This post arises out of a recent comment by a parent on the Child Protection Resource site.
I sat in a court waiting room in the not too distant past, when I noticed a lawyer go up to the client and say the judge wants to see us in chambers. So the client sat there for another 40 ish minutes completely unable to instruct her lawyer, whilst orders were made about a child’s life. It would not be so bad but I had already raised the same problem about the same court beforehand. When on earth will procedures be tightened up?
Certainly, an order being made without the parent being present would be utterly unacceptable and I have never experienced that – unless the parent had chosen to leave court or not turn up in the first place. So I hope the commentator was mistaken about that.
But with regard to ‘counsel only’ discussions with the Judge, I replied to say that as far was I knew this was already unlawful and should not be happening; Wall LJ had made it clear some years ago that this could not survive the Human Rights Act 1998.
I had a dim memory of a an authority called Re X in 2008 but it took the collective might of the Transparency Project research and development team a few days to track it down (hats off to Andrew Pack).
It is the case of Re Z (unsupervised contact : allegations of DV) 2009 EWCA Civ 430 where Wall LJ commented at paragraphs 17 and 18:
17. On any view that hearing appears to have taken a most extraordinary course. I need to be very careful at this point because we do not have a transcript of the hearing, nor do we have a transcript of the judgment which the judge ultimately gave. It does appear, however, that at the outset counsel went to see the judge to obtain from him an indication of the nature of his views in relation to the allegations made by the mother.
18. I do not wish to say more about this than is strictly necessary, but in my judgment the days for such private consultations between the judge and counsel are long over. I simply do not see how such discussions can properly survive the Human Rights Act and, equally, I do not think it right or appropriate — even if, as is undoubtedly the case, counsel obtained instructions to go and see the judge — that they should have done so. In my judgment, in cases involving children everything should be done in court and should be on the record. There should not be private discussions between the judge and counsel, particularly, as in this case, it appears that the judge gave an indication, although he went on to hear the case, that the allegations made by the mother did not, in his mind, amount to very much.
It does seem that we are slipping back into some bad old ways. All practising lawyer members of the Transparency Project could recall very recent instances of being asked to participate in ‘counsel only’ discussions with a Judge; I was asked only today to explain how the case was going without either parent present. I objected and we all went into court.
So what is going on? It seems that part of the explanation behind such slippage is the authority of Re H Contact order : Permissability of Judges actions 2012 EWCA Civ 714 where the court found:
There is no procedural irregularity in a Judge seeing counsel in chambers to ask whether they intend to deal with a case on submissions or with evidence and how much time should be allowed for negotiation – in fact, it is not only permissible by sensible and consistent with their case management duties…
Which of course sounds sensible. But if a timekeeping or other case management issue arises, either it is something everyone can agree – in which case, send word through to the Judge via the court usher – OR the parties are in dispute about how much time they need, who it is necessary to cross examine etc, etc which is clearly blurring a line between case management and discussion of substantive issues in the case.
Plus, the lay client left sitting outside has no idea what is going on. Even if the discussions are not controversial and part of permissible case management, that may not be the impression left with the lay client who is out in the cold. Justice must, after all, be seen to be done.
So could this be a similar example of bad practice to the drafting facts and reasons on behalf of the Lay Bench – common place and unremarkable yet was found to be completely unacceptable on appeal?
My advice would be simple. Don’t do it. The only way I think lawyers speaking to the Judge without their client could be Human Rights Act compliant is if there were serious concerns that a lay client posed a threat to the physical safety of anyone in court.