Yet another Family Law case involving parents going through child protection proceedings has made the headlines this week.
In this case, the parents claimed their barrister forced them to wait outside the court room, preventing them from presenting evidence about their child’s treatment whilst in care. An adoption order was made in their absence, and the judgment itself was never given to the parents.
The judgment then appeared on the free legal library BAILII ten months later, whereupon the parents discovered that the judge had been told by their barrister that the parents had in fact elected to stay outside the court room.
The mother subsequently applied to the Court Of Appeal for a fresh hearing, having been denied her right to be heard in the first instance. Lord Justice McFarlane, who was the appeal judge for the mother’s application, listened to the mother’s evidence and then contacted the mother’s barrister to get her version of events. The barrister did not reply for some time, finally sending a letter several weeks later, repeating her claim that the parents had chosen to stay outside the court room that day.
Whilst it seems that no other evidence was produced at the time, other than the mother’s word against the barrister’s, the judge ultimately accepted the barrister’s position. The mother, who made notes during the hearing, heard the judge make a remark in passing. That remark was, “a barrister wouldn’t tell a lie.”
There are a lot of concerning things about this case.
The first is that we know lawyers do tell lies. Carry out a simple Google search, and you can access publicly available information on this phenomenon very quickly (perhaps McFarlane should do one of those internet courses):
There was the barrister in 2014 who faced jail after lying to police .
The barrister who lied about her career, and ended up being disbarred.
The trainee barrister who went to jail for falsely accusing her boyfriend of rape.
Solicitors too have been caught fabricating evidence, conducting make believe litigations and even making up entire reports that were said to be written by experts in the cases concerned.
So, Mr McFarlane’s view of the legal profession is a little naive.
It’s also telling that he does not quality why he believes the mother’s barrister over the mother. This would suggest that there was no actual evidential basis for his conclusion, which in itself is deeply concerning.
The Family Court is riddled with bias. Some of it is manageable, but for the most part it ruins lives, makes a mockery of the legal duty to conduct a fair trial and in the worst case scenario, as you can see here, leads to children being removed from their parents.
This appeal should have been allowed. McFarlane should have probed more as to why the parents may have chosen to stay out of the court room, if they did – which on the face of the facts available seems extraordinarily unlikely – after all, they wanted very much to share their evidence in court – and a call for evidence on both sides should have been made to come to a conclusion about the question over attendance, as there clearly wasn’t any offered at the time of the initial investigation by the judge.
A deeply disappointing result from a judge who is most likely going to become the next President of the Family Division.
Very many thanks to Michele Simmons for sharing this news item with us.