I’m going to write about the appeal reported on Friday which revolved around judicial misconduct. I’ve been beaten to it by both Pink Tape and Civil Litigation blog here http://www.pinktape.co.uk/rants/judicial-conduct-what-about-the-context/ and here https://www.civillitigationbrief.com/2019/10/25/appeal-allowed-when-the-trial-judge-overstepped-the-line/ respectively.
So I’m not going to go into as much detail on the background as they do. Their pieces are both very good, so read those when you’re done.
C (A Child) (Judicial Conduct)  EWFC B53 (16 October 2019)
A District Judge (DJ Mian) in Birmingham decided a care case after a 5 day final hearing. The Judge granted an placement order for the child, M, who was 1. M had an older sibling, N, who was already the subject of a Care Order (to a different Local Authority) and was in residential care though possibly moving to a grandmother in due course.
At the hearing, the parents accepted that they could not care for M. The only options were adoption or placement with the grandmother. The placement with the grandmother was complicated, because it depended in part as to whether N was going to go to live with her.
The judgment was 38 pages and very detailed. The Judge hearing the appeal, HHJ Rogers (one of the most courteous barristers I’ve ever met, a really lovely man) noted that the judgment was thoughtful and careful and
The legal exposition, read in isolation, could not possibly support an arguable case that there was a misdirection.
The appeal, however, was largely based on judicial misdirection that the Judge had really been deciding about the plan for M whilst thinking too much about the plan for N (a child with whom she was not charged with considering) and judicial misconduct.
In essence, the Guardian had been saying at final hearing, you shouldn’t rule out placing M with the grandparents just because N is going there, because N has problems that might mean the plan to put him with grandparents never happens.
- In the course of the Guardian’s examination in chief the Judge intervenes (E222):
- “No, there are two things going on here and this is what has, forgive me, with the greatest respect, seems to have, confused the front bench completely. There are two things going on here. One is the actual plan for N and that is to return home. And there were several attempts to go behind that plan which I have fairly robustly drawn an end to on the basis that you cannot go behind that plan. There are three ways of looking at it. The second is the reality and, as I said to everybody, in particular the grandparents, they may be absolutely right that N never comes home. But because we have the plan for him nobody can say that with any certainty.”
- Mr Bainham submits, in my judgment, with great force that if the Judge herself acknowledged the uncertainty of the situation, it was wrong of her to assume the absolute position of the care plan without exploring the contrary and worse it was wrong of her to shut down and ultimately extinguish argument on the point. The explanation, he submits, is that the Judge became distracted by N’s position to the point where she felt it her responsibility to promote it over M’s. In my judgment, there are many examples in the evidence of the Judge’s approach becoming less focussed on M’s welfare than it should. At E230, the Judge intervenes in the questioning of the Guardian again and in a lengthy passage she speaks of “competing plans” and sets out forcefully the implications for N if his plan is overridden. Later at E242, still ostensibly in the course of the Guardian’s examination in chief and clearly exasperated the Judge says:
- “No. No. No. Oh my God, I am sorry. I am sorry. I am really sorry. I am going to try one more time and then we are just going to carry on with the hearing. I do not know how many ways in which to say this. I cannot interfere with N’s plan.”
- The difficulty with that interjection, as Mr Bainham submits, is that no party was suggesting the Judge could or should interfere with the plan. Simply she was being asked to bear in mind the reality that there was credible evidence (counsel refers to it in his Skeleton Argument in detail) that the likelihood was that the plan would never be implemented.
[By the time the appeal came about, the LA responsible for N had changed their plan from placement with grandparents to accepting that his needs were such he needed to stay in residential care – the outcome posited by the Guardian and rejected by the Judge had come to pass]
However, more than this, it appears that the Judge just became increasingly exasperated by the position of the Guardian and was unafraid of showing it.
