Within the U.K. there are two judicial systems: the law of England and Wales and the law of Scotland; which differ slightly. The Human Rights Act 1998 came into force on the 2nd October 2000 to incorporate the European Convention on Human Rights and Fundamental Freedoms 1950 ('the Convention') into the law of England & Wales. At the same time that the Human Rights Act 1998 was passing through parliament the Scotland Act 1998 was also making its’ way through parliament. Under the Scotland Act 1998, in May 1999, the U.K. devolved legislative and executive power to Scotland. The primary function of the Scotland Act 1998 was to set up a system of devolved government for Scotland, but it also included important provisions relating to the protection of the rights guaranteed by the Convention ('Convention rights').

It is necessary to read both Acts in order to understand the status of Convention rights in Scots law. However, in both parts of the U.K. the Human Rights Act 1998 aim is to protect the human rights of all citizens of (both parts of) the U.K. Article 6 of the Convention sets out the right of citizens of the European Union to a fair trial in either criminal or civil legal proceedings. Article 6 (the right to a fair hearing) also found its way into and is part of the 1998 Human Rights Act.

The Act provides that everyone facing proceedings within the U.K. has the right to a fair (or public) hearing if:

• They are charged with a criminal offence and have to go to court, or
• a public authority is making a decision that has an impact upon their civil rights or obligations.

Article 6 covers both criminal and civil proceedings. Criminal and civil proceedings have a different meaning under the Human Rights Act than under U.K. law. Civil proceedings within the meaning of the Human Rights Act 1998 include employment law disputes, planning law decisions, contractual disputes, property disputes and family law cases. Accordingly, in the context of the term “civil rights or obligations” within the U.K. 1998 Act this includes all family law cases. A “public authority” includes a Local Authority. So, any party to a family law case involving a Local Authority making decisions about their family in the U.K. is entitled to a fair and public hearing under Article 6 of the Human Rights 1998 Act (the Act uses the same Article numbers for ease as the Convention) ~ this includes, parents and all parties involved in care proceedings involving a child(ren).

The next question that arises is “what is a fair hearing under Article 6?” A fair and public hearing is one where:

• The hearing is before an independent and impartial decision-maker.
• Each party is given all the relevant information/ evidence.
• The court permits each party to bring their own representation and an interpreter, where appropriate, and
• The hearing is followed by a public decision.
• Each party also has the right to an explanation of how the court or decision-making authority reached its’ decision.

In practical terms this means every party has the right during the proceedings to present their case before a decision is made, see their opponent’s documents and evidence, be able to address the court on the documents and evidence of their own and from their opponent and finally be given reasons for the decision.

It is the first duty of judges sitting in the Family Court to comply with Article 6, seen at s.6(1) of the Human Rights Act 1998 and ensure that proceedings are conducted fairly (FPR 2010 rule 1.1).

This all seems so trite? Why would I write such a basic article?

This very basic right was the subject of the appeal, judgment and very public condemnation of a judge recently in the appellate hearing of the case concerning baby M before His Honour Judge Mark Roger sitting at Nottingham Family Court in appeal and reported in the judgment at C (a child) (judicial conduct) [2019] EWFC B53. The case concerned a 1-year old child, known as M, who was born into a troubled family dynamic whereby her three siblings were all living away from their Mother under placement orders of a local authority with their maternal grandmother and her husband, the maternal step-grandfather (“the grandparents”). Her birth was marked by care proceedings to establish where she should live: whether with mother, with her maternal grandparents and three older siblings or with a person/ couple who wished to adopt her.

The care proceedings were before Birmingham family court and eventually listed for final determination over 5 days between the 4 – 8th March 2019. The complicating factor in the case was that M’s 14-year older brother, known as N, presented with severe medical and behavioural issues which meant M was at risk in a home together with him. N had been removed from his grandparent’s home to residential care but his care plan included a return in the future to his grandparents. The local authority’s plan, placed into evidence through M’s Guardian, was to place M with the grandparents and her two siblings, which troubled the trial judge greatly by reason of the risks posed by N’s possible future return to the home to the extent that the Judge taxed the Guardian in evidence and at times showed her very clear disapproval of the planned placement. The Judge reserved judgment after the 5-day hearing giving a detailed, 38-page 177 paragraph written judgment disapproving of the planned placement and instead making a planned adoption order. 

The parents and Guardian appealed on the two basis: that the Judge erred in law/ got it wrong and also that the hearing before her was procedurally unfair.

The circuit judge sitting at Birmingham granted permission to appeal but directed that the appeal be heard out of circuit to ensure fairness, which is interesting in itself. The appeal was, as said, determined by HHJ Mark Roger, who upheld the appeal and determined that the Judge’s failure to conduct a fair hearing lead to the court itself acting unlawfully. Of note is that HHJ Roger dismisses the ground that the judge at first instance got the law wrong citing that“it is difficult to criticise the judge’s approach to the discretionary element of the case” [para. 6].

The procedural irregularity complained of was really two-fold: (1) the judge shut down argument/ evidence going to the central issue in the case (M’s placement with her grandparents) rendering it impossible to have a fair hearing and (2) further, that her conduct of the hearing and her own demeanour in Court made the atmosphere so difficult that all of those involved in the process were prejudiced.

