Who judges the judges?

‘Guards’ for family court judges

Open justice is all to the good, of course; but what does the non-party observer – a journalist, say – do where a published judgement shows that in some way the judge was plainly wrong. Someone who is a party to the case may be able to appeal (funds permitting). Others – called ‘non-parties’: eg academics, interested relatives, journalists, or charity representatives – have no obvious standing in a case (no locus standi as lawyers say) to challenge the judge’s decision.

Two examples, 35 years apart, and from my personal experience – one child law, one about family money – illustrate the need for an answer to this question. Both cases were heard in private. In both cases the judge was very obviously wrong on the facts (ie he had just forgotten what he had been told, or what he had read (should have read). Only in the second case was the judgement published.

The first, the children case. In late 1991 (as the Children Act 1989 was coming into force) I did some work for a local council in child-care proceedings. One case concerned a child whom social workers thought was being sexually abused by her mother’s boyfriend. A local circuit judge, Lester Boothman in Bristol County Court, dealt with the application. The issue was whether the court could find significant harm to the child (ie the first stage to deciding whether or not to make a care or local authority supervision order). When Judge Boothman gave judgement at the end of a half-day hearing (as I recall) he had completely forgotten the allegation of sexual abuse. He made no order for the child. On appeal to Mrs Justice Booth (a Family Division, High Court judge) she corrected the circuit judge’s omission and found significant harm.

Quis custodiet Hessum (who guards Judge Hess)?

His Honour Judge Hess is a circuit judge who sits mostly in the family court sitting in High Holborn. In  EL v ML [2023] EWFC 43 (B) (15 February 2023) (bailii.org) he was insistent that a recent report of a judgement of his be published. (As one from a circuit judge, this judgment is of no precedent value). I represented EL, the mother of three boys. My name is all over the published judgment. Anyone reading it would wonder what I was up to in taking on and pursuing such a case.

I prepared EL’s case and know all its underlying facts. I therefor know – remarkable though it may be to say – that certain highly material facts as recounted by the judge are omitted. He ignores what was in the papers in front of him. Like Little Jack Horner he picks what he regarded as the plum. He called this the ‘headline complaint’, he ignored the main issues of fact and of law and dismissed EL’s application. And now, because the case was heard in private, and without HHJ Hess’s permission, I am at risk when I say what facts are wrong for fear that I might – in theory at least – be committed to prison for contempt. So how can anyone check on what judge’s like Judge Hess are up to if it is almost impossible to extract the true facts of a case from what – in this case – Judge Hess tells us are the facts.

Why does this matter? In a case where the Guardian wanted to see court papers about an extradition case (R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2012] EWCA Civ 420, [2013] QB 618) Lord Justice Toulson spoke of ‘open justice’. He regarded as ‘vital to the rule of law’ a fine concept ‘but fine words butter no parsnips….’, he commented. Toulson LJ set out the issue raised by this post. How are judges themselves to be policed. This is ‘an age-old question. “Quis custodiet ipsos custodes: who will guard the guards themselves?”’ He quoted Jeremy Bentham: ‘“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial”.’

How do you guard the judges and keep them ‘under trial’ when they are trying an individual case? Open justice is great; but what happens if the ‘guard’ (ie a non-party: a journalist, an interested academic etc) suspects the judge of (say) getting the law wrong or of ignoring important facts; or in either case – law or facts – of going off in an opposite direction to that which logic dictates?

What was the real case before the family court?

Some facts are in Judge Hess’s judgment. Many are not. ML (the former husband) insisted that the couples’ three children should be privately educated from his then substantial income. In addition, he would pay maintenance for the boys to EL. When he lost his job, arrears of maintenance for the boys payable to EL and of unpaid school fees, quickly mounted up.  EL originally retained what the judge called ‘very experienced financial remedies solicitors’ (VEFRS) who advised her to agree to termination of the maintenance and school fees orders.

When the district judge who signed off the maintenance orders in March 1981, he and the VEFRSs failed to notice was that when ML lost his job he had a substantial payment, due in just over three years’ time. In around July 2024 he was to receive x,000,000€ (the ‘vested sum’: the actual amount I cannot reveal because of privacy rules, but it was indeed in euros and had six noughts on the end).

I had had contact with the firm ML had worked for, Manfreds (not its real name). His former boss there would pay out money to EL – say the amount of arrears due and some for the future – if the family court were so to order. The test for the court, as I saw it, was whether they would revive the arrears order and charge that on the ‘vested sum’ (ie x). To me it seemed to me to represent the low hanging fruit which the court could at least consider charging when it dropped from the Manferd’s tree into ML’s lap. You’ll see none of that in Judge Hess’s judgment.

To charge or not the low hanging fruit?

In law an ‘issue’ is what parties disagree about. The real issue in EL’s case was therefore whether she could persuade a court (1) to set aside the order discharging her earlier maintenance orders for her sons; and if she could (2) to impose a charge on the vested sum. If (1) succeeded, EL’s argument was that when the low hanging fruit dropped into ML’s lap, any amount the court had ordered to be paid plus arrears under the original order (2) would be for EL for the couple’s children.

As EL saw it, all lawyers – judge and VEFRS – involved in the March 2021 order overlooked the vested sum. And, of course, Judge Hess missed it too. (He therefore saved himself the trouble of dealing with the real legal arguments – all set out in his papers – put before him by EL.) Any reader of Judge Hess’s judgment will think EL’s case was all about a relatively trivial issue – his ‘headline issue’ – namely a form (‘Form D81’) which sets out detail of parties financial circumstances which the VEFRS had not filed, and the judge not therefore read.

Compared to why we were really there, the ‘headline complaint’ was minor in the extreme. Judge Hess chose only that issue. Judges are not supposed to do that. He ignored all other issues or referred to them in dismissive terms (ie without resolution). In condescending terms, set out in his judgment (paras [26] and on; and especially [45] of his judgment) he disposed only of his ‘headline issue’. And he ‘dismissed’ EL’s applications to his court in terms which I believe to be unlawful (a subject for another day).  

EL v ML is a case which shows the need for a judge to be ‘guarded’, that is to be judged himself as he judges; or in Latin quis custodiet Hessum.

David Burrows

3 September 2024