Left in the lurch

Last week District Judge Read (no relation) published a shocking judgment. I have been thinking about it a lot, waiting for enough quiet time to write down my thoughts about it. I am very bothered by it.

The judgment is here : JY v RY [2018] EWFC B16 (27 April 2018).

In the meantime a number of others have written their own posts on the judgment, and I link to some of those at the end of this post. The case has also, belatedly, made the BBC news.

District Judge Read was tasked with conducting a fact finding hearing in relation to allegations of domestic abuse including rape, made by a mother against a father. He had to make findings one way or another as a basis from which safe decisions about contact could be made. Neither parent was represented (they were not eligible for legal aid), and so the judge undertook questioning himself, working from pre-prepared questions submitted by the parties. Or he would have done, but for the fact that the mother was too stressed out to prepare any questions for the father, and left the witness box half way through questioning and would not be persuaded to return.

The upshot was that the judge felt unable to make all of the findings as some of the evidence had not been tested. He said this :

I am in little doubt that had one or both of these parents been represented, the fact finding process and probably the outcome would have been very different...

the lack of legal representation gravely affected the fairness and efficiency of the process of questioning both parents. So far as my role in this was concerned, although I did my best to abide by the guidance in PD12J at paragraph 28, I was hesitant about participating in this way, being reluctant to be seen to step into the arena myself. Ours is an adversarial (i.e., led by opposing parties) not an inquisitorial or judge-led legal system: judges have neither the training, tradition nor natural inclination to subject witnesses to detailed questioning...

No English or Welsh criminal court would proceed as this court had to, in the absence of representation for parties dealing with such grave allegations...

I therefore think there is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented.

He also said that there was no bundle, police disclosure was a mess and the mother had been unable to prepare questions without the help of a lawyer.

The judge did make some findings of domestic abuse, and based on those he said that :

There is always the fear in the mind of the Court that the questioning of an alleged victim about their abuse merely prolongs that abuse by other means. Given my findings in this case, limited though they are to only the first few allegations, I think that fear is borne out here.

Basically, the judge is saying that the cross examination (even through the judge) was abusive.

For me the most striking passage is this one :

I therefore think there is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented. [underlining my emphasis]

I have struggled to read this in any other way than as an acknowledgment that the judge believed (at least some of) the further (more serious) allegations, but didn't feel that he could legally 'find' those allegations proved because of the limitations of the process.

I am surprised that the judge did not give both parents permission to appeal.

When I read this judgment I immediately thought of a case last year called A (A Minor : Fact Finding; Unrepresented Party) [2017] EWHC 1195 (Fam), in which Mr Justice Hayden (a more senior judge than Read) was faced with a similar situation : a father accused of domestic abuse who appeared in person, but there he permitted the father to ask questions directly (the judgment doesn't show any consideration of questions being put by the judge himself so we don't know if that was considered and rejected or if it was just not raised). At the end of the trial Hayden said :

It is a stain on the reputation of our Family Justice system that a Judge can still not prevent a victim being cross examined by an alleged perpetrator. This may not have been the worst or most extreme example but it serves only to underscore that the process is inherently and profoundly unfair. I would go further it is, in itself, abusive. For my part, I am simply not prepared to hear a case in this way again. I cannot regard it as consistent with my judicial oath and my responsibility to ensure fairness between the parties.

It's not clear in that case whether the difficulty was around a lack of legal aid or a choice by the father to represent himself. There was some press coverage at the time - see for example "Judge vows to ban domestic abusers from cross-examining victims in his court". Sadly that press coverage didn't result in any change to the funding or legal position.

The predicament in District Judge Read's case was even more complicated, because the issue was not just about the father asking her questions (which Read attempted to solve by asking questions himself), but the mother's lack of legal support exacerbated matters and prevented her from running a positive case and left her struggling to deal with the pressures of cross examination.

I think it was absolutely right, and fearless of both judges to publish their judgments in the way they have. But whilst it is all very well for a High Court Judge like Hayden to stamp his feet and say "I won't do it!", that is much harder for a District Judge. Refusing to hear the case was not an option, and I can't think of much else that District Judge Read could have done to magically make this process more satisfactory - but I am deeply deeply troubled by the fact that the judge conducted the trial, made findings (including as a matter of law that some of the mother's allegations didn't happen because they weren't proved) and then published a judgment telling the world that those conclusions were probably wrong.

How is that justice to either party? And what is the point of a fact finding hearing if the court itself has to acknowledge that it is probably not an accurate reflection of the facts and the risks? How is that keeping children safe?

There is no news of a replacement for the lost Bill that fell when the General Election was called last year, which would have at least dealt with the direct cross examination point. Even if those provisions do re-emerge in a new Bill, they will not cure the difficulty faced by DJ Read - that the mother was debilitated by a lack of her own legal representation - because she did not meet the eligibility criteria for legal aid (presumably because of enhanced benefit income or the amount of capital in her property).

There has to be a better way than this. Even ignoring legal fees, vast amounts of public money are spent on fact finding hearings like this in terms of court time and judicial salaries, and on the work by other agencies that follows and is based upon the findings. It is money down the drain if the findings are as unreliable as this judgment candidly accepts they are.

[update 2 mins later : oh rats I forgot to add links to other posts...

Here Is Gordon Exall's take. I will find the rest in the morning!!]

[Further update :

See also : Matthew Richardson on Family Law Week.]

