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Spare a thought for the front-line circuit or district judge who is told, often enough, by the Court of Appeal that family proceedings are non-adversarial; and then is criticised by the same Court of Appeal as ‘absurd'. Indeed the non-adversarial line was promoted by the House of Lords (by a majority of three-to-two) in Re L (Police Investigation: Privilege)  AC 16,  1 FLR 731: because care proceedings were ‘non-adversarial', litigation privilege could not apply to them. This proposition, as to the adversarial nature of family proceedings, has - as a matter of fact - been frequently overridden since. In Piglowska v Piglowski  2 FLR 763 and in Re B (Children)  UKHL 35  1 AC 11 Lord Hoffman explained ancillary relief and children proceedings in terms redolent of adversarial procedures.
In Edgerton v Edgerton and Shaikh  EWCA Civ 181,  2 FLR 273 Lord Neuberger MR consigned the inquisitorial argument to a forensic dustbin, characterising it - in connection with estoppel rules - as ‘absurd':
 [The judge below] thought that, as the court in the ancillary relief proceedings had an inquisitorial, or quasi-inquisitorial (as Thorpe LJ put it in Parra v Parra  EWCA Civ 1886, para 22), role, the normal rules as to issue estoppel did not apply. I do not agree. ... It would be absurd if a different result obtained in the reverse situation. Further, where a third person is a party to the action in which the ownership of an asset is determined by a court, it would also be absurd if he could not be bound by, and entitled to rely on the determination.
In I-A (Children)  EWCA Civ 582 the Court of Appeal (including Thorpe LJ) explained the need of a judge in care proceedings to test allegations of a 12 year-old known to be prone to fantasy, whose step father had been excluded from his home for two years on the strength of these fantasies. The father's appeal was allowed against the appeal court's insistence that the court below must ‘examine all the evidence' and conscientiously ensure that the ‘burden of proof is discharged' (Etherton LJ): all words straight from the adversarial system's lexicon.
Family procedure is adversarial: someone applies to the court and someone else responds. In the English system, some aspects - ‘fact-finding' hearings (as described in Re B above) must be dealt with on an adversarial basis (as described in I-A (above)). Whether the adversarial system reasonably demands litigation privilege in children proceedings is a separate matter (a matter probably for Parliament); but to deny that normal procedural and evidential rules apply because ‘family justice is non-adversarial' is not a fair representation of our law.
A fair trial depends on the rule of law being followed. This applies as much in family, as in any other branch, of law. An appeal to an inquisitorial system of justice does not overcome the need of lawyers and judges to observe the rule of law. And observation of the rule of law is as important in family, as in any other, area; even more so, perhaps, since family law is often designed to protect the welfare of children.
David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). This subject is dealt with at 1.21-1.25, 17.66-17.71 and 21.24.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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