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“You’re terminated… erm, Mister”

Posted on March 25, 2022 by suesspiciousminds

Oh, this is a DOOZY.

An application to terminate the appointment of a Guardian. Always interesting these, but always doomed to failure and the Court make sympathetic noises and assure everyone that no matter what they think the Guardian is independent and fair-minded and that perhaps a gentle smack on the wrist is all that is needed but the Guardian

Hold on, what?

The application was granted?

Now we’re in. Load up your sitting back and eating popcorn gif of choice (RIP Stephen E Wilihite), I like Jessica Fletcher myself. Let’s crack into it.

Care proceedings – there needs to be a sexual risk assessment of dad, LA propose that a social worker will do it. Dad’s lawyers email the LA and ask for details about the social worker’s experience in doing such an assessment. An answer was received. The father applied for an ISW, that application was adjourned.

So far, pretty normal. Dad was represented by a solicitor called Mr S. A senior partner at Mr S’s firm, Mr T also does care work. He does a lot of Guardian work, he represents the Guardian in other cases. The Guardian also has a surname beginning with T, so I’m going to just call him “Guardian” throughout. (all of the names are in the judgment, but that’s my scheme)

This again, is pretty normal.

After the hearing, the Guardian writes to Mr T. About this case. Which is not Mr T’s case. It is Mr S’s case, and Mr T is a senior partner at the firm.

That is NOT normal.

What does the Guardian say?

“further concerned that following the making of such application, father’s solicitor wrote to the Local Authority seeking to ascertain the professional competency of the Local Authority social worker, what skills and qualifications they had, what tools they would be using to assess father and whether they had the necessary acumen and experience to undertake a task which they considered to be sufficiently complex that only an ISW would have the necessary skills required to complete the report”

  1. GUARDIAN goes on to say that having considered the papers carefully himself he could not see the necessity for an independent social worker to assess the father in this matter.

He sets out his view that this is ‘the bread and butter work that social workers are specifically trained for’. He goes on to say:

“Therefore, I was very surprised that father’s solicitor should seek to undermine the competence of the social worker and argue that only someone with a significant level of experience in assessing sex offenders could undertake such a task.”

  1. GUARDIAN goes on to set out and expand his argument, in addition to the specific criticisms of the solicitor for the father and pointed out to Mr T the importance of accepting that social workers have significant expertise in relation to these matters.
  2. GUARDIAN then turns to his second point. This he says relates to “the actions of the solicitor”.

“I understand they sit on the Children’s panel and are deemed qualified to advocate on behalf of children. Like undertaking a parenting assessment is the bread and butter of social work, advocating in the Courts, presenting coherent arguments on behalf of those they represent and cross examining witnesses should be the staple diet of any practising solicitor. Further, any practising family law solicitor who is a member of the children’s panel should have that additional level of skill commensurate with the qualifications of the role. I was therefore rather concerned that having made a part 25 application to the Court for an Independent Social Work assessment, and further questioning the competence of the social worker undertaking an assessment of the father, the solicitor instructed Counsel to undertake this task on their behalf. It again concerns me that having questioned the competence of the social worker to undertake their role the solicitor appears to have abdicated their own role in this matter and asked someone else to present an argument to the Court for them”

  1. As can be seen, GUARDIAN is being critical of the solicitor instructed by the father for having briefed counsel. GUARDIAN suggests that was inappropriate, particularly, as in his view, the solicitor had questioned the competence of the social worker, but then had not argued that case himself at the hearing.
  2. GUARDIAN then elaborates on that by saying:

“This action by the solicitor reminds me somewhat of the old proverb “people in glass houses shouldn’t throw stones”. I don’t know the solicitor personally and cannot offer comment on their character. All I can do is observe their practise and comment on this if required. Given their qualifications and experience I would have expected that presenting an argument to support their case would have been nothing more than a run of the mill task for them. However, given their reluctance to undertake this task, and willingness to place that task into the hands of others, and their recent criticisms about the practise and expertise of the allocated social worker, I can’t help but think that in demonstrating an inability to undertake fundamental tasks relating to their own practise they are in no position to offer comment on the competence or ability of other professionals to do theirs.

WOW. Just wow.

Remember, this is the GUARDIAN, writing not to his own lawyer, but to a lawyer at the firm instructed by father, and not even to the father’s own lawyer but to someone senior at the firm. There is not a single bit of this that is okay.

Credit to Mr T, he immediately alerted the Guardian that he would have to share the email with the father.

The Guardian, instead of backtracking, doubles down with a further email to Mr T.

He set out that he accepted that it was the father’s right to make an application to the court for an independent social work assessment. He said that was not the issue that concerned him, but the issues:

“were in regard to criticisms made by his advocate regarding the qualifications and experience of the Local Authority social worker to complete a fair and balanced assessment without any supporting evidence, and my concern that whilst making such criticisms of others the advocate, who is a member of the Children’s panel, appeared to lack the competency to present their own argument to the Court. At the same time, I also recognise that in certain circumstances it is not possible for individuals to present matters to the Court on their own and occasionally they need to instruct others to act on their behalf”.