HHJ Roger allowed the appeal citing [para. 33]: 

“It is axiomatic that a trial should be fair. That is at the heart of our system, is common sense and is enshrined, in any event, in Article 6. Fairness does not mean that a Judge should indulge every point and should never intervene to clarify or curtail as appropriate. Care proceedings can quickly become unwieldy with large amounts of unnecessary or marginal material in documentary form. Issues are often imprecisely defined so that analysis becomes vague, repetitive or incoherent. It is the Court's duty to identify the key issues and to focus attention on them. Oral testimony can easily become unfocussed with a mixture of fact, assertion and opinion. Time estimates can become quickly untenable if a firm hold is not maintained. In short, the need for firm case and trial management is not only desirable but essential. [34]. In every case there is a line which should not be crossed. It is difficult, in advance, to identify the precise position of that line but it may be easy to see when it has been crossed.”

But is it easy to see when that line has been crossed? It had me reflecting upon whether cases I’d previously been in involving an irascible or truculent judge could, with hindsight, have warranted an appeal for procedural unfairness. How often has a judge shut you down “thank you Miss Scotland I have the point” etc? The judgment of HHJ Roger referred to other examples of Judges overstepping the mark in past reported cases. I did some outside research too and established two things, it seems to me: (1) these are rare cases; the examples of the judiciary creating an atmosphere so hostile that the trial is unfair are rare (or just unreported) and (2) it is not possible to set out clearly what conduct and words amount to procedural unfairness, meaning potentially the sensitive party will feel more injured than the thicker skinned to the end that the perception of the fairness of the hearing may be individual – and problematic?

As HHJ Roger said:

“I would simply say that it is a fundamental tenet of fairness to listen carefully to the competing arguments before (the Judge) coming to a firm decision”.

Other cases
1) Re A (Children) [2015] EWCA Civ 133 the Court of Appeal allowed an appeal against a decision of a Circuit Judge whose interventions were premature and whose language was intemperate. The view of Lady Justice King was that the advocates were left feeling browbeaten and impotent (extraordinary language in modern times I thought, as an aside!). The Court found the Judge's conduct to be a serious procedural irregularity.

2) Re B (Children) [2017] EWCA Civ 1635 the Court of Appeal allowed an appeal against a Deputy Circuit Judge, characterising his approach as interventionist and his tone as unnecessarily adversarial. Lord Justice McFarlane, giving the leading judgment, indicated that it would have been preferable had the Judge allowed the parties to get on and ask their questions. Re B is also useful in describing the role of the advocate in these difficult circumstances. In paragraph 31 of the judgment Lord Justice McFarlane makes clear that there is an onus upon the advocate to stand up for his or her case and, at least, to get over the central points, however resistant might the Judge be.

3) G (Children: fair hearing) [2019] EWCA Civ. 26. The proceedings concerned two young children, who were made the subject of police protection orders after an altercation between the parents led to the mother's arrest. The local authority subsequently issued care proceedings on an urgent basis after the mother withdrew her consent to the children being accommodated. The application for interim care orders was heard by HHJ Carr QC on the day the proceedings were issued, it being that the day police protection orders were due to expire. There was no written evidence from either parent. The mother met her counsel (who was called in 2016) for the first time at court. Lord Justice Peter Jackson refers extensively in his judgment to the transcript of the hearing, particularly to an exchange between the judge and the mother's counsel during which, even before the mother's counsel had managed to tell the judge that his instructions were to oppose the granting of an interim care order she told him that "If I hear the evidence, which I'm more than willing to do – my list is empty for this afternoon – I shall make findings and she'll be stuck with them."

HHJ Carr QC made several similar statements and concluded by noting that she would "probably send my findings, if I make any, to the police and require it goes to CPS and – see what happens." The mother's counsel asked for further time to take instructions. The case was adjourned for 13 minutes, after which the mother gave her consent to the interim care order. The mother appealed. Her 'distilled submission' was that she was deprived of a meaningful opportunity to oppose the making of the orders. The local authority opposed the appeal. The father submitted written submissions supporting the case put by the local authority, as did the Guardian. Lord Justice Peter Jackson allowed the mother's appeal, concluding that there had been a serious procedural irregularity and that the mother did not get a fair hearing. The interim care orders granted by the judge were set aside in favour of short-term orders that would last until an early contested hearing before another judge.

I’ve set out the details of the Act, the case of Re C and other earlier cases because I know I have certainly encountered a difficult tribunal, as no doubt have all lawyers and it serves us well to be reminded that this should not be par for the course! Our clients are entitled to a fair hearing, which includes the ability to have their case presented fully and be heard before the court, no matter what the judge feels about their case.

All that said, I share HHJ Roger’s sentiment, expressed as an endnote to his judgment, – our judiciary are to be commended for their work given their huge and demanding workloads. Family law by its’ nature involves dealing with emotionally volatile parties, making life changing decisions in relation to children and family finances on a daily basis. I recite what HHJ Roger said:

“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”.

For all of these reasons I personally was somewhat disappointed that the judge in Re C (District Judge Mian) was named and shamed but given the rarity of these reported cases naming and shaming poor judicial behaviour is perhaps the way that the appellate court ensures that their brother/ sister judges remember no matter how difficult their case or workload, Article 6 is to be preserved – and that they ensure a court atmosphere conducive to a fair hearing.

Maria Scotland practices exclusively in family law with a specialism in high end/ big money financial remedy applications and (private law) children work. She accepts instructions to act through a solicitor or directly from members of the public on a Direct Access basis.

Maria is the joint head of the Family Team at 5 St Andrew’s Hill.