges do not behave this way in most courts on most days. When they do behave this way we have to ask why.

There is no disciplinary statement showing on the JCIO website for this judge. That might be because no complaint was made, because it was made but not upheld, or perhaps because a complaint is still being determined. The judge is still sitting in family cases according to Courtserve (its ticketed work and tickets can be revoked). One view of that might be that it is scandalous a judge who behaved this way could still be dealing with such sensitive cases. Another might be that those with more information that we have available have assessed the situation and are confident that this was not typical of this judge's conduct and that it will not happen again. Again, I speculate, but only in order to encourage a bit of thoughtfulness about how a judge could have come to this. On twitter one or two have responded with a nod to judicial wellbeing and the hope that the judge has been offered support, I've seen one saying he has personal experience of similar from this judge.

In my blog post about judicial bullying I didn't give details or identify the judge, and I said this at the time

'in my heart I hope the judge in question was acting out of character and regrets their behaviour and would be mortified to read of it.'

I know from subsequent encounters that my bullying judge has no clue that they are the person who so profoundly knocked my confidence. I am more confident with the passage of time than I was back then, that my treatment was out of character and borne of pressures either in the judges' work or personal life. It makes the behaviour no less inappropriate and no less debilitating - but I do I think understand how these things happen. I have moved on - and I have never wanted to see that judge punished. I just wanted it not to happen again.

It is of course a big ask that we, the worried public, should trust an un-evidenced suggestion that this judge might have been at a point of crisis, and that things might be okay now. But do think about it, because if I am right that District Judge is probably having a miserable weekend knowing that week is now laid bare and she must face her courtroom again on Monday. If I'm wrong and she is an ogre who always or often behaves in this way then something is very wrong with our system indeed - I think such ogres are a rarity and I hold enough trust in the system still to be prepared to give it and her the benefit of the doubt.

The appeal judge describes this case as a tragedy :

'This letter [from the GPS] encapsulates the tragedy in this case. I have no doubt that the Judge was desperately trying to move a difficult case forward. I am sure she believed that the family members and the Guardian had missed the point about N's care plan and hoped to persuade them to see the reality as she perceived it. I am also sure, as the Judge said more than once and as the grandparents seem to have appreciated, that she had nothing but sympathy for their position. Yet, by the insistence of her position and her apparent refusal to listen to the contrary arguments before making a reasoned judgment, she not only derailed the substance of the hearing but created an atmosphere where completing a fair hearing became impossible. She seems to have alienated even those whom she sought to praise and encourage.'

I think we should take care before condemning this judge, although it is right to condemn her behaviour. A judgment provides a lot of information but it cannot tell the whole story - and this one hints at a nuanced background. It is clear that the appeal judge had no enthusiasm for sticking the boot in, and although he understood the need for transparency in publishing both the judgment and the name of the judge, he was mindful of the potential impact upon her :

'I have taken the decision to deliver a full judgment and identify the Judge by name, having heard argument on the point. I have no wish to embarrass or discomfort the Judge, but I am convinced that the public interest in the Family Court being transparent and open to scrutiny is the decisive factor. The anonymity of the children, the lay parties and the Guardian however has been preserved. At the request of the appellants, I am content for this judgment to be published on bailii.org but stress that it is merely illustrative of an issue rather than in any way a definitive statement of approach.'

I'm not sure that is just about judges sticking together, though I understand that it is tempting to see it that way.

Judges are human and fallible. The work our care judges do is emotionally draining, upsetting and ultimately traumatising - the weight of responsibility on judges tasked with deciding if a child should be taken forever from a family that wants and loves them is huge. If we pile pressure upon pressure on our overworked and poorly supported District and Circuit bench, we will see more of this sort of thing. It is no coincidence that a number of DFJ areas have introduced documents explicitly reminding professionals of the importance of a culture of respect. We are all so much more brittle than we were and our collective resilience is worn thin (see this example from the DFJ in Dorset HHJ Dancey, reproduced with kind permission). We are frankly lucky that what we read in this appeal judgment is still genuinely shocking to us rather than commonplace.

Don’t panic – I’m back!

I know. It's been weeks and weeks since I posted even the most banal of posts. I've got out of the rhythm.

But it wasn't for a lack of ideas - I'm fizzing with 'em, I just haven't found the time to formulate them and put finger to keypad...

The good news is that I've just published a post that had got stuck in the works, and hopefully normal service will now resume.

