Visits by judges ‘need clearer guidelines’

By 25 March 2022News

Britain’s most senior family law judge has called for clearer guidance on personal visits by judges to the subjects of hearings.

Sir Andrew McFarlane is President of the Family Division of the High Court. Granting an appeal brought by the children of a women with Covid-19 complications, he said there was a “pressing need for workable guidance” on the “developing practice” of judges in the Court of Protection making personal visits.

The Court of Protection is a branch of the High Court which hears cases involving the welfare of people unable to make their own decisions due to illness or disability.

Court of Protection Vice President Mr Justice Hayden had visited the 56 year-old woman in hospital before ruling on whether or not the ventilation keeping her alive should be withdrawn. She had been unable to clearly communicate during the visit but the Judge had been left confident that she wanted “some peace”. He then ruled that continuing ventilation indefinitely was not in her best interests. Her children objected and launched an appeal, arguing that the Mr Justice Hayden had wrongly used the visit as an “evidence-gathering exercise”.

The Court of Appeal agreed that the visit might have had too great an influence on the Judge’s ruling, and this might have constituted “procedural unfairness”, meaning the procedures he had used to reach his decision. The case should therefore be reheard, the Court ruled.

Delivering his ruling, Sir Andrew noted that Judges and legal practitioners had guidance available concerning the proper way to conduct meetings with children involved in family disputes. He called for the publication of similar guidelines for judges in the Court of Protection.