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Judicial bias

Posted on July 8, 2014 by suesspiciousminds

The Appeal in Q (Children) 2014

Grumblings that the Judge was biased are fairly commonplace, complaints that the Judge was biased get made from time to time – appeals on the point are pretty rare and successful appeals rarer still. Q is one of the latter, and as such a rare breed is worthy of some consideration.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/918.html

The case concerns two boys, W, born 12^th January 2003 and therefore now aged 11 years, and R, born 9^th August 2012 and therefore now aged 21 months. Proceedings with respect to the children commenced nearly two years ago and comprised, for the first three months, a private law dispute between the two parents. However, the local authority then issued care proceedings and it was in those proceedings that HHJ Tyzack undertook an extended fact finding process involving some 13 days of evidence between July and November 2013 and culminating in an extensive judgment given on 28^th January 2014.

The case has a number of complicating features. As a result of circumstances during the course of her own birth, the mother has a significant learning disability; her IQ is measured at the level of 61 and she is said to function at a mental age of approximately 12 years. In addition the mother also unfortunately suffers from ordinary epilepsy, which is controlled by medication and, separately, from non-epileptic seizures which apparently have a psychological origin for which no medication is provided.

The father originates from Bangladesh and is a practising Muslim. The mother is English and is a practising Jehovah’s Witness.

The eldest boy, W, has special needs and is apparently described as being the most complex child in his school amongst those who are registered with special educational needs. Although of ordinary intelligence, he is considered to have a condition which is either somewhere within the autistic spectrum or an attachment disorder or a combination of both.

The couple had generated a level of concern in a number of local authority areas with respect to their care of W and as a result of the fact that they had moved some 10 times in the 10 years between the date of their marriage in 2002 and the date of their separation in 2012.

Private law proceedings between the parties commenced in September 2012 when the mother issued an application for residence orders and a non-molestation order. Within those proceedings she alleged domestic violence against the father and alleged that he had raped her. In October 2012 the mother undertook a four or five hour Achieving Best Evidence interview with the local police in which she raised a range of allegations, including assault and rape, against the father. The father was arrested and granted bail on condition that he had no contact with the mother. However on 13^th November 2012 both parents presented themselves together at the local police station indicating that they wished to reconcile. As a result of this turn of events the local authority sought and obtained the agreement of the maternal grandmother for her to care for the children and not to allow the mother to take the children out without supervision. These care proceedings were then issued on 3^rd December 2012.

Initially it was considered that the mother lacked sufficient mental capacity to act as a litigant in the proceedings and she was therefore represented by the Official Solicitor. However on 7^th June 2013 HHJ Tyzack found that the mother did have capacity and was competent to give evidence.

The fact finding evaluation conducted by the judge involved consideration of a range of allegations made by the mother against the father relating to dominant behaviour, physical assault and sexual assault on her. In addition two specific allegations of potential assault on W were raised together with more general assertions as to the volatile nature of the parent’s relationship and their inability to work co-operatively with the social services. The schedule of allegations, together with responses by the parents, runs to 30 pages. In addition the judge was required to consider allegations which the father made against the maternal grandmother. During the course of the hearing the judge heard evidence from all of the key players, including the mother. In view of the intellectual vulnerability of the mother a screen was used to prevent the mother having sight of the father whilst giving evidence and the topics for cross examination were disclosed to her in advance.

The judgment of 28^th January 2014 effectively dismissed each of the allegations made by the mother, whose evidence the judge found to be totally unreliable. He was also highly critical of the maternal grandmother whom he described as “a devious and manipulative woman”. He concluded that both the mother and the maternal grandmother had told “wicked lies” to the court. In contrast the judge formed a favourable view of the father both as an individual and as a credible witness.

In order for the court to have jurisdiction to consider making a care order or a supervision order with respect to these children, it was necessary for the local authority to satisfy the “threshold criteria” in Children Act l989, s 31 to the effect that the children were suffering, or were likely to suffer, significant harm as at the date that protective measures were first put in place. That date was identified as 13^th November 2012, being the date on which the local authority first insisted that the maternal grandmother should take over control of the children’s care.

In the light of his findings, which were to reject the mother’s factual allegations which had hitherto been relied upon by the local authority to establish the threshold, the judge went on, at the conclusion of his judgment, to hold that the threshold criteria were satisfied on the basis that

“both children would be likely to suffer significant harm if living with the mother and [maternal grandmother] because of it being likely that they would become caught up in the emotionally destructive atmosphere of [maternal grandmother’s] home in which false allegations have been made by the mother against the father and which have been completely and immediately accepted, uncritically and unquestioningly by [maternal grandmother] and reported as fact to the police.”

The judge found that this was a potentially toxic atmosphere for these children to live in and that those circumstances therefore met the threshold criteria.

None of that (with the exception perhaps of the Judge’s decision that the mother was a competent witness) is that extraordinary, so it must turn on the conduct of the case. With that in mind, this next bit is illuminating

A further striking feature of this case is that each party, with the exception of the children’s guardian, has issued a Notice of Appeal complaining about one aspect or another of the judge’s handling of the fact finding exercise. A total of no less than 7 Notices of Appeal have been issued. Having considered the matter on paper, I adjourned the determination of the permission to appeal applications to a one day hearing before the full court with the appeal to follow if any of those applications were granted. Finally, although not a direct applicant for permission to appeal, the children’s guardian’s skeleton argument supports a number of the points that were raised as criticisms of the judge’s handling of the case.

It is really not unusual in cases involving children for one party to leave the court aggrieved. When all of them do, something has gone badly wrong. Seven separate notices of appeal on one case is new to me. The Court of Appeal did not deal with all seven aspects, because one issue cut across all of it

One of the central matters raised by the mother is a complaint that at an early case management hearing [‘CMH’] on 20^th March 2013 HHJ Tyzack displayed apparent judicial bias by making a number of clear indications that he had formed a concluded view as to the validity of the mother’s allegations and her credibility and the judge had done so during a process which was itself conducted in an unfair manner. The mothers’ case is that this premature adverse conclusion infected the judge’s whole approach to these proceedings thereafter and came to be replicated and crystallised in his final judgment.

Having identified the mother’s claim of apparent judicial bias as being a separate and discrete criticism which, if established, would cut across the entirety of the process before the judge, we proceeded, with the parties’ agreement, to hear submissions on that aspect alone. At the conclusion of those submissions we were satisfied that the mother’s criticisms were, unfortunately, well founded and that as a result the appeal must be allowed and the entire proceedings re-heard by a different judge.

It is, as I said at the outset, rare for an appeal to be upheld on the basis of judicial bias, so let’s explore that further. First, what was happening at this hearing on 20th March 2013 – well, it related to some fresh allegations against father made by mother, and the CPS decision not to prosecute (there’s some read-between-the-lines on what the CPS say)

Shortly before the CMH hearing the local authority had prepared a special guardianship report in relation to the grandmother. That report was distributed to the parties at the hearing on 20^th March. The report contained reference to fresh allegations that had been made by the mother to the police. Understandably Mr Hickmet, counsel for the father, sought clarification and the judge requested the police officer in the case, Detective Constable C, to attend, which he did. The transcript of the day’s hearing shows that the officer gave evidence and also produced his copy of the relevant file that had been submitted to the Crown Prosecution Service. The file was handed to the judge, who read it, but no copies were distributed or shown to any of the advocates at that hearing. The judge did, however, read out the relevant notes recording a meeting undertaken on 11^th February 2013 between a different police officer, the mother and maternal grandmother. The note commences as follows: “I met with [mother] with her mother. [Mother] stated, but prompted by mother that…”. The record then goes on to chronicle the serious allegations that the mother made on that occasion. For the first time she alleged that W was a victim of sexual assault. She described both W and herself being sexually assaulted, not only by the father, but also by other unnamed men who would be invited into the house for that purpose.

The note of the mother’s list of allegations made to the police on 11^th February 2013 concludes with these words: ‘She did not say offences had been committed, though, only that she was worried they had.’

The hearing continued and counsel on behalf of the mother cross-examined the officer. It should, however, be recalled that, as a result of her incapacity, the mother acted in the proceedings at the time through the Official Solicitor. Counsel confirms that before being afforded the opportunity to cross-examine, she had not asked for, nor been given, an opportunity to take any instructions from the mother on this important new information. The cross-examination was not lengthy.

In addition to this fresh material the judge was given additional information about another matter. Soon after making her original allegations, which had supported the bailing of the father, the father and mother attended the local police station together and the mother sought to withdraw the allegations that she had made. Her account, later, however was that she had been forced by him to do this as a result of being kidnapped, placed in a van and driven to the police station. In contrast, the police file showed that CCTV recording of the foyer of the police station depicted the mother and father kissing and cuddling immediately prior to her making her request to withdraw her allegations.

Cross examination of the police officer by Mr Hickmet, on behalf of the father, included the following question and answer after the officer had stated that the CPS had concluded that there was not enough evidence to charge the father:

‘Q: Can you assist the judge as to why the CPS came to that view?

A: They were unhappy with the ABE interview which covered the main original offences. They were also unhappy with [mother], due to her behaviour when [father] was arrested for the second time for the breach of bail condition.’

During exchanges with counsel following the conclusion of the police officer’s oral evidence the judge is recorded as making the following observations:

‘What the notes … reveal … is that first of all the grandmother prompts the mother to make allegations, that then they are not really allegations at all, but just thoughts in the mother’s head.’

In relation to the content of the police note of the mother’s ‘allegations’ made in February 2013, the judge questioned, rhetorically, why not a word had been said by the mother in relation to these more serious allegations in her initial ABE interview and, secondly, he questioned whether it was safe for the children now to be in the same house as the mother. The judge asked ‘How is it credible? How is any of that credible?’ and stated that he found it ‘simply incredible’ that these allegations were not raised during the lengthy ABE interview [Appeal bundle page M580]

And there then follows this exchange

Later the judge, without having heard submissions on the point, went to the local authority document which set out a draft of grounds on which the s 31 threshold criteria might be established and observed:

‘Let us have a look at the threshold together. … Then paragraph 4, the harm, they say, is emotional harm in relation to both children, and actual physical in relation to W and risk of physical in relation to R. Well now that must go. Any suggestion of actual physical harm or risk of physical harm, in the light of what the police are now saying, that is knocked out, surely, is it not? Does everyone agree with that?’

The judge then further queries the basis upon which the local authority could establish the allegations emanating from the mother which underpin the proposed threshold criteria:

‘Well I think that, for myself, how it can be proved, in relation to a lady who within minutes of getting to a police station withdraws her allegation that she has been kidnapped there by the father, and is observed on the DVD at the police station kissing and cuddling him. That is what I am told by a police officer on oath this afternoon. How then can the local authority bring a lady like this into the witness box and say to a court, “We want you to believe this lady on a balance of probabilities?” At the moment, as I see it, I do not see how it can happen.’

Counsel for the local authority, Miss Ireland, objected to the manner in which the analysis of the case was being conducted by the judge. She said:

‘At the moment, the evidence is incomplete. I entirely understand the court’s desire to actively case manage this case, which is clearly a difficult case to manage. However the evidence is incomplete. All of the parties agree that one of the most important aspects which is required is the psychiatric evidence of Mother, and whilst I can understand that the court is concerned at the current state of the case, I would respectfully submit that understanding of the case will improve significantly after that report has been prepared.’

The judge gave a short judgment at the conclusion of the hearing on 20^th March. In it he noted the various matters that had been raised and he recorded the fact that, after a full investigation, the police had decided not to take any action against the father in respect of any of the matters that had been raised.

In relation to the allegation that she had been forced to retract her complaints the judge says this:

“Indeed, the breach of bail allegation, of course, was not pursued either, in the light of the fact that the mother retracted that fact that she had been abducted by the father in his van and brought to the police station; that turned out to be a pack of lies, it would seem.”

In relation to the most recent allegations, in which the mother alleged very serious sexual assault upon her and upon W by the father and other unnamed men, the judge described the situation around those allegations as “very shocking indeed”. He notes that it is said that the mother was “prompted” by her own mother and he notes that, after the list of very serious allegations was complete, “it was simply said that the mother is not saying that these things happened, she is not saying these were offences, but rather that she thought they might have happened”. The judge expressed strong concern at the manner in which serious allegations of sexual abuse of children simply seemed to “be flung around” in the case. After recording that consideration had to be given to the fact that the mother was a very vulnerable person, and represented by the Official Solicitor, and was recorded as having a mental age of twelve, the judge went on to say:

“…even a twelve year old person would know what is happening if a child is being sexually abused or not. And even a twelve year old would be able to say in an interview if it had happened, how it had happened and when it had happened. The mother had an ample opportunity in the hours of her ABE interview to make clear, if indeed it had been the case, that W had been sexually abused, and it is that that the police were concerned about in the notes, as everybody will be able to read for themselves in due course.”

Later in the judgment, at paragraph 11 the judge says this:

“Another thing I want to say in my judgment is that I am very concerned indeed to have heard from the police officer about the fact that the mother has made allegations then retracted them, has made allegations of a serious kind about sexual abuse, and then it transpired that they were not really allegations at all. What I am concerned about is that this child is living, or the children are living, it is not really apply to R quite so much, but these children are living in a home in which such allegations are being made and I was particularly concerned to read that it was the grandmother who prompted the mother to make the allegations in relation to the sexual abuse matters. Now, that leads me to be concerned that the mother, who is said to have a mental age of twelve, is living with this boy of ten in which she believes in her mind that serious things have happened. I am therefore directing that the mother must not be alone with either of these children without there being supervision.”

The judge then went on to look forward to the forensic consequences of the information to which he had been exposed during the hearing. The local authority case was that the threshold criteria were established on the basis of the allegations made by the mother. In the light of what he had heard, the judge was concerned as to the ability of the authority to establish the threshold in this case. At paragraph 12 he said:

“…what I need the local authority to tell me at [the next] hearing is what they are pursuing by way of threshold criteria at the moment, because reading the police documents that I read today, it seems to me that the local authority could be, I am using that word advisedly, could be in some difficulty in getting over the threshold in this case. It seems to me unjustified and disproportionate at the moment for there to be 5 days of court time made available in July….because, as I say, at the moment, on the basis of what I have read in those police papers, I very much doubt, and I put it no higher than this, but I very much doubt that threshold would be made out. I can put it no higher than that at the moment, because obviously I need to give the parties an opportunity to investigate that, and the local authority, perhaps to file further threshold documents.”

The judge repeated his requirement that the mother should not be alone with the children and he stated:

“I have to say that for two pins I very nearly removed these children today from the grandmother’s care, and even if they could not have gone to the father would have invited the local authority to have placed them in foster care. I came very close to that indeed today, and I want everyone to know that, because I am sufficiently concerned about the placement of these children as to what influence they may be receiving from the grandmother and the mother, and these children need to be protected from that.”

During the course of further discussion with counsel after the conclusion of the judgment the judge made the following observation:

“…it seems to me that the father can legitimately say in this case that he has had to be on the receiving end of serious allegations when they are not now being pursued, and also in circumstances where he can say that it would appear that for some reason or another he has been manipulated.”

Whilst this is all expressed in fairly robust language, looking just at this, I can see that establishing threshold based on mother’s allegations about father is not in the slightest bit straightforward and I can quite see that a Judge would want the Local Authority’s team to go away and have a long hard think about whether they were relying on (and hoping to prove) mother’s allegations in the light of the forensic problems that posed. Judges are being caught between a rock and a hard place here – on the one hand, they are being told to robustly case manage, cut down irrelevant issues and narrow the issues (which they can only really do by sharing what is on their mind) and on the other, when they do, the Appeal Court shakes its head disapprovingly at them. I’m not saying that I think that this Judge is beyond reproach on these exchanges, but I would draw the distinction between a Judge who is off on some wild frolic and a Judge who is trying to avoid huge public expense and litigation over allegations which appear hopelessly short of the requisite standard of cogency but doesn’t choose their method of expressing that in an ideal way.

The appeal was put on this basis

On behalf of the mother Miss Janet Bazley QC, who did not appear below, leading Miss Bridget McVay, who did, submits that the various observations made by HHJ Tyzack on 20^th March 2013 demonstrated that he had formed a view that the mother was a liar who, with the encouragement of her mother, fabricated and repeated allegations. Alternatively, that she was a fantasist who, with the encouragement of her mother, repeated imagined allegations to the police. These conclusions were expressed by the judge without having heard any account of her side of the matter either from or on behalf of the mother and, similarly, without affording the grandmother any opportunity to explain her position to the court. It is submitted that the judge was in error in permitting evidence to be given of the reasons that the officer understood that the CPS had decided not to charge the father.

On behalf of the father, Miss Tina Cook QC, leading Mr Hickmet, submitted that the process undertaken by the judge, which involved immediate investigation of the source of fresh allegations that had been described, for the first time in the family proceedings, within a report circulated at the court hearing, was a perfectly proper one. No party sought time to take instructions during the hearing, and no party raised the issue of apparent judicial bias on that day. The issue was raised for the first time at a hearing in May 2013 before Baker J, who advised that any question of recusal should be raised first with the trial judge, HHJ Tyzack, himself. Thereafter the matter was not raised until the middle of the final hearing in late 2013.

Both in their written submissions and orally, Mr Christopher Sharp QC, leading Ms Penny Ireland, for the local authority made a range of measured and helpful submissions, the first of which was that, looked at generally, ‘this is a case that has lost its way’. Mr Sharp told this court that the local authority were very concerned about the manner in which the case was proceeding and the way in which they perceived that the judge was not listening to any part of the case other than matters that he himself had generated.

In relation to the hearing on 20^th March, Mr Sharp drew attention to the following passage [appeal bundle page M543]:

HHJ:	Let me try this issue now. Call the mother.
F’s counsel:	Well I think, my Lord, that is a problem.
LA counsel:	Well the problem with calling the mother is that there is an outstanding issue as to whether or not she is competent to give evidence.
M’s counsel:	Yes.
HHJ:	Yes, but this man cannot just go on facing allegation after allegation. Where are we on this case?

The local authority, having heard the submissions in the appeal made on behalf of the mother, altered its position to one where it was conceded that the judge’s conduct at the 20^th March hearing was sufficient to disqualify him from fairly and accurately assessing the evidence of the mother and maternal grandmother.

Ms Kathryn Skellorn QC, on behalf of the children, again after hearing the submissions made on behalf of the mother, accepted that a valid ground of appeal had been established with respect to the judge’s conduct of the hearing on the 20^th March.

[Without deviating from what I said in the earlier paragraph, that exchange there does seem to me to determine the appeal, and the Court of Appeal thought the same. That is an exchange that goes too far]

Miss Tina Cook QC, representing the father (who was obviously happy that the Judge had thrown out all of mother’s allegations and taken a dim view of them) had a crack at salvaging this

Miss Cook invited the court to consider how the proceedings would have appeared to an impartial observer had there been one, as a fly on the wall, in the courtroom on 20^th March. There was no need to imagine what such an observer would conclude in this case, it was submitted, because both the local authority and the children’s guardian were in just that position. Miss Cook asserted that neither of those parties made any complaint at the time, and, indeed, did not support the mother’s appeal on this point until some time during the oral submissions in this court. On that basis, Miss Cook submitted that it is plain that an impartial observer would not have concluded that there was a real possibility that the judge was biased. The judge was doing no more than, quite sensibly, expressing a preliminary view.

Miss Cook’s secondary position was that, even if there had been some falling short in the judge’s approach, this was corrected by and during the extensive process of hearings thereafter.

The legal test in relation to judicial bias

The test to be applied is on the issue of apparent judicial bias is now well settled and was not controversial as between the parties in this appeal. It is set out in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357. The House of Lords approved the test to be applied in such cases in the following terms [at paragraphs 102 and 103]:

‘The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility … that the tribunal was biased.’

[Which is why Miss Cook framed her submissions in that way]

One of the purposes of such hearings is for the court to focus upon the real issues in the case and the evidence required to resolve those issues. The entry relating to the CMH in Family Procedure Rules 2010, PD12A lists the matters to be considered including:

identifying the key issues

identifying the evidence necessary to enable the court to resolve the key issues

deciding whether there is a real issue about threshold to be resolved.

More generally, a judge hearing a family case has a duty to further the overriding objective of dealing with cases justly (having regard to any welfare issues) by actively managing the case [FPR 2010, rr 1.1(1) and 1.4(1)]. Active case management involves a range of matters set out at FPR 2010, r 1.4(2) which include identifying the issues at an early stage [r 1.4(2)(b)(i)] and deciding promptly which issues need full investigation and hearing and which do not [r 1.4(2)(c)(i)].