  1. He goes on to say that he accepted that the members of Mr Tamber’s team were all suitably qualified, but that “the competence of this particular individual, in my opinion, was questionable”.
  2. In his next paragraph he sets out that he will “continue to raise concerns of any advocate if they unfairly criticised the practice of others, including local authority social workers without good cause or justification”.

Now of course, if the Guardian doesn’t like Mr S and doesn’t rate him, he’s entitled to have that view, he’s entitled to not instruct Mr S, and if Mr T says “I’m too busy for the case i’ve just sent you, but Mr S can do it” the Guardian is entitled to say ‘no thanks, i’ll go elsewhere’. That would be fine.

What is NOT fine, SO not fine, is to be unhappy about the job a parent’s solicitor does, and write to their ‘boss’ to complain about it.

The father, understandably, felt that the Guardian’s view of him and his case was bound to be coloured by this very visceral reaction to what seems on the face of it to have been perfectly normal conduct by his solicitor – his solicitor quite properly asked the LA about the experience of their proposed assessor, took a view that an independent expert was needed and made the application. Mr S is totally blameless here.

So the application was made to terminate the appointment of the Guardian.

This ordinarily, would be the point at which, with the benefit of reflection and legal advice, the Guardian files a statement saying ‘sorry, it seemed appropriate at the time, but I now see that I wrote an email in haste and possibly ill-temper and I regret it, let’s all move past it and sing Kum-bye-ar together’ or words to that effect.

  1. In his statement filed for the court, in paragraph 20 GUARDIAN says, “I was surprised by this line of questioning by Mr S of the professional competence of the social worker without any supporting evidence about her practice”. In paragraph 30, he sets out that he makes no criticism of the barrister’s submissions at the hearing, but says this “my criticism was of the earlier action of father’s solicitor, Mr S, in his email to the local authority questioning the skills and competency of ND to undertake an assessment of father without any evidence to support his claims”.
  2. Later in that statement he also refers to Mr S having sought “to undermine the skills and competence of the allocated social worker”, and then at paragraph 38 refers to feeling that his actions were justified “in raising concerns about Mr S’s unfair criticism of the social worker which in my opinion needs to be addressed”.
  3. He does go on to say that “on reflection I realised that my criticism of Mr S may have been too harsh”, but then later in the same document at paragraph 44 states that in relation to this application it was brought because “I privately questioned the actions of Mr S with his senior in relation to his unfounded concerns about the professionalism and competency of the social worker to undertake an assessment of father. In doing so, Mr S sought to undermine confidence in the social work profession and the professionalism within it”.

Within GUARDIAN’s witness statement, he then says this “I also raised questions that given Mr S’s own level of experience, as he is a member of the children’s panel of solicitors, I was surprised that while seeking to undermine the skills and competence of the allocated social worker he had instructed an advocate to pursue his argument and make submissions to court rather than undertake this task himself”.

  1. At the conclusion of his witness statement he says “while seeking to undermine the competence of the social worker, Mr S demonstrated weaknesses in his own professional skill by not presenting his own case before the court and abdicating this responsibility to others”.

Although in the hearing, counsel for the Guardian attempted to row back from this statement and soften the position, the Judge pressed very hard as to what the Guardian’s specific instructions were, and ‘may have been too harsh’ was as far as it went.

My favourite moment is when the Local Authority, who were in full popcorn mode, suddenly find themselves pressed by the Judge to come off the fence from ‘well, it is all very troubling but…’ and into well, what do you say should the Guardian be terminated or not?

Very tricky – on the history of such allegations, the Guardian is probably going to stay in the case and then you have to deal with a Guardian who you supported in being thrown out of the case. As Omar Little says, “you come for the King, you best not miss”

They understandably when their feet were held to the fire by the Judge, went with the safe option of not supporting the termination of the Guardian.

The Judge decided otherwise (and good on them, I say)

In my view, on the facts of this particular case, the Guardian’s actions have fallen short of the degree of fairness required of him and have created unfairness for the father. They have also been manifestly contrary to the child’s best interests. His actions require the termination of his appointment. My reasons are as follows:

a)GUARDIAN is not only clearly and obviously wrong in the assertions that he makes in relation to the email, and against Mr S, but he has not been able to accept that he is wrong in relation to those. The fact that, in the face of overwhelming factual evidence showing that he is wrong, he maintains his views, and repeats them, inevitably has a significant impact not only upon the father’s views of the Guardian’ s action and analysis in this case, but upon all the other professionals working within this case, and the mother.

Despite the other ways in which the Guardian has undoubtedly acted quite properly in this case, and in many other cases, and I have balanced that, it does not appear to me that that mitigates the impact of the fact that not only is he wrong, but he does not accept that he is wrong. In my view, if GUARDIAN had been able to admit to the court that he had been in error in sending that first email, and the second email, in his witness statement or of course before that, there may have been a very different perspective to be placed upon his actions. Even if within the court hearing of this application, I had been told that he had been able to reflect and accepted he should not have acted in that way, it seems to me that there would probably have been a different view to be taken.