It is probably prudent to write myself a to do list to ensure I actually keep the promises I have made to myself. So, coming soon (forthwith indeed) will be posts on :

  • wellbeing
  • that case involving a bullying judge in a care case, overturned on appeal
  • the BSB's new guidance on our use of social media

In the meantime you may feast upon my humblebrag :

This year I was a mite disappointed *dramatic sniff* to receive the decidedly underwhelming review in the Legal 500 that said no more than what areas of law I covered, without any actual attempt to give a view as to how well I did them. This seemed to be me to be a bit pointless - if I was good enough to be 'ranked' someone somewhere must have said something vaguely more useful than 'is a lawyer in x field'... Indeed they had, but I suspect I was the victim of a spreadsheet mix up...

Anyway, after some therapeutic sharing on twitter with other underwhelmingly described lawyers (it turns out all the best of us have had this experience) I was surprised to be tweeted by the editor to tell me he'd tweaked my entry...(For the record no smarties were exchanged in return for this tweakage).


Anyhoo, my Legal 500 entry now says I am,

A highly competent barrister who works diligently and with determination to solve complex cases.

And Chambers and Partners say,

Lucy has an incredible memory for detail and is supportive to both client and solicitor through the process. She is involved in case managing and representing, and wades through vast tranches of material with ease.

I am amused by the idea of me 'solving' complex cases, like some sort of sleuth - I may trade in my wig for a deerstalker... and, in light of the imagery conjured up by the second quote (which I keep visualising as me literally wading through vast trenches of *material*) I may need to invest in some galoshes and a nose peg...

However, it's probably all a bit too wordy for a good slogan, so I'm thinking of condensing these as follows :

Reed : Sifting that sh*t with a smile.

Who wouldn't wanna hire me based on that strapline, right...? OK, maybe not...

Anyway, I think these reviews are worth a #humblebrag so I've paid my #humblebrag fine to Billable hour. And thanks to whoever was kind enough to speak kindly to Legal 500 / Chambers & Partners about my bog snorkelling skills.

Control in the courtroom

Observers and newbies are often surprised when they first see a domestic abuse fact finding hearing at just how murky, and how messy these allegations and counter allegations are to unpick. If you went by headlines in the media or by TV dramas, an abuser should be easy to spot, the answer will be clear cut and 'the truth' will out. The reality is more typically : trawling through a quagmire of social media and private messages, a jungle of allegations this way and that, stuff that happened years ago with no witnesses present - and often two parties who for various reasons don't 'perform' in a way that meets the stereotypical assumptions about abuser and victim. There is rarely a perfect victim or an all out bad perp. More often things are not clear cut or obvious at all.

The messiness of real lives intertwined and torn is wearingly familiar to those of us who have experience over years and years of trying to help parents safely navigate these disputes. It's rarely as clear cut as the headline or the pleaded assertion. It's *always* complicated.

Sometimes one or both parties to dispute involving allegations of domestic abuse demonstrate marked controlling behaviour in the course of family court litigation, in the courtroom and in the witness box. Is that important? Well maybe. But it's not always an easy route to the 'right' answer.

A family court judge often has to rely heavily on the presentation or demeanour of the parties. That's all well and good, but who is to say that the presentation and demeanour of the parties isn't affected by the circumstances they find themselves in - whether simply intimidated by the setting, accused of something they didn't do, trying to make allegations in the face of plausible denial, or trying to pull the wool? Where they can, judges will look elsewhere for evidence to cross check against.

The adults that come before the court in these fact finding hearings in children matters are typically people who were in a relationship that involved enough commitment to conceive a child and to co-parent for some little while thereafter. People who are profoundly threatened by the breakdown of their relationship - whether that threat is felt as the fear of a mother whose identity and emotional wellbeing is bound up with her role as mother and primary caregiver who fears her child may be taken, or as the fear of a father that he will be excluded from the life of a child he loves dearly (or vice versa, or some other variation on these most typical tropes) - whatever the scenario people feel threatened, and frightened, and uncertain - and they feel profoundly that they are not in control of their life.

My experience demonstrates that most mothers, most fathers, most victims, most perpetrators and most of those accused of things they have not done - almost all of them feel disempowered, frightened and without an anchor. They all, to a piece, desperately need control - for victims of abuse it is so important to re-establish control over a life that had been terrorised and taken over, for perpetrators of abuse it is so important to re-establish that control, and even for the parent who finds him or herself unexpectedly single and trying to work out how their relationship with the child will be reconfigured - there is a need to establish some sort of direction over one's life, some sort of framework, and yes, some sort of control over what on earth is going to happen. How on earth is a judge to work out which is which?

I see controlling behaviour all the time from all sorts of clients - be they female or male, primary carer or occasional parent. Parents who fear the loss or diminishment of their relationship with their child try desperately to establish some sort of control over what is going to happen next and over how things are going to work. The litigation process (and sometimes the advice received along the way) propels people into assertive behaviour that might not be typical either of the relationship dynamics or of the person in general.