- It is axiomatic that a trial should be fair. That is at the heart of our system, is common sense and is enshrined, in any event, in Article 6. Fairness does not mean that a Judge should indulge every point and should never intervene to clarify or curtail as appropriate. Care proceedings can quickly become unwieldy with large amounts of unnecessary or marginal material in documentary form. Issues are often imprecisely defined so that analysis becomes vague, repetitive or incoherent. It is the Court’s duty to identify the key issues and to focus attention on them. Oral testimony can easily become unfocussed with a mixture of fact, assertion and opinion. Time estimates can become quickly untenable if a firm hold is not maintained. In short, the need for firm case and trial management is not only desirable but essential.
- In every case there is a line which should not be crossed. It is difficult, in advance, to identify the precise position of that line but it may be easy to see when it has been crossed.
- The criticism of the Judge is really two-fold. Not only, it is said, she shut down consideration of a central issue rendering it impossible to have a fair hearing but, further, that her conduct of the hearing and her own demeanour in Court made the atmosphere so difficult that all of those involved in the process were prejudiced.
- I have already dealt extensively with the Judge’s erroneous approach, as I have found it, to the central issue. She effectively prevented a proper debate. By intervening as she did, she distracted everyone from the proper focus. Even if she had her misgiving about the relevance or practicality of the discussions, she should, in my judgment, either have held back expressing a concluded view until her judgment or resolved the matter, subject to appeal rights, at an interlocutory stage. What actually happened was the worst of all possible worlds as the point was debated over and over, mainly by the Judge and Ms Hobbs, with no satisfactory resolution.
- Of much more worrying effect are the criticisms of the Judge’s demeanour. I do not regard it as necessary or fruitful to read significant amounts of the transcript into this judgment. In her Grounds of Appeal Ms Hobbs refers expressly to the Judge’s improper conduct as being exemplified by “blasphemous words, shouting, storming out of Court and general intemperate behaviour”. In the course of her submissions and with reference to the transcript, she also referred to sarcasm, the Judge shaking with rage, the Judge turning her chair away from the Court and sitting with her back to everyone for several seconds, mimicking the advocate’s words and to intimidating the Guardian.
- I could analyse each of the matters referred to but need not as, sadly, I am satisfied they are all well-founded. I myself listened to the recording and heard, with dismay, the anger and tension in the Judge’s voice. I also heard her banging her desk. Her exchanges with Ms Hobbs were sharp and substantially inhibited counsel from doing her job.
- The Judge’s frustration, to use a mild word of description, seems to have stemmed from her view that the Guardian’s analysis was non-existent or deficient. The Judge felt that the Guardian had not grappled with the central issue of the case, namely the interplay of care plans. Whether this is right or wrong, Ms Hobbs submits that her treatment of the Guardian was unacceptable. The matter came to a head when the Guardian gave her evidence. The Judge permitted examination in chief but then effectively prevented counsel from conducting it. It was, in my judgment, wholly unsatisfactory and degenerated into a critique of the Guardian’s perceived failure of approach. Perhaps a good example of what went wrong is to be found at E245-247. Over the course of those 3 pages the Judge effectively cross-examined the Guardian as if she were representing another hostile party. In my judgment, there and in many places elsewhere the Judge went far beyond clarification or amplification and descended into the heart of the arena.
- In her judgment (A33, para 135), the Judge records the Guardian’s recommendation as a final care order and placement order. That is in contrast to paragraph 134 where she said she stood by her recommendations. In my judgment, it is clear that the Guardian was inhibited from explaining her position fully because of the Judge’s apparent hostility. In the end the Judge stated (A41, para174) that “I do not take into account the evidence of the Guardian”. Read literally that is a clear error. Even if she does not precisely mean what she appears to say, she plainly discounted the view of the Guardian. I am driven to the clear conclusion that, ironically, the quality of the Guardian’s evidence was severely diminished by the Judge’s own interventions.
- Family proceedings should not be unnecessarily adversarial. One important function of a Judge, in a quasi-inquisitorial jurisdiction, is to help the witnesses give their evidence in a clear and unflustered fashion. Of course, points can be questioned and tested but not, in my judgment, to an extent that a witness is unable properly to fulfil his or her role. This, it seems to me, is all the more so in care proceedings when a Guardian is trying to explain her professional view to the Court. Here, Ms Hobbs reported that the Guardian felt considerably stressed and upset to the extent that her answers towards the end of her evidence became flat and virtually mono syllabic. It seems to me that the transcript broadly bears that out.