Family judges are encouraged to take control of the management of cases rather than letting the parties litigate the issues of their choosing. In undertaking such a role, a judge must necessarily form, at least a preliminary, view of the strength and/or merits of particular aspects of the case. The process may well lead to parties reviewing their position in the light of questioning from the judge and, by agreement, issues being removed from the list of matters that may fall to be determined.

Despite having to adopt a ‘pro-active’ role in this manner, judges must, however, remain very conscious of the primary judicial role which is to determine, by a fair process, those issues which remain live and relevant issues in the proceedings. The FPR 2010 makes provision for an ‘Issues Resolution Hearing’ [‘IRH’] at a later stage of care proceedings. As the IRH label implies, it is intended that some, if not all, of the issues will be resolved at the IRH stage. The rules are however plain [FPR 2010, PD12A] that the ‘court resolves or narrows issues by hearing evidence’ and ‘identifies the evidence to be heard on the issues which remain to be resolved at the final hearing’.

The task of the family judge in these cases is not an easy one. On the one hand he or she is required to be interventionist in managing the proceedings and in identifying the key issues and relevant evidence, but on the other hand the judge must hold back from making an adjudication at a preliminary stage and should only go on to determine issues in the proceedings after having conducted a fair judicial process.

There is, therefore, a real and important difference between the judge at a preliminary hearing inviting a party to consider their position on a particular point, which is permissible and to be encouraged, and the judge summarily deciding the point then and there without a fair and balanced hearing, which is not permissible.

As the words used in some parts of the formal judgment given on 20^th March make plain, HHJ Tyzack, as an extremely experienced family judge, was aware of the need to express himself with care for the reasons that I have described. Two examples come from paragraph 12 of the judgment:

‘… it seems to me that the local authority could be, I am using that word advisedly, could be in some difficulty in getting over the threshold in this case.’

‘… at the moment, on the basis of what I have read in those police papers, I very much doubt, and I put it no higher that this, but I very much doubt that threshold would be made out. I can put it no higher than that at the moment, because obviously I need to give the parties an opportunity to investigate that, and the local authority, perhaps, to file further threshold documents’.

Such expressions of judicial opinion, given the need for the judge to manage the case and be directive, are commonplace and would not be supportive of an appeal to this court based upon apparent judicial bias. The question in the present appeal is whether the other observations made by the judge, and the stage in the overall court process that those observations were made, establishes circumstances that would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased in the sense that he had formed a concluded view on the mother’s allegations and her overall veracity.

As will be plain from our decision to allow the appeal, I am clear that a fair-minded and informed observer would indeed have concluded that there was a real possibility that the judge had formed such a concluded view at the hearing on 20^th March. I am also concerned that the process adopted by the judge during the hearing prevented there being a fair and balanced process before the judge came to his apparent conclusion

{This, in essence, is our newfound friend – a phrase that keeps coming up, and will continue to do so – “Robust case management has its place, but it also has its limits}

Having already rehearsed the detailed circumstances, it is possible to set out the matters upon which I have based my conclusion in short terms. I deal first with the procedural matters which are of concern:

a) The judge based his analysis upon a police file which only he had read and which was not copied or otherwise disclosed to the parties until after the hearing;

b) Although the judge did read out the note in full of the 11^th February 2013 meeting between the mother, grandmother and a police officer, the note was no more than a note. It had not been compiled by the officer who gave oral evidence to the judge. The phrase ‘[Mother] stated, but prompted by [her] mother that …’ is capable of describing a wide range of intervention by the grandmother from mild and neutral encouragement (such as ‘just tell the officer what you want to say’) to overt direction of the mother (for example ‘tell the officer about the time that you were tied up and the men came to assault you and W’). Without the author of the note to explain the word ‘prompted’ and without affording to the mother and the grandmother the opportunity to submit evidence on the point, it was neither appropriate nor possible for the judge to place any reliance on that word, and certainly not to rely upon it to the degree that he went on to do;

c) In like manner, the closing phrase in the note (‘she did not say offences had been committed, though, only that she was worried they had’) may have required some explanation from the author, but the need for a fair process certainly required the mother being afforded an opportunity to give her account of what, if anything, she said and what she had meant;

d) The judge proceeded with the hearing without giving those acting for the mother any opportunity to take her instructions on this new material and either to submit her account to an adjourned hearing or, at the very least, to make submissions to the judge at that hearing. The need to allow the mother to meet the point applies to any party in this situation. The fact that the mother lacked litigation capacity at that time, was a vulnerable witness and was represented by the Official Solicitor only goes to add to the weight of this factor in this case.

Turning to the occasions on which the judge conducted himself in a manner that would have caused a fair-minded and informed observer to conclude that there was a real possibility that he had formed a concluded adverse view as to the mother’s allegations and her veracity, I would highlight the following:

a) ‘what the notes … reveal … is that first of all the grandmother prompts the mother to make allegations, that then they are not really allegations at all, but just thoughts in the mother’s head.’;

b) ‘How is it credible? How is any of that credible?’ ‘[I find it] simply incredible’ [that the mother had not raised the more serious matters during her ABE interview];

c) Regarding the threshold criteria schedule with respect to physical harm to W – ‘Well now that must go. Any suggestion of actual physical harm or risk of physical harm, in the light of what the police are now saying, that is knocked out, surely, is it not? Does everyone agree with that?’;

d) Again regarding proof of the threshold: ‘How then can the local authority bring a lady like this into the witness box and say to a court, “we want you to believe this lady on a balance of probabilities?” At the moment, as I see it, I do not see how it can happen.’

e) Although it was the case that the mother had indeed retracted her allegation of being abducted and forcibly taken to the police station, the judge’s description of her account as ‘a pack of lies’ at a stage before the mother had been given any opportunity to explain her actions and when the court knew that a psychiatric assessment of the mother was awaited, was in unnecessarily striking terms and surely would, in the context of the legal test, have struck a fair-minded observer as indicating that the judge had formed a strong and clearly adverse view of her on this issue.

I am keenly aware of the need to avoid criticising a judge who is doing no more than deploying robust active case management. There is, as I have described, a line, and it may be a thin line in some cases, between case management, on the one hand, and premature adjudication on the other. The role of a family judge in this respect is not at all easy and I would afford the benefit of the doubt to a judge even if the circumstances were very close to or even on the metaphorical line. Here, I am afraid, the words of the judge to which I have made reference, both separately and when taken together, take this case well over the line and indicate at least the real possibility that the judge had formed a concluded view that was adverse to the mother’s allegations and her veracity.

I take Miss Cook’s point that it may be informative, in the context of the fair-minded and informed observer, to look to the reactions on the day in the court room of those representing the local authority and the children. In this regard, however, it is of note that Miss Ireland, as counsel for the local authority, did indeed object to the approach that was being taken at a time when the evidence in the case was incomplete (see paragraph 26 above). In so far as it goes, Miss Ireland’s intervention would seem to confirm, rather than to question, the conclusion at which I have arrived.

Conclusion

For the reasons that I have given, I am clear that the process conducted at the CMH on 20^th March was seriously flawed if, as it was, it was used by the judge to reach any conclusion as to the state of the mother’s allegations. It was not a fair process and it was not an evidentially sound process. The judge is not to be criticised for attempting to use the hearing to clarify the material that lay behind the reference in the special guardianship report to fresh allegations which apparently took most of the parties by surprise at the hearing. Getting the officer to court and hearing basic factual evidence allowed the family court to receive disclosure of the relevant police material in a very prompt fashion. Thereafter, the judge should have left it up to the parties to take the disclosed material on board, take/give instructions and, if necessary, file further evidence setting out their account of these matters. Thereafter the judge might well have invited the local authority to explain how it proposed to approach the mother’s evidence in the light of disclosed material. He may well have invited them, at that stage, to consider how the threshold might be proved.

The judge did not, however, take the course that I have just described. Instead he strayed beyond the case management role by engaging in an analysis, which by definition could only have been one-sided, of the veracity of the evidence and of the mother’s general credibility. The situation was compounded by the judge giving voice to the result of his analysis in unambiguous and conclusive terms in a manner that can only have established in the mind of a fair-minded and informed observer that there was a real possibility that the judge had formed a concluded and adverse view of the mother and her allegations at a preliminary stage in the trial process.

In the circumstances my conclusion was that the appeal must be allowed on this point with the inevitable result that there will now have to be a retrial in front of a different judge.

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Posted in case law and tagged judicial bias, judicial intervention, q (children) 2014, robust case management, the fine line between case management and prejudging issues. Bookmark the permalink.

Application to dismiss a Guardian for bias

Posted on June 29, 2016 by suesspiciousminds

Very rare application this, and one that should interest both professionals and parents alike. It also raises important issues about the fine detail in the construction of a Position Statement at an interim hearing, particularly for lawyers representing the child.

QS v RS & Another 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1443.html

This was a case in the High Court before MacDonald J involving international adoption – two people had adopted a child in Nepal, the girl now being ten years old and her ‘parents’ were British citizens. (I’ll drop the air-quotes from here on to keep it simple). Her parents moved with her to Dubai, and applied for British Citizenship and obtained that for her. The parents later split up and there was an argument as to whether the child should stay in Dubai with father, or be in England with mother. So it isn’t a run-of-the-mill care case, but some of the general principles applied by the Court and the issues it throws up are relevant.

The Court appointed a Guardian to make enquiries into the case and to represent the child in the proceedings.

As part of the process, the Court had directed the Guardian (who was a replacement for the initial Guardian who left the service) to file and serve a Position Statement commenting on the outcome of a meeting with T, the child. This wasn’t the final hearing, nor the final Guardian’s report.

The Guardian’s position statement included the following :-

“The children’s guardian takes the view from talking to T and interpreting her wishes and feelings captured in her ‘How it looks to me’ submission annexed as MH1 that her family life is firmly rooted in Dubai and up until now this appears to have worked for her, even in the absence of M for three years”

Now, not all of the evidence had been received by that point, and it seems that some of the material which had also been directed to be produced by the parents and their representatives had not yet made its way to the Guardian. In fact, looking at the end of the judgment, it seems that the Guardian’s Position Statement was drafted and filed BEFORE the due date, and thus ahead of the father’s evidence. The Judge criticised that decision to file early and hence out of sequence.

The mother took the view that the Guardian, who would be in a powerful position to make final recommendations, had by giving that clear view of the case reached a decision and conclusion before seeing all of the evidence and that there was a perception of bias.

[I must briefly comment that in a EVERY set of private law proceedings I ever did for parents, my client always told me without fail having met the CAFCASS officer that the CAFCASS officer had taken against them and was siding with the other parent. Fifty per cent of times, when we got the report and it didn’t recommend what my client wanted, they would say “See, told you?” – the other fifty per cent they would say either “well, that surprised me” or “It just goes to show how strong my case is that even a biased CAFCASS officer didn’t dare go against me”. Sometimes, there are valid reasons for being unhappy with a CAFCASS report – but actual evidence of bias is pretty rare. When it is flawed, it is more likely to be as a result of shoddiness, lack of care, failure to double-check assertions or being rushed. Those things absolutely do happen, I’m afraid. ]

So mother applied to the Court to discharge the Guardian on the grounds of bias or apparent bias.

What’s the application in those circumstances?

FPR 2010 r 16.25 provides as follows in respect of the power of the court to terminate the appointment of a children’s guardian appointed under FPR 2010 r 16.4:

16.25 Court’s power to change children’s guardian and prevent person acting as children’s guardian

(1) The court may –

(a) direct that a person may not act as a children’s guardian;

(b) terminate the appointment of a children’s guardian;

(c) appoint a new children’s guardian in substitution for an existing one.

(2) An application for an order or direction under paragraph (1) must be supported by evidence.

(3) Subject to rule 16.24(6), the court may not appoint a children’s guardian under this rule unless it is satisfied that the person to be appointed complies with the conditions specified in rule 16.24(5).

FPR 2010 PD16A para 7.17 makes clear that where an application is made for an order under FPR 2010 r 16.25 the applicant must set out the reasons for seeking it and that the application must be supported by evidence.

The FPR (Family Procedure Rules) don’t go on to advise the Court on what criteria to apply when considering the application.

The Court therefore looked for guidance in the case law, to see what principles if any could be drawn from cases where Courts HAD removed Guardian’s or refused such an application.

When examining the almost identical provision in CPR 1998 r 21.7 dealing with the power to terminate the appointment of a litigation friend, Foskett J observed in Bradbury v Paterson [2015] COPLR 425 at [31] that the court’s discretion is a full one

[That’s a posh way of saying “It’s basically up to you Judge. Use the Force…”]

.

There are few authorities concerning the termination of the appointment of the children’s guardian. In Oxfordshire County Council v P [1995] 1 WLR 543, [1995] 1 FLR 552 Ward J (as he then was) allowed the application to terminate the appointment of the children’s guardian in circumstances where the mother had disclosed to the guardian that she had caused injuries to the child and the guardian was thereafter interviewed by the Police to obtain a witness statement from her to prove criminal charges arising out of the injuries, during which interview she disclosed the mother’s admissions without the leave of the court. Ward J concluded in respect of the guardian that “To encourage frankness on the part of the parents, she must be replaced even though her work in all other respects has been wholly admirable and my criticism of her is technical not substantial.”
In Re J (Adoption: Appointment of Guardian ad Litem) [1999] 2 FLR 86 the Court of Appeal refused an application to terminate a guardian’s appointment (made within the context of an application for permission to appeal an order appointing a guardian in adoption proceedings) notwithstanding that at a meeting following the cessation of her appointment in the care proceedings, but prior to her appointment in the adoption proceedings the guardian had expressed agreement to the proposal that the child be placed for adoption. In Re J Ward LJ held that it is untenable to assert that there is bias or the appearance of bias based simply on adverse views expressed in the course of long proceedings.
Further, in Re J Ward LJ agreed with the observation of the judge at first instance that, frequently, a children’s guardian holding a certain view can be persuaded under cross-examination to change their minds, that the “flexibility, rigidity, competence, balance, wisdom or other aspects of her conduct of the case are matters which the court will be invited to take into account when deciding whether to accept her evidence or recommendations” and that “Only in very rare circumstances can such factors disqualify a Guardian from acting at all“. Within this context I also note the observation of Sir Nicholas Wall in A County Council v K, C and T [2011] 2 FLR 817 at [117] that:

“The reasoning of the Cafcass guardian, whether given orally or in writing is always open to challenge in cross-examination, which can always go to method. Added to which, of course, where the report is in writing, good practice requires the investigative and reasoning processes to be set out. Once again, the decision is for the court, which is heavily dependent upon the quality of the advice it receives.”

Finally, in respect of Re J, at 88 Ward LJ agreed with the observations of the judge at first instance that the guardian’s function is not a judicial function. In short, and once again, the court and not the children’s guardian is the final arbiter of what is in the child’s best interests. Within the context of this latter point, it is important, once again, to note the observations of Macur LJ in MW v Hertfordshire County Council [2014] EWCA Civ 405 at [32] that the children’s guardian is a witness subject to the same judicial scrutiny as any other witness and starts with no special advantage in proceedings as compared with other witnesses.
Finally, in relation to the authorities, in Re A (Conjoined Twins: Medical Treatment)(No 2) [2001] 1 FLR 267 Ward LJ held that the court can terminate the appointment of a Children’s Guardian where he or she has acted manifestly contrary to the best interests of the child, observing as follows:

“It was not necessary for the President, in order to dispose of the application, to attempt any comprehensive statement of the circumstances in which it might be expedient to remove a guardian ad litem, and the President wisely did not embark on that course. Neither r 4.10(9) of the Family Proceedings Rules 1991 nor the corresponding provision of the Civil Procedure Rules 1998 (r 21.7(1)) specifies any limit on the court’s power to terminate the appointment of a guardian ad litem or litigation friend. The President focused on the particular situation in which the court is asked to replace a guardian ad litem because the guardian has in the conduct of litigation taken a course of action (in which we include an omission), or is about to take a course of action, which is manifestly contrary to the best interests of the child whose interests it is the guardian’s duty to safeguard. If the guardian (or litigation friend) does act manifestly contrary to the child’s best interests, the court will remove him even though neither his good faith nor his diligence is in issue.”

Overall, it would appear that whilst the court’s discretion to terminate the appointment of a children’s guardian under FPR 2010 r 16.25(1)(b) is a full one, it is nonetheless a discretion that should be exercised sparingly, taking into account the imperative of the overriding objective in FPR 2010 r 1.1 to deal with the case justly having regard to the welfare issues involved. Within this context, where the grounds relied on in support of an application to terminate the appointment of the children’s guardian concern the methodology adopted by the guardian, the court may terminate the appointment where the guardian acts manifestly contrary to the child’s best interests or, but only in very rare circumstances, where the guardian has engaged in conduct that the court would ordinarily be invited simply to take into account when deciding whether to accept or reject the guardian’s evidence or recommendations.

The Court also considered the authorities on judicial bias (our old friend Porter v Magill)

Where an allegation of apparent bias is made the test set out in Porter v McGill [2002] 2 AC 357 falls to be considered, namely “whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased“. There is there is no difference between the common law test of bias and the requirement for impartiality contained in Art 6 of the ECHR (Lawal v Northern Spirit [2003] ICR 856).
As the terminology used in the test in Porter v McGill suggests, the question of apparent bias is ordinarily considered in the context of the conduct of a person or persons occupying a judicial or quasi-judicial role. Where the person whose conduct is in question is not acting in a judicial or quasi-judicial capacity it is inappropriate for the case to be approached in the same way as one would approach a person performing a normal judicial role or quasi-judicial role; a situation where the person is making a determination (R v Secretary of State for Trade and others ex parte Perestrello and another [1981] 1 QB 19 at 35). In such circumstances, the position of the person whose conduct is the subject of criticism is better considered by reference to whether the person in question was under a duty to act fairly, the ambit of that duty, and whether they have acted with the requisite degree of fairness, rather than by reference to the concept of apparent bias (R v Secretary of State for Trade and others ex parte Perestrello and another [1981] 1 QB 19 at 34). I pause to note that, pursuant to FPR 2010 r 16.27(1)(b) and PD 16A para 7.6, a children’s guardian appointed pursuant to FPR 2010 r 16.4 is required to conduct the proceedings on behalf of child fairly.
Art 6 of the ECHR enshrines the right to a fair hearing. When considering whether a hearing has been fair, the court will look at the proceedings as a whole as well as any alleged individual deficiencies (Barberá, Messegué and Jarbado v Spain (1988) 11 EHRR 360 at [68]). The right to a fair trial guaranteed by Art 6 is not confined to the ‘purely judicial’ part of the proceedings. Unfairness at any stage of the litigation process may involve a breach of Art 6 (Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730).
Where it is said that biased or unfair conduct on the part of person under a duty to advise the court will lead to bias or unfairness in the proceedings, such a causal link must be demonstrated. In R v Gough [1993] AC 646 at 664C the House of Lords held that it must be shown that by reason of the adviser participating in the decision making process there is a real likelihood that he or she would impose his or her influence on the tribunal (see also R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts and Another [2012] EWCA Civ 472 at [132]).
In this case the children’s guardian has been appointed pursuant to FPR 2010 r 16.4. Within this context, the role and duties of the children’s guardian are set out in FPR 2010 PD 16A. As I have already noted, pursuant to paragraph 7.6 of that Practice Direction it is the duty of a children’s guardian appointed under FPR 2010 r 16.4 to “fairly and competently to conduct proceedings on behalf of the child”. Further, pursuant to FPR 2010 PD 16A paragraph 7.7 the children’s guardian must advise the court on, inter alia, the child’s wishes and feelings and the options available to the court in respect of the child and the suitability of each such option, including what order should be made in determining the application. Pursuant to FPR 2010 PD 16A paragraph 6.1 the children’s guardian must make such investigations as are necessary to carry out his or her duties.
Within this context, it is important to note the observations of Macur LJ in MW v Hertfordshire County Council [2014] EWCA Civ 405 (a case in which the children’s guardian was appointed pursuant to FPR 2010 r 16.3) at [21] and [32] respectively that the children’s guardian is not a “neutral” party or participant in proceedings and that the children’s guardian does not have a “special” status within proceedings. Whilst the children’s guardian is required to proffer advice to the court, in doing so the guardian becomes a witness subject to the same judicial scrutiny as any other witness. The children’s guardian starts with no special advantage in proceedings as compared with other witnesses.
When the court is reaching its decision with respect to the welfare of a child it must consider all the evidence in the case including, but not limited to, the evidence of the children’s guardian. The court is the decision maker and must reach its decision by reference to the matters set out in the Children Act 1989 s 1 having regard to the totality of the evidence before the court.

