How would you feel if you found yourself listening to a judge, who was telling you that in all likelihood, she thought you had physically harmed your child and was making her recommendations on that basis, only to discover, without prior warning, that the judge had then changed her mind in a written judgment of that same hearing, taking the view that she was now unable to tell who had harmed the child in question and was now recommending something different? That is exactly what happened to this family, in a series of events which are all too familiar inside the family justice system.
This recent case shows the tensions between reasoning, procedure, common sense and compassion and whilst the Supreme Court are very clear on their take in this case, it left us feeling less than comfortable.
What are we rambling on about? Well, in the case, a young child was taken to hospital with severe injuries and it was later established that these injuries were not accidental. The blame rested between the mother and the father – the trouble was, there was no way of telling which one was responsible, or if there was, the truth had not been uncovered. A comforting aspect of this case was the dignified and balanced way in which the local authority conducted itself but concerning in this case was the ease with which the judge who changed her mind was able to assuage the parties by justifying the move as one which did not significantly alter the direction of the judgment.
But it did. The judge took the view that the father should now be subjected to further examination to see whether or not he was able to care for his daughter despite having expressed clear views that she felt the facts made him a very unlikely carer, and yet, by the same token, little was done to further examine whether or not the mother was in fact conclusively removed from the ‘pool of perpetrators’. In the end, the case found its way to the Court of Appeal which allowed the mother’s appeal post the initial judge’s change of heart and also ordered that the original findings pre written judgment were re-instated.
The father then appealed to the Supreme Court, which then went on to uphold the judge’s right to change her mind. The central premise for the Supreme Court’s take on the judge’s change of heart was that “It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected.”
This seems perfectly fair on the face of it. After all, it is far better to have a judgment which is fully considered than one which is wrongly concluded and not corrected. But what of the human elements?
This case seems to highlight to us at least, the many flaws with the current court process in matters relating to family law. It’s the twenty-first century – do we really need to watch judges pontificate from a platform (even an eye-level one) within a mostly staged environment ruled by laborious directions and process? How about simplifying the process so that it is dignified, so that if a judge needs time to think about the complex nature of the facts before her, she can do so in a more appropriate environment?
We could do this by changing the way cases are handled forever – by making sure that everything is transparent when it needs to be, rather than laying emphasis on court-style hearings where the truth is offered a stage, but there’s no guarantee it will manifest behind half drawn curtains in the form of incomplete evidence and hasty summing up.
As rational as the Supreme Court’s judgement seems to us, it also seems to highlight the undeniable yet oft forgotten human element in these cases. To be accused of harming one’s child at the eleventh hour and then to have that accusation retracted but only revealed in a written document without prior notice, seems unintentionally callous, and deeply distressing for all the parties concerned. There must be a better way. Of course, to err is human, it would be wholly wrong of us to suggest otherwise, and to have the chance to redress an error is a chance worth taking, but once again for us at least, the manner in which these things are done are the key to having a noble and worthy justice system.
So what are we really saying? By all means, change your minds if you must, but please don’t forget that your audience is human.