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.