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

 

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.

 

  1. 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.
  2. 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.
  3. 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.

  1. 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.
  2. 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

 

  1. 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.
  2. 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.

 

….

 

  1. 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.
  2. 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…

 

  1. 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.
  2. 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

 

  1. 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.
  2. 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.
  3. 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.

Judicial bias

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 12th January 2003 and therefore now aged 11 years, and R, born 9th 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 28th 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 13th 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 3rd 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 7th 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 28th 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 13th 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 20th 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 20th 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 11th 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 11th 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 20th 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 20th 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 20th 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 20th 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 20th 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 20th 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 20th 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 20th 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 11th 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 20th 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.

 

 

 

The Local Authority do have to participate in an appeal against orders they applied for

 

I’ll start with this caveat – this judgment involves a neighbouring Local Authority, and also involves members of the bar who I know, and members of the judiciary that I appear before. Writing about it then makes it difficult, without risking injured shins, hurt glances or lost readership.

So with that in mind, I will dispense with my usual snarky attitude and just give the facts and the principles (this case does have a few important things in it, which prevents me from just skipping over it, as was my first instinct)

 

Re S (Children W &T) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/638.html

 

This involved a finding of fact hearing about some very grave allegations of sexual abuse made by a fourteen year old, which had in turn implications for whether two much younger children might be at risk. Those allegations were firmly disputed.  The Judge made the findings, and the mother and her partner (who was the subject of the findings) appealed.

The Court of Appeal begin (and end) with their views about the decision of the Local Authority not to participate in the appeal and to rather send in a document expressing that they were ‘neutral’.   The Court of Appeal did not like that.

 

 

  • Before moving on, I would note that the judge’s order was made in care proceedings brought by the West Sussex County Council, based upon allegations of serious sexual abuse of a 14 year old girl. In a “Position Statement” dated 24 February 2014, the Council stated that they had been kept regularly updated by the solicitors for the mother on the progress of the appeal. In paragraph 2 of that statement, the following is to be found:

 

 

“West Sussex County Council has regularly confirmed in correspondence with the parties that it maintains a neutral stance in relation to the appeal by the mother and father. West Sussex County Council provides this position statement to formally confirm [sic] to the court this neutral stance.”

At the end of the statement, it is said that the Local Authority will be happy to reconsider the question of representation at the appeal hearing “if the court expresses a wish for West Sussex County Council to be represented at the hearing”.

 

  • To my mind, this statement fundamentally fails to grasp what were the proper roles of the local authority and of the court respectively in these appeal proceedings.

 

 

 

  • Having taken the decision to present these allegations to the judge and having secured findings of fact broadly along the lines that it was seeking below, the least the Local Authority could have done would have been to attend before the court to ensure that the findings were not disturbed to the potential prejudice of the children in this case, who the authority had been contending were at risk from what they said had happened to another young girl at the hands of these parents. Non-participation was not an option. It was never the function of the court to advise the parties, still less to advise upon the obvious, namely that the presence of the local authority was required. That was why Ryder LJ’s order (with which no doubt the local authority had been served) had directed an “inter partes” hearing.

 

 

 

  • After the grant of permission to appeal, at a hearing without notice to the potential respondents, the Lord/Lady Justices of the court do not see the papers in the case until a constitution to hear the appeal is identified and the papers are delivered, a matter of days before the hearing, to the assigned judges. For my part, at that late stage on the court’s designated reading day, I was merely puzzled as to why there was no sign of participation from the local authority. For the future, for my part, I would hope that this type of insouciance on the part of local authorities will be avoided.

and at the end, from the President

 

 

  • My final concern relates to what, I am bound to say, was the quite astonishing attitude to the appeal evinced by the local authority. It was neither present nor represented before us. Even more surprisingly it filed a remarkably perfunctory position statement which, without condescending to particulars, simply announced that “it maintains a neutral stance in relation to the appeal” and “in light of its neutral stance … has chosen not to file/serve a Respondents Notice.” I do not understand what the local authority thinks “neutrality” means. A guardian may on occasions, as indeed in the present case, appropriately maintain a stance of neutrality in relation to a fact-finding hearing. The guardian, after all, is not setting out to make a case and prove facts. The local authority, in contrast, had commenced the proceedings, had decided to make a number of allegations – as it happens very serious allegations – and had succeeded in persuading the judge that most of them were proved. How in the circumstances could the local authority be neutral? Had it suddenly become indifferent to the outcome? Surely not. The consequence is that the court was deprived of any assistance by way of response. Even if, in order to conserve taxpayers’ money (as the position statement said), it was appropriate not to send an advocate to attend the hearing, written submissions resisting the appeal and setting out, even if fairly briefly, why it was being said that the appeal should be rejected would surely have been of assistance. I add these observations by way of supplement to what McCombe LJ has already said on the point, comments with which I entirely agree.

 

 

Thus, principle number 1 of the case – Local Authorities need to play a part in the appeal as a respondent, whether they desire to or not.