I will pause there. MW v Hertfordshire 2014 says something very important – that the Guardian is just a witness like any other, and their evidence can be tested by cross-examination and they don’t start with any additional Brownie Points or judicial weight given to their evidence over and above any other witness. To which I would say that that’s a very fine notion, and I believe that it ought to be true, but it absolutely isn’t true in practice. I’ll give you all a specific counter to that.

In the form given for Facts and Reasons, which is what Magistrates have to fill out when they are making a decision about a child, there is a specific section that says “Views of the Guardian and the reasons for the Court departing from those views if they do so”. There isn’t a similar specific section asking the Court to specifically justify why they didn’t do what the mother asked, or the father, or even the Local Authority. Every single social worker will tell you stories of how they got to the end of a case with a happy outcome where the child remains at home with parents and the Court were all over the Guardian “I’d like to thank the Guardian for all of her hard work in this case” and the social worker doesn’t get a mention. If Guardians who were previously social workers are honest, they will tell you how the experience of Court moved from being looked at as though you were something nasty on the sole of a shoe to being more or less the next living incarnation of the Dali Lama when they just move offices and become a Guardian. This isn’t me having a go at Guardians – I think there are very good ones, and very bad ones and most of them fall on a spectrum well between those points, just as social workers. But MW v Hertfordshire’s lofty claim that a Guardian has no preferential treatment from the Court is a crock, I’m afraid.

I wrote about the Hertfordshire case at the time, here (it was a Court of Appeal judgment that had LOADS of important stuff in it. It was like a selection box for law geeks. I’m afraid that I see the ‘no special treatment for Guardians’ being the bar of Turkish Delight in said selection box, that doesn’t get eaten or even taken out of the box because it looks inedible. Well, here, MacDonald J takes it out of the box and tucks into it, proclaiming it to be delicious.)

Guardians are not a ‘neutral party’ and don’t get brownie points

The Court’s decision on this issue, looking at the test for judicial bias and considering whether a Guardian is in the same sort of position or whether (as MW v Hertforshire suggests) they are just a witness like any other and any issues of bias are simply to be taken up in cross-examination was this :-

DISCUSSION

I have decided that the mother’s oral application for an order terminating the appointment of Mr Power as T’s children’s guardian should be dismissed. My reasons for so deciding are as follows.
The mother’s allegation of “apparent bias” against the children’s guardian (as distinct from the court) as a ground for terminating the appointment of the guardian is in my judgment misconceived. The question of apparent bias falls to be considered in the context of the conduct of a person or persons occupying a judicial or quasi-judicial role. The role of the children’s guardian is not a judicial or quasi-judicial role. Whilst he is under a statutory duty to advise the court he is not the decision maker in these proceedings. In the circumstances, it is inappropriate for the mother to seek to approach actions of the children’s guardian in the same way as one would approach a person performing a normal judicial role or quasi-judicial role (R v Secretary of State for Trade and others ex parte Perestrello and another [1981] 1 QB 19 at 35 A-C).
Notwithstanding that the mother’s primary contended ground of termination is, in my judgment, misconceived, in circumstances where, pursuant to FPR 2010 r 16.27(1)(b) and PD 16A para 7.6, the children’s guardian must conduct the proceedings on behalf of T fairly when, inter alia, advising the court on the T’s wishes and feelings, the options available to the court in respect of the T and the suitability of each such option, including what order should be made in determining the application, it is nonetheless necessary in my judgment to consider whether the children’s guardian has failed to act with the requisite degree of fairness such that the termination of his appointment is justified in accordance with the legal principles I have outlined above.
Turning first to the specific passages of the Position Statement in issue, I am not able to accept Mr Perkins’ submission that the passage in the Position Statement lodged on behalf of the children’s guardian set out at Paragraph 11(i) above setting out his analysis of T’s wishes and feelings evidences a lack of impartiality on the part of the guardian. The views of the guardian are plainly grounded in statements made to him by T. The missing statement of the father could only have acted reinforce the conclusion reached by the guardian. The matters which Ms Hamade has been asked to consider do not go to interpreting the nature or significance of T’s wishes and feelings. The child’s guardian makes clear in his report that he spoke to T after she had met with her mother specifically to check whether her views had changed.
The position in respect of the passage in the Position Statement lodged on behalf of the children’s guardian set out at Paragraph 11(ii) above is, I accept, of greater concern. It is clear that in coming to his views the children’s guardian considered the position of the mother, both in terms of the quality of T’s attachment to her and her travel difficulties with respect to the United Arab Emirates and appreciated that the matter remained subject to final determination by the court. However, statement that “The children’s guardian takes the view that T has suffered enough change and suggests a formula of arrangements that add, expand and compliment the advantages that accrue to her living with F in Dubai” does have the appearance of a recommendation regarding the final outcome of this matter and both parents appear to have taken it as such. Further, it is beyond dispute that the guardian reached his conclusion without seeing the totality of the evidence he had been directed to consider. Whilst, once again, the missing evidence of the father may well only have reinforced this conclusion, the report of Ms Hamade was potentially relevant to it in circumstances where it bore on the question of how easy ongoing contact between mother and daughter would be to maintain in light of the nature and extent of any continuing issues regarding the mother’s ability to enter and leave the United Arab Emirates.
In circumstances where, pursuant to FPR 2010 r 16.27(1)(b) and PD 16A para 7.6, the children’s guardian must conduct the proceedings on behalf of T fairly, it is unfortunate that the Position Statement lodged on behalf of the children’s guardian is expressed what appeared to be a settled recommendation prior to the children’s guardian having had sight of all of the evidence and without the Position Statement making clear on its face that the children’s guardian acknowledged that his “suggested formula of arrangements” had been arrived at in that context. Whilst I accept that the Position Statement is a document drafted on behalf of the children’s guardian and not by him and that the document evidences his understanding that the matter remained subject to final determination by the court, I also accept that concern as to the impartiality of the guardian and, accordingly, the fairness of the proceedings has been generated in the mother in circumstances where the children’s guardian reached his conclusion without considering all of the evidence he was directed to.
However, having considered the position carefully and acknowledging the concerns of the mother, I am not able to accept, having regard to the respective roles of the Guardian and the court, that there is a real likelihood that the approach of the children’s guardian will lead to unfairness in the proceedings as a whole such that the criticisms of the methodology of the children’s guardian require the termination of his appointment pursuant to FPR 2010 r 16.25(1)(b).
As I have already noted, it is the court that is the decision maker in this case and not the children’s guardian. The court is required to consider fully and fairly all of the evidence before it when reaching its final decision on the welfare of T, having regard to the matters set out in the Children Act 1989 s 1. Within the context of that process, two matters are of particular importance when considering the mother’s application to terminate the appointment of the children’s guardian.
First, during the course of that process the children’s guardian enjoys no special status relative to other witnesses before the court (MW v Hertfordshire County Council [2014] EWCA Civ 405 at [21] and [32]). The fact that the children’s guardian is under a duty to advise the court the options available to it to make recommend what order should be made does not mean that the advice and recommendation of the children’s guardian carries with it preferential, let alone determinative weight in the proceedings. The views of guardian, even when set out in a final analysis and recommendations report, are not binding on the court. At all times it is the application of the principles and factors set out in the Children Act 1989 s 1 to the totality of the evidence before the court that drives the court’s conclusion as to what is in the child’s best interests. There would be more force in mother’s application if the court was bound to follow recommendations of the children’s guardian or if the recommendations of the guardian carried preferential weight in the proceedings. However, neither of these propositions is sound.
Second, within the context of this legal framework the evidence of the children’s guardian falls to be evaluated by the court in the same way as any other witness having regard to factors including its credibility, internal consistency and fairness, with the results of that evaluation being applied in reaching a final determination. Specifically, the evidence of the children’s guardian will be the subject to forensic scrutiny by the court through the medium of cross-examination. Within this context the mother will be able to test the aspects of the guardian’s methodology that concern her and make submissions to the court on the consequences of any challenges she makes good. In particular, she will be able to put to the children’s guardian that he has pre-judged the issue of T’s living arrangements and the court can consider whether the guardian’s recommendation is thereby undermined. The court is well used to hearing and considering challenges mounted in cross examination by way of an allegation of prejudgment against social workers and children’s guardians.
In the foregoing circumstances, and with these procedural protections in place, in my judgment the matters recorded in the Position Statement of the guardian that cause the mother concern do not amount to grounds for terminating the appointment of that guardian on the basis of unfairness. Whilst it is unfortunate that this position has arisen, I am satisfied that the trial process as a whole will allow the mother a fair opportunity at the final hearing to challenge the methodology and reasoning process of the children’s guardian, which challenges will be taken into account by the court when deciding what weight to attach to his views. Within this context, I am satisfied that the parties can remain on an equal footing and that the court can deal with the case fairly notwithstanding the statements included in the Position Statement drafted on behalf of the children’s guardian.
I of course acknowledge the principle that it is not only important that justice is done but that it is seen to be done. However, once again, I am satisfied that the fact that it is the court who is the decision maker in this case, coupled with the opportunity the mother has to challenge the methodology and conclusions of the children’s guardian prior to the court reaching its decision, meets the requirements of this cardinal principle. I also bear in mind that the children’s guardian has yet to file and serve his final analysis and recommendations report and that he will do so having had sight of all of the evidence that has been placed before the court.
In reaching my decision I have also had regard to the delay that will be engendered in these proceedings if the appointment of the current children’s guardian were to be terminated and the matter adjourned for a new guardian to commence work. I have also borne in mind that such a course of action would necessitate T having another meeting with a different professional to talk once again about her wishes and feelings. Having regard to the statutory principle that delay is ordinarily inimical to the welfare of the child, and whilst not determinative, this in my judgment is a further reason for refusing the application to terminate the appointment of the current children’s guardian.
Finally, and again whilst not determinative of my decision on the mother’s application, as I have already observed the mother made her application to terminate the appointment of the children’s guardian pursuant to FPR 2010 r 16.25(1)(b) orally (without even having given notice of the intention to make such an application in her Position Statement) and absent any written or oral evidence in support of that application, contrary to the requirements of FPR 2010 r 16.25(2). In the circumstances, I also note that the court has not been taken to evidence in support of the mother’s application as mandated by the rules of court when pursuing an application to terminate the appointment of the children’s guardian.

I don’t think that this was the strongest application on bias, it was fairly clear that the Guardian’s views about the child’s wishes and future were as a result of the Guardian’s discussions with the child, who was ten years old. The position statement was somewhat clumsy in not making the position more explicit that there was no final decision but rather an interim view.

Finally the Court said this :-

CONCLUSION

There will, in very rare circumstances, be cases where the court accedes to an application to terminate the appointment of the children’s guardian where the guardian has adopted a methodology that the court would ordinarily be invited simply to take into account at a final hearing when deciding what weight to attach to the guardian’s evidence or recommendations. This, however, is not such a case. For the reasons given above I am satisfied that the mother’s application to terminate the appointment of Mr Power should be dismissed, and I so dismiss it.
As I have already observed, in Re J Ward LJ endeavoured to reassure the mother that the judge in that case was confident about the impartiality of the children’s guardian, was alive to the issues in the case, and that it was the judge who would have the very difficult task of resolving those issues. I reassure the mother in the same terms in this case.
Finally, the need for the court to consider the issues set out in this judgment stems, in large part, from the failure by CAFCASS Legal to adhere to the directions made by this court on 5 April 2016. Mr Hinchliffe’s decision to complete his Position Statement on 2 June 2016 ahead of the receipt of evidence due to be filed on 10 May 2016 in respect of the report of Ms Hamade and on 3 June 2016 in respect of the statement of the father, which evidence the court required the guardian to consider before the lodging of a Position Statement, together with the terms in which the Position Statement was drafted in those circumstances, have caused the mother unnecessary worry and concern and the court additional work. That worry and work could have been avoided had CAFCASS Legal complied with the directions made by the court or applied to vary the same. I hope that CAFCASS Legal will reflect on this.
That is my judgment.

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Posted in cafcass, case law and tagged 2016 EWHC 1443, application to discharge a Guardian, bias, bias from a guardian, can I get rid of a Guardian?, criticism of a Guardian, criticism of CAFCASS, expressing firm view in interim position statement, FPR 16.25, FPR rule 16.25, MW v Hertfordshire 2014, perception of bias, porter v magill, QS V RS 2016, removing a guardian, what if I think the Guardian is unfair. Bookmark the permalink.

Lost suitcase Judge admonished by Court of Appeal (but not biased this time)

Posted on June 16, 2016 by suesspiciousminds

Some of you might remember the case where a High Court Judge, involved in a big money commercial trial where British Airways was a party started to conduct his own inquiries of BA’s Silk into what had happened to his suitcase which BA had lost on a flight.

If you haven’t, then I suggest you read it, because it is a cracker. (It isn’t my writing that makes it funny, the situation is just ludicrous)

Judicial baggage

If you are unaware of the previous history with this Judge and the Court of Appeal, here is another to read

http://www.bailii.org/ew/cases/EWCA/Civ/2007/720.html

[The Judge had been involved in communication with partners of a law firm about an employment opportunity for himself, those communications had broken down and the Judge had sent an email to the Senior Partner expressing considerable disatisfaction and annoyance. When that firm next had a case before him, they invited him to recuse himself and he refused. The Court of Appeal decided

It may well be that the judge became somewhat carried away in the heat of the argument. But for the reasons I have given, I would hold that his attitude throughout, from the emails at the end of May, during the hearing on Friday and in his judgment show that the test for apparent bias is satisfied. As the reviewing court, this court is in a position to form its own view. I have concluded that in all the circumstances, a fair-minded and informed observer would conclude that the judge was biased against AG and its partners, including Mr Howell. It was for that reason that I concluded on Monday that the appeal should be allowed.

But if you can, read the judgment, because the transcript of the poor barrister trying to make the recusal application and the Judge getting crosser and crosser is quite remarkable]

Following the BA suitcase debacle , the Judge’s conduct attracted quite a bit of attention in the Press, including an article written by Lord Pannick of Blackstone Chambers. Lord Pannick has been involved in some very intriguing cases that I’ve written about on the blog – often involving overseas Royalty or diplomats, and has also been a trenchant critic of the legal aid reforms, so I like him a great deal. [In fact, he was in this very case in this blog article https://suesspiciousminds.com/2014/06/09/a-court-may-look-at-a-king/ ]

On 3^rd September 2015, an article (“the Article”) appeared in The Times newspaper with the headline “A case about luggage that carries a great deal of judicial baggage”. It was written by Lord Pannick QC (a member of Blackstone Chambers) who had, at an earlier stage of Mrs. Harb’s claim, represented the Prince on his CPR Part 11 (sovereign immunity) application. The Article stated:

“On July 22, 2015, Mr Justice Peter Smith stood down from hearing a complex commercial case in which British Airways is a defendant. The airline asked the judge to recuse himself after a dispute about what happened to the judicial luggage on a trip home from Florence. How we laughed. But the case raises serious issues about judicial conduct that need urgent consideration by the Lord Chief Justice. …

The judge sent a number of emails to the chairman of BA complaining about the incident. He said there was “plainly a deliberate decision to leave a whole flight’s luggage behind”. He suggested that lucrative commercial freight may have been loaded “at the expense of passengers who could go to hell at the expense of profits.” BA applied to the judge to recuse himself because the case against the airline that he was hearing raises allegations similar to those he was making, and conclusions similar to those he was asserting, in the correspondence.

The transcript of the recusal application is extraordinary. Jon Turner, QC, for the airline, began by politely stating his client’s concern. The judge intervened: “Right, Mr Turner, here is a question for you. What happened to the luggage?” Mr Turner responded that his clients would deal with such a personal complaint in the ordinary course of business and not in these proceedings. The judge was not satisfied: “In that case, do you want me to order your chief executive to appear before me today?”

Mr Turner patiently replied (his submissions were a model of courtesy and focus in very difficult circumstances) that if the judge would permit him to develop his argument he would contend “that that would be an inappropriate mixture of a personal dispute…”. The judge interrupted: “What is inappropriate is the continued failure of your clients to explain a simple question, namely what happened to the luggage?” After a lot more of this, the judge reluctantly agreed to stand down from the case. He said that there were no grounds for BA’s application but its “attitude” left him with no alternative.

There are a number of troubling features about this unhappy episode. First, the transcript repeatedly confirms what the judge refused to acknowledge: that his personal irritation (perhaps justified) was affecting his judicial responsibilities and made it impossible for him fairly to hear the BA proceedings. The judge said in his judgment that he wanted answers from BA simply because if there were an innocent explanation for the delayed luggage, then he could put the incident to one side and hear the case. But BA’s concern was the strong allegations and concluded views expressed by the judge on personal issues similar to those raised in the litigation. In any event, if BA had offered an explanation for his treatment, was the judge to rule on its adequacy?

Second, there is the inexcusably bullying manner and threats: “What has happened to the luggage? … I will rise until 12.45 and you can find out… Do I have to order you to do it, then?… I shouldn’t make any preparations for lunch because you are going to be sitting through.”

Third, there are the judge’s arrogant comments concerning the decision of the Court of Appeal in 2007 to remove him from an earlier case in which he had been unable to recognise that his personal interests made it inappropriate for him to sit in judgment. Mr Turner, QC, referred to the case for the legal principles. Mr Justice Peter Smith responded that he had “no regret” about his decision, but “plenty of regrets about the way in which the Court of Appeal went about their decision”, but he was “no longer surprised by what happens in the Court of Appeal”. That was a case where Sir Anthony Clarke, MR, described Mr Justice Peter Smith’s conduct of the proceedings as “somewhat extraordinary” and “intemperate”. Sir Igor Judge added that Mr Justice Peter Smith’s conduct of the hearing demonstrated that he “had become too personally involved in the decision he was being asked to make to guarantee the necessary judicial objectivity.” Mr Justice Peter Smith was not listening.

On hearing about this latest episode, no one at the bar or on the bench would have said, “What, Mr Justice Peter Smith? Surely not?” Litigants are entitled to a better service than this. The reputation of our legal system is damaged by such behaviour. The Lord Chief Justice should consider whether action to address Mr Justice Peter Smith’s injudicious conduct has, like his luggage, been delayed for too long.”

After that article (which remember, was complaining about a Judge acting injudiciously, and blurring his judicial functions with his personal circumstances or views) appeared, the Judge wrote to the Head of Blackstone Chambers

By a letter dated 1^st December 2015 (“the Letter”), the judge wrote to one of the two joint Heads of Blackstone Chambers, Mr. Antony Peto QC, in these terms:

“I refer to our conversation a couple of weeks ago. I am disappointed not to have heard from you.

The quite outrageous article of Pannick caused me a lot of grief and a lot of trouble. I will be taking that up with the requisite authorities in due course.

You said that you would get back to me and you have not. This has meant even more trouble for me because his article has been used as the basis for several lay people to make complaints about me. Fortunately he has never appeared in front of me so his opinion is not worth the paper it is printed on. It has caused me great difficulties in challenging it but fortunately again I have letters of support from no less than 24 Silks, 4 High Court Judges and 1 Court of Appeal Judge all of whom appeared in front of me and do not share his views of my abilities and the way I perform in Court. Some of the letters have been extremely critical of Pannick’s article. Others have commented adversely in terms I would not wish to print.

The article has been extremely damaging to Blackstone Chambers within the Chancery Division.

I am extremely disappointed about it because I have strongly supported your Chambers over the years especially in Silk Applications. Your own application was supported by me and was strongly supported by me to overcome doubts expressed to me by brother Judges concerning you. I have supported other people. It is obvious that Blackstone takes but does not give.

I will no longer support your Chambers please make that clear to members of your Chambers. I do not wish to be associated with Chambers that have people like Pannick in it.”

Unfortunately for the Judge, although Lord Pannick has yet to appear before him post article, other members of his chambers did, on this case. The letter emerged as part of the appeal.

Joshua Rozenberg’s piece about Lord Pannick’s article and the Judge’s response are very worth reading.

http://www.lawgazette.co.uk/analysis/comment-and-opinion/a-judge-needs-judgement/5050805.fullarticle

Anyway, the case has now come before the Court of Appeal, who were no doubt sharpening their pencils and rolling up their sleeves in readiness for this one.

Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556 (16 June 2016)

http://www.bailii.org/ew/cases/EWCA/Civ/2016/556.html

The Court of Appeal granted the appeal for other reasons, so did not technically have to give a judgment on the bias point that had been raised, but in the unusual circumstances of this case, you can see why they would. They say that the Judge’s behaviour was regrettable, but did not satisfy the test of bias. (some readers might find that surprising, so I will include the totality of their judgment in this regard)

There is no dispute as to the test for appearance of bias. In Porter v Magill [2002] 2 AC 357, Lord Hope said at para 103:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

The Letter has assumed significance in this appeal because the Prince was represented at the trial by Mr. Ian Mill QC and Ms. Shaheed Fatima QC, both of whom were (and still are) members of Blackstone Chambers. It led to the Prince amending his grounds of appeal to add a fifth ground alleging apparent bias.
The following particulars of alleged apparent bias are relied on. First, a fair-minded and informed observer would conclude that there was a real possibility that the judge became biased against the Prince after the publication of the Article because it was critical of him and he knew that the Prince had been represented by Lord Pannick and was continuing to be represented by Mr. Mill and Ms. Fatima. Secondly, the content of the Letter would cause such an observer to conclude that there was a real possibility that the judge harboured a personal animus against all members of Blackstone Chambers. Thirdly, the observer would conclude that there was a real possibility that the judge’s apparent bias against Blackstone Chambers might have affected his decisions in relation to this claim because, as a matter of timing, the Article preceded (a) the date on which the draft judgment was sent to the parties (21^st October 2015), (b) the date on which the judgment was handed down in its final form (3^rd November), and (c) the date on which the judge determined costs (9^th December). Fourthly, the observer would conclude that there was a real possibility that the judge was biased because he refused to correct a material inaccuracy in the draft judgment even after it had been drawn to his attention. The particular inaccuracy relied on is the judge’s failure to correct the statement at para 106 of the judgment that “it was not put to the claimant” that she had been aware of the Prince’s capacity as the agent of his father, King Fahd. Fifthly, the observer would conclude that there was a real possibility that the judge had been biased against the Prince because his judgment is in key respects inconsistent with the evidence, the inherent probabilities and, in particular, his questions and observations during the trial. There was a change of stance by the judge after the hearing which it is impossible to explain except by attributing bias to the judge. This submission is founded on a detailed analysis of the judge’s interventions during Mrs. Harb’s evidence. These are said to demonstrate hostility by the judge towards her and incredulity about her evidence at that time. Sixthly, the observer would conclude that there was a real possibility that the judge became biased against the Prince in view of his change of mind regarding the explanation given by the Prince during the trial for not attending to give oral evidence. This is the subject of the fourth ground of appeal.
It is necessary to have in mind some key aspects of the chronology. The starting point is that on 23^rd July, after the conclusion of the evidence, the judge asked the parties whether they wished him to give an indication of his provisional views. In response to their request that he should do so, he said:

“on the evidence at the moment I am of the provisional view that there was an agreement as the claimant alleges. However, the question of the capacity of the agent I find very troubling at the moment, the capacity of the agreement. I suspect, I have not looked into it, there is some law about whether or not an agent, [where there] is an undisclosed principal, can assume personal liability under the contract.”

The parties then made their closing submissions and the judge reserved judgment. He dictated his judgment during the last week of July and first week of August. On 5^th August, a written note was submitted on behalf of the Prince commenting on the authorities relied on by Mrs. Harb in relation to the agency issue. The judge says that he dictated a short addendum to the relevant section of the draft judgment relating to the agency issue, but that the draft was not otherwise materially altered.
He handed the tapes to his clerk for typing later in August. On 21^st August, there was a further hearing before the judge to purge the Prince’s contempt for failing to attend the hearing. The judge said that he had hoped to release his judgment in draft form that day. He was on leave between 2^nd and 16^th September. As we have already stated, the Article was published on 3^rd September. The judge’s clerk started typing the judgment on 6^th October. She believes that she completed transcribing the tapes on 14^th October. She says that she printed off a hard copy of the judgment for the judge to check and approve and that she made the amendments required by him on 19^th October. The draft judgment was circulated to the parties on 21^st October. It was handed down on 3^rd November.
The judge spoke to Mr. Peto QC in about mid-November and complained about the Article. Having not received an answer from him, he wrote the Letter on 1^st December.
To meet the point that the judge had indicated a provisional view in favour of the claimant before the parties made their closing submissions and before he drafted his judgment, Lord Grabiner says that the judge made some amendments to his draft judgment after reading the Article and before handing down the judgment. We do not know the nature of the amendments. We do not know what the judge’s thinking was in relation to this case after the publication of the Article. In short, he submits, the fair-minded observer would consider that there was a real possibility that the final judgment was influenced by the Article, if only by the judge’s refraining from making changes that he might otherwise have made.
More broadly, in his oral submissions Lord Grabiner illustrated his case in this way:

“If I were a client and I was using a Blackstone Chambers barrister to argue a case for me and these facts were drawn to my attention, I would be very concerned indeed about who the trial judge was going to be. If I were told the whole of this story, my reaction to that—and I am simply saying that as a reasonable client, given the knowledge of all the facts—the question for this court is: what would be the reaction of that reasonable client?

In my submission that is susceptible of only one answer. He would say—particularly if he were a foreign client who the reason that he comes here in the first place is because he holds the English court system in such high regard. To be given this story, he would be astonished and he would say ‘Well I must say I hope there’s some other judge who can hear my case’, and he would be right” (Transcript 1/107-108).

In response to Lord Grabiner’s submissions, Mr. Hollander makes a number of points. First, although he accepts that it is possible for a bias for or against an advocate to be sufficient to give rise to a case of apparent bias against the client, of its nature this is likely to be exceptional. It should be borne in mind that the judge has sworn a judicial oath.
Secondly, the Letter was a complaint in relation to an article by Lord Pannick, and not against Mr. Mill or Ms. Fatima. These are two of 100 self-employed barristers practising at Blackstone Chambers. They are not in partnership. Nor is there any suggestion that Mr. Mill or Ms. Fatima had any involvement in the writing of the Article. If the appellant’s argument were accepted, it would follow that in any case at any time in which any of the 100 barristers of Blackstone Chambers appeared before Peter Smith J, the fair-minded and informed observer would take the view that the client could not expect a fair trial because of the prejudice of the judge through the advocate’s membership of Blackstone Chambers. That would be the case irrespective of the advocate’s lack of involvement in the Article or the date of his or her joining those Chambers. The fair-minded observer would not take such an extreme view.

[I am obviously not a fair-minded observer, because I did take that view…]

Thirdly, what irked the judge and provoked him into writing the Letter was the failure of Mr. Peto to provide a considered response to his oral complaint some two weeks earlier rather than the Article itself.
Fourthly, there was no change of mind by the judge in his assessment of Mrs. Harb’s evidence. The informal indication at the close of the evidence that, subject to the agency issue, he was minded to accept that there was an agreement “as the claimant alleges” is a complete answer to the allegation of change of mind.
In summary, Mr. Hollander submits that it is fanciful to suppose that, in these circumstances, the fair-minded observer would consider that there was a real possibility that the judgment that was handed down on 3^rd November was infected by bias as a result of the Article.
In his letter to the claimant’s solicitors dated 12^th February 2016, the judge accepted that he should not have written the Letter. It is difficult to believe that any judge, still less a High Court Judge, could have done so. It was a shocking and, we regret to say, disgraceful letter to write. It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge. What makes it worse is that it comes on the heels of the BAA baggage affair. In our view, the comments of Lord Pannick, far from being “outrageous” as the judge said in the Letter, were justified. We greatly regret having to criticise a judge in these strong terms, but our duty requires us to do so. But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed. It is to that question that we now turn.

Shocking and disgraceful is very strong stuff to say about a Judge’s behaviour.

As we have said, the legal test is not in doubt: see para 54 above. We would, however, emphasise two important points. First, the opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant. The “real possibility” test is an objective test. It ensures that there is a measure of detachment in the assessment of whether there is a real possibility of bias: see Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416 at para 2 per Lord Hope. As Lord Hope also said in Porter v Magill at para 103, the “real possibility of bias” test “is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias” (emphasis added). We mention this because it demonstrates that the approach urged on the court by Lord Grabiner is incorrect. The court does not ask whether a litigant who is being represented by a member of Blackstone Chambers and knows of the Article would be content to have his case heard by Peter Smith J. We have little doubt that most, if not all, litigants represented by a member of Blackstone Chambers, knowing of the Article, would prefer to have their case heard by another judge. We are prepared to accept that some, indeed many, might have very strong feelings on the subject. But the litigant is not the fair-minded observer. He lacks the objectivity which is the hallmark of the fair-minded observer. He is far from dispassionate. Litigation is a stressful and expensive business. Most litigants are likely to oppose anything that they perceive might imperil their prospects of success, even if, when viewed objectively, their perception is not well-founded.
The facts of Helow illustrate the point well. The petitioner was a Palestinian refugee living in Lebanon. She claimed asylum in the UK on the ground that she feared that, if she were returned to Lebanon, she would be attacked by Lebanese and Israeli agents on account of her Palestinian ethnicity and political opinions. Her claim was refused by the Secretary of State, whose decision was upheld by an adjudicator sitting in Glasgow. Her petition to the Court of Session was dismissed by the Lord Ordinary, who was a member of the International Association of Jewish Lawyers and Jurists, whose magazine had carried a number of extreme pro-Israeli articles. The petitioner sought to set aside the Lord Ordinary’s decision on the ground that a fair-minded and informed observer would have concluded that there was a real possibility that she was biased by reason of her membership of an association which was actively antipathetic to the interests with which the petitioner was identified. The House of Lords dismissed the appeal. In doing so, it conducted a detailed examination of the facts to ascertain the nature and significance of the Lord Ordinary’s membership of the association and its published aims and objectives. The House also said that it could be assumed (and took into account) that the judge was able to discount material that she had read and reach an impartial decision according to the law. We expect that the petitioner would have been very unhappy that her petition had been determined by the Lord Ordinary. No doubt she would have preferred a judge who had no involvement with a body like the association. From her subjective point of view, it might have appeared that there was a real possibility that the judge had been biased. But the test is an objective one and the focus is on the fair-minded informed observer. The approach advocated by Lord Grabiner fails to draw that critical distinction.
It also fails to take account of the important point that, even if a judge is irritated by or shows hostility towards an advocate, it does not follow that there is a real possibility that it will affect his approach to the parties and jeopardise the fairness of the proceedings. From time to time, the patience of judges can be sorely tested by the behaviour of advocates. Sometimes, a judge will overreact and unwisely make an intemperate comment. But judges are expected to be true to their judicial oaths and not allow their feelings about an advocate to affect their determination of the case they are hearing. The informed and fair-minded observer is to be assumed to know this.
Secondly, the informed and fair-minded observer is to be treated as knowing all the relevant circumstances and it is for the court to make an assessment of these: see Competition Commission v BAA Ltd and Ryanair Ltd [2010] EWCA Civ 1097 per Maurice Kay LJ at paras 11 to 13 and the authorities cited there. It is common ground before us that the relevant circumstances in this case include all the facts set out at paras 57 to 59 above, although some of these were not in the public domain. It was held in Virdi v Law Society [2010] EWCA Civ 100 that the hypothetical fair-minded observer is to be treated as if in possession of all the relevant facts and not only those that are publicly available. Stanley Burnton LJ gave a number of reasons for this conclusion at paras 43 to 48 of his judgment. This reasoning is binding on this court. In any event, we are satisfied that it is correct.
With these introductory comments in mind, we can now deal with the allegation of apparent bias in this case quite shortly. We start by saying that we do not accept the submission of Mr. Hollander that the Letter was merely a complaint about Mr. Peto’s failure to respond to the judge’s earlier oral complaint. It is true that the third paragraph complains that Mr. Peto “said that you would get back to me and you have not”. But the rest of the letter is about the “outrageous” Article and his reaction to that. It is impossible to describe the Letter as confined to a complaint about Mr. Peto’s failure to respond.
We are prepared to assume that the informed and fair-minded observer, knowing of the Article, would conclude that there was a real possibility that the judge was biased against all members of Blackstone Chambers, at least for a short period after the publication of the Article. But for the reasons we have given, the observer would not conclude without more that there was a real possibility that this bias would affect the judge’s determination of the issues in a case in which a party was represented by a member of Blackstone Chambers.

Let me just quickly try to count the number of angels dancing on the head of this pin. An informed and fair-minded observed would conclude there was a real possibility that the Judge was biased against all members of Blackstone Chambers, but NOT that this would affect the outcome of any hearing in which they were involved. Okay….

But there is a further reason why this ground of appeal must fail. The assessment of whether an informed and fair-minded observer, having considered the facts, would conclude that there was a real possibility of bias depends on an examination of all the relevant facts. It is fact sensitive. In our view, the facts in the present case show that the possibility that Peter Smith J was actuated by bias against the Prince is unrealistic. We accept the submission of Mr. Hollander that the chronology of events is very powerful. The judge indicated in open court immediately after the conclusion of the evidence that he was of the provisional view that “there was an agreement as the claimant alleges”. This was despite his (at times) aggressive questioning of Mrs. Harb. The only caveat he entered was in relation to the agency issue. But his concern in relation to that issue seems to have had nothing to do with the credibility of the witnesses. Rather, at that stage it concerned a question of law as to whether an agent may be liable where there is an undisclosed principal. That may be an elementary question (as Lord Grabiner suggested), but that is neither here nor there.
The critical point is that the question whether a binding agreement was concluded at the meeting on 20 June 2003 was at the heart of the case. It turned to a large extent on the credibility of the oral evidence of Mrs. Harb and Mrs. Mustafa-Hasan and the witness statement of the Prince. We are not persuaded that there is a real possibility that the judge changed his mind about their evidence after reading the Article. It is true that the judge could have amended his draft judgment after reading the Article so as to make findings favourable to Mrs. Harb which were not contained in the original draft. But the judge said that the only amendments that he made were to deal with the note on the agency authorities and otherwise the amendments were not material. We see no reason to disbelieve this and we did not understand Lord Grabiner to submit that we should do so. More fundamentally, we think it fanciful to suppose that the judge made major changes to his assessment of the evidence simply as a reaction to the Article or that his decision on the agency issue owed anything to a bias against the Prince. There is no evidence to suggest that he did so. In our view, the informed and fair-minded observer would not conclude that there was a real possibility that the judge behaved in this way.
For all these reasons, regrettable though the judge’s conduct was in writing the Letter, we reject the allegation of apparent bias.

Whilst Judges can get things wrong and make mistakes, we do have a system that allows those mistakes to be put right on appeal. (Even then, we probably don’t get everything right, and not every mistake is corrected and not every appeal succeeds)

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Posted in case law and tagged 2016 EWCA Civ 556, Court of Appeal, court of appeal rebuke to a judge, harb v hrh prince abdul aziz 2016, judicial baggage, judicial bias, Justice Peter Smith, recusal, recusal of a judge. Bookmark the permalink.

Is there bias if the Judge is leading one of the barristers in a different case?

Posted on December 29, 2015 by suesspiciousminds

Watts v Watts 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1297.html

is a Court of Appeal decision about judicial bias, and whether the Judge should have recused herself. This was a dispute between a brother and a sister about property issues.

In this case, the issues were effectively that the Judge did disclose to the parties that one of the barristers, Mr Holland (the one acting for the sister) was being led by the Judge in another case. I.e the Judge was still in practice as a barrister and was leading counsel in a different case where one of the barristers in front of her was her junior.

The request for the Judge to recuse herself, and the subsequent appeal, was therefore on these arguments:-
1. That the Judge had a conflict of interest due to professional involvement with Mr Holland, which might cause or give rise to the perception of bias.

2. That as the case was on a conditional fee arrangement (no win no fee), Mr Holland would only get paid if he won the case, so the existing professional involvement might make the Judge more desirous of an outcome where her junior in a long-running case where she would have to continue working with him would not have lost a big pile of money as a result of the Judge’s decision on this case.

3. That as the nature of that particular case involving the Judge leading Mr Holland was not known, it was possible that the Judge might be tempted (if it was in a similar field) to give a decision or set a principle in THIS case which might be helpful in that case.

The nub of the case was as to in terms of the conflict of interest, was the Judge expected to reveal absolutely everything, or was it sufficient that she revealed sufficient for a proper view to be taken, whilst not showing more than was necessary or appropriate? Just how much should be uncovered?

This is important stuff, and I think it is really important that all of the essentials get covered here.

Now, is the coverage sufficient here? I’d hate to be accused of skimpy coverage

[My inclusion of this is actually LESS gratuitous than the inclusion of it in the show itself…]

Discussion
On the appeal, Mr McLarnon criticised the judge on three grounds: (i) for the paucity of information provided by her about her involvement with Mr Holland; (ii) for announcing her ruling at the commencement of the hearing but only giving her reasons at the end of it; and (iii) for the decision not to recuse herself, which he maintained was unlawful because of the appearance of bias which he submitted she presented in the circumstances. I deal with these in turn.
In relation to ground (i), Mr McLarnon relied in particular on the following guidance. In Davidson v Scottish Ministers Lord Bingham said at [19] that where a judge discloses matters which would or might provide the basis for a reasonable apprehension of lack of impartiality, “It is very important that proper disclosure should be made …, first, because it gives the parties an opportunity to object and, secondly, because the judge shows, by disclosure, that he or she has nothing to hide and is fully conscious of the factors which might be apprehended to influence his or her judgment.” Similarly, in Jones v DAS Legal Expenses Insurance Co. [2003] EWCA Civ 1071 at [35] this court emphasised that where a judge becomes aware of circumstances which might give rise to an appearance of bias and a real as opposed to fanciful objection being taken by a notional fair-minded observer and an application for recusal might be made, “The judge should make every effort in the time available to clarify what his interest is which gives rise to this conflict so that the full facts can be placed before the parties.”
Mr McLarnon submitted that provision of full material in this sort of situation is particularly important because parties are not permitted to question the judge about the position, and so are not able to seek and obtain the full facts if they are not disclosed by the judge of her own volition at the outset. In that regard, Mr McLarnon referred to Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 , CA, in which at p. 472A-B the court said “The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.” Mr McLarnon further submitted that the inadequacy of the disclosure by the judge serves to reinforce his main ground of appeal, that she presented an objective appearance of bias.
I do not agree with Mr McLarnon’s criticism of the extent of disclosure made by the judge. The disclosure required to be given is of the material facts, not every background detail: see Resolution Chemicals at [42]. The judge did disclose the material facts. Armed with this information, Mr McLarnon was fully equipped to make the relevant application. No further disclosure was required.
Mr McLarnon submitted that the disclosure was inadequate because it did not reveal the subject matter of the litigation in which Mr Holland and the judge were instructed, so it was possible that the judge might have an interest in giving a ruling in the present case which might assist them in that other case. Additional disclosure should have been given to allay any such fears.
This argument proves too much. I cannot accept it. The notional fair-minded and informed observer, knowing the professional standards applied by part time judges drawn from the legal profession, would understand that any deputy judge who found that she was being asked to try a case in relation to subject matter where there was a real risk that her ruling in the case (which would of course acquire a degree of authority as the ruling of a court) might have a bearing on the arguments to be advanced in other ongoing litigation in which she was involved as counsel, would immediately for that reason recuse herself. In such a case it would be clear that her interest as a barrister would conflict with her duty as a judge and, since that would be clear, it would be obvious that she could be expected to identify such a conflict and then act ethically and in accordance with her professional obligations by recusing herself. This would be so whether or not she happened to be instructed along with another counsel in the case, and whether or not that counsel was now appearing as counsel in the case in which she was to sit as a deputy judge. A part time judge does not have to reveal details of every ongoing piece of litigation in which she is professionally involved as counsel in order to allay suspicion whether any of them concern subject matter which overlaps with the case to be tried by her. On the contrary, the notional fair-minded and informed observer would not consider that there is any real risk that there is any such conflict of interest, since if there were the deputy judge could naturally be expected to identify the problem and recuse herself without more. The addition of the extra feature that the deputy judge might be leading other barristers in such other ongoing litigation does not change this analysis.
I should also mention that the judge was bound by obligations of confidentiality owed to her client in the other case and was therefore not at liberty to go further than she did unless there was a strong public interest to do so. There was none, for the reasons I have given. To my mind, it is clear that she has behaved entirely correctly in giving the disclosure that she did.
In fact, any residual concern the appellant might have had that the other litigation in which the judge was involved trespassed upon the subject area of the proceedings which she was to try could have been resolved very simply either by asking Mr Holland or by raising the matter with the judge herself. Mr McLarnon’s reference to the passage in Locabail at p. 19A-B, set out above, as precluding such an approach is misplaced. The point being made there is that a judge cannot be questioned about influences upon her with a view to making out a case of actual bias; but if a party has a reasonable request to make of a judge for relevant factual information in the context of an argument that an appearance of bias exists, in the absence of which the application cannot be made on the proper fully-informed basis which is required by the law, that passage does not prevent raising the difficulty with other counsel or the judge. This is not to encourage requests to judges to provide further information in relation to recusal applications: as I have emphasised above, a judge only has to provide relevant information which is material to the application and will in almost all cases have done just that. But there is no rule of law which prevents a party asking politely for more information if it exists and explaining why disclosure of it is required in order to enable the recusal application on grounds of appearance of bias to be advanced in a properly informed and effective way.
I record here that we asked Mr Holland, through leading counsel, whether the subject matter of the other litigation in which he was instructed with the judge overlapped with the subject matter in the present proceedings and he confirmed it did not. No doubt the judge would have given the same confirmation had the point been raised with her. But for the reasons given above this was not information which she was required to state or volunteer.
Under ground (ii), Mr McLarnon contends that the judge erred by reserving her reasons for refusing the recusal application until the end of the hearing. He submits that this left the appellant in the difficult position throughout the trial of believing that he had good grounds for objecting to the judge sitting in the case, knowing that she disagreed, but not knowing why: the appellant was subjected to a trial without any certainty that non-recusal on the part of the judge was justified. This again, Mr McLarnon says, reinforces the objective impression that the judge might be biased and might be behaving unfairly.
I reject this submission. In my view it was correct in the circumstances for the judge to give her decision with reasons to follow later, so that the trial could proceed without further delay and to minimise the risk that it might have to run over, so adding to the cost. The test is not one of how the individual litigant might feel subjectively, but an objective one of how the notional fair-minded and informed observer would view matters. Such an observer would not think that this way of proceeding displayed any disposition of unfairness towards the appellant. It only gave rise to the appearance of a judge willing to make a sensible case management decision in accordance with the overriding objective set out in CPR Part 1. Proceeding in this way was in line with the approach adopted by this court in Resolution Chemicals, in which the court considered an appeal in which permission had been granted for an appeal against the judge’s refusal to recuse himself and then gave its ruling dismissing the appeal with reasons to follow, so that the trial could proceed straight away and before the court’s reasons were handed down: see [4]. There was no suggestion by this court in that case that this would create any difficulty in terms of appearance of bias, simply because the disappointed applicant would not know until after trial the reasons why its arguable appeal for recusal of the trial judge had been unsuccessful. I cannot see that any difficulty arises by reason of a court proceeding in this way.

