“Justice must be seen to be done.” Who would be a family judge?

I am sad enough to read a lot of family judgments. As one might expect, there is rarely anything in them that might be considered amusing. But occasionally one comes across something that does raise a smile, albeit only briefly.

One such occasion occurred recently when I came across the judgment of the Court of Appeal in The Father v Worcestershire County Council (how one is supposed to differentiate between reported cases when the parents in cases are referred to as ‘The Mother’ and ‘The Father’, I don’t know).

The reader might guess the reason for my amusement when I say that the case concerned an appeal by a father against an order dismissing his application for a writ of habeas corpus seeking the return of his children, who had been taken into care.

Yes, I know that having your children taken into care is a very serious matter, but you will have to excuse me my moment of amusement - one does not come across the term ‘habeas corpus’ very often when reading about family law. And I’m pretty sure that it caused eyebrows to rise on the faces of far more serious family lawyers than yours truly.

And yes I know that one shouldn’t laugh at the legal ignorance of litigants in person (it is of course that very ignorance that provides lawyers with work). After all, it was a pretty ingenious idea to use the writ of habeas corpus as a method of recovering children who had been ‘stolen by the state’. And one certainly cannot fault a desperate father for trying everything to secure the return of his children.

Ill conceived

But my pathetic amusement is not the reason for this post. Rather, it is the initial judicial response to the father’s application, which went as follows:

Ms Justice Russell: What is it you're asking me to do?

Mr X: I'm asking for the writ of habeas corpus.

Ms Justice Russell: You cannot have it.

Mr X: What?

Ms Justice Russell: You cannot have it. It is an ill-conceived application.

Mr X: Why is it ill-conceived?

Ms Justice Russell: Because it has no application in this case. The orders have been made lawfully. If you wish to deal with these orders, you appeal or you make other applications under the Children Act. The writ of habeas corpus is hardly ever used anymore, because there is statutory provision that you have to use first.

Mr X: Well, I've tried everything.

Ms Justice Russell: No, you haven't appealed or tried to appeal.

Mr X: Every appeal that I filed was turned down, my Lady.

Ms Justice Russell: Well, doesn't that tell you something? You are not getting a writ of habeas corpus. It is inappropriate, it is wrong, it is not the correct process.

OK, that may not be the longest judgment in the world, but nor can it be said to be legally wrong.

Unfair

But being right was not enough for the Court of Appeal, which found that the judgment had not complied with the “fundamental principle of English law that justice must not only be done, but must be seen to be done.”

Notwithstanding this, it will come as no surprise that the Court of Appeal, after setting aside the Ms Justice Russell’s order on the ground that the hearing was unfair, dismissed the father’s application.

Ms Justice Russell (not Mrs Justice Russell, as repeatedly stated in the Court of Appeal judgment – she was the first High Court judge to be granted permission to referred to as ‘Ms’) is a highly experienced High Court judge, having been appointed to the Family Division in 2014.

Like any family judge she will be extremely busy and will regularly come across difficult litigants (the family courts are full of them). In such circumstances it is surely understandable to give short shrift to a litigant who seeks to make an application that is quite frankly absurd.

And it is not as if she simply said “No”...

She did, admittedly very briefly, explain why she couldn’t give ‘Mr X’ what he wanted, and even told him what he should do, i.e. appeal against the care order (it seems that, contrary to what he told Ms Justice Russell, the father had not actually lodged an appeal).

I am left to lament: Who would be a family judge?

Before I go I should say that our story may yet have a happy ending. We are told at the end of the Court of Appeal judgment that discussions are ongoing between the local authority and the father for increased contact between him and the children, and that the “direction of travel” is aimed at returning the children to his care.