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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33298
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I would be very grateful in someone can answer to my queryDuring

Customer Question

I would be very grateful in someone can answer to my query

During a trial it was discovered that the judge (let’s say Judge A), that is chairing a hearing in the family court, 6 months before had sent an email to another judge (let’s say Judge B) to inform him about the case.

In that letter Judge A did not provide the full information he had available, and another part of the information was wrong. Finally he expressed his opinion, on the case that he had to judge 6 months later qualifying, in a manner that makes it appearing he had already decided on that case that it was already the conclusion of his judgement.

Recently during the hearings that have been taking place, again he used the same wordings used previously showing once again that he had already pre-judged the case.

I believe judges are due to inform in a correct way other judges about the case he is dealing with; should not use expressions that clearly indicate that he has decided on it. Should inform all parties which are standing on a trial, in equal manner.

I appreciate your opinioning about it.
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Could you explain which type of court this case is in?
And is it private or public law?
Clare
Customer: replied 2 years ago.

it is the Principal REgistry of Family Division in London.


It is a matter concerning 2 children (notably 11 and 8 YO, now) and it a matter based on Section 8 of teh Family Act 1989

Expert:  Clare replied 2 years ago.
Hi
May I ask how you became aware of these emails
(it is relevant)
Clare
Customer: replied 2 years ago.

Thank you for you reply


 




The email the judge A was sent to another judge B and copy of it was sent to the other party I have a dispute at Court, but not to me.


That happened in August 2013.



I got aware of the existence of that email because the other party during the preparation of the last hearing attached copy of the email of the judge A to the statement, trumpeting that the complaint that personhad addressed was right because judge A had given a positive view about . This happened on 10 January 2014.



During the hearing of the 16 January 2014 judge A again used the same language that he had used in the email in August 2013 (in a negative manner towards me) at least in 4-5 occasions.



I wonder if this is a good reason for a recusal of the judge.



Just for memory, in the email to judge B, which was copied only to the other party, judge A expressed opinions on the dispute.


I do not think that what the judge did was legally correct.


I believe an impartial judge can do that.


Expert:  Clare replied 2 years ago.
Hi
What was the issue about - a point of law or the facts themselves?
Clare
Customer: replied 2 years ago.

Dear Claire,


 


This is a private law matter. It has been raised by the 2 parents (one is I). The other parent has a long history of psichiatric problems.


Since 2009 this matter has been seen by about ten different judges, up to present. The other parent has declared that is openly hostile to allow the children seeing the other parent.


A psichiatric report on the children confirms that have been alianated by that parent that has the custody of teh children and the people around them.


 


The current judge that is dealing with this case in October 2013 had to retire, but he asked to reserve this case for him and he is still on duty with this case. This is also another strange thing.


 


Nevertheless the problems are the ones I mentioned in the previous information I sent you. Is this judge doing his job properly ? And if no, is this a case for a recusal?


 


This is the matter now. Two innocent children are suffering the consequences of this horrible situation and action has to be taken that a fair decision is taken about them.


I would be very grateful to have your opinion about it, as soon as possible.


 


Thank you in advance,


FC

Expert:  Clare replied 2 years ago.
Hi
Sorry I should have been clearer.
Is the opinion expressed one about a point of law - how the law should be interpreted/acted upon; or is it about a fact in dispute in the case as in - did parent a do or not do something?
This is essential to the answer
Clare
Customer: replied 2 years ago.

 


Dear Clare,


for practical reasons I quote what you say:


"Is the opinion expressed one about a point of law - how the law should be interpreted/acted upon; or is it about a fact in dispute in the case as in - did parent a do or not do something? This is essential to the answer"


 


This is the answer I can give you, hoping that helps you to form a clearer opinon:


 


During a trial on 10.1.2014 a defendant discovered that the judge (Judge A that currently holds the case) 6 months ago sent an email to another judge (Judge B that holds another case in a different Court and for different reasons) to provide information about the case he is holding, notably a family case before the Principal Registry of London.

In that letter Judge A did not provide the full information he had available about certain facts he was asked to inform, and part of the information that he send was wrong (i.e.: he says XX was ill over 10 years ago, while the evidence that judge A had in the bundle proves that person was surely ill until 2008-2009. From teh same bundle is evident that ill person was sen by another doctor and that medical report warns on the risks of fall back of this ill person).