The appeal had not succeeded. The Court of Appeal give their final summary here

Finally I turn to ground (iii) and the main substance of the appellant’s case. I would dismiss the appeal for the following reasons, which essentially reflect the reasons given by the judge below:

i) The notional fair-minded and informed observer would know about the professional standards applicable to practising members of the Bar and to barristers who serve as part-time deputy judges and would understand that those standards are part of a legal culture in which ethical behaviour is expected and high ethical standards are achieved, reinforced by fears of severe criticism by peers and potential disciplinary action if they are departed from: Taylor v Lawrence [2001] EWCA Civ 119, [33]-[36]; Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528, [61]-[63]. These aspects of the legal culture of the Bench and legal professionals are not undermined by the fact that some litigation is now funded by means of CFAs;ii) The notional fair-minded and informed observer would understand that a part-time judge’s approach to the case she is trying and to her relationships with other professionals will be governed by these professional standards. There is no reason to think that a judge would allow her professional training and ethics to be overridden by a concern not to upset a junior counsel she is leading in other litigation. Moreover, the judge would know that the junior counsel would himself understand that she is bound by strict professional standards, and hence would have no expectation that she would do anything other than act in accordance with them. So the judge would not expect any disgruntlement or difficulty to arise in her relationship with the junior counsel even if she makes a decision adverse to him in the case she is trying. Accordingly, the idea that the judge would adjust her behaviour as judge to avoid upsetting the junior counsel is far-fetched indeed. The notional fair-minded and informed observer would not consider that there was any genuine possibility of this occurring;

iii) There is a danger in cases of this kind of multiplying reference to authority in the hope of finding analogies on which to found arguments one way or the other, and we were presented with a plethora of authorities to address what is really quite a simple matter. However, it may be observed that a number of authorities indicate strongly that it could not be said that there is any objectionable connection between the judge and counsel for the respondent sister in this case. In The Gypsy Council v United Kingdom (2002) 35 EHRR CD 96 the European Court of Human Rights dismissed as manifestly ill-founded an argument that Article 6 (right to a fair trial) was infringed on grounds of appearance of bias where a part-time deputy judge in a case involving gypsies on one side and a public authority on the other was a barrister in practice (David Pannick QC) who had been instructed as counsel for the government in numerous cases before the Court of Human Rights involving gypsies, in which he had argued that public authorities had not infringed the rights of gypsies: p. 101. The deputy judge in that case remained in practice and might hope to be so instructed by the government again, but still it was clear that no appearance of bias arose. In Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113, Rix J dismissed an application to remove an arbitrator on grounds that “circumstances exist that give rise to justifiable doubts as to his impartiality” (section 24 of the Arbitration Act 1996) where the arbitrator was a QC practising in the same chambers as counsel for one of the parties in the arbitration. It is true that the judge directed himself by reference to the then current standard for assessing an appearance of bias set out in R v Gough [1993] AC 646, which was adjusted in Porter v Magill to bring it into line with the test under Article 6, but I do not think that is significant for the analysis in the case. The position is underlined by Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242; [2007] 1 WLR 370. In that case, a personal injury claim was tried by a practising barrister and part-time judge sitting as a recorder, who was the head of the chambers to which both counsel for the claimant and counsel for the defendant belonged and who had also acted for the defendant or associated companies in the past and might do so in the future. This court rejected the suggestion that an appearance of bias arose by reason of the connection between the recorder and counsel through being members of the same chambers: [17]-[19]; it was only because the recorder regarded himself as having an on-going barrister-client relationship with the defendant that this court held he should have recused himself. Similarly, in Resolution Chemicals at [46] this court referred to the idea that the reasoning in Lawal “would preclude a judge from hearing a case in which his former pupil master or regular instructing solicitors were acting for one of the parties, or a deputy High Court judge from ever hearing a case in which a more senior member of his or her chambers was acting for one of the parties” as something which it regarded as obviously untenable;

iv) As both the Taylor v Lawrence judgments and these other decisions indicate, relationships between members of the Bar, or between members of the Bar and their clients, can be much closer than that between the deputy judge and counsel for the respondent in the present case, yet because the relationships are mediated through known professional standards no appearance of bias arises.

Conclusion
For the reasons given above, I would dismiss this appeal.

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Posted in case law and tagged 2015 EWCA Civ 1297, appeal, conflict of interest, Judge's professional relationship with counsel, judicial bias, recusal, watts v watts 2015. Bookmark the permalink.

I am sailing, I am sailing – judicial recusal

Posted on October 12, 2015 by suesspiciousminds

Given how much fun the last case about judicial recusal was to write about, I was pleased to see a new one.

Judicial baggage

This one, Mackay v Mackay 2015, relates to what is presumably a big money divorce. As the amounts of money are discussed as £X million and £Y million, we can’t be sure exactly how much money, but a decent estimate is that it is at least two million, and probably quite a bit more.

http://www.bailii.org/ew/cases/EWHC/Fam/2015/2860.html

In this case, Holman J was made aware of a situation.

I personally have had no prior involvement in this case whatsoever prior to today. Very early in the hearing today, Mr Valentine Le Grice QC, who appears today on behalf of the husband (but does not act for him generally in these proceedings), said that there were certain facts that he, Mr Le Grice, had been informed about that required to be drawn to my attention in case they impacted upon the appropriateness of my dealing with this case at the substantive hearings. There has been no suggestion, nor could there be, that I should not deal with this directions stage of this case today. I was somewhat surprised to hear that, since the full names of the husband simply do not impact upon me at all and, to put it bluntly but colloquially, I have simply never ever heard of him before. Further, when the husband came into court, he is not somebody who, frankly, I have the least recognition of, or the slightest recollection of ever having met; nor, indeed, do I have the slightest recognition of the wife, who is also in court.

My interest was massively piqued here. If the Judge doesn’t know the names of the parties, and doesn’t recognise their faces, under what scenario could there possibly be a suggestion that the Judge might have to consider whether it was appropriate for him to continue? (I have to confess that the idea of some sort of Eyes Wide Shut masked ball scenario came to mind, but of course it isn’t that)

I am a very open judge and I have never concealed, for instance by entries in “Who’s Who” and Debrett’s “People of Today”, that one of my recreations is sailing. I was told that the husband is also keen on sailing. I have been told that he thinks that in the more distant past he has competed in boats racing against boats in which I myself was also racing. Whether or not that is so is, frankly, completely irrelevant to the situation with which I am now faced. However, I was also informed that the husband knew that I am a member (as I am) of a certain sailing club. He is not a member of that club. He is a member of another sailing club of which I am not a member, but the question was raised whether, through my membership of the sailing club, I might know or have friendship with certain sailing friends of the husband.

Certainly the fact that at some point in the past, the husband might have seen Holman J’s catamaran, or what have you, either sail off into the distance or whistle past it at a rate of knots during a race is neither here nor there.

Whether they might, as fellow afficiandos of the sail, have some mutual friends, is a possibility.

A list containing 14 names was then produced to me. It is right to say that I recognised as names every name on that list. The majority of the people named I do not personally know at all. One or two of the others on the list I know very slightly or have met at some stage in the past. None of that, frankly, impacts on me at all. However, there is one name on the list which for the purposes of this judgment I will call “AB” (although those are not the person’s actual initials). I was told that he is somebody whom the husband knows well. I was told that, in the past, there have been business dealings between, or involving, the husband and AB. I was told that the husband currently meets AB about once a month and met him as recently as about two weeks ago. I was told that in the past AB has stayed at these parties’ villa in the south of France whilst participating in a sailing event.
On behalf of the wife, Mr Nigel Dyer QC said on instructions that she did not appreciate that, and doubts whether, the true strength and extent of the connection between the husband and AB is as great as has been described by Mr Le Grice. Without hearing oral evidence on the point, which would be disproportionate and extraordinarily invidious, I have to take the state of affairs as being as described by Mr Le Grice.
AB is not someone whom I would describe as a close personal friend of mine. He is, however, someone whom I have known for many years. There is, undoubtedly, friendship between us, friendship also between him and my wife, and friendship between me and his wife. He and his wife are people whom I and/or my wife meet from time to time in the sailing social context, and we and AB have numerous other mutual friends in common.
The question that arises is whether that connection of a shared mutual relationship with AB is such that I should not have further involvement in this case. The expressed position of Mr Le Grice on behalf of the husband was that he was merely drawing these facts to my attention so that I should be aware of them. There was no application by Mr Le Grice that I should recuse myself as a result of them.
The position of the wife, after Mr Dyer had had an opportunity privately to discuss the matter and take instructions from her, was that she was not concerned about this mutual relationship and that she did not apply that I should recuse myself

Well, that’s that then. The father knows AB fairly well, and AB also knows Holman J fairly well. Neither father nor mother say that this intersection would make Holman J unsuitable to hear the case. That’s that.

Aha! Not quite. If you’ve been following the Appleton v Gallagher divorce case, you may have picked up that there is something of a schism in the High Court about divorce and publicity. On the one hand, represented by Mostyn J, is the school of thought that there should be no publicity in divorce proceedings unless the case itself represents case law and that divorcing celebrities or millionaires should not have their innermost financial affairs set out by the Press just because they are getting divorced. On the other hand, represented so far chiefly by Holman J, is the transparency camp, which is publishing the details in judgments and thus the Press have access to it. The Appleton v Gallagher case is going up to the Court of Appeal to see who might be right.

http://www.familylaw.co.uk/news_and_comment/appleton-v-gallagher-and-ors-2015-ewhc-2689-fam

If you are a millionaire or celebrity who wants privacy then, at the moment, you might well prefer that your divorce is not dealt with by a pro-transparency Judge, or one who you think might be pro-transparency.

The Wife makes this implied motivation explicit.

The position of the wife did, however, go further than that. One of the applications that was issued by the husband on 11^th September 2015 and returnable today was for orders to do with privacy. He sought orders that the hearings in October and February should be heard not only in private, but with the press and media excluded; and, further (most unusually in my experience) some advance order as to the terms in which any judgment might ultimately be couched. To exclude the press even from a hearing held in private is these days a strong step, and one which can only be taken in tightly circumscribed circumstances provided for in the relevant rules and practice direction; but it is known at the Bar that I am a judge who favours as much openness as possible in all court proceedings. Mr Dyer, frankly, speculated that the purpose of the husband in even referring to the possibility of overlapping friendships was a device deliberately aimed at causing me to recuse myself.
It is, indeed, of the utmost importance that judges are very astute to spot, and not be trapped by, attempts to manipulate the identity of a judge for whatever purpose. Obviously, there may be judges who are believed to make high awards or low awards, and it is only too easy for a party who is seeking a low or a high award respectively to try to manipulate the position so that that judge is unable to hear the case. Similarly, it would, indeed, be intolerable if parties could manipulate the position so as to obtain or avoid, according to where their interests lay, a judge who favours openness in legal proceedings as opposed to secrecy. I am very alive to that risk.
Unquestionably, if nothing had been said today about this shared interest in sailing and the possibility that there may be some overlapping friendships, then I would have continued to deal with this case and there could not have been the slightest difficulty. The fact is that the point has been raised. The fact is that it has been identified that amongst the friends or associates of the husband is this person, AB, who is also a friend of mine.

(In short, is this sailing issue, a well-disguised attempt at forum shopping?)

The leading authority on the circumstances in which a judge should recuse himself probably remains Locabail (UK) Limited v Bayfield Properties Limited and others [1999] EWCA Civ 3004, a judgment of the court consisting of the then Lord Chief Justice, Master of the Rolls and Vice-Chancellor. The situation with which I am faced today is not one that falls within the principles which are the focus of that judgment. There is no question in this case of my having any kind of interest in the outcome of these proceedings and, in my view, no question in this case of any possible objective or apparent bias. Indeed, at paragraph 25 of their judgment in that case, the Court of Appeal were at pains to list many circumstances upon which, at any rate ordinarily, no objection could soundly be based. But at paragraph 21 of the judgment there is reference, albeit passing, to a judge recusing himself, “If, for solid reasons, the judge feels personally embarrassed in hearing the case.” Further, the broad approach at paragraph 25 is as follows:

“In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case.”
I have given very careful consideration indeed to this matter. Apart from some obvious situations where I actually knew a party concerned, I can only recall one occasion in the over 20 years in which I have been a full-time judge, in which I have felt the slightest need to recuse myself for considerations of this kind. In that case, I had a long-term friendship dating back to university with the brother of the husband in the case. Although the brother did not feature at all in the case, it did not seem to me appropriate that I should hear it. This case is more remote than those facts, but I have decided that I do, or might, “feel personally embarrassed” in hearing this case.
I wish to stress that I believe myself to be an independent-minded and fearless judge. I do not doubt my ability to be detached and objective in decision-making. But the context of this case, as I have outlined above, does, or may, involve making a judgment about the integrity or probity, and possibly the very honesty, of this husband. I do not yet know much about the facts, nor, of course, how the evidence may turn out. But, at any rate at its highest, the wife’s case will involve a proposition that the husband deliberately failed to disclose the discussions that he was having for the sale of his company at that much greater value, and may well involve the proposition that, at some stage or another, he deliberately lied or, certainly, deliberately suppressed the truth. If there is a common friendship with AB, I do feel that it could be a source of personal embarrassment to me in my relationship with AB if I had to find that another friend of his had acted in a fraudulent, devious or untruthful way.
There is the further consideration in this case that, currently, a two-stage hearing is envisaged, with some months between the first and second stage. Undoubtedly, during that interval, there will be occasions upon which I will be meeting AB, since, as I have said, he is a friend whom I do meet from time to time.
It seems to me that what I have described does amount in this case to “solid reasons” why I personally, as I do, feel personally embarrassed about further involvement in this case. For those reasons, I must, as I now do, recuse myself from any further involvement in the case after today.

It seems a shame to me that we may be moving towards a scenario where a Judge can’t have interests, hobbies or pastimes outside of the law, for fear that they may bring them into a position where someone they met at “Jam Club”, “Abseilers Anonymous” or simply someone who shares their love of “Yacht Rock” might be a friend of a future Party.

mmmm…. smoooth

[I know, I had a perfect opportunity to crowbar in a photo of Nicole Appleton, and I decided instead to use a photo of people pretending to be Hall and Oates. I did really want to use the Nicole Appleton photo, but then a voice in my head said “I can’t go for that (no can do)” ]

The weakest recusal I’ve ever seen in real life was a Judge who recused himself from what was going to be a really desperately boring hearing on the basis that one of the parties had a job as an insurance salesman for Norwich Union (you can feel the dullness of this case seep out) and the Judge concluded that he would be potentially embarassed as he had once received an unsolicited telephone call from someone trying to sell him Norwich Union insurance and had put the phone down “more abruptly than perhaps was reasonable”, and it could not be excluded as a possibility that it was the Party in question. If you can suitably anonymise them, I’d love to hear weak recusal decisions or even applications…

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Posted in Uncategorized and tagged gallacher v appleton 2015, holman j, judicial recusal, mackay v mackay 2015, recusal, transparency. Bookmark the permalink.

appeal – no contact, section 91(14) and judicial conciliation

Posted on August 26, 2015 by suesspiciousminds

Re T (A child) (Suspension of Contact) (Section 91(14) 2015 has some peculiar quirks, and one point which is probably important. It is a Court of Appeal decision, written by Cobb J.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/719.html

When I give you this little extract about the father

We have read the e-mail from the director of Contact Centre A (dated 29 May 2014) to the child’s solicitor which describes the conversations thus:

“… [the father] has obsessively / repeatedly called our organisation in the last couple of weeks. On each occasion he was extremely abusive, consistently making racist remarks, intimidating and threatening staff …. It is evident that centre staff are scared by the experience of dealing with [the father] and further dealings or contact arrangements at [the contact centre] are likely to pose significant risks to both his child and the centre staff. For the above reasons, [the contact centre] is not in a position to facilitate supervised contact sessions between [the father] and his daughter”.

You might be somewhat surprised that, doing this appeal in person, he bowls four balls of appeal (well, he actually put in 19 in his grounds, but the Court of Appeal kindly found him his best four) and three of them hit middle and off and get the result. One is considered wide, but that’s a strike rate to be proud of. [Taking three wickets out of 19 balls is still pretty decent]

The litigation history here is dreadful

8. The multiple court hearings, and judgments and orders which have flowed from them, reflect an extraordinarily high degree of conflict in the parental separation. By the time the proceedings were listed before HHJ Hayward Smith QC on 12 December 2011, he expressed a concern that the case was “in danger of spiralling out of control”, a fear which has in our view regrettably all too obviously come to pass. Not only have the parents been in relentless conflict with each other, but the father has also raised repeated and serious allegations of professional misconduct against E’s court-appointed Guardian, against counsel instructed in the case at various times, and against some of the judges. Family related litigation was at one time unacceptably being conducted simultaneously in three family court centres in different parts of the country, and even when co-ordinated in one location, there has been a regrettable lack of judicial continuity (even though it had been explicitly acknowledged by many of the judges involved to have been “essential” to maintain firm and consistent management of the case).

In our own review of the background history we recognised that there was a risk, by which in our view this experienced Judge allowed herself to be distracted, that the truly dreadful chronology of litigation, and the behaviours of the adults towards each other and the professionals, would divert attention from, and ultimately eclipse, the essential issue, namely E’s relationship with both her parents

Here are the four grounds of appeal, as polished up by Cobb J

i) Did judicially-assisted conciliation between the parties in respect of child arrangements for E (specifically E’s living arrangements and contact) at a hearing on 13 May 2014, disqualify the Judge from conducting a subsequent contested hearing on 3 July 2014?

ii) Did the Judge err in making substantive orders on 3 July 2014 (including a section 91(14) order restricting any application under section 8 CA 1989):

a) In the absence of the father?

b) On the basis of factual findings made without forensic testing of the documentary material, of some of which the father had no knowledge?

And/or

c) Having indicated to the parties that she would not conduct any hearing in relation to residence issues?

iii) In ordering the indefinite suspension of contact, did the Judge pay proper regard to section 1(1) CA 1989 and the statutory list of welfare factors (section 1(3) ibid.), and to the Article 8 rights of the father and the child, all of which were engaged in such a decision?

iv) Was the order under section 91(14) CA 1989 appropriate in principle, and/or proportionate?