 

Principle number 2 – we have a repeat of the clear message that fact-finding hearings are politely discouraged

 

 

  • My first concern relates to the decision that there should be a separate fact-finding hearing. I make no criticism of those involved, who were conforming with what was then understood to be appropriate practice. But for the future judges and practitioners considering the use of a separate fact-finding hearing in a care case must bear in mind the current approach, which is to discourage their use except in a relatively limited group of cases. In Re S, Cambridgeshire County Council v PS and others [2014] EWCA Civ 25, Ryder LJ made clear, para 29, that a split hearing in a care case will usually be appropriate only in either “the most simple cases where there [is] only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made” or “the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child.” He went on, “For almost all other cases, the procedure is inappropriate.” I agree. This is not the kind of case in which, in future, a split hearing should be ordered.

 

 

[I’m sorry, I have tried to do whatever the typing equivalent of biting your tongue is, but I  am struggling]

 

Principle number 3 – a reminder of the importance of complying with Court orders – in this case, the  order made that the Local Authority should produce and lodge for judicial approval a schedule of the findings that were made did not happen. That left the Court of Appeal looking at a schedule of findings that were the draft findings sought, and not a schedule of what the Court had actually found.

 

The simple fact is that, even now, the court’s order has not been complied with. Yet worse, there is, even now, no authentic, definitive, record of precisely what findings the judge made. This is simply shocking. It is, I regret to say, yet another manifestation of a deeply rooted culture in the family courts which I had occasion to condemn in Re W (A Child), Re H (Children) 2013] EWCA Civ 1177, paras 50-51: “the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts.” Despite our inquiries, I was left wholly unclear as to how this deplorable state of affairs had been allowed to persist for so long. It must be remedied without delay: the parties as soon as possible must put before the judge for her approval an agreed schedule of the findings she made. For the future, there must be no repetition.

 

Principle number 4 – the appeal turned in large part on the appellant’s claim (which was rejected) that the Judge in her interventions had ‘descended into the arena’

 

The lead case on this, as we know, is Jones v National Coal Board, way back to Lord Denning’s time.

And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see Reg. v Clewer. The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that : “Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.”

………

…..[I]t cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return.”

 

 

The shorthand for this is usually, has the Judge descended into the arena and started to participate in the litigation, rather than asking such questions as are needed for clarification.

The Court of Appeal in this case were clear that this Judge had not stepped over that line, but do add that where the witness being asked questions is vulnerable, it may be that a Judge has more leeway with the nature and type of interventions than with other witnesses.

 

The Court also suggest that as part of the new culture, Judges might well be more active in the proceedings than would have been at the time of Jones. But that if a Judge does overstep the mark, the Court of Appeal would intervene.

The first concerns reliance on Jones v NCB. That was a very extreme case on the facts. Moreover, since 1957 when that case was decided there has been a culture change in the conduct of litigation. More attention is now given to the criteria of proportionality, expedition and the allocation of an appropriate share of the court’s resources to any individual case. This is true both of civil litigation (see CPR Part 1.1) and family proceedings (see FPR Part 1.1). One of the corollaries of this new culture is that a judge is expected to take a more active part in the proceedings than would have been the case half a century ago: see Jemaldeen v A-Z Law Solicitors [2012] EWCA Civ 1431; [2013] CP Rep 8. That said, if a judge does overstep the mark, even in a family case, this court will intervene. Thus in Re J (A child) [2012] EWCA Civ 1231; [2013] 1 FLR 716 counsel was prevented from pursuing a line of relevant cross-examination. She rightly objected to the judge that she was being denied the opportunity to put her client’s case, but the judge did not accede to her objections. This court ordered a new trial.

 

This development is likely to crop up again, as one can see from reading paragraph 28 of the new Practice Direction 12J (dealing with fact-finding hearings in private law proceedings) to reflect the reality that in a post LASPO world, we are likely to have unrepresented parties cross-examining one another

http://www.familylaw.co.uk/system/uploads/attachments/0008/5109/PD12J.pdf

 

The relevant portions being:-

 

“Victims of violence are likely to find direct cross-examination by their alleged abuser frightening and intimidating, and thus it may be particularly appropriate for the judge or lay justices to conduct the questioning on behalf of the other party in these circumstances , in order to ensure both parties are able to give their best evidence”

 

That guidance does not refer to the principles in Jones v NCB, but they would probably be worth referring to before such an exercise occurred. It seems that this is likely to be a particularly difficult balancing act. As we know, in any finding of fact hearing, at least one party walks away unhappy, and if they are unhappy about the way the Judge conducted that questioning (either too harsh, or too soft, too long or too short) an appeal might well arise.

 

Principle 5 – there were a number of matters about the conduct of the hearing that the appellants sought to rely on, and each of those was quashed by the Court of Appeal, largely on the basis that applications were not made AT THE TIME about whether this particular course should or should not be followed. You do run the risk, if you bite your tongue and press on regardless, of not being able to rely on those case management decisions made by a Court in a later appeal.