 


Finally judge A expressed an opinion on the case which, if seen by an independent person that does not know the case he is dealing about, may easily think that the other party (not ill), the defendant was wrong.


 


The matter for which judge A expressed his opinion is still under investigation by another 3rd judge (judge C) whom has neither finished his investigation nor convicted the other party.


This wrong (and I would say false information) of judge A was sent six months ago (August 2013) to judge B.



During the hearings of January 2014 before Judge A (for a family matter) the said judge A again used the same wordings that he used to qualify (let's say) the crime that is still under investigation by judge C. This wrong language was brought to his attention and he insisted that in his view that was the crime that the defendant had committed.


Judge A has not all information about that matter before judge C.


Even if judge A had all information he is not competent to judge on it.


 


Nevertheless judge a keeps expressing opinions on the other case in a manner that the defendant looks guilty.


This attitude of judge A (notably wrong information on matter known to him that he sent to judge B and the opinion that he gives all the time, unrequested, about the other case before judge C) can pre-judge the case of the defendant.

Now the matter is:


on the basis of the above, is that a good reason for a recusal of judge A?

Expert:  Clare replied 2 years ago.
Hi
Is the other matter a criminal case?
Clare
Customer: replied 2 years ago.

The other matter originally looked criminal because the other party had raised false allegations.


 


Since August 2013 the prosecutor (or judge C) is investigating and has not decided yet if that was a criminal offense or not.

Customer: replied 2 years ago.

Sorry,


I have just responded to your query. For any good purpose I say it again.


 


Originally the other case looked criminal, because the other party had raised false allegations. The Prosecutor (or judge C) since August 2013 is investigating and has not decided yet if it was a criminal offense, or not.

Expert:  Clare replied 2 years ago.
Hi
Ah
Is the other Judge in Belgium?
Did Judge A say that in his/her view a criminal offence (abduction?) has been committed?
Clare
Customer: replied 2 years ago.

Judge A is in London.


Judge B is in Italy.


Judge C is in Spain.


 


Judge A did not even take the precaution of saying, hours later that the retention had taken place, "in his view". Among other erroneous information, he said: "this is an abduction".


 


This strong statement misled judge B who was holding the case and the children at that moment.


 

Expert:  Clare replied 2 years ago.
Hi
Right so Judge A has said that in his or her opinion the child was Abducted
He or she is expressing this on the basis of family rather than criminal law - is that correct?
Clare
Customer: replied 2 years ago.

Hi Clare,


 


Judge A did not say "in his opinion".


 


In the communication that judge A sent to judge B he stated: "this is abduction."


 


Judge A also sent other information to judge B, about the mental status of the other party (the person that was ill), saying that person was ill 10 years ago. On the contrary judge A had more recent evidence warning also that person could have a fall back into depression at any time. That person (as confirmed later) by a third party (social services) had tried (or was planning) to commit suicide (possibly with the children).


 

Expert:  Clare replied 2 years ago.
Hi
Have you actually asked the Judge to recuse himself?
Clare
Customer: replied 2 years ago.

Hi


I have not asked yet to judge A to do so but I find his behaviour at least very "strange" and possibly not correct.


 


I am seriously considering to ask him to recuse himself.


This is why I was looking for a third independent opinion, your opinion.

Expert:  Clare replied 2 years ago.
Hi
I am sure that you will understand that it is difficult to give an opinion when I am trying to work with limited information
So before I comment let me tell you what I understand.
The children were in Spain.
They were taken from Spain - without the agreement of the other parent
They ended up in Italy.
For some reason the Uk courts are still dealing with issues of contact
Is that correct?
Clare
Customer: replied 2 years ago.

