Last week, in the case of JY v RY [2018] EWFC B16 (27 April 2018), district Judge Read published a shocking testimony of the current crisis facing family law in England and Wales.
District Jude Read was presiding over a fact-finding hearing, in which he had to make findings on way or another in relation to allegations of domestic abuse, including rape, made by the mother against the father. In family law, fact-finding hearings are required where it is necessary for a judge to make findings on allegations made by one parent against the other, in order to make decisions about the safety of contact for the couple’s children.
In this case, neither parent was represented (they were not eligible for Legal Aid) and so the judge undertook the questioning himself, rather than have both parties questioning one another and in the absence of the standard format, where the judge hears the questioning put to both parties by their legal representatives (solicitors or barristers).
The judge worked from a pre-prepared set of questions, submitted by the parties. However, the mother had been too stressed to prepare any questions for the father. The judge was then not able to complete his questioning because the mother left the witness box half way through her questioning and could not be persuaded to return.
Thus, the judge was unable to make all of the findings that were required of him as some of the evidence had not been tested. He said:
“I am in little doubt that had one or both of these parents been represented, the fact-finding process and probably outcome would have been very different..”
That is a very damning indictment of the status quo for family law. He went on to say:
“The lack of legal representation gravely affected the fairness and efficiency of the process of questioning both parents ..
No English or Welsh criminal court would proceed as this court had to, in the absence of representation for parties dealing with such grave allegations ..
I therefore think there is a very strong likelihood that the outcome of the fact-finding hearing would have been different and most probably a truer reflection of what really happened, had the parents been represented.”
The judge did make some findings of domestic abuse, in relation to the evidence he had been able to hear. Based on those he said that: “There is always the fear in the mid of the Court that the questioning of an alleged victim about their abuse merely prolongs that abuse by another means. Given my findings in this case, limited though they are to only the first few allegations, I think that fear is borne out here.” He is basically suggesting that even when the questions were put by the judge, himself, this current process is tantamount to being abusive towards victims.
Whilst it is hard to see what else District Judge Read could have done to improve this process for the family, it is very worrying that a judge must conduct a trial (a district judge cannot refuse a trial), must make findings which, if not proven, require him to make a finding that, as a matter of law, some of the mother’s allegations didn’t happen because they weren’t (tried and) proved, and then publish a judgement, telling the world that those conclusions were probably wrong.
The whole point of a fact-finding hearing is undermined if the court itself has to acknowledge that it is probably not an accurate reflection of the facts and the risks. How is that helping to keep children safe?
There is no news of a replacement for the lost Bill that fell when the General Election was called last year, which would have at least dealt with the direct cross examination of witnesses in situations involving domestic abuse. Even if these provisions do re-emerge in a new Bill, they will not solve the problem faced by the mother in being significantly debilitated by a lack of her own legal representation and preparation, simply because she did not meet the eligibility criteria for legal aid (possibly because of the amount of capital in her property).
Putting aside the vast amounts of public money that is spent on fact-finding hearings like this in court time and judicial salaries, to then arrive at an unreliable result, there must be a better way to get to the bottom of cases where serious allegations and safeguarding issues can be resolved.
In the absence of coherent government support for people in these circumstances, Cambridge Family Matters, we help you to put together your case and seek cost effective expert help and advice in matters such as these, whilst keeping your costs to an absolute minimum. If the mother in this case had had access to a conference with Direct Access barrister, she would have had a coherent set of questions for the judge to put to her children’s father and would have received some advice in terms of setting her expectations for the day. This could have been achieved for about the same cost as the initial court application.
At Cambridge Family Matters, we can steer you towards these services, and keep the costs of any ancillary legal support that you might find necessary, to an absolute minimum. As the judge in this case has explained, the legal process cannot guarantee fairness without some preparation, understanding of the issues and the law that governs your case.
If you would like to discuss fact-finding hearings or any other children matter, you can contact Belinda on 01223 355912.