 

5 thoughts on “Left in the lurch

  1. “No English or Welsh criminal court would proceed as this court had to, in the absence of representation for parties dealing with such grave allegations”

    That is true, but only because the court appoints a lawyer to question the complainant on behalf of the defendant if he, usually he, is foolish enough to act in person or is refused legal aid and cannot pay a lawyer. And only since YJCEA 1998; before then a man accused of rape could cross-examine in person and a few did so.

    And the point is that YJCEA is statute. When LASPO was passed the judiciary should have said that

    (1) the right to have the evidence against you tested by cross-examination exists at common law and can only be restricted by statute; and

    (2) if the subject of the allegation is unrepresented then that cross-examination must be in person, and if that is unpleasant for the complainant, just too bad.

    They should also have said (although it does not arise in this case) that

    (3) to make one party eligible for legal aid and the other not is a breach of Article 6.

    If I am wrong, why am I wrong?

  2. HelenSparkles

    If there was enough evidence of DV why was the woman not granted legal aid on that basis, is that means tested too?

    • Sparkles I would guess either because her benefit income was too high (sometimes happens with multiple children and DLA / PIP claims etc), or because she had too much capital in the family home (100k I think).

  3. For pete’s sake! It was the judge doing the cross examination of the ALLEGED victim (note that is missing in Mr. Justice Hayden’s judgement). If it was the ALLEGED perpetrator’s representative he would have been seen by the ALLEGED victim as the mouthpiece of the ALLEGED perpetrator.

    What DJ Read says is:
    “(10) There is always the fear in the mind of the Court that the questioning of an alleged victim about their abuse merely prolongs that abuse by other means. Given my findings in this case, limited though they are to only the first few allegations, I think that fear is borne out here. I am also worried that the father will see his stance of not making any admissions to have resulted in him “winning”, in some sense, because only a few of the allegations were ever properly tested.”

    This is saying there should be no cross-examination of the person making the allegations on their evidence, in case it’s true. It is for the person making the allegations to prove they are true, not for the person defending themselves to prove they are wrong.

    The judicial oath states:
    “I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”

    I think this judge is in breach if he affords the protection from cross examination of someone who has made such allegations.

    It is the right of anyone accused of something as serious as rape to have those allegations properly tested. You only have to look at the recent collapse of rape cases to see that is necessary to avoid miscarriages of justice. Incidentally I cannot avoid the conclusion that such miscarriages have already occurred and innocent men are in prison as a result of the emphasis on believing the person making allegations, or the ALLEGED victim.

    The mother was supported by a DV agency, but over a period of several months failed to produce a single question to be put to the father about his evidence. Normally if you decline or fail to question the evidence it is assumed you accept it, unless you have this judge.

    The matter of the child’s right to a relationship with her biological father has now successfully been delayed by the mother for 15 months, contrary to the Children Act and PD12J. The judge has made up his mind based on the mother’s emotional testimony to him and a set of interviews given to police in a complaint she failed to follow through with.

    If she had pursued the police complaint the father would have had legal representation, but she decided she wanted to have control and would stop her daughter seeing him instead, and when the father applied to the Family Court she brought that allegation up again with the advantage of a lower burden of proof.

    This would not be solved by legal aid.

    • So, Here are some responses to your lengthy comment.
      1 In both judgments the judge FOUND PROVED domestic abuse. Therefore the complainants were as a matter of law correctly identified as victims. There is a place for complaints about the use of the word ‘victim’. This is not it.
      2 The passage at pa 10 you cite does not support the proposition that “This is saying there should be no cross-examination of the person making the allegations on their evidence, in case it’s true.” The judge does not say there should be no cross-examination. There was cross-examination, it was just not direct. The father’s questions were put by the judge. The bit you quote is about the father’s REACTION to / interpretation of the judgment.
      3 It is established practice, and recognised in the FPR that some witnesses will require special measures to be able to give their evidence to the best of their ability. Of course at the time of the trial the judge doesn’t know if the allegations are true, but has to consider the possibility they might be and that therefore the process could be traumatic. But he still has to ensure a fair trial and allow challenge to the evidence. This is not inconsistent with the judicial oath even though it is difficult to achieve.
      4 It is correct the mother failed to produce any questions. There are a number of potential reasons for that. The judge is far better placed than you or I to get a sense of why that was. This judge clearly took the view having heard the evidence and seen the presentation of both parties, and drawn some conclusions about her experiences at the hands of the father that the mother simply found it too difficult.
      5 You say “The matter of the child’s right to a relationship with her biological father has now successfully been delayed by the mother for 15 months, contrary to the Children Act and PD12J.” That is not correct. On the basis of the findings made the court has quite properly waited until the facts were known before making orders. That is what PD12J says the court should do.
      6 “The judge has made up his mind based on the mother’s emotional testimony to him and a set of interviews given to police in a complaint she failed to follow through with.” Well, firstly the judge heard from both parties. Secondly, the judge will have read all the police disclosure and other relevant material. Testimony is often emotional and in any event judges are in my experience pretty alive to the fakers and the crocodile tears. It is not uncommon or unsurprising that women who have genuinely been through the sorts of experiences described find it very difficult to pursue a criminal complaint or to defend a family application. That doesn’t mean that the complaint should just be accepted as true, but the mere fact that it hasn’t been doesn’t make it untrue either.
      7 “If she had pursued the police complaint the father would have had legal representation” Maybe. Maybe not. Depends on his means. Criminal legal aid is now not so widely available.
      8 You say this would not be solved by legal aid, but I think it would be made a damn sight easier for all concerned if even one of the parties (preferably both) had some legal advice and representation.

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