This much is human nature. Whether what we see following the end of a relationship is indicative of a tendency towards abuse through controlling behaviour in the course of a relationship is really difficult to establish. Sometimes it may be. Other times it may simply be a function of a recently separated parent desperately trying to re-establish some modicum of control over their life at a particularly challenging time, and a recognition of the potential long term impact of post separation arrangements for children upon their longer term relationship with both of their parents.

Sometimes the way a parent behaves as litigant is a good reflection of the person they are. But it is foolish to jump to conclusions without considering the wider canvas.


The above post has been sat for some time in the drafts folder on Pink Tape, where I had left it to percolate for a while, unsure how to finish it.

A recent blog post on the Civil Litigation Blog about trial procedure and why it matters provides the answer :

WHY PROCEDURAL RULES ARE IMPORTANT (AND LEAD TO SUBSTANTIVE JUSTICE): “JUDGES ARE NOT SUPERHUMAN, AND DO NOT POSSESS SUPERNATURAL POWERS”.

The post is about a civil case involving wealthy Russians and allegedly dodgy loan agreements, but the points made apply as much to any family dispute. What follows are extracts from the judgment, which the judge directs to Russians, who he seems to think are unlikely to appreciate how things work over here. The more I do this job though, the more I realise that these things are not well understood by the public in general, whatever their nationality or first language. I think they need to be spelt out because judges are not always performing the task people think they are performing. Judges are not magic. Court orders are not incantations.

"I should say something about how English judges in civil cases decide cases of this kind. This is particularly important in a case such as this, where the parties are Russian. They may not understand how our system works. First of all, judges are not superhuman, and do not possess supernatural powers that enable them to divine when someone is not telling the truth. Instead they look carefully at all the oral and written material presented, with the benefit of forensic analysis (including cross-examination of oral witnesses), and the arguments made, to them, and then make up their minds. But there are certain important procedural rules which govern their decision-making, some of which I shall briefly mention here.

The burden of proof

The first is the question of the burden of proof. Where there is an issue in dispute between the parties in a civil case, one party or the other will bear the burden of proving it. On most of the issues in this case, that is the claimant. 

The significance of who bears the burden of proof in civil litigation is this. If the person who bears the burden of proof of a particular matter satisfies the court, after considering the material that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then for present purposes it did not happen.

The standard of proof

Secondly, the standard of proof in a civil case is very different from that in a criminal case. In a civil case it is merely the balance of probabilities. This means that, if the judge considers that a thing is more likely to have happened than not, then for the purposes of the decision it did happen. If on the other hand the judge considers that the likelihood of a thing’s having happened does not exceed 50%, then for the purposes of the decision it did not happen. It is not necessary for the court to go further than this.

Failure to call evidence

Thirdly, where a party could give or call relevant evidence on an important point without apparent difficulty, a failure to do so may in some circumstances entitle the Court to draw an inference adverse to that party, sufficient to strengthen evidence adduced by the other party or weaken evidence given by the party so failing.

Reasons for judgment

Fourthly, a court must give reasons for its decisions. But judges are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered. Moreover, it must be borne in mind that specific findings of fact by a judge are inherently an incomplete statement of the impression which was made upon that judge by the primary evidence. Expressed findings are always surrounded by a penumbra of imprecision which may still play an important part in the judge’s overall evaluation.

Overall

So decisions made by English civil judges are not necessarily the objective truth of the matter. Instead, they are the judge’s own assessment of the most likely facts based on the materials which the parties have chosen to place before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to. And, whilst judges give their reasons for their decisions, they cannot and do not explain every little detail or respond to every point made.

In cases where witnesses give evidence as to what happened based on their memories, which may be faulty, English judges nowadays often prefer to rely on the documents in the case, as being more objective. 

So there we have it. Judges are not superhuman. Those who demand that they should magically find out the objective truth as they see it may be disappointed. They do their best with the information available - but real lives and relationships are messy and subjective, rarely reliably captured in objective contemporaneous records, and often reimagined or reinterpreted (for entirely understandable reasons) by those who have lived them.

Controlling behaviour as observed in the courtroom is going to be one piece of the jigsaw, and whilst sometimes it is marked and telling - other times though it is indistinguishable from a side effect of the litigation and the trial process and the judge may need to look elsewhere to try and work out what has really gone on in the past and hopefully therefore how the parties are likely to behave to one another (and the children) once the trial process has concluded. In cases where there have been physical injuries or incidents observed and recorded by third parties the judge's task may be easier - where the only allegations are of controlling behaviour the task is very much harder because of the absence of objective evidence and the difficulties in interpreting what unfolds in the courtroom.