We shall take these in turn

This arose because at a hearing where the issue was intended to be about whether the child could or could not go to a family wedding, but father was advancing a case of a change of residence for the child (which was an argument with no prospect of success) the Judge moved into conciliation mode with a view to trying to broker an agreement. This is an accepted model now, but what hasn’t been previously determined was whether a Judge who undertakes that conciliation approach (of trying to move the parties towards an agreement) is able to then make decisions in the case where agreement is not reached.

The father’s application in relation to the wedding celebration was heard by HHJ Hughes QC on 13 May 2014; she refused the application. At the hearing, the Judge, entirely appropriately in our judgment, took an opportunity to conduct some in-court conciliation between the parties in an effort to break the deadlock on residence and contact. At that hearing, the following exchange took place between the Judge and the father (as recorded by the father, but which we do not believe to be challenged):

Father: “Your Honour, can I ask that this is heard….? If you are going to hear this as a conciliation attempt then you cannot hear the hearing”

Judge: “That is absolutely fine with me. I will not hear the hearing. I am trying to deal with this now.”

At the conclusion of the 3 July 2014 hearing in delivering judgment (para [2]), the Judge characterised this exchange thus:

“During the hearing the father accused (sic.) me of attempting to conciliate and suggested that I should therefore recuse myself”.

The description of the manner in which the father challenged the Judge (an ‘accusation’) may reveal a little of the father’s tone of lay advocacy not revealed by a transcript.
The father does not currently challenge the Judge’s assessment of the prospects of his case on residence, or her stance in advising him of them. She later described her conciliation attempt thus:

“I suggested to him that an application for residence of [E] was actually not going to be very successful because he had not seen [E] for ten months, and he accepted that at the time.” (see transcript of the hearing on 3 July 2014).

His account is similar:

“It was agreed by all parties before HHJ Hughes on 13 May that the hearing regarding residence should be adjourned with liberty to the father to restore if and when he believed it appropriate to [E]’s interests … I accept that there are no realistic prospects of a Court allowing [a change of residence] at the present when there is no contact taking place. I accept that [E]’s residence in the immediate future is likely to be with her mother” (see father’s letter to the Court 2 July 2014).

This Judge did, however later go on to make an order that the father should have no contact with his child at all, and make a section 91(14) order that he be barred from making any other applications without leave of the Court. Grounds 1 and 2 of the appeal therefore raise the questions (1) COULD the Judge do this and (2) SHOULD the Judge have done this?

The Court of Appeal ruled that the Judge COULD conduct a conciliation style hearing AND then go on to conduct a traditional hearing resolving a dispute.

We wish to emphasise that the facilitation of in-court conciliation at a FHDRA (or indeed at any other hearing in a private law children case) does not of itself disqualify judges from continuing involvement with the case, particularly as information shared at such a hearing is expressly not regarded as privileged (PD12B FPR 2010 para.14.9). Were it otherwise, the “objective” of judicial continuity from the FHDRA (where, as indicated above, conciliation may have been attempted in accordance with the rules) to the making of a final order (see PD12B FPR 2010 para.10) would be defeated. The current arrangement should therefore be distinguished from:

i) Old-style conciliation appointments, which operated prior to the implementation of the ‘Private Law Programme’ in 2004, the predecessor to the CAP (see Practice Direction [1982] 3 FLR 448; Practice Direction: Conciliation – children: [1992] 1 FLR 228: i.e. “If the conciliation proves unsuccessful the district judge will give directions (including timetabling) with a view to the early hearing and disposal of the application. In such cases that district judge and court welfare officer will not be further involved in that application”.);ii) Non-court dispute resolution (by way of mediation / conciliation) conducted by professionals outside of the court setting: see Re D (Minors) (Conciliation: Privilege [1993] 1 FLR 932, Farm Assist Ltd (in liquidation) –v- DEFRA (No 2) [2009] EWHC 1102 (TCC)), and the Family Mediation Council Code of Practice for family mediators, paras 5.6.1 and 5.6.4;

iii) A Financial Dispute Resolution (FDR) Appointment in a financial remedy case; the judge conducting such a hearing is not permitted to have any further involvement with the application, save for giving directions: see rule 9.17(2) FPR 2010. In a financial case, of course, the Judge is likely to have been armed to conciliate with the provision of all the privileged communications between the parties.
Private law proceedings in the family court have become more than ever “inquisitorial in nature” (Re C (Due Process) [2013] EWCA Civ 1412 [2014] 1 FLR 1239 at [47]) in large measure attributable to the overwhelming number of unrepresented parties who require and deserve more than just neutral arbitration; in such cases, particularly at a FHDRA or a Dispute Resolution Appointment, there is presented to the judge “a real opportunity for dispute resolution in the same way that an Issues Resolution Hearing provides that facility in public law children proceedings” (per Ryder LJ at [47] in Re C (Due Process)). We recognise that in exceptional cases, it is possible that a judge may express a view in the context of judicially-assisted conciliation which may render it inappropriate for that judge to go on to determine contested issues at a substantive hearing. Recusal would only be justified, we emphasise exceptionally, if to proceed to hear the substantive case would cause “the fair-minded and informed observer, having considered the facts, …[to]… conclude that there was a real possibility that the tribunal was biased”: see Porter v Magill, Weeks v Magill [2001] UKHL 67 , [2002] AC 357, [2002] 2 WLR 37 , [2002] 1 All ER 465 , [2002] LGR 51.
As we indicated at [18] above at the 13 May hearing the Judge enabled the father to recognise that his residence application was not currently likely to succeed; the father, for his part, appears to have accepted the judicial steer. We do not see why that indication on its own should at that stage of the case have caused the Judge to disqualify herself from maintaining case responsibility. It is not apparent that the parties took any position or made any other offer of compromise which would have given rise to any other potential conflict for the judge.

However, ground 2, the father immediately triumphs on the third part – the Judge having said at the conciliation style hearing that she would not go on to decide any contested matters ought not to have later done so.

ii) Did the Judge err in making substantive orders on 3 July 2014 (including a section 91(14) order restricting any application under section 8 CA 1989):

a) In the absence of the father?

b) On the basis of factual findings made without forensic testing of the documentary material, of some of which the father had no knowledge?

And/or

c) Having indicated to the parties that she would not conduct any hearing in relation to residence issues?

Starting with (c)

The father was entitled to the view that the Judge had earlier given the impression that she would not herself deal with such issues, giving him ‘liberty to apply’ at the earlier (13 May 14) hearing. In short, in making these substantive orders (which directly impacted upon the father’s prospective residence claim), the Judge did, in our judgment, precisely that which she had told the parties she would not do. In this respect we have reluctantly concluded that the Judge materially fell into error, leaving the father with an understandable sense of grievance, and reaching a conclusion which is in the circumstances unsustainable.

On the other aspects of this ground, the Court of Appeal were content that father had had notice of the hearing and it had not been improper to proceed in his absence (a), but that it had been wrong to proceed to make serious orders that he had not been put on notice about and to do it on ‘evidence’ which he had not been able to challenge

However, the father’s absence was a significant factor which contributed to two material errors which in our judgment fundamentally undermine the integrity of the Judge’s conclusions:

i) She made findings of fact on documentary material of which the father had no notice, and on which he had had no chance to make representations;ii) She made substantive orders fundamentally affecting his relationship with his daughter, and his access to the court, having previously told the father that she would not ‘hear the hearing’ of any such substantive application.

In [39-41] and [42] we enlarge on these points.
The judgment of 3 July 2014, and orders which flow from it, is predicated upon findings of fact which the Judge reached on written documentation (e-mails and position statements) which was not in conventional form (see rule 22 FPR 2010). We make no criticism of that per se, but consider that the judge should have cautioned herself about the possible deficiencies inherent in making findings in these circumstances, particularly where the evidence was not tested. She found that the father’s conversations with Contact Centre A displayed “a truly monstrous display of manipulation” yet the father’s written representations (dated 19 June and 2 July 2014), which she had apparently considered in reaching that conclusion, do not address this evidence in detail; indeed the father makes no specific reference at all in his submission to the e-mail from Contact Centre A (see [22] above). We cannot be certain that the father had even seen it.
Of more concern, the Judge refers to, and appears to rely on as evidence of the father’s generally disruptive and belligerent conduct, an e-mail from a solicitor (unconnected with the case) who is reported to have overheard a heated conversation (“raised voices”) between the father and the Children’s Guardian following the 13 May 2014 hearing. The Judge at the 3 July 2014 hearing told those present that she “has no reason to distrust” the author of the e-mail, which she describes as “quite shocking”. Again, the father, so far as we can tell, was unaware of this evidence and had no opportunity to challenge it; the father had as it happens separately written to the Court complaining that after the 13 May 2014 hearing the Guardian had threatened to report the father to his local social services department, but the Judge does not bring in to her reckoning the father’s complaint.
It also appears that the father had not received the Guardian’s report prior to the 3 July 2014 hearing; certainly he claims not to have seen it at the time he sent in his written representations to the court on the day prior to the hearing. We found no evidence that he had had seen the position statement of the child’s solicitor which (by admission) “went a little further” than the Guardian’s report/recommendation. The father had had no opportunity to comment on any of this material which rendered the judge’s conclusions, in our judgment, highly vulnerable.
More significantly, at the hearing on 3 July 2014 the Judge made orders which went further than had previously been intimated, bringing to a formal end the father’s relationship with his daughter for the foreseeable future, and curbing his ability to pursue an application under section 8 CA 1989 in relation to her for many years.

So the appeal would be granted on this basis and sent for re-hearing. The other two grounds were comfortably made out, that the judicial analysis of the circumstances that would warrant making an order that would mean father having no contact fell far short of what the law requires, and that the legal and procedural protections for a party when making a section 91(14) order had not been met.

In final summary, the Court of Appeal had this to say

Conclusion
No one should underestimate the challenges to family judges of dealing with cases of this kind. A number of experienced family judges have laudably tried different methods, alternately robust and cautious, to achieve the best outcome for E, but appear to have failed. While we are conscious that the case has presented significant management issues, largely attributable it appears to the conduct of the father, regrettably judicial continuity has not been achieved and this may have added to the faltering process.
By allowing this appeal, we are conscious that we are consigning these parties to a further round of litigation concerning E; this is particularly unfortunate given the history of this case, and the inevitable toll which it is taking on all of the parties, evident from our own assessment of them in court.
In remitting the case for re-hearing, we do not intend to signal any view as to the merits of the mother’s applications, or the likely outcome of the same. We are conscious that E has had virtually no relationship with her father for over half of her life; the Judge could not be criticised for observing, as she did, that a contact regime has thus far proved impossible to sustain. Our own summary of the relevant history above may demonstrate this sufficiently. However, given the life-long implications for E, her parents and family, of the orders which have been successfully challenged by this application and appeal, it is imperative that a proper determination is achieved, as soon as practicable, in order that fully-informed welfare-based decisions can properly be made in the interests of E.

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Posted in cafcass, case law, contact, private law and tagged an order for no contact, appeal, can a judge do conciliation and then decide the case?, cobb j, Court of Appeal, judicial bias, judicial conciliation, no contact, re t suspension of contact, section 91(14) children act, section 91(14) order. Bookmark the permalink.

Judicial baggage

Posted on July 29, 2015 by suesspiciousminds

This one isn’t a family case, so you don’t have to read it at all. Which, reading between the lines, means that I’m writing about it because it is funny.

Emerald Supplies Ltd v British Airways 2015

http://www.bailii.org/ew/cases/EWHC/Ch/2015/2201.html

This is some commercial litigation, which was being dealt with by Smith J in the High Court. The facts of the case seem to be that there are 300 claimants (as a class action) who are suing British Airways.

One might get the sense from the opening remarks that the Judge lacked some enthusiasm for trying this case.

I have been the nominated judge in this case since November last year. I have been involved in the case since March of last year. When this case first came in front of me in March of last year, I suggested to the parties very early on that it was appropriate to have a nominated judge to deal with the hugely complicated interlocutory applications which arise. When I said so, I said I was not bidding for the case, because no judge really would look upon this case with enthusiasm because he or she would be in a no-win situation, as this case has demonstrated.
Since then I have heard numerous application, made numerous rulings. There are currently two outstanding, I think, appeals against some of my decisions. There is a CMC listed for three days next week. There is a separate hearing listed in October for a strikeout of the Bau Xiang, of other litigation and various other matters. There have been huge interlocutory orders, circulating mostly around the attempts to come up with some form of redacted decision that the European Commission made as long ago as five years now, but which is still not published, and my last recollection is that it was not promised before 2020. A point which I probably met with indifference, and probably half the Bar before me as well.

It is what happened next that catapulted the case into the realms of legal curiosity.

When you initially read the next twenty paragraphs of the judgment, you think to yourself – what a curious decision, for the Judge to set out the details of the Claimants case in the first person. It is all “I did this” and “this happened to me” and “The effect on my that”. A peculiar stylistic choice, you think.

It is little like the jarring effect of Jay McInerney’s decision to write “Bright Lights Big City” in the unorthodox second person, so that one keeps reading sentences like “You sneak into a fashion show in an attempt to find Amanda” and saying to yourself, “no I didn’t.”

And then after a short time, it dawned on me that the Judge is not actually here setting out the claimant’s case, he is instead setting out in judicial fashion the history of his own ongoing dispute with British Airways who have lost his luggage. At length.

On 30 April, I booked a return ticket to Florence with the first defendant. On 6 July, I flew to Florence, together with my wife, due to return on 10 July. On 10 July, as I have set out in my emails, the flight was delayed for two hours without any explanation. Six people were then summoned to the departure desk and were told that they were bumped off the flight. It turns out that they were the lucky ones, because they got their luggage back then, unlike anybody else in the flight.
The rest of us were then rushed to the aeroplane. Somewhat intriguingly, as I have said in my email, we were sitting right next to the plane while it was refuelling for 20 minutes. It might be a standard practice in Florence, I don’t know. It might be a standard practice for the accompanying fire tender to arrive after the refuelling is completed. Anyway, we were then put on the plane and the pilot said that they had been moved to another runway and the load had had to be adjusted because of the crosswinds, and that was it.
We arrived at Gatwick, hung around in the baggage claim, as people do at Gatwick, for 45 minutes and then we were told to go to Global Recoveries, where we were told for the first time that the entire flight’s luggage had been left behind. No explanation, no representative, nothing. Nothing from BA. Nothing from Vueling who provided the flight.
I saw the distress that lots of people suffered as a result of that; and I contacted BA customer relations, who simply said: it was a Vueling flight, you will have to take it up with Vueling. That is all they said.
Vueling were no better. In fact, they were worse, for the reasons I have said in argument. Vueling refused to acknowledge my communicating with them until a computerised individual number went onto their system. As I said earlier, it never did. The luggage arrived spontaneously and without warning on Wednesday last week.
I signed my emails as my judicial capacity to alert the Chairman to the fact that this was not merely an issue of a disgruntled consumer. For reasons which I set out below was essential that his office knew about the proceedings and those conducting the proceedings knew about the complaint. I also advised him to contact the lawyers conducting this litigation on BA’s behalf.

The Judge did not get an answer to his grievance, despite having played the “do you know who I am?” card.

Unwise people, who are hasty and unfair might consider that if BA’s customer service department can’t resolve the lost luggage of a Judge who (a) tells them that he is the Judge and (b) that he is the Judge currently dealing with some really big litigation against BA, what hope is there for anyone else? Those unwise, hasty and unfair people might wonder how the hell a Customer Service department doesn’t immediately move heaven and earth to get that luggage found. Why, you cynical bunch. The answer is that BA Customer Service department provides exactly the same stellar service to all customers on a completely egalitarian philosophy, without grace or favour.

The Judge goes on

This is not an issue over luggage, however. It never has been

[hmmm]

12. I was concerned about as Mr Turner QC rightly says, BA’s conduct in dealing with that flight — or Vueling’s conduct, which as far as I can see BA take responsibility. They are in the same group of companies, my contract was with BA, BA charged me and I got a BA flight number — if it was not explained, it might be something that is strikingly similar to some of the allegations in this case.

The reason I was concerned really ought to have been blindingly obvious, although some of the submissions by Mr Turner QC today would suggest otherwise. The situation is that I do not know how a plane departs with all of the passengers’ luggage left behind, unless that is a deliberate decision. It is an easy enough question to pose and it ought to be an easy enough question to answer. We are now 12 days from the flight and I have no explanation, and Mr Turner QC and the team who instruct him have deliberately refused to enquire, to provide me with an answer, praying in aid a desire to separate what they call a private dispute from this judicial dispute. This is not possible but could have been easily resolved had BA and its advisors wished it. This if correct was similar to some of the allegations in this case. If correct I would have had to recuse myself as I made clear in argument. BA’S FAILURE TO ANSWER
BA must know what the position is. I am promised some form of answer, by Mr Turner QC, in the normal course of events with expedition. Well, I am 12 days down the line and if those simple questions cannot be answered in 12 days with expedition, I really feel for other people who have the misfortune to fly with BA. It is unexplained.
Equally, I do not see how the pilot can take off and not know the luggage isn’t there. Equally, I do not see that the ground staff can conduct themselves in the way they did with us and not know that the luggage was not going.
In my email to the chief executive, which was the only way forward, having been rebuffed by customer relations, I said that I didn’t see how there was any logical explanation for those.
I remain of that view. Of course, I do not operate airlines. There might be a logical explanation. I am surprised, if there is a logical explanation, that it hasn’t been forthcoming in the last 12 days. I do not believe there is a logical explanation. I believe that the passengers’ luggage was deliberately bumped off for a more profitable cargo.
I hope BA can write back, if they were to write back and tell me that that is not so, because if that is so, my investigation will carry on in a private capacity — where that ends up, I don’t know yet, but it will — which I will pursue with the vigour for which I am known, because I am no longer involved in this case.

At this point, I am saying that if a TV company want to commission a show about a (highly fictionalised and not in any way real) vengeful High Court Judge who simply will not rest until he gets to the truth of what happened to his luggage, I think it has legs. I’d cast Jack Nicholson. Let’s call it “Case Closed” . I want to watch Smith J battle and find his baggage.

[* When I was about ten, I’m sure that I saw a TV show that featured one of those clever dogs, like Littlest Hobo, or Boomer. But this dog was about an Army German Shepherd and the opening dialogue said that this dog was “wrongly accused of a crime he didn’t commit, now he travels the country searching for the evidence that will clear his name”, which even at ten years old, I thought was a ludicrous premise for a TV show. “Cracking the case” / “Baggage Control” “Unexpected item in the baggage area”is far better.

I’ll do the voiceover crawl. “In thirty years as a lawyer, Justice Coltrane never lost a case. But now BA have lost his, and they’re going to find out what happens when you stand in the way of Justice” oh, how about “His bags got checked in, and now something doesn’t check out. ” or “They put a tag on his suitcase and then they lost it. But now he’s lost it, he’s gonna put a tag on their toes. ]

Again, unwise, hasty and unfair people might be saying “Jeez, if that’s the way that BA treat a Judge when he wants an answer to what happened to his luggage and has people in Court in front of him who can’t give a straight answer, I’m sitting with my valuables in my lap for the whole flight”. Tsk, tsk, you hasty and unfair people.

An application was made for the Judge to recuse himself. It is somewhat hard to see how a Judge who has said that in his personal dispute with BA, ” I believe that the passengers’ luggage was deliberately bumped off for a more profitable cargo. ” could continue.

