In 2017, we wrote about a case where a family court judge came in for some very serious criticism for his treatment of professionals in the course of a judgment. This post provides an update in light of a new judgment relating to the same case. You can read our original post here :

Family Court judge accused of misfeasance in public office by social worker he criticised

By way of recap, the judge had made serious criticisms of a social worker in his judgment at the end of a fact finding hearing, and had required that those be sent to her employer. The social worker had not had advance warning of the adverse comments and the circulation of them led to her losing her job. We now know that she became unwell as a result of the stress this caused and was unfit for work as a result.

When we last looked at the case, the Court of Appeal had concluded that the process has been seriously unfair to the social worker, and the President of the Family Division, Sir James Munby, had considered and granted an application for disclosure of materials in the case for the purposes of her pursuing a potential civil claim.

We thought at the time that the social worker would be hard-pressed to pursue a claim because of a part of the Human Rights Act 1998 which says that there can be no claim made in respect of judicial acts are done in good faith (even if they are wrong). In effect the law gives judges immunity from a HRA claim. That proved to be correct – the social worker instead had to take her case to the European Court of Human Rights, who concluded that the law which prevented the social worker from bringing a claim in the UK was incompatible with her human rights. To use the technical language, there was a ‘lack of an effective remedy’ for the breach of the social worker’s Article 8 (private and family life) rights that the Court of Appeal had found there to be. Under Article 13 European Convention on Human Rights, a person has a right to an ‘effective remedy’ for a breach of their other rights, and so the failure of the law in the UK to provide such a remedy was a further breach of the social worker’s human rights.

You can read the full judgment of the European Court of Human Rights here.

The European Court of Human Rights awarded the social worker damages in the sum of 24,000 Euros (about £20,000), plus 60,000 Euros in costs. For reference, this is a reasonably high award of damages, as damages for breaches of human rights are ‘equitable’ (roughly this mean what feels fair) rather than calculated on the basis of actual losses as in other civil claims, and they are often lower as a result. As claims in the European Court are brought against the state this is an award that must be paid by the UK Government.

The award was made for the procedural unfairness in the making and dissemination of the findings within her professional circle, and for the anxiety and distress suffered as a consequence. The award did not relate to the publication of the judgment online, which was always on an anonymised basis. As in the Court of Appeal, the European Court of Human Rights did not investigate whether the judge’s conclusions were actually correct; the focus was on the very high degree of unfairness in the process and the consequences of that.

This case has a number of possible ramifications :

• The UK Government should now be considering whether or not it needs to amend the Human Rights Act 1998 or take some other step to ensure there is an effective remedy next time a similar issue arises. The scenario in this case is thankfully rare, but something analogous could arise in future.
• The Judiciary may be considering the ramifications for judicial practice and training, although the Court of Appeal decision in 2017 made clear the need for proper notice to be provided to any professionals the court was thinking of criticising and the potential for this to amount to a human rights breach, so this is not new – what is new is the substantial damages.
• Others who consider that there has been substantial procedural unfairness in their case (whether professionals or lay parties) may be considering whether they can now also bring a claim. However, before anyone can bring a claim in the European Court they have to have exhausted all domestic remedies first, which can be time consuming in itself.

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Feature pic : ECHR by CherryX via Wikipedia (Creative commons licence – thanks!)

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