The British Family Courts are quick to reach for the hammer. Why not use it to protect the right to full disclosure of evidence? Picture via Dreamstime

The Witchfinder examines another disturbing case in which hated circuit Judge, ‘His Honour’ Judge Cardinal withheld vital evidence from a woman desperate to be re-united with her disabled daughter, only to be overturned once again by a higher court.

In Christopher Bond’s well known stage version of Sweeney Todd, there is a character called Judge Turpin. One of the play’s best known scenes has Turpin passing sentence of death on a criminal for repeated crimes. Only once sentence has passed is the identity of the miscreant revealed (in the movie, by a dramatic camera pan). It is a frightened, crying, cowering child.

Of course all fictional characters have a basis in reality and, but for accident of timing, Turpin could have been inspired by the jurisprudence of Birmingham Judge HHJ Cardinal. Regular readers of the Witchfinder will recall Cardinal’s previous works –

1. sentencing a woman called Wanda Maddocks to prison for (amongst other things) taking her father to see a lawyer, and gagging her (gagging overturned, condemned in Parliament and excoriated in the Daily Mail)
2. making a wasted costs order against a solicitor acting pro-bono for a vulnerable destitute woman (overturned by the Court of Appeal)

Indeed, so medieval is Cardinal’s approach to ‘justice’ that in the Maddocks case one of the grounds for which he held her in contempt was threatening a social worker with supernatural curses. Whilst this was eccentric and regrettable behaviour it has not been illegal in Britain since the Witchcraft Act was repealed in 1951.

I turn with regrettable inevitability to the hat trick. Most recently Munby J has once again overturned a decision of Judge Cardinal. Munby’s judgement, and the one by Cardinal he overturned are both available on BAILII. As ever the Witchfinder publishes no information not already in the public domain.

The case, RC v CC & Anor concerns a mother, RC, whose learning disabled daughter CC was adopted as a child. Ordinarily, it would be for CC to initiate contact if at all but because CC lacks capacity it is open for RC to use the Court of Protection to consider deciding if it is in her ‘Best Interests’ to do so.

This in itself is a curious anomaly in the law. Whilst the Witchfinder, like some senior judges, thinks too many of the wrong children are put up for adoption it does seem odd that those without capacity are open to interference by parents the law deemed inadequate whereas those with capacity are not.

In any event RC made her application and it was granted permission to proceed by a District Judge. The matter came before HHJ Cardinal. As Cardinal’s judgement relates, CC is plainly disabled and lacking in capacity so the case turned only on Best Interest. This is where it all goes squirly.

Fairly obviously, in determining whether it is in CC’s Best Interests to have contact (whether indirect or direct) with her birth mother the court would need to consider a wide variety of circumstances and nuances. To fully appreciate these it is necessary for all parties to consider the evidence. There were four expert reports – three social worker reports and a psychologist’s report.

Of these HHJ Cardinal decided that the 3 social worker reports would be withheld in their entirety and only a redacted version of the psychologist’s report shown to RC. The reports could, however, be shown to RC’s barrister. This is error.

The British justice system has always stood for openness and the free disclosure of information. In most British Courts, the principle is that all relevant documents in any type of Court case must be disclosed. The idea that documents can or should be redacted has long been held to undermine the principle of open justice.

Instead, where appropriate a party must give an undertaking not to use confidential material for purposes other than the proceedings it is disclosed in. If the undertaking is broken it is contempt punishable by ooh, say, prison.

Munby, inevitably held that Cardinal’s decision was wrong – that he had correctly stated the law but then incorrectly applied it. To that extent the judgement was a forgone conclusion. The decision to prevent the mother seeing the three social worker reports was overturned.

My difficulty is that whilst I have the greatest of respect for Munby, I differ with him on part of his conclusions. In particular, the decision to only let the mother see the redacted psychologists report stood. It seems to me that this is simply wrong and that respectfully, Munby J fell into error.

The President correctly summarised the law when he explained that documents could be withheld only when strictly necessary. Why then, is it necessary in this case, when the proposed recipient lives in this jurisdiction, to withhold them?

The justice system has a wonderfully flexible instrument for dealing with people who make inappropriate use of disclosed material – and the name of that instrument is prison.

The family justice system is capable of enthusiastic and rapid use of committal proceedings, for example the case of a father who sent his son a 21st Birthday Facebook message has been raised in Parliament.

It can order children removed (rightly or wrongly) from their parents by mob-handed police on Christmas Day.

I have already dealt with Cardinal’s innovative use of contempt proceedings to achieve the effect of pre-renaissance witchcraft statutes.

In short, there is no reason the Court cannot simply give the woman the un-redacted documents and send her to prison if she does not comply. Mother tries to improperly track down or visit the child? Prison. Puts the daughter’s new name online? Prison. Publishes her address? Prison. Photographs? Prison.

The only problem with Munby’s judgement is that it does not go far enough. The Family Court has more than enough tools to manage the safeguarding of disclosed documents. It might make sense to redact documents if the party receiving them is abroad, but if they live in Britain, within reach of a Court that can and will jail people at the drop of a hat, how can it ever be strictly necessary to withhold information from a party to proceedings at all?

The Witchfinder respectfully considers that despite being the best President of the Family Division for decades Munby has correctly stated the law but not quite applied it. Open justice demands that documents be disclosed in full. For those who abuse the facility the remedy is harsh punishment not unjust secrecy.