  1. The children normally live in Uk, with a person that has psychiatric problems, as proved by 5 psychiatrists and for this reason has a very high pension since ten years ago when that person was 36,

  2. I had sharing residence but it was suspended because the other party alienated the children, as proved by a psychiatrist appointed by the court

  3. In August 2013 I met the children in Spain for a contact

  4. During contact I was told the day before) the other party had attempted to commit suicide with the children

  5. I informed the Spanish Police and they told they could not do very much without a proper med. Report. I also told them I had to live for Italy and I wanted to take children with me there

  6. Police said I could do so up to 3 days if I was informing the other party, which I did

  7. I left for Italy with children, when I arrived there I was arrested me because while travelling to Italy the other party had made a complain to the Police for kidnapping and that I was trafficking with cheap (according to the declaration of the other party, apparently only cheap) Albanian worker and other incredible things

  8. While under arrest in Italy I explained the case and the judge in Italy asked information about the Family court case in London

  9. Judge A, from London sent the (wrong and uncompleted) information referred to before to judge B to Italy while judge C was investigating on the suspect that I had kidnapped the children

  10. I had to stay in prison for about 2 weeks until my case had a preliminary examination and I was finally realised. It is during that period that while trying to know the

  11. During that period judge A misinformed judge B and expressed an opinion on the still ongoing case before judge C

Expert:  Clare replied 2 years ago.
Hi
To recap = you removed the children from Spain to Italy without the agreement of the other parent -
for what you believe were good reasons - but you did it.
Is that correct?
Clare
Customer: replied 2 years ago.

The point concerning the children


(i) for breaching a consensual agreement to return them at certain time to the other party (because the other party wanted to commit suicide with the children), or


(ii) their retention (wrongful, or not wrongful, or just retention for a good reason)


is still under investigation by the Spanish Prosecutor.


 


In order to give you a full picture of the assusations and of teh investigation, please note the following:


On 14 (and again on 15 August 2013), a few hours after taking the children with me, the other party reported me to the Police in Spain that I was a paedophile, that I was sexual deviated, I used to have sexual relations in front of my son (11 yo) with little girls, I was a violent, I kidnapped the children and I could kill them. Finally, that I was trafficking with cheap Albanian workers.


The sanish prosecutor opened an urgent proceeding agaist me and for those reasons I was under custody for a few days in Italy.


 


After the preliminary investigations of the Spanish Prosecutor, which obviously had the competence to do so (questioning my children, the other party, other people, etc.) I have been discharged from all accusations with the exclusion of the following:


- Non compliance with a family obligation, or eventual wrongful retention of the children (or possibly no guilty at all, that I hope to obtain, because that is in my view the situation).


 


This latter investigation is still going on, because by the time is was ascertain that the other party tried to commit suicide on 13 August 2013, notably the day before I took the children.


 


For the moment there is also a pending criminal proceeding for calumny against the other party for the false accusations which, up to present, have been proved been false.


 

Expert:  Clare replied 2 years ago.
Hi
But nonetheless the description I gave of what happened is correct (this is important) - stripped of the good reasons but an accurate reflection of what happened?
Clare
Customer: replied 2 years ago.

The pendind matter /proceeding before the Spanish Prosecutor is :


(i) I breached a consensual agreement to return the children at certain time, or


(ii) I removed the children from Spain to Italy without the agreement of the other parent is arguable (whether for a good reason or not), or


(iii) I just kept the children with me in accordance with the Spanish law, that allows one parent to do so (not criminal act at all).


 


This is why this part of the case is still under investigation from judge C (Spain).


If the matter was fully clear, as it was for the other false accusations, this part of the case had already been closed, too. But probably it is not fully clear.


 


And this why, in my view, judge A (London) had no to write what he wrote (it "is an abduction") to judge B (Italy) at the end of August 2013.


 


If an investigation is still opened, no other judge other than the one that is dealing with the case must say those things (it "is an abduction") to another judge and to pre-judge the judgment of the latter.


Furthermore, judge A had a duty to say the truth on the illness of the other party. And he did not say it.


 


Anyway, I wish to know your opinion.


 

Expert:  Clare replied 2 years ago.
Hi
You are approaching this from the wrong way - based on what you have told me.
From what you have said under UK law there was an Abduction - so the stark fact is correct.
Equally a Suicide Attempt is not in itself evidence of a current mental illness in the UK.
On that basis the Judge is entitled to have sent the email that he did.
HOWEVER I do believe that the fact that the Judge clearly holds that view and has not shown any interest in addressing whether or not in the particular circumstances of this case your actions were in fact both justified and wise is sufficient to make a request on your part for him to recuse himself is reasonable
I hope that this is of assistance - please ask if you need further details
Clare

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