 

 

 

“How’s that?”

When does judicial intervention cross the line into being improper and showing bias?

I recently read a very good piece on Lawtel  [other law reporting websites are available]  written by Stephen Gerlis, reporting on the Court of Appeal case ofHadi Jemaldeen v A-Z Law Solicitors 2012

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1431.html 

 As the piece is behind a paywall, and about a civil case, the issues probably won’t have come to everyone, so I thought it was worthy of a discussion in the family law context – with a nod of the hat to Mr Gerlis for his originating piece.

 The importance of the case is that the appeal hinged on whether the Judge who had heard the case had overstepped the mark when exercising control of the questions and posing his own questions, such that the appellant considered him to have been biased.

This led the Court of Appeal to run through the authorities on judicial interventions, and as we are about to embark on a brave new world of litigants in person (whether they wish to be or not) this may be an issue that crops up from time to time. It is that consideration of where the line is drawn that is potentially of interest.

I liked this quotation from Lord Denning (hence the title)

 “The Judge is not a mere umpire to answer the question “How’s that?” His object, above all, is to find out the truth, and to do justice according to law”.

 

 That authority is from Jones v National Coal Board [1957] 2 QB 55.  and the temptation to be able to quote a case about the National Coal Board AND Lord Denning in any family case is almost overwhelming.  We don’t get much opportunity to crowbar Lord Denning into family law cases.

 

[The only thing I am more tempted to say in Court, which I duly resist every time is “Does Magna Carta mean nothing to you? Did she die in vain? ” ]

 The Court of Appeal set out that the test, when looking at how the Judge managed the trial/hearing is

 

  1. 20.   “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.”

Which principle is derived from the House of Lords in Magill v Porter [2001]UKHL 67, [2002] 2 AC 357.

 Going back to the Coal Board case (and why wouldn’t we?)

 

  1. In pursuit of that fundamental objective the judge is not required to sit silent as the sphinx. Appropriate intervention while a witness is giving evidence, even while the witness is being cross-examined, is not merely permissible but may be vital. As Denning LJ put it (page 63):

“No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence, he took them up himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries.”

He continued (page 64):

“The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate”.

  1. So there is nothing objectionable, for example, in a judge intervening from time to time to make sure that he has understood what the witness is saying, to clear up points that have been left obscure, to make sure that he has correctly understood the technical detail, to see that the advocates behave themselves, to protect a witness from misleading or harassing questions, or to move the trial along at an appropriate pace by excluding irrelevancies and discouraging repetition. Indeed, it is, as Denning LJ recognised (page 65) his duty to do so.

 

 

So the Judge can appropriately ask questions to clarify, or to check that she has understood, she can prevent inappropriate questions being asked, and she can tell everyone to get a move on once the point has been explored sufficiently.

 

What CAN’T the Judge do? She must not ‘descend into the arena’

 

  1. But there is, of course, a difficult and delicate balance to be held. The judge must not, as it is often put, descend into the arena. Denning LJ referred (page 63) to Lord Greene MR, who in Yuill v Yuill [1945] P 15, 20, had:

“explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict”.

Denning LJ continued (page 64) that it is for the advocate to make his case;

“as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost.”

 

 

Where the interventions can potentially overstep the mark is during cross-examination.   [Back to the Coal Board again  – underlining my own]

 

Now, it cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return .”

 

And as, much like Marty McFly, we are no longer in the Fifties, the Court of Appeal added this

one of the changes in civil litigation since 1957, when Jones v National Coal Board was decided, is that more attention is now given to the criteria of proportionality, expedition and the allocation of an appropriate share of the court’s resources to any individual case: CPR Part 1.1. An advocate can no longer expect to have unlimited time in which to conduct his cross-examination

 

[And towards the end, the Court of Appeal refer to a recent family case Re J (A child) [2012] EWCA Civ 1231  in which the Judge’s interventions and curbing of cross-examination prevented the matters which went to the very heart of the case being put, and which did end up overturning the original decision]

 As this was a civil case, the decision eventually reached on the case before the Court of Appeal isn’t that important, but you can probably guess from this brief extract from the original trial transcript (Professor Rees being the appellant saying that the Judge had unfairly interrupted him) what the end result of the Appeal was 

THE RECORDER: I am interrupting your cross-examination.

PROFESSOR REES: No, it is very welcome, your Honour.

THE RECORDER: You had better ask the questions you want to ask.

PROFESSOR REES: Okay. Thank you, your Honour. But it is helpful to have these interventions, if I may say so, because ultimately your Honour has to decide this case and …

THE RECORDER: Well, if you put a document in which nobody has opened on, the witness has never see before, it is fairer for him and for me to try and work out what this document is supposed to be telling us all.

PROFESSOR REES: Absolutely, yes …”

 

[Hint, if you are going to claim in an appeal that a Judge unfairly interrupted you, don’t at the time, tell the Judge that the interventions are helpful and very welcome]