The case of a Judge, a barrister, some bad weather and the right to that fundamental thing: A FAIR HEARING

Re G (A Child) [2015] EWCA Civ 834

BLACK LJ Court of Appeal, Sullivan, Black LJJ, Sir Colin Rimer, 28 July 2015)

In case you some how managed to miss it Re G is worth a revisit for all of those who know and recognise that need for a fair hearing before a fair tribunal.   And of course for all of those who have seen in action just what unfairness can look like. Be bold , Re G, the idea of justice and those Court of Appeal Judges are there to help.

Re G concerned Private law children proceedings – Contact – Fact-finding hearing – Appeal from findings – Whether the judge had prejudiced the exploration of the evidence. The mother’s appeal was allowed, the findings of fact made by the judge were set aside and the case was remitted for rehearing. In case anyone hadn’t heard already the appeal was against decision of Her Honour Judge Pearl.

LJ Black gave the lead judgement and set out a great deal of the transcript from the hearing below. Here are some of the exchanges to give you the flavour of the hearing.

Note the main players;

Ms Toch – the barrister for the mother in the case who lives in Kent and really had quite a few bad days in court through,it would seem, no fault of her own.

Her Honour Judge Pearl : The Judge who thinks we can afford and are able to travel up to court hearings the night before, and

Mr Cameron the slightly less put upon barrister for the Father.

“Ms Toch tried to explain what the mother’s continuing concerns were but the judge was impatient, intervening to say:

“Yes or no? Answer the question please. I have read the section 47 report. Does your client accept what has just been submitted to me on behalf of the father, that that deal with those issues of the care given by the father to G during contact? Yes or no?”

“[27] The transcript does not convey the degree of pressure put by the judge on Ms Toch at this point in the proceedings.”

“[30] Taking the whole of the exchange about the CAFCASS officer and the lateness together, I also accept the submission that the mother would have felt that the judge was annoyed with her counsel and that this annoyance influenced the judge’s approach to her case and impeded the presentation of it by counsel on her behalf.”

“[38] As I have said, the fairness of a hearing cannot be assessed mathematically or scientifically. Nor is it dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel’s cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch.”

Thank you LJ Black and to conclude just because a Judge is being unfair to everyone doesn’t mean the hearing is fair for your client.

n