United Kingdom

New law removes potential obstacle to formal complaints about judges’ conduct of family law cases

A new law has come into effect removing a potential legal obstacle to people seeking to make formal complaints about a judge’s conduct of a family law case.

The Chief Justice, on behalf of the board of the Judicial Council, sought the relevant statutory amendment in the wake of an October 2022 High Court judgment addressing the legal position concerning the release to third parties of in-camera material from family law proceedings.

The council’s request was acted upon and the relevant amendment to section 40 of the Civil Liability and Courts Act 2004 was commenced by a statutory instrument signed by the Minister for Justice in late July.

The amendment means leave of the court shall not be required for production of documents or the giving of information for the purpose of statutory hearings, inquiries or investigations.

It is understood people who had made formal complaints against judges over the conduct of family law proceedings were informed of the amendment by the registrar of the council’s Judicial Conduct Committee (JCC), Kevin O’Neill, in letters sent last week.

Complainants were previously informed by the registrar that, as a result of the High Court judgment, they must first get the permission of the judge against whom their complaint is directed to release any of the in-camera material used in those proceedings.

The registrar indicated efforts were being made to address the situation arising from the judgment which concerned the interpretation of section 40, which deals with the release of documents and materials in family law proceedings.

Mr Justice Barrett held there was “nothing” in section 40 “that varies or removes” the traditional rule as regards obtaining prior leave (permission) of the courts when it comes to the disclosure to third parties of documents, information or evidence generated in, garnered or gleaned from in-camera proceedings.

The judgment arose from divorce proceedings where a man who believed he was a victim of deceit by his ex-wife’s solicitors in those proceedings, resulting in him incurring higher costs.

He asked a solicitor whether he had grounds for a criminal complaint and, without getting prior court permission, disclosed materials from the divorce proceedings to the solicitor.

The man ultimately made a complaint to An Garda Síochána, who were also shown some of the in-camera material without court permission. Related complaints were made by him to other entities, including the DPP, Legal Services Regulatory Authority and the Judicial Council.

Mr Justice Barrett said he was not required, in the High Court case, to decide the truth or otherwise of the man’s claims of deceit, which were strongly denied by his ex-wife’s side.

She was also aggrieved the in-camera material was disclosed to third parties without prior permission of the court.

The judge rejected the man’s contention section 40 effectively gave him a largely untrammelled right to disseminate material from in-camera proceedings without prior leave of the court.

The judicial misconduct complaints procedure became operational last October as part of a new judicial ethics and conduct regime provided for under the Judicial Council Act 2019. It provides for a range of sanctions, including the removal of a judge from office.

The first stage of the procedure involves the council’s secretary, Mr O’Neill, deciding if a complaint is admissible. A complainant can seek an internal review if it is deemed inadmissible.

Complaints upheld by the JCC may be addressed in various ways, including by advice, training, admonishment or a combination of those, or via an informal resolution process if the complainant consents to that.

Even if there is no complaint, the JCC can decide a matter relating to judicial misconduct or capacity is so serious it must be referred to the Minister for Justice under the Government’s constitutional power to remove a judge from office.

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