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The Afro-Caribbean father cut a lonely figure in his open-necked shirt as he faced the judge in the echoing court. He had not seen his children for two years. There were no lawyers and the mother could not attend.
The setting was one of the grandest of the Victorian Gothic courtrooms at the Royal Courts of Justice — scene of many a highly publicised battle. But today the oak benches and public gallery were empty. It was a family court — where justice is dispensed behind closed doors.
The father’s words were almost lost in the lofty ceiling vault. If he expected a final decision, he did not get it. Mr Justice Hedley — wearing a suit (no wig or robe) — told him he was sending the case to Croydon where the mother lived. This had two advantages: a single district judge could take charge of the case and a contact regime could be set up at a special centre. “I would appreciate it,” the man said. “I’ve not had any contact with my children since 2006.”
In his room the judge explained that the “intractable family dispute” had run for years. The man had been offered contact under supervision. He had refused but wanted to reapply.
As the family liaison judge for Greater London Mr Justice Hedley, 62, is responsible for family courts in the capital outside the High Court. But this was holiday time and he was doing a stint of vacation duty — a mix of emergency or procedural applications in continuing cases that need attention.
Judges, and the system, feel beleaguered. The Times has accused family courts of operating in a “conspiracy of silence” — particularly in care cases. While injustices may occur, judges feel that the picture is distorted. So The Times had been granted rare access to sit on the bench and witness family justice from a judge’s-eye view.
Mr Justice Hedley, who with his wife had two children and fostered three others, adopting two of them, admits that he may have handled “more children’s cases than any other judge”. By the law of averages over 16 years’ judging he must have made mistakes, he admits. When he has been troubled over a decision, it had not been over removing a child from its home, rather over returning a child to where it might be at risk.
“I’m human like anyone else but I don’t remove a child unless I’m as confident as |I can be] that it is the right thing to do. If you have to make a choice between the welfare of the child and the rights of the parents, the welfare of the child has to prevail. Inevitably that will result in the occasional injustice because someone will get it wrong. But an injustice to the parent, however grave, is probably less grave than returning a child to an environment where it is at risk.”
In court again there was an abduction case involving a couple of Iranian origin from America. The wife had fled with their baby to the UK. “Almost all our work has an international dimension,” the judge said. “Often it involves us wrestling with the laws of another country, which can be quite difficult.”
Both parents had lawyers. The father claimed custody rights but the mother alleged that he was abusive — and said she could not return to the US because she was a “visa overstayer”. Pending a full hearing, the main issue was what contact in London the father could have with the baby, now five months. The judge became impatient. “I will have to make a rough-and-ready decision — there’s no way I can get to the truth of what is said here. Each just denies what the other says.” All logic and sense had “fled from the case”. His ruling (after questions about the baby’s sleeping patterns) seemed fair: contact every other afternoon, initially supervised but not thereafter. Neither parent had “won”.
Next was another international abduction case involving a Czech teenage mother and child: the father alleged the mother had brought the child permanently to the UK and then wrongly abducted the child back to the Czech Republic. The question was where the child permanently lived. This time the parents were not in court. The judge had to decide how much oral evidence to allow at a future hearing. There had to be limits, he said.
Left with extra time the judge’s clerk, Christopher Mills, identified “floating” cases, hoping for a slot. Mr Mills, a former detective sergeant with the Metropolitan Police and lance corporal with the Grenadier Guards, provides the papers to keep the judge ticking over. “All he has to do then is worry about the judging,” he said. Presented with four lever-arch files, Mr Justice Hedley had just minutes to grapple with the new case. In one month he has dealt with about 100 such cases. All require crucial decisions. He snatched a sandwich and roughed out a judgment.
Next up was the case of a businessman in jail in America whose wife had flouted a court order to flee with one of their children to the Middle East. The other child was in Britain. She wanted to establish a regime of contact with her first child, anticipating the father’s return in the near future. Neither was in court. “Everyone in this case has behaved disgracefully,” the judge said. “You both come here with unclean hands — one has committed offences in the US and the other is a contemnor. He added: “Everyone has lived as if the law did not matter and suddenly they want the law to sort things out.”
Back in his room, he said that he had “endless patience” in cases — such as care proceedings — “when dealing with people where everything’s too much”. It was different where “people ought to know better”.
Finally there was what seemed a bitter wrangle with a father alleging that the mother, living in Cambridgeshire, was unfit to care for their child. A middle-class couple, each looked strained and avoided eye contact. The case “has a long and unfortunate history as this father has tried to establish contact with his daughter”, his barrister said. The mother gave evidence to confirm where she lives and the judge ordered her not to remove the girl from school pending a hearing. From time to time the mother shook her head at comments by her husband’s counsel or leapt forward to brief her own. The case now goes to a district judge.
Family courts are accused of being unfair to the parent without care of the child — usually fathers. Mr Justice Hedley disagrees, save for a hard core of intractable cases “where you are not dealing with wholly rational parents”. He added: “One thing I am not prepared to do is to make children pay the price of their parents’ conflict. So if there are persistent rows when the child is handed over and the whole thing is misery for the child, that’s a factor with me and the loser is likely to be the non-residential parent.”
It had been a typical vacation day. Justice was dispensed; and if, in the judge’s words, it was sometimes rough and ready, it seemed fair. All could withstand public scrutiny. Would the family courts get a better press if more open? It is in judges’ own interests, he agrees, that as much is done in public as possible. Many judges have no problem with that: “It makes no difference whether I sit in open court \ or not.”
He has allowed broadcasters into a care case, subject to anonymity orders, and had no problem with coverage in the case of Charlotte Wyatt, in which he ruled that doctors be allowed to let the severely disabled toddler die if they felt that was in her best interests. But views diverge: one problem would be cases that attract“supporters’ clubs from hostile families”. Could anonymity be guaranteed? To hope for that in a “highly fraught private family case may be singing in the wind”. “There is a good case to be made on both sides — but it’s a matter for Parliament.”
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I have recent experience in the RCJ. The other side's solicitors told a flat lie to the Justice and this was accepted, despite there being contradictory evidence available. The police overruled the contact order the next day. Too much about process/barristers and not about childs welfare!
stuart, London, UK
Neither the judge nor social services have ever justified the gagging of parents whose children have been taken into care and then adopted by strangers! "Risk of emotional abuse "is enough to force adoption of children in secret courts and then secretly jail any parent revealing facts to the media
ian josephs , MONTE CARLO , MONACO
The article records that prior to a hearing to determine a child's future, only minutes are spent skimming four lever arch files of information. It doesn't fill one with confidence.
Mr Justice Hedley admits to concerns that Judges get things wrong. After reading this article, I can see why! - Michael Robinson, author of The Custody Minefield
Michael Robinson, Brampton, Cumbria
There are some judges who endeavour to put the children's issues first. However, they can only act on the information provided by cafcas and social services. That is where the problem is, the secrecy allows personal agendas to take complete precedence over the welfare of the children.
Peter, NW UK, UK
You say judges are special people, special people with little or no training regarding children, no records of the outcomes of your judgements to examine your performance. Yes indeed very special, no other office in the land has such a broad canvas to paint their ideology upon.
barry gaynor, peterborough, england
So Mr Justice Hedley thinks the Family Courts are not unfair to the "parent without care"? Then Mr Justice Hedley is either a knave or a fool.
Boris, London,
There will always be gifted practitioners in the Family Courts but the dual effect of the adversarial court system and the heavily internal approach to judgment (i.e personal bias sometimes cloaked as discretion) is undermining the practice of law as it should be: compassionate and effective.
Natasha Phillips, London,