When a Judge loses her cool
By Jerome Veldsman
LL* v The Lord Chancellor, a decision of the UK Supreme Court (the apex Court) on 10 April 2017, dealt with a Judge “descending into the arena” of the litigation between the parties.
Larry and Cathy met in Singapore in 2010, shortly thereafter moved to London, married in 2011, and their son Mark was born in 2012. In mid-2013, the family travelled to Singapore on holiday, and with the intention of leaving Mark with Larry’s parents, who lived in Singapore, for at least a few months.
At the beginning of 2014, Larry and Cathy travelled to Singapore, ostensibly to fetch Mark back to London. However, Larry had other plans. In Singapore, Larry sued Cathy for divorce and custody of Mark. Larry had resigned from his job in London, and arranged to live and work in Singapore.
Cathy countered within a day, and brought an emergency application to the Family Division of the High Court in London. The Family Division issued an order that Larry must immediately return Mark to London, surrender his (Larry’s) passport, and place Mark in Cathy’s care. Larry and Cathy returned to London, but Marked remained living in Singapore with his paternal grandparents.
In March 2014, there was a hearing to determine whether Mark was habitually resident in London or Singapore (the result would determine whether the Family Division had jurisdiction over Mark). Judge Russell held that Mark was habitually resident in London. She regarded Larry to be a thoroughly unsatisfactory witness, and made an order that Larry had to return Mark to London within four days, or risk being committed to prison for contempt of court.
As Larry had surrendered his passport, he could not leave the UK, including that he could not in person travel to fetch Mark back to the UK. Larry immediately requested his parents per email to bring Mark to London, and provided air tickets for this purpose. His parents declined. He was again hauled before Judge Russell, who suspected him of orchestrating the apparent difficulty in getting Mark to the UK, and she made a similar order, adding the following recital (a declaration of the Court’s expectation) to the order:
“… that if the paternal grandparents refuse to return the child to this jurisdiction then the court expects the respondent father to make application to the Singaporean court to ensure [Mark] is returned to this jurisdiction pursuant to this Court Order.“
Nothing changed. Then Cathy brought contempt of court charges against Larry before Judge Russell. By this time, Larry must have run out of funds, as he represented himself. He applied to Judge Russell to recuse herself on the grounds of apparent bias or apparent pre-determination, but she brushed this aside. Without a legal practitioner to defend him, Larry had no chance:
“Once he was in the witness box the judge did not invite [Larry] to tell the court his side of the story. Instead [Cathy’s] counsel proceeded straight away to cross-examination. He pressed [Larry] to explain why he had not taken court proceedings in Singapore to secure the return of [Mark] to the UK. [Larry] said that would destroy his family. … After [Cathy’s counsel] had completed his cross-examination, the judge proceeded to question [Larry]. [Larry] maintained that he had done his best to secure [Mark’s] return to the UK, but he had no control over his parents (the paternal grandparents).“
Judge Russell held that Larry’s failure to secure the return of Mark to the UK was in contempt of court, and she imposed a sentence of 18 months imprisonment. Larry was incarcerated forthwith.
Larry appealed, with success. The Court of Appeal found fault with almost everything Judge Russell had done, discharged the order committing Larry to prison, and ordered his immediate release. He had spent nine weeks in prison.
Larry sued the Crown (represented by the equivalent of the Minister of Justice, with the title “Lord Chancellor”) for damages under Article 5 of the European Convention on Human Rights (ECHR) for breach of his right not to be unlawfully deprived of his liberty. Article 5 of the ECHR specifically provides that there must be compensation for unlawful detention.
Note that Larry did not sue Judge Russell personally. In the UK (and in South Africa) judicial officers are immune from liability against actions for damages arising out of the good faith discharge of their judicial functions, regardless of whether, or not, negligent. And Larry had no evidence that Judge Russell had not acted in good faith.
Article 5 of the ECHR provides that (amongst other grounds) detention is lawful if “for non-compliance with the lawful order of a court“. However, such detention will not be lawful if there was a gross and obvious irregularity in the Court’s procedure.
Accordingly, the Supreme Court has to decide whether, or not, the errors made by Judge Russell amounted to a “gross and obvious irregularity”. The Supreme Court unanimously held that they did:
It was clear that Judge Russell should have recused herself.
‘For a judge to include a veiled instruction within a recital, which cannot be complied with, and then to commit the respondent to prison for non-compliance is a “gross irregularity”. All the more so, when one takes into account the other linked errors. The word “obvious” in this context means obvious to anyone familiar with normal court procedure.’
Section 12 of the South African Constitution is broadly similar to Article 5 of the ECHR, but section 12 is silent regarding compensation for unlawful detention. In a 2009 case in the High Court, Cape Town, under different but comparable facts, the Court held that a claim for damages against the State would not succeed. The Constitutional Court may perhaps take a different view.
* The names of the persons concerned are withheld in the reported judgment, so the names in this article are made up.