12.1.1
Preparation
Preparation
for your judgment should commence as soon as you begin to read
the papers. In the old military adage, time spent in reconnaissance
is seldom wasted.
In a contested
matter which has been given directions it is likely that you will
be given a prepared bundle of evidence and reports with a chronology.
Read away.
You may not
be so fortunate, a direction may not have been complied with,
the bundle may still be languishing in the incoming post, or there
may be no bundle for good reason, for example because the application
is urgent, or because the parties are unrepresented. If this is
the case ask for the file and read it. It may help you considerably
if you sort out the relevant documents, the application[s] to
be determined, the evidence and any reports filed and put them
in order.
Whether you
have a bundle or not, start to put together your note, setting
out in chronological order what you think may turn out to be the
key dates and events you will wish to refer to in due course.
12.1.2
Your notebook
Until recently,
in many cases the judge's notebook was the only record of the
evidence heard, and for any appeal the court might be required
to transcribe the judicial hieroglyphics. Unless your court has
functioning mechanical recording, this may still be the case.
Check that the evidence will be recorded, and if in doubt ensure
that you will be able, if required, to read your note of evidence,
into a dictating machine.
Apart from
this your note will be your key tool in your preparation for judgment.
After your
preliminary notes when reading, you may consider it helpful to
note the key points made in opening, what does the applicant seek?
Why?
If it is not
clear from the opening it is never a bad idea to establish early
on, the respondent's up to date position.
As you note
the evidence, it may be helpful to highlight any parts which strike
you as important for any reason, and if something strikes you,
perhaps the witness's demeanour, e.g. evasive about such and such
a question or perhaps the way another in the courtroom is reacting
to the evidence being given, you can note that too. As you look
back over your notes you will probably find cross references,
say to pages in the bundle, useful too.
12.1.3
Take your time
It looks so
smooth when an old hand launches into an extempore judgment the
moment the parties' advocates conclude their submissions, but
no one will appreciate a lengthy unstructured ramble, however
sound the decision. A short break before you give your decision
in even the most straightforward of cases will give you a few
moments to collect your thoughts and make enough notes by reference
to all those yellow stickers you have been putting on the papers
to give your decision clearly and concisely. You may be assured
that far from thinking you indecisive, the parties will be grateful
that you have not appeared to make up your mind lightly in something
that matters so much to them.
If the hearing
has run on late into the day remember also that you will be tired,
and it may be better to defer giving your decision until the following
day. When deciding whether to do this, you must consider the effect
upon:
- the parties;
they have waited some time for this dispute to be resolved;
will another day's uncertainty be unfair, or even, in an injunction
application risky;
- will attendance
tomorrow lead to hardship, time off work, childminding problems;
- costs;
and
- the court
staff, both those who have to stay until you finish tonight
and those who will have to juggle the unexpected part-heard
into the list tomorrow.
12.1.4
But not too long
Reserving
judgment in family cases means for the parties the strain of continuing
uncertainty. For you, the judge, it often makes the task of decision
making more difficult. The force of the impression the witnesses
made upon you may be lost, the demands of your other work may
crowd in, and the longer the delay before you commit your thoughts
to paper the harder it is.
Avoid reserving
judgment if at all possible, and when it is unavoidable fix the
date to give your decision then and there, at the earliest date
practicable, and set about preparing the reserved judgment straight
away.
You should
endeavour to give your reserved judgment within a week. If you
cannot do so, and the delay may exceed four weeks, you must inform
the High Court Family Liaison Judge well before the four week
period expires.
If you have
to consider difficult questions of law, or a complex disputed
history you may wish to prepare your judgment fully, or even,
if your command of IT is up to it, to hand it down. Many now draft
judgments, fully or in note form, on their PCs, and the advantage
of a running draft, which can be commenced as you pre-read, and
refined, altered and concluded as the case develops need not be
emphasised.
Some decisions
are difficult to make and it is your job to make them. No-one
will thank you for ducking or delaying.
12.1.5
'Checklists'
In most family
applications there is a statutory checklist to consider as part
of the decision making process. For example, in ancillary relief
there are the 'section 25' factors, and in Children Act applications
most are governed by the 'welfare checklist' in section 1 of the
1989 Act. In others, for example dispensing with parental consent
to adoption as being unreasonably withheld, the criteria to be
applied have been defined by the appellate courts.
Now your
judgment should also deal with Article 8 and justification for
your order under Article 8(2). Your judgment should demonstrate
that you have given consideration to the relevant criteria. It
may not be necessary in every case to go slavishly through every
one, but take care to make it clear that you were conscious of
them, how you have taken them into account, and which, in the
instant case, you have made specific findings about.
If your decision
will involve the acceptance of undertakings ensure that the general
form of undertaking always available from the court staff has
been completed and signed, and copies made available before the
parties leave.
Take the trouble
to explain in clear ordinary language the effect of an undertaking
and the likely consequences of breach.
12.1.6
Drawing up the order
Drawing up
the order is the responsibility of court staff. In many courts
printed pro forma orders are available to fill in, but bear in
mind that these are only a useful tool and do not relieve you
of the responsibility of ensuring that the wording of your order,
whether by using a tick box, by approving a draft submitted by
advocates, or writing in longhand in your note book, is appropriate,
effective and unambiguous. Court staff are human beings and judges
yield nothing to doctors on the handwriting front.
Do stay behind
after you have risen long enough to offer to help decipher your
writing. If your order is in the nature of an injunction, because
it is to be endorsed with a penal notice, it is particularly important
to regard it as your responsibility to ensure it is drawn up accurately
and in the proper form.
12.1.7
The aftermath
After you
have made your decision the parties will have to live with it.
In the future they may well continue to be in contact, sometimes
in close contact.
When the dispute
has been about the upbringing of a child the decision itself and
the manner in which you conveyed it may have far reaching consequences.
Try to bear
this in mind. Of course you must not shrink from making unpalatable
findings if it is necessary to do so, but it is rare that there
is nothing positive to say about a parent.
Your objective
should be that the parties leave your court acknowledging, whether
winner or loser, that the decision was fairly made and with their
self respect enhanced rather than diminished.
12.1.8
The appeal
An appellate
court will rarely interfere with a decision which has been based
upon the exercise of discretion, whether it be on appeal from
district judge or circuit judge level. From the latter the requirement
of leave reduces substantially the number of appeals fully argued.
If leave
is sought from you it should be asked for without delay, preferably
at the conclusion of the hearing. If a stay is sought, for example
of a handover of a child from one parent to the other, delay is
all the more undesirable. It is unusual for a judge at first instance
to order a stay.
Nonetheless,
a dissatisfied party may launch an appeal and you may be asked
to approve a note or transcript of your judgment. If the judgment
has been mechanically recorded it is not necessary or desirable
to consider a note submitted on behalf of the parties, unless,
for example, an urgent application for leave or a stay is to be
made before the full transcript can be available. Such a note
should include your reasons for refusing leave and/or a stay.
If, perhaps because a note of an extempore judgment is submitted
to you for approval after some delay, you feel unable to recall
sufficient to approve the note, do not hesitate to say so, adding
any comments you may have as to the contents of the note. Extempore
judgments are rarely models of elegance, and when a transcript
is submitted for your approval it is permissible to correct infelicities
and tidy up sentences in order to promote clarity, as well as
checking the inevitable typographical errors but not, of course,
to alter the substance or introduce new material.
12.1.9
Templates
The following
templates may be of assistance as an aid to preparing your judgment.
When applications of different types are listed together, for
example an application for a residence order being heard with
an application for an occupation order they can be adapted and
combined to cover the necessary components.
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