But I underestimated the determination of Smith J. He argues it out at length, pointing out again that this is not actually about his suitcase, it is about a resolution of how his suitcase came to be lost. [I suppose the 300 claimants may have been thinking that it was actually about their claim, rather than a judicial trip abroad which didn’t work out, but Claimants, Schlaimants…]

REASONABLE OBSERVER
I do not believe for one minute that the reasonably minded observer, which is the test, as Mr Turner has reminded me of, would think that merely because I have raised issues over the non-delivery of my luggage of itself should lead to the possibility of bias.
I believe a reasonably minded observer would see a Judge with a problem trying to resolve that issue and finding the parting question being obstructive and unwilling to address the issue and find a solution. A simple dispute as to the luggage cannot possible be grounds for recusal. However BA and its solicitors have simply escalated the problem almost immediately.
As I have said in argument, it has been open to BA in this case simply to damp the fires of this dispute immediately, by coming up with an explanation of an operational nature as to why the luggage was not sent. They have not done it despite me giving them the earliest opportunity to do so.
REACTION BY BA AND ITS SOLICITORS
The solicitors and the person apparently instructing them have adopted a three wise monkeys approach which I found, frankly, astonishing. The reason I conclude they do that is because they don’t want to know the answers, because it might affect them. And the reason why BA have not replied, I conclude, is because there has been some kind of operation designed to maximise profits at the expense of their regular customers. Further I am satisfied they want to exploit this situation to pressure me into coming off the case.
Judges spend all the time drawing conclusions from people’s actions; and the like; the taking off with no luggage and the knowledge of the pilot, I find it impossible to believe that if those instructing Mr Turner QC wanted to, they could not have found out what the answer was to this in good time. And having seen me on Monday, it would have been perfectly easy for them to write and say, “Thank you for drawing it to our attention. We have spoken to the operations and the luggage had to be left behind, we regret, for this, this and this”, and that would have been the end of the matter. I had of course brought it to their attention as soon as practicable on the Monday.
But they didn’t do that. Almost within a matter of hours of the meeting, they decided that I should recuse myself.
Now, I do not accept that the correspondence justifies that application. And I am afraid to say that it is, in my view, an opportunistic application, made by a party that has wanted to get me off this case before.
I would remind the parties that even before the case was allocated to me, Mr Turner expressed a view in open court spontaneously that his clients did not think I was capable of dealing with the CMC in this case because it represented difficult issues of competition law, of which It was alleged I had no experience. His client’s major difficulty was that I had been an allocated judge for four years in the Competition Appeals Tribunal, although I had not actually sat on any cases. But presumably if the Lord Chancellor thinks I am competent to sit there, that really ought to be enough, even for Slaughter and May, but apparently it isn’t.
And when the parties finally followed up the suggestion that they apply to nominate a judge, they actually wrote [the Chancellor] should not appoint Mr Justice Peter Smith. That was an unfortunate letter for them to have written because it held a gun to the Chancellor’s head, but as the Chancellor rightly observed, there are no competition issues of significance left in this case now. There is either a common law claim for conspiracy, and in that regard I am probably the most experienced judge in the division dealing with those cases, and there are issues as to damages that might flow from an already admitted breach of competition law.

If you thought the application to recuse was so-so before those remarks (and really? Did you? ) then I’m fairly sure that at the point where the Judge says that the application for recusal is a conspiracy theory because BA are running some sort of behind the scenes arrangement where they routinely ditch passengers luggage so that they can carry commercial freight for profit, is the point where the reasonable observer would think “nope, you need to step aside now”

So the question then is: what should I do? Well, Slaughter and May wrote to me on Monday, requiring me to confirm immediately that I would recuse myself, failing which they would make an urgent application to the Court of Appeal. This litigation is complex enough, without those distractions. It is of no interest to the other parties, who have all had to come here today, to have a proper application made and a decision made. And that has a cost consequence which will probably be irrecoverable, and it is a matter of great regret to my mind that the parties have been inconvenienced for no apparently good or acceptable reason. It would not be appropriate for a recusal application to be acceded to as a result of an exchange of private correspondence.
This would lead to a waste of a lot of judicial resource time in addition to the parties it will also slow progress of the case which I have been attempting to progress. I am afraid BA are not in my view really interested in progressing the matter expeditiously for obvious reasons.
I however cannot allow my presence in the case and its difficulties to distract the parties from this case. And therefore, regretfully, I feel that I have no choice, whatever my feelings about it, but to recuse myself from the case, and that is what my decision is; not for the reasons put forward by BA, but for the reasons that I have said.
So I will recuse myself. I will vacate the hearing next week; and I shall not direct it to be fixed before the most convenient date as suggested. I shall direct that the parties shall attend on 2 October for directions from the newly appointed judge as to the further conduct of this case. I shall also require the parties to make an immediate application to the Chancellor to appoint a substitute judge; and to tell the Chancellor that I have directed that the first hearing of the case by that newly appointed judge should take place on 2 October.
I will, if necessary, adjourn the application that BA issued, I think, yesterday for a strikeout in the Bau Xiang litigation as well, to be considered as part of the other matters which the judge will be required to do. And I will make no order as to costs.
This is a regrettable but necessary decision caused in my view entirely by BA’s attitude and determination to achieve a result which is nothing to do with the problem. It is a regrettable feature that some litigants now regard a recusal application as one of the tools they can deploy in aid of their case. BA has finally achieved its aim. Neither of their attacks was in my view justified but ultimately they were successful for the reasons given.

So there you have it. BA succeeded in removing a Judge from the case whom they perceived to be biased. But it was a Pyrrhic victory, since the Judge was able to use that recusal application to publish a judgment setting out just what he thought of them, and as you can’t sue for defamation for anything that happens in Court or reporting what happened in Court, any national newspaper can report everything that the Judge said about his views about BA (as long as they don’t go further and say that they agree with them)

Seriously, Jack Nicholson’s agent should really talk to me. I think we have a hit here. [I’m not ruling out Liam Neeson for the role, I think he’d be great for this – but Liam’s agent, you need to know that Jack is interested, so you’d better make a commitment, or the part will be gone]

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Posted in case law and tagged asking a judge to recuse himself, British Airways, emerald supplies Ltd v BA 2015, judicial bias, judicial luggage, recusal, smith j. Bookmark the permalink.

Jolly hockey sticks, or “It’s not recusunal…”

Posted on December 17, 2020 by suesspiciousminds

I always love a case about recusal, it threw up for example the delicious joy that was a High Court Judge cross-examining counsel about the Judge’s own lost luggage Judicial baggage | suesspiciousminds

This one is private law. A District Judge (DJ Wylie) had conducted a finding of fact hearing (the mother had made allegations of violent behaviour against the father, the Court heard the evidence and made decisions about what had happened, called ‘findings of fact’)

W (Children: Reopening/recusal) [2020] EWCA Civ 1685 (15 December 2020) (bailii.org)

Two findings were made, and the other two allegations were not made out. The father was later convicted for one of the matters set out in the first finding made. The case would then move to evidence, arguments and decisions about contact and possibly where the children would live.

The father, however, made an application for a re-hearing. It was decided that this application for a re-hearing ought to be heard by District Judge Wylie, which would be the usual course of events.

What was less usual though, is that DJ Wylie recused herself from the hearing and it went before His Honour Judge Duggan

At that hearing, father was in person, and mother was represented (although she was paying privately for her lawyer, which becomes important later).

All that the mother and father knew of DJ Wylie’s situation was that she had recused herself for personal family reasons. It seemed, but one can’t be sure, that HHJ Duggan knew a little more than that.

The Judge raised the issue of recusal and its impact on the findings. There were two broad possibilities – one that DJ Wylie having had reason to recuse herself would not sit on the case in future, and the second that if there was something that meant that she shouldn’t or couldn’t hear the case in the FUTURE then didn’t it follow that the work she’d done up to that point should be redone?

The father’s application for a re-hearing had a very high legal bar to cross, but as the Judge explained to him, an application that DJ Wylie having recused herself from part 2 of the case ought not to have done part 1 and the case should be re-heard as a result of judicial bias was probably an easier argument to make and succeed with. For the mother’s part, counsel explained that having paid privately for her representation, she would be substantially financially affected by having to run the fact finding hearing all over again, and importantly that nobody really knew what DJ Wylie’s reasons were for withdrawing.

HHJ Duggan decided that there was no suggestion of actual bias, but that an independent observer would consider that if a Judge couldn’t hear part 2 of a case for some personal conflict, then what they had done at part 1 might also be under doubt, and that thus the finding of fact hearing should be re-heard before another Judge.

The mother appealed, and the case went before Jackson LJ.

In the meantime, the mother’s lawyers wrote to the Court asking three very proper questions:-

What was the ‘family connection’?
At the finding of fact hearing in February 2020, had the Judge been aware of it?
If so, why wasn’t it raised with the parties?

The Court replied, though very very late in the day (The DJ gave the Court the reply in July, the Court sent it to the parties in NOVEMBER! just before the appeal)

The Judge’s son, and the mother, are members of the same hockey club. On social media, the Judge’s son and the mother follow one another.
The Judge had not realised this until June 2020, well after the finding of fact hearing
if the Judge had realised, she would have raised it with the parties.

At the appeal, the mother’s case was that the process before HHJ Duggan was flawed (the mother and father had not known the reasons for recusal, or what had been known by DJ Wylie at the time) and that HHJ Duggan had applied the wrong test in law.

As to recusal for the appearance of bias, Ms Bentley submitted that the Judge framed the test wrongly. The question is not whether a reasonable observer would be concerned that justice has not been seen to be done; the question is whether the reasonable observer would conclude that there is a real possibility that the judge was biased

The Court of Appeal said this:-

n my view, once the District Judge decided to decline to hear the case on the basis of recusal, she should have ensured that the parties were formally notified of her reason for withdrawing from the case. This could have been done at the time of the hearing before the Recorder. Had he been in a position to inform the parties of the facts so that they were in a position to respond, they may well have been content for the case to continue in front of another judge, as had already been contemplated. But as it was, they were left in the dark and both parties asked the obvious question “Why?”, the father ahead of the hearing before the Judge and the mother afterwards.

t is understandable that the Judge was troubled by this odd position and clear that he was acting with the best of intentions. At the same time, it was necessary for him to approach the matter systematically. The starting point was that the listed application was the father’s application to reopen certain findings of fact. There had been no regular process of recusal by the District Judge and there was no appeal before the Judge. In these very unusual circumstances, the fact that a party had not appealed was not a bar to the Judge raising the issue himself, but in doing so he needed to acknowledge that a decision to set aside findings on the basis of apparent bias was one that could only be taken in an appellate capacity. Procedural steps could have been taken to achieve this, but the issue was not addressed and it is not clear what capacity the Judge was acting in.

That procedural difficulty might not be insuperable, but there are other reasons why the Judge’s unexpected decision to set aside all of the findings on the basis of apparent bias on the part of the District Judge was, I regret, both wrong and unfair:

(1) The Judge was not in a position to take a decision about apparent bias: the decision calls for an informed observer, which supposes knowledge of the basic facts. He should have put himself in a position to inform the parties about the District Judge’s reasons for wishing to recuse herself so that they were in a position to respond. He instead referred only to the existence of a family connection, which they were in no position to assess. Consequently, they were not only unable to put their case about the District Judge’s withdrawal but, more seriously, they had no meaningful way of addressing the new and radical proposal to set aside her findings altogether. This process was not fair to either party.

(2) As to the legal test for apparent bias, the Judge was right to say that one must put oneself in the position of a reasonable observer who is not involved in the case. However, he was mistaken in stating that the test is whether the observer would be concerned that justice had not been seen to be done, when the correct question is whether the observer would conclude that there was a real possibility that the judge was biased, which is a stronger thing

(3) Finally, the Judge’s conclusion that the District Judge’s findings were infected by apparent bias is not supported by any sound reasoning. This was the sort of happenstance community tie that should be disclosed to parties by a judge who is aware of it, but would not ordinarily lead the reasonable and informed observer to conclude that the judge could not try the case fairly. In this case the matter was put beyond argument by the fact that the District Judge did not discover that her son and the mother knew each other until months after she had made her decision.

HHJ Duggan’s decision was therefore overturned, and the findings made by DJ Wylie restored, father’s application to reopen them being refused.

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Posted in case law and tagged Court of Appeal, judicial bias, Peter Jackson LJ, recusal. Bookmark the permalink.

Coal Board and Age Assessments

Posted on April 26, 2016 by suesspiciousminds

It has been a very long while since we had a piece of case law on age assessment. If you are already saying “I bet it involves Croydon”, then gold star for robot boy, well done!

London Borough of Croydon v Y 2016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/398.html

Y turned up in this country from Nigeria. He claimed to have been born in 1999, and that he had been trafficked here. If true, that would mean that he was a child and entitled to accommodation via Croydon’s social work department and services and would be able to stay until 18. If not true, he would be an adult, and would probably be liable for deportation. [In this case, he absolutely would have been deported, it was the age argument that was putting that process on hold]

There’s therefore quite a vested interest in people who are not under 18 claiming that they are.

A number of individuals arrive in this country seeking asylum and claiming to be under 18. Most are males and have entered or have sought to enter by clandestine means. They are referred to as Unaccompanied Asylum Seeking Children (UASC). That description includes those who assert that they are under 18. Many who travel from countries where they allege they are being persecuted such as Afghanistan or Iraq will have been assisted by agents and in any event the advantages of persuading the authorities that they are under 18 are well-known. Those advantages include the automatic grant of leave to remain until aged 18 coupled with the inability to return to Member States of the European Union if the individual would otherwise be returnable in accordance with the Dublin Regulations. In addition, as children they will usually be entitled to the care and accommodation which a local authority is obliged to provide to children in need. Thus the assessment of their age is most important.

[Collins J in A v London Borough of Croydon [2009] EWHC 939 (Admin), ]

In this case, Croydon’s age assessment was based largely on Y’s physical appearance (as it was in a case I once had where the alleged 16 year old had a beard that Captain Birdseye would have been proud of). Y judicially reviewed that decision.

The Court gave some directions

5.On 1 September 2015, UT Judge Allen gave directions in the age assessment challenge proceedings. These included (i) that the matter be listed for a 4 day fact-finding hearing in order to determine Y’s date of birth; and (ii) that Y be granted permission to rely on reports by Dr Juliet Cohen, a forensic physician, Dr Susannah Fairweather, a child and adolescent psychiatrist and Ms Christine Beddoe, specialist adviser on human trafficking and child exploitation.

The trial was fixed to start on 8 February 2016

Croydon then made an application to strike out the claim

On 20 November 2015, Croydon applied to the Upper Tribunal Asylum and Immigration Chamber for an order that the challenge to the age assessment should be struck out (or stayed) unless Y consented to and co-operated fully with (i) a dental examination (including a dental X-ray) by Professor Roberts, (ii) a psychiatric examination and (iii) an age assessment by two Croydon social workers. In support of this application, Croydon relied inter alia on the decision of this court in Starr v National Coal Board [1977] 1 WLR 63 to which I shall refer in some detail later in this judgment

[I’m not QUITE sure why that was an application to the Upper Tribunal Asylum and Immigration Chamber, rather than to the Judge who had given case management directions in the judicial review. It rather seems to me that those were applications for case management directions /orders in the judicial review fact finding, but the Court of Appeal don’t take up that point, so perhaps it is just a bad one on my behalf]

You’ll have seen the reference to Starr v National Coal Board 1977. It is not the same National Coal Board that comes up very infrequently (in judicial bias cases or recusal cases, citing Lord Denning’s remark that the Judge had intervened too much and ‘descended into the arena’)

The Starr principles

The case of Starr concerned a claim in negligence for damages for personal injury, namely ulnar nerve compression. It was conceded by the plaintiff that it was necessary for the defendant, in preparing its defence, to be advised by a consultant neurologist who had had the opportunity of examining him. The defendant had nominated Dr X for that purpose. The plaintiff objected to examination by Dr X without stating his reasons. But he said that he was willing to be examined by any other consultant neurologist of similar qualification and experience to Dr X. The defendant applied for a stay of all further proceedings until the plaintiff submitted to an examination by Dr X. This court upheld the stay that had been granted by the judge.
At p 70H, Scarman LJ said that in the exercise of its discretion in this class of case, the court has to recognise that in the balance there are “two fundamental rights, which are cherished by the common law and to which attention has to be directed by the court”. The first is the plaintiff’s right to personal liberty. The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant. He went on to say that, if a defendant in a personal injuries case made a reasonable request for the plaintiff to be medically examined by a doctor chosen by the defendant, the plaintiff should accede to the request unless he had reasonable grounds for objecting to the particular doctor chosen by the defendant. Applying these principles to the facts of the case, Scarman LJ said at p 72H:
1. “I have, therefore, come to the conclusion that the request for medical examination of the plaintiff by this particular consultant neurologist was a reasonable one; that, notwithstanding the matters that have been developed in argument, the plaintiff was unreasonable in refusing to submit himself to examination and that there is, in the matters that have been adduced to this court, no indication that justice to the plaintiff is liable to be imperilled if this doctor examines him, reports and ultimately gives evidence.”
At p 75H, Geoffrey Lane LJ said:
1. “…the defendants are not lightly to be deprived of the right to have the medical examination carried out by the doctor who, they are advised, would be the best doctor in the circumstances to carry out that examination.”
Cairns LJ said much the same at p 77C.

It is a damn clever argument, and ’nuff respeck to whoever at Croydon came up with it. Essentially, relying on these Starr principles to say “If we are having to defend a case, but the person bringing it refuses to cooperate with assessments that we reasonably ask him to participate in, the case should be thrown out”

The Tribunal disagreed, and hence Croydon went to the Court of Appeal.

The decision at first instance

The application was refused by UT Judge McGeachy on 8 December. He gave a short ex tempore judgment which included the following:
1. “My decision is this. Although I have some considerable sympathy with the application made and I think it is most unfortunate that the applicant’s representatives have come to the conclusion that they will not cooperate I consider that the order sought is too draconian for me to either stay the proceedings or to dismiss the proceedings at this stage.

2. I consider that the fact that the applicant’s representatives have decided that he should not cooperate with a dental examination, which I consider might well have been useful, let alone the further age assessment to be carried out by Croydon is a matter on which it may well be that you would wish to address me at the hearing. I presume that is what you would want to do but I am not prepared to bring the proceedings to a halt now.”

Further light is shed on the judge’s thinking by his decision of 16 December in which he explained why he refused permission to appeal to this court. He said:
1. “(2) The grounds of appeal assert that I had failed to give reasons for not granting the application given the terms of the judgment in Starr v NCB [1977] 1 WLR 63. In my oral judgment I gave reasons for my decision. While I did not specifically refer to the judgment in Starr the reality is that that case can be distinguished from the present. It is of note that in Starr it had been conceded that it was necessary for the defendants, in preparing their defence to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff. That is different from a case such as the present in which there is a challenge to a decision which has already been made. Moreover, while the case in Starr was a private law matter this is an action in public law where there is a public interest in the efficient disposal of the application, particularly as it relates to the age of the applicant who claims to be a child.

(3) I was entitled to take into account the efficient disposal of that application and that is why I stated that staying the proceedings at this stage was a decision which was too draconian: staying the proceedings would not resolve the issue before me. Given that the matter was to proceed to trial at the beginning of February 2016 it was appropriate that satellite litigation should be discouraged.

(4) I consider that my decision was an appropriate use of my case management powers in that it is a clear aim of those powers to ensure the efficient disposal of an application.”

The grounds of appeal

Mr Holbrook submits that the judge erred in holding that the Starr principles did not apply in respect of Y’s refusal to consent to (i) an age assessment by two social workers employed by Croydon, (ii) a dental age assessment by Professor Roberts and (iii) a psychiatric assessment by Dr Tony Davies. He should have held that the Starr principles did apply and that, on a proper application of them, he should have acceded to Croydon’s application to stay or strike out Y’s claim unless he consented to each of the three assessments sought.

The Court of Appeal concluded that the Starr principles DID apply (this was something of a shock to me when I was reading the case, though not an unpleasant shock) and that thus the appeal must succeed

Discussion

It is unclear whether the judge addressed the Starr principles or not. It would have been surprising if he had not considered them, because they had been the subject of full argument before him. Paras 1 and 2 of the judgment might suggest that he accepted that they did apply, but that he was not willing in the exercise of his discretion to strike out the claim or order a stay because such a remedy was too “draconian” or in modern parlance “disproportionate”. On the other hand, in his reasons for refusing permission to appeal, he sought to distinguish Starr on the grounds that (i) it had been conceded in Starr that it was necessary for the defendant to have the opinion of a consultant neurologist who had had the opportunity of examining the plaintiff; and (ii) Starr was a private law claim, whereas the present claim was a public law claim.
On balance, I incline to the view that the judge did address the Starr principles, but held that they did not apply for the three reasons that he identified when refusing permission to appeal. First, in Starr the plaintiff had conceded that it was necessary for the defence to have the opportunity for their expert to examine the plaintiff. Secondly, Starr was a private law claim, whereas the present case concerned a public law claim. Thirdly, refusal of Croydon’s application was an appropriate use of his case management powers to ensure the efficient disposal of the application.
I would reject these reasons and substantially accept the submissions advanced by Mr Holbrook. As regards the first reason, the fact that the plaintiff in Starr conceded that it was necessary for the defendant to be advised by a consultant neurologist who had had the opportunity of examining the plaintiff was not essential to the reasoning of the court. The concession meant that the court could proceed on the basis that the medical examination was necessary for the proper conduct of the defence. If that had not been conceded, the court would have had to decide for itself whether the examination was necessary. The concession is a basis for distinguishing Starr from the present case on the facts. It cannot, however, be a reason for holding that the Starr principles only apply where there is such a concession. In the absence of such a concession in the present case, the judge had to decide whether all or any of the three examinations sought were reasonably necessary for the proper conduct of Croydon’s defence. It would seem that the judge was probably satisfied that the dental examination and the examination by the two social workers were reasonably necessary because he said in his judgment that he had “considerable sympathy with the application”; he thought that it was “most unfortunate that [Y’s] representatives have come to the conclusion that they will not cooperate”; and he considered that a dental examination “might well have been useful, let alone the further age assessment to be carried out by Croydon”.
As regards the second reason, there is no basis in principle for confining the Starr principles to private law litigation. I accept that there are important differences between private and public law litigation. These differences are, for example, recognised by the fact that they are subject to different procedural regimes. In most judicial review litigation, the court does not hear oral evidence or make findings on disputed questions of fact. That is why there is little scope for the application of the Starr principles in public law cases. But in judicial review claims where the court does hear oral evidence and is required to make findings of fact, there is no reason in principle why Starr should not be applied in an appropriate case. The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ referred applies in any litigation. In a case where one party wishes to have an examination of the other party, the other fundamental common law principle identified by Scarman LJ comes into play. That is so whether the case involves a private law or a public law claim. Although the age assessment issue in the present case arises in judicial review proceedings, it is common ground that the issue is one of fact for the court to determine on the evidence adduced before it: see R (A) v Croydon London Borough Council [2009] UKSC 8 , [2009] 1 WLR 2537. It follows that there is no reason to hold that the Starr principles do not apply merely because the issue arises in public law proceedings.
The third reason is quite difficult to pin down. Mr Berry makes much of the point that this was a case management decision involving an exercise of discretion in respect of which this court should allow the judge a generous ambit: see, for example, Royal and Sun Alliance v T & N Ltd [2002] EWCA Civ 1964 at para 38 per Chadwick LJ and Walbrook Trust (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at para 33 per Lawrence Collins LJ.