Professionals within these courts are currently acting under simply enormous pressure. Each of the advocates addressed me on the issue that people make mistakes, people send emails that they later regret, people reflect with the benefit of time and perhaps less pressure. That is however simply not the situation here. That fact goes to the ultimate confidence that the court and the other parties can have in the guardian’s ability to make fair and sound judgments and recommendations in this case.

b) GUARDIAN has not only made these inaccurate and unfair criticisms of Mr S, but he also made them in an inappropriate way by asserting and maintaining that he can do that by way of ‘private’ emails. As above, it appears that even having had the benefit of legal advice, GUARDIAN again does not accept he was in error in acting in that way. In my view that aspect creates an inevitable belief for both the mother and particularly for the father, that this is a Guardian who does not consider that the normal rules apply to him. Put simply, in these court proceedings, brought by the state to separate them (in their view) from their child, how could it be that a guardian acted in that way, and remained the guardian for their child. I can think of no way to rationalise that such that the parents could believe in the fairness of this process if this Guardian remained the person representing the interests of their son.

c) Just as in the Oxfordshire case, it also appears to me it would be impossible for the parents to be able to be open and straightforward in future discussions with the Guardian, as they could not possibly view his actions as other than worrying at best, or blatantly wrong at worst. To further the welfare interests of N , this Guardian must be able to build a relationship with the parents, engage them, and for them to believe that he will act fairly in representing their son. I cannot see how these parents could possibly believe that, or how this court could suggest to them they could build that sort of relationship with him. Such a relationship of openness and respect it appears to me is extremely important in these proceedings. Indeed, that was reason for the guardian to be removed in the Oxfordshire case, to encourage frankness on the part of the parents. GUARDIANS’s actions therefore again are manifestly not in the interests of the child given the situation that it seems to me must result.

d) I have considered the realities of what would happen in other respects if GUARDIAN remains the Guardian. I agree with Ms Lakin that this issue would permeate and impact upon every decision made going forwards in this case, and in my view that would inevitably be contrary to the child’s welfare. Given the findings that I have had to make in this case, every decision and recommendation that GUARDIAN makes in this case will be questioned not only by the parents, but the social work team may do so as well if he disagreed with them. That in my view once again shows a direct causal link between his actions, leading to potential unfairness in these proceedings. It shows how his actions have been manifestly contrary to the best interests of the child. In the event that the Guardian takes a stance at any final hearing contrary to the wishes of the parents, or even potentially the local authority, a substantial amount of time would be taken up cross-examining GUARDIAN about these issues. I accept that it may be by that point that GUARDIAN is prepared to concede that his actions were wrong, but he may not given his stance to date. Whichever it may be, it creates confusion, significant worry for the parents, and a real possibility of delay in the future. In my view it also creates a significant diversion of the proceedings from the welfare interests of the child, and again a causal link is shown.

e) If GUARDIAN remains the court appointed guardian, there is another significant factor. Given what has happened, if the court considers he should remain the guardian for N, the reality must be the father would surely believe that an extremely important person in these proceedings views his solicitor as not being competent. That places the father in a most unhelpful state of uncertainty of how that could come about. I cannot see how that is fair to him. I have considered how that could be explained to the father and concluded that there would simply be no logical way to do so, particularly as GUARDIAN has not resiled from his view. Again, that impacts directly upon the fairness of these proceedings, due to the father’s inevitable concerns about what or who is right.

f) Connected with that concern in relation to the father, if GUARDIAN remains N’s guardian, the father will consider in my view that he has been placed in the middle of a substantial argument between his solicitors and the guardian. As he puts in his statement, his concern would be that the guardian was not going to be fair to him and his case because of his representation. It is easy to see how a parent would struggle to draw a distinction. That cannot possibly be fair to the father. That leads to unfairness in these proceedings.

g) These aspects that I set out above are not the type of issue that can be remedied by cross examination at a final hearing.

h) I therefore conclude for all the reasons set out above that there is a real likelihood that the actions of the guardian will lead to unfairness in these proceedings as a whole

RE N (A Child) (Termination of Children’s Guardian) 2022

https://www.bailii.org/ew/cases/EWFC/OJ/2022/B16.html

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Application to dismiss a Guardian for bias

Posted on June 29, 2016 by suesspiciousminds

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

 

QS v RS & Another 2016

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

 

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

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

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

The Guardian’s position statement included the following :-

 

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

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

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

 

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

 

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

What’s the application in those circumstances?

 

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

 

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

(1) The court may –

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

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

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

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

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

 

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

 

 

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

 

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

 

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

 

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

.

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

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

 

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

 

https://suesspiciousminds.com/2014/04/04/guardians-are-not-a-neutral-party-and-dont-get-brownie-points/

 

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

 

DISCUSSION

 

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

 

 

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

Finally the Court said this :-

 

CONCLUSION

 

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

 

 

 

 

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