Just to repeat the key passage here
“blasphemous words, shouting, storming out of Court and general intemperate behaviour”. In the course of her submissions and with reference to the transcript, she also referred to sarcasm, the Judge shaking with rage, the Judge turning her chair away from the Court and sitting with her back to everyone for several seconds, mimicking the advocate’s words and to intimidating the Guardian.
I think over the course of a long career in Court, everyone has the experience of inadvertently exasperating or irritating a Judge and it always makes you feel dreadful. I had a time practising in the West Midlands, and there were certainly Courts in Birmingham where I would feel apprehensive, nervous and sometimes physically unwell before going in, knowing that the judicial style amongst certain Judges was overly robust (for those who know, the words “Humpty Dumpty” will ring vividly in the memory) so advocates in Birmingham don’t tend to be thin skinned, but this is unspeakable and unacceptable.
[In another part of the country and a very long time ago, I’ve had a Judge throw volume 2 of Hershman’s at me during a hearing. It is quite a thick volume, in a hard cover. Thankfully he missed and it hit my completely innocent opponent]
The grandparents, who were in person during the hearing, were rightly appalled by what was happening.
- Equally worrying is the letter that the grandparents sent to the Guardian before judgment was delivered which is reproduced at A53. I suspect the grandparents anticipated the probable outcome of the case, but I get no sense that the letter was written with any ulterior motive or to gain strategic advantage. The material passages read:
- “1. I would like to recognise and give thanks for the care and consideration we received from Judge Mian whilst dealing with us personally throughout the week. However, we found the rest of the hearing highly distressing.
3. I wish to object to the constant barrage of interruptions aimed at professional witnesses and barristers questioning them………This in my mind brings into question the impartiality of the proceedings.
4. The way the Children’s Guardian was questioned by the Judge for most of the day was in my view very wrong and particularly harrowing for both her and us. This seems particularly unprofessional.”
- This letter encapsulates the tragedy in this case. I have no doubt that the Judge was desperately trying to move a difficult case forward. I am sure she believed that the family members and the Guardian had missed the point about N’s care plan and hoped to persuade them to see the reality as she perceived it. I am also sure, as the Judge said more than once and as the grandparents seem to have appreciated, that she had nothing but sympathy for their position. Yet, by the insistence of her position and her apparent refusal to listen to the contrary arguments before making a reasoned judgment, she not only derailed the substance of the hearing but created an atmosphere where completing a fair hearing became impossible. She seems to have alienated even those whom she sought to praise and encourage.
Counsel for the Guardian had attempted, during the hearing to draw attention to the problem that was developing, but was given short shrift. (Has anyone ever been given ‘long shrift’? I wonder idly)
The difficulties surrounding this hearing must have been obvious. It is of significance that they were mentioned explicitly. At E247 Ms Hobbs says “Madam, if I am frank, I am a little concerned about the atmosphere in the Courtroom. I really am and I do not know………”. The Judge intervenes; “Well, please do not be.” Later, Mr Bainham, although acting for the mother, informs the Judge on behalf of the unrepresented grandmother, who he has been told is highly distressed and will not re-enter the room, at E265
The Local Authority stance at the appeal was of interest
Birmingham City Council (LA B) takes a more nuanced approach. But for the factual change of circumstances, to which I will turn, it would have been inclined to resist the substantive appeal. As to the procedural appeal, it indicated it preferred to make no detailed submissions, adopting a broadly neutral position. I expressed mild surprise at that stance but, upon reflection, having heard Ms Julyan SC explain the sensitivities and importance of the working relationship between LA B and the Court, I understand why it does not wish to associate itself proactively with the more severe criticisms of the Judge’s conduct of the case.
The appeal was granted, the Judge would have directed a re-hearing, but because the position with N had changed, by the time of the appeal the LA were no longer seeking a placement order for M and thus the plan became placement of M with the grandparents. So a happy ending.