Given what is said here, the door is at least ajar for people arguing that the Starr principles that a person is entitled to insist on another party being assessed by an expert of their choice should apply to private law family cases, where two parents are arguing about who is suitable to look after their child and how much time the child should spend with the other. I think that it is more of a stretch for care proceedings (the Local Authority, who want the parent to undertake an assessment, are the applicant, not the defendant)

This part of the Starr principles though, I can see being deployed

The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant.

Not perhaps so much with whether there should be an expert assessment at all, since that is rather covered by the Children and Families Act 2014 which sets out the ‘necessary to resolve the proceedings justly’ test, and Starr as case law can’t override later statute. But in a case where a Local Authority want the father to be assessed by Dr Leighton Buzzard, and the father would prefer Dr Ashby De-la-Zouch, then Starr (and this case) might be usefully deployed. The strong suggestion is that the witness should be of the defendant’s own choosing.

[I can also immediately sense that Ian from Forced Adoption will be wanting to deploy Starr and this case to say that a parent should be entitled to call evidence at a final hearing from whatever witnesses they choose – usually character witnesses, and it will be interesting to see how the Courts deal with that sort of argument]

Many of you who are familiar with age assessment cases are pondering the use of dental X-rays, which are pretty controversial in age assessment determination (in terms of reliability, efficacy and ethics of undertaking an X-ray when there is nothing medically wrong with a person for purely forensic purposes many dentists are unhappy about it). The Court of Appeal acknowledged those issues, but concluded that it wasn’t a reason for refusing to undertake the assessment.

it is said that the method of assessing age using mean data taken from dental x-rays is controversial and unreliable. But it is impossible for the court to reach a conclusion on whether this is correct or not. In my view, it cannot be a reason for refusing the order. No doubt, the reliability of the assessment based on dental x-rays will be investigated at the hearing.

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Posted in case law and tagged 2016 EWCA Civ 398, age assessment, appeal, choice of expert, Court of Appeal, expert of person's own choosing, london borough of croydon v y 2016, starr v national coal board 1977. Bookmark the permalink.

“Just glanced?” Court of Appeal find Judge to have been unfair

Posted on July 29, 2015 by suesspiciousminds

Re G (child) 2015 http://www.bailii.org/ew/cases/EWCA/Civ/2015/834.html was an appeal from a finding of fact hearing in private law proceedings conducted (perhaps that ought to be in inverted commas) by Her Honour Judge Pearl.

The appeal was on the basis of judicial bias/ unfairness, which as I’ve set out before has a relatively low bar in law (that a reasonable observer would have concluded that the Judge was biased) but in practice is hard to pursuade an Appeal Court of, since most people who leave Court without the order they wanted tend to think that a Judge was biased.

Here the case was made out, in spades. [Though not necessarily in terms of the Judge being in favour of one party and against the other, but rather that her treatment of mother’s case was sufficiently unfair to prejudice a fair hearing]

Things began badly when Ms Toch, the mother’s counsel, arrived late at Court on the first day. The context of this was that exceptional weather conditions had disrupted all transport on that day. Ms Toch apologised, but the Judge seemed to take it as a personal slight and had not been able to move on.

The first specific complaint was that the judge impolitely told counsel off for her late arrival at court on the first day of the fact finding hearing, 28 October 2013. It was submitted that Ms Toch had been subjected to unwarranted and unfair criticism about this and that this was of concern to the mother as it was obvious to her that the judge was annoyed with her counsel. Other specific instances were identified where it was said that the judge’s attitude towards Ms Toch was disparaging and bore the mark of hostility or unfairness. One example was in relation to the way in which the judge dealt with Ms Toch over the CAFCASS officer but attention was invited to the way in which the judge dealt with Ms Toch over other matters as well.
It is essential to consider the exchanges that preceded the commencement of the evidence in the case as a whole. The hearing got off to a difficult start on the morning of Monday, 28 October. There had been a powerful storm the previous night with damaging winds. Transport services were severely disrupted and Ms Toch had problems in getting into central London for the hearing. Ms Toch’s account in her statement is that, on the witness template, the morning had been scheduled for the judge to read. It has not been possible to find out whether that was anyone else’s understanding. Ms Toch’s account is that she was told by her clerks on the Monday morning that the judge wished to sit at 11.45 a.m.. Because of her travel difficulties, Ms Toch did not arrive until 12.20 p.m. which made her late for this and meant that she had not been able to discuss matters directly with counsel for the father before the case started. The transcript of the proceedings opens at C3 with Ms Toch apologising to the judge for delaying the court. She explained about the limitations on transport from her home area that morning and the steps she had had to take to get to court.
Matters moved on but it can be seen from the transcript that Ms Toch’s lateness continued to trouble the judge for some time and that she returned to it later. I will deal with this at its appropriate place in my consideration of this stage of the hearing.

The Court of Appeal are not kidding. To get a flavour of it, see this exchange

It is not difficult to accept that the mother’s confidence in her counsel’s ability to put forward her case to the judge would have been undermined by the judge’s approach to Ms Toch as set out above. It is also, perhaps, of note (although it cannot affect the fairness of the fact finding hearing) that matters were not easy at the hearing on 7 January 2014 either. By way of example, Ms Toch said to the judge, in relation to the mother’s evidence about the dowry question, “Your honour subsequently looked at these matters and made a finding.”. The judge responded:

“THE JUDGE: Looked at them?

MS TOCH: Your honour has….Yes.

THE JUDGE: Just glanced?

MS TOCH: No, your honour.

THE JUDGE: I have analysed them. I have spent hours on this case…..I have gone through every line of the evidence. I have not just looked at it, Ms Toch. I take that as a straight insult.”

Oh boy. And again

“THE JUDGE: Do you think it is fair that a CAFCASS officer should stop contact completely without even speaking to the father about a matter of fact? Do you think that is the way to proceed?

MS TOCH: Well, of course, he did not. He raised this. He referred the matter to Social Services to investigate and the matter was referred to the court and the court stopped contact. It was not the CAFCASS officer.

THE JUDGE: But he recommended that contact be supervised.

MS TOCH: He wrote a letter to the court to say that contact should be suspended pending the outcome.

THE JUDGE: Do you think that is a fair way to proceed?

MS TOCH: Well, it was referred to the court, so it is a matter for the court.

THE JUDGE: Do you think –

MS TOCH: It is a matter for the court.

THE JUDGE: We are not going to get –

MS TOCH: I am sorry.

THE JUDGE: This is the second time we have had a conversation like this.

MS TOCH: Yes.

THE JUDGE: If I ask a question, try and answer it please.

MS TOCH: The CAFCASS officer did not suspend contact and contact was ordered to be supervised by HHJ Everall –

THE JUDGE: Do you think it is right –

MS TOCH: – on submissions.

THE JUDGE: Do you think this man’s evidence on a finding of fact is going to assist me?

MS TOCH: I am not saying it will.

THE JUDGE: Yes or no?

MS TOCH: I am not asking for him. I am saying he is available. I understood the father wished to have him.

THE JUDGE: Well, you have just asked the question [of the father’s counsel]. He said he does not want him to be cross-examined.

MS TOCH: And I have heard that, so unless the court wishes him, I do not.

THE JUDGE: Look –

MS TOCH: I am not calling him. Am I clear?

THE JUDGE: No, I know.

MS TOCH: I am not calling him.

THE JUDGE: Let us try and have an exchange, shall we?

MS TOCH: Yes.

THE JUDGE: All right. You have made me angry.

MS TOCH: I am sorry.

THE JUDGE: The second time. This morning I was asking questions. You simply were not answering the questions.

MS TOCH: I am sorry.

THE JUDGE: You must answer my questions.

MS TOCH: I will, yes.

THE JUDGE: Are you going to ask me to rely on this CAFCASS officer’s finding or understanding of the truth as part of the evidence I rely upon to substantiate your client’s allegation of the stabbing? Yes or no?

MS TOCH: No.

THE JUDGE: Thank you.

MS TOCH: I am terribly sorry. I did not mean to be –

THE JUDGE: I am so grateful to you.

MS TOCH: Yes.

THE JUDGE: No, you do mean to be because this is the second time you have done it and it does not work with me. You are not relying on his assessment of this child’s veracity. You are only relying on the fact that it was said. The father does not deny it was said and you are not going to come towards me at the end of the hearing and say, ‘Because the CAFCASS believed it, your honour, you must believe it.’

MS TOCH: No.

THE JUDGE: All right. Do you think it was bad judgment for him to recommend that contact be suspended?

MS TOCH: He –

THE JUDGE: Yes or no?

MS TOCH: It was correct judgment to have the matter investigated as it was.

THE JUDGE: This is going to be a difficult hearing.

MS TOCH: I am sorry. I do not think my opinion is important, with respect. He made the recommendation. It came before the court.

THE JUDGE: Look, I do not want to stop a witness coming to court and then meet submissions from you –

MS TOCH: I am not going to make those submissions, if I make that plain.

THE JUDGE: Yes, good.

MS TOCH: Yes.

THE JUDGE: So that has taken ten minutes. No counsel this morning at all and ten minutes and I am not being unreasonable about this.”

[Erm, I think perhaps you were]

I feel Ms Toch’s pain there. I’ve had, some considerable years ago, that sort of experience, though only about a quarter as bad as that. If I say to practitioners “Humpty Dumpty” some may have a shudder of recognition and repressed memories flood back. There is very little worse than being in front of a Judge and feeling that every single word you say is just making the Judge more cross.

If you are remembering the Liverpool Judge and the Court of Appeal ruling that a judicial appointment was not a licence to be rude, you are on the right lines here.

As the Court of Appeal say, one does not pick up tone of voice from a transcript of judgment.

What is not apparent from the transcript is the judge’s tone of voice. I need only say that listening to the recording did nothing to improve the impression gained from the written word.

There are many, many, more examples of this from the trial. Immediately after this, the Judge castigates Ms Toch for being late again.

The pressure on Ms Toch continued immediately after the passage that I have set out above with the judge returning to the subject of Ms Toch’s lateness as follows (C25):

“THE JUDGE: Everybody knew – let me be clear about this – there were going to be no trains this morning. It was very, very clear on the national media. Everybody knew. It was absolutely clear and I changed my travel plans accordingly, as did everybody else. Everybody knew and if I had been living in [counsel’s home town in Kent], I would have made plans to avoid this disaster this morning. Be utterly clear about that.

MS TOCH: Yes. I can only apologise to the court. I did try. I really did try.

THE JUDGE: Well, I hope you have apologised to your client.

MS TOCH: I apologise to everybody in this court that has been inconvenienced.

THE JUDGE: Everybody knew that there were going to be no trains this morning.

MS TOCH: Yes.

THE JUDGE: So why you sat in [counsel’s home town] last night waiting for there to be no trains, I do not know. It is ten to three and we have not even started –

MS TOCH: I am so sorry but sometimes people cannot leave the night before and I could not. ….”

How is the mother supposed to feel about whether she is getting a fair trial at this point? The Judge is outright quarrelling / bullying her representative at this stage.

It was unnecessary, in my view, for the judge to have returned to this question at this stage in the proceedings and, as I see it, the exchange compounded the pressure that had been put on Ms Toch by what had just occurred in relation to the CAFCASS officer. My experience is that counsel tend to manage to be on time for court against even formidable odds but sometimes it simply is not possible. The weather conditions on this weekend in October were extraordinary and disruptive of transport. As Ms Toch observed to the judge, sometimes it is not possible for counsel to set off the night before. There are various reasons for this, ranging from domestic commitments to an inability to obtain accommodation overnight or to pay for it from a brief fee which was not designed for that eventuality. Ms Toch told the judge of the steps that she had taken to get round the problems on the morning of the hearing, she got herself to court as soon as she could, and she apologised. It is understandable that the judge felt frustrated by the loss of time that could otherwise have been devoted to discussions between counsel or other arrangements outside court or to getting the hearing underway. It is clear that it was going to be a challenge to conclude the evidence and submissions within the allotted court time, even without delays of the kind that had occurred and that always poses difficulties for a judge. However, I accept the submission of Mr Phillips that she laboured the issue of Ms Toch’s lateness to the point of unwarranted, unfair criticism.
Taking the whole of the exchange about the CAFCASS officer and the lateness together, I also accept the submission that the mother would have felt that the judge was annoyed with her counsel and that this annoyance influenced the judge’s approach to her case and impeded the presentation of it by counsel on her behalf.

The Court of Appeal did determine that the Judge’s management of mother’s cross-examination did not cross the line and that a Judge is entitled to have their own approach to such matters providing that the line is not crossed

It was shortly after the CAFCASS/lateness exchange that the mother began to give evidence. Complaint was made of the judge’s approach to her during her cross-examination which it was argued was hostile and distressing to the mother. Managing a trial can be a challenging, even for an experienced judge, and it is sometimes necessary to react without much time for refined consideration. Generous allowance always has to be made for this and also for the fact that, even with counsel’s help, it is very difficult to tell from a transcript, or even from listening to a recording, precisely what was going on at all stages during the hearing. Furthermore, different judges have different styles and counsel and litigants can usually be expected to cope with the talkative, the uncommunicative, the robust, and even the irritated judge, provided the judge’s behaviour does not stray outside acceptable limits.
In this case, I see the judge’s handling of the mother’s cross-examination as being within normal tolerances. True it is that the judge asked the mother on occasions to stop interrupting her, but that was not unjustified as the mother did tend to interrupt questions put to her and talk over people. Nor, in my view, would it be right to criticise the judge for speaking to the witness about being on oath or for requiring her to stand up, which was likely to have been done in an effort to control the process and possibly also in order to hear better. I note also that when the mother was upset following some questioning by Mr Cameron (C104/5), the judge asked if she had hankies and offered her a short break.

However, the judicial approach to Ms Toch’s cross-examination of father did cross that line on occasions.

Mr Phillips’ summary in his Schedule of the position with regard to the second day of Ms Toch’s cross-examination was that between C221 and C279 (which was essentially the end of it), it was difficult to find a single page where there had not been interventions by the judge. The fairness of a hearing cannot be assessed scientifically or mathematically but, seeking for some way in which to look at matters as a whole and to pin down impressions, I counted the entries against the names of the judge, Ms Toch and the witness in the first thirty or so pages of transcript of the resumed cross-examination, starting at the foot of C216 which was the nominal start of it. By the middle of C247, the judge had spoken 250 times, Ms Toch had spoken 227 times and the witness had spoken 140 times, only 64 of them in response to a question from Ms Toch. Between C251 and C258, there was quite a concentrated period of cross-examination, during which the judge spoke only 18 times. However, it was then a further nineteen pages before Ms Toch was able to cross-examine continuously again, although during those nineteen pages there was considerable questioning of the father by the judge, for example for three full pages between C259 and C261. Ms Toch resumed continuous questioning at the foot of C277 but at the foot of C279 Mr Cameron intervened to remind the court that a witness was waiting outside court and that was effectively the end of the cross-examination.

….

By C194, Ms Toch’s cross-examination had turned to the issue of who was the primary carer for G and, shortly thereafter, also incorporated questioning going to the father’s allegations about the mother drinking, about which he was seeking a finding of fact. The judge’s second prolonged intervention came in the course of this at C197 when she said to Ms Toch, “Are you going to ask him about these serious allegations that are being made?” and slightly later, “I am just wondering when we are going to start on the case that your client is making.” The judge then explored with counsel for some time, in the presence of the witness, what the underlying material was to support the mother’s case about gambling and domestic violence, wondering aloud to counsel “whether we are using the time efficiently” (C201). This passage ended with the father putting up his hand to contribute to the discussion and doing so at the foot of C201.
When Ms Toch resumed her cross-examination of the father the following day (C216), it is apparent that she was intending to deal with the question of domestic violence. I have already referred to the number of contributions made by the judge, Ms Toch and the father respectively during this period but I now return to look more closely at the nature of some of these, albeit that I will not go through every matter of complaint. It is perhaps relevant that the day began with the judge criticising both counsel over Mr Cameron having spoken to his client whilst he was in the course of giving his evidence. The criticism was first directed to Mr Cameron, whom the judge said she felt like reporting, but then widened to include Ms Toch as well because she was thought to have agreed to what Mr Cameron had done. The judge said that she would decide in due course what action she was going to take about this (C215).

By this point, the Judge was giving it both barrels to both counsel. Could it be argued that if a Judge is hostile to both parties, that any judicial bias evens itself out? Nice try…

As I have said, the fairness of a hearing cannot be assessed mathematically or scientifically. Nor is it dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel’s cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch.
It is necessary to look not only at the quantum of the judge’s interventions but also at their nature. As Mr Turner submitted on behalf of the father, a litigant does not have an unrestricted right to present a case in such a way as he or she or his or her lawyers may choose. A judge sometimes has no choice but to intervene during the evidence because of the nature of the questioning or in order to manage the use of court time (as the father would submit was necessary here). Furthermore, the interventions can sometimes be a help to counsel in his or her questioning rather than a hindrance

And so the appeal on unfairness was comfortably made out.

The Court of Appeal did try to soften the blow

Before I come to what I would see as the consequences of my conclusions, there are a number of things that need to be said. The first is that I am very much aware of the pressures that there are on the family justice system and upon the hard-pressed and very hard-working judges in the Family Court who must ensure that the court’s limited time is used to the best possible effect. This inevitably means that family judges have to manage hearings before them robustly and this requires intervention at times. The hand of fate, in this case in the form of the disruption caused by the storm, can sometimes make the judge’s task almost impossible. The second is that I am deeply conscious of the fact that the one person from whom this court has not heard is the judge, who would no doubt have had much that she could valuably have contributed to the evaluation of the process. I have done my best to make allowances for this and I have thought long and hard about which side of the line of fairness the hearing in this case fell. The third is that the case is not about Ms Toch and whether she was treated fairly, although she has been mentioned frequently in this judgment. It is about whether the mother was given a fair chance to put her case and Ms Toch was simply one means by which she sought to do so, hence the need to look at the exchanges between the judge and Ms Toch.
In my view, it would be a necessary result of my conclusions that the findings of fact made by the judge would have to be set aside. I would return the matter to the Family Court for there to be a directions hearing, in front of a judge other than Judge Pearl, to examine whether it is now necessary for new findings of fact to be made. It may not be, because the situation for this family has moved on considerably since the events with which we have been concerned. For this same reason, it is not necessary for me to go into the points taken against the orders made by Judge Pearl other than her findings of fact. They have all been overtaken by later orders or other developments.
I would therefore allow the appeal to the extent that Judge Pearl’s findings of fact are set aside and the matter is remitted to the Family Court for further directions.

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Posted in case law, fact finding, private law and tagged Court of Appeal, her honour judge pearl, judicial appointment is not a licence to be rude, judicial bias, judicial intervention, re G a child 2015. Bookmark the permalink.

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