West Law Report

Duty to challenge judge

Posted in Times Law Report by mrkooenglish on December 20, 2008

From The TimesDecember 16, 2008

Duty to challenge judge
Court of Appeal
Published December 16, 2008
In re M (a Child) (Nonaccidental injury: Burden of proof)

Counsel had a positive duty to raise with the judge not only any alleged deficiency in the judge’s reasoning but also any genuine query or ambiguity which arose on the judgment.

The Court of Appeal (Sir Mark Potter, President, Lady Justice Arden and Lord Justice Wall) so stated on November 19, 2008, when dismissing an appeal by the mother against the decision of Judge Sarah Andrew in Canterbury County Court, on July 30, 2008, that while the mother was the most likely perpetrator of nonaccidental injuries sustained by the child, M, the judge could not exclude the father as a perpetrator. The case was remitted to the judge.

LORD JUSTICE WALL said that it was high time that the Family Bar woke up to the fact that English v Emery Reimbold and Strick Ltd ([2002] 1 WLR 2409) also applied to family cases.

In In re T (a Child) (Contact: Alienation: Permission to appeal) ([2003] 1 FLR 531), Lady Justice Arden said that when judgment was given, an advocate ought immediately to draw the judge’s attention to any material omission of which he was aware.

It would be unsatisfactory to use such an omission as grounds for an appeal if the matter had not been brought to the judge’s attention when there was a ready opportunity to do so. Henceforth, his Lordship hoped In re T would be followed, since advocates who failed to do so were likely to find themselves in some difficulty.


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