APPEAL ALLOWED WHEN THE TRIAL JUDGE OVERSTEPPED THE LINE

In C (A Child) (Judicial Conduct) [2019] EWFC B53 HHJ Rogers allowed an appeal in a family case.  The unusual aspect of the appeal was that the main issue was the conduct of the trial judge and the appeal on this issue was upheld.

“I would simply say that it is a fundamental tenet of fairness to listen carefully to the competing arguments before coming to a firm decision.”

THE CASE

A District Judge had heard an application in relation to the future of a child.  She made an order for a placement order.  Several of the parties appealed.  One central issue was the behaviour of the judge during the hearing.

THE JUDGMENT ON THE CONDUCT OF THE DISTRICT JUDGE

HHJ Rogers considered the decision, and a change in position which led to a different order being made.  He then considered that part of the appeal that related to the District Judge’s conduct of the hearing.
    1. The Judge’s conduct of the hearing has been the subject of sustained criticism by Ms Hobbs. She, as counsel, understandably told me it was a most uncomfortable position to be in. Nonetheless, she pursued her points fearlessly with the considerable support of Mr Bainham and the lay parties.
    2. Recognising the potential sensitivity, the Designated Family Judge for Birmingham, Her Honour Judge Thomas, directed at an early stage that the appeal should be conducted by another DFJ on the Midland Circuit but at a Court distant from Birmingham and by a Judge without any significant day to day working relationship with the District Judge. Also, the slightly unusual direction that the digital recordings should be made available was given. Those were, in my judgment, prudent precautions in order to achieve absolute fairness and transparency in the appellate process. That notwithstanding, I have not found it easy to scrutinise critically a colleague’s approach to a difficult case such as this.
    3. It is worth remembering the pressures under which the judiciary at all levels operates. Public law or care work is enormously important and difficult. Family Judges, at all levels, make life changing, profound decisions in relation to children on a virtually daily basis. Very often the subject matter underlying the cases is grim, highlighting the worst in human nature. The relentless and gruelling nature of the work for all involved, including Judges, can take its toll. My experience, however, is that there is not a single Judge or Magistrate undertaking this work whose aim is not to improve the lot and future of the child or children in question.
    4. The goal of any case is to arrive at the just outcome fairly. Case management and, in particular, trial management depend upon the particular facts of each case. Naturally, the range of different situations is infinite. A useful starting point is the Overriding Objective in Part 1 of the Rules. It is a code to deal with “cases justly”, no more, no less. The items in Rule 1.1 (2) are examples of how to achieve the objective. There are, of course, internal tensions. Expedition, proportionality, equality of footing, savings and allocation of resources are imprecise and plainly import the Court’s value judgment on a case by case basis. It is very rare for an appellate Court to interfere with a discretionary decision as to how to progress a case through a hearing. The discretion is very broad and is normally best entrusted to the trial Judge.
    5. It is axiomatic that a trial should be fair. That is at the heart of our system, is common sense and is enshrined, in any event, in Article 6. Fairness does not mean that a Judge should indulge every point and should never intervene to clarify or curtail as appropriate. Care proceedings can quickly become unwieldy with large amounts of unnecessary or marginal material in documentary form. Issues are often imprecisely defined so that analysis becomes vague, repetitive or incoherent. It is the Court’s duty to identify the key issues and to focus attention on them. Oral testimony can easily become unfocussed with a mixture of fact, assertion and opinion. Time estimates can become quickly untenable if a firm hold is not maintained. In short, the need for firm case and trial management is not only desirable but essential.
    6. In every case there is a line which should not be crossed. It is difficult, in advance, to identify the precise position of that line but it may be easy to see when it has been crossed.
    7. The criticism of the Judge is really two-fold. Not only, it is said, she shut down consideration of a central issue rendering it impossible to have a fair hearing but, further, that her conduct of the hearing and her own demeanour in Court made the atmosphere so difficult that all of those involved in the process were prejudiced.
    8. I have already dealt extensively with the Judge’s erroneous approach, as I have found it, to the central issue. She effectively prevented a proper debate. By intervening as she did, she distracted everyone from the proper focus. Even if she had her misgiving about the relevance or practicality of the discussions, she should, in my judgment, either have held back expressing a concluded view until her judgment or resolved the matter, subject to appeal rights, at an interlocutory stage. What actually happened was the worst of all possible worlds as the point was debated over and over, mainly by the Judge and Ms Hobbs, with no satisfactory resolution.
    9. Of much more worrying effect are the criticisms of the Judge’s demeanour. I do not regard it as necessary or fruitful to read significant amounts of the transcript into this judgment. In her Grounds of Appeal Ms Hobbs refers expressly to the Judge’s improper conduct as being exemplified by “blasphemous words, shouting, storming out of Court and general intemperate behaviour”. In the course of her submissions and with reference to the transcript, she also referred to sarcasm, the Judge shaking with rage, the Judge turning her chair away from the Court and sitting with her back to everyone for several seconds, mimicking the advocate’s words and to intimidating the Guardian.
    10. I could analyse each of the matters referred to but need not as, sadly, I am satisfied they are all well-founded. I myself listened to the recording and heard, with dismay, the anger and tension in the Judge’s voice. I also heard her banging her desk. Her exchanges with Ms Hobbs were sharp and substantially inhibited counsel from doing her job.
    11. The Judge’s frustration, to use a mild word of description, seems to have stemmed from her view that the Guardian’s analysis was non-existent or deficient. The Judge felt that the Guardian had not grappled with the central issue of the case, namely the interplay of care plans. Whether this is right or wrong, Ms Hobbs submits that her treatment of the Guardian was unacceptable. The matter came to a head when the Guardian gave her evidence. The Judge permitted examination in chief but then effectively prevented counsel from conducting it. It was, in my judgment, wholly unsatisfactory and degenerated into a critique of the Guardian’s perceived failure of approach. Perhaps a good example of what went wrong is to be found at E245-247. Over the course of those 3 pages the Judge effectively cross-examined the Guardian as if she were representing another hostile party. In my judgment, there and in many places elsewhere the Judge went far beyond clarification or amplification and descended into the heart of the arena.
    12. In her judgment (A33, para 135), the Judge records the Guardian’s recommendation as a final care order and placement order. That is in contrast to paragraph 134 where she said she stood by her recommendations. In my judgment, it is clear that the Guardian was inhibited from explaining her position fully because of the Judge’s apparent hostility. In the end the Judge stated (A41, para174) that “I do not take into account the evidence of the Guardian”. Read literally that is a clear error. Even if she does not precisely mean what she appears to say, she plainly discounted the view of the Guardian. I am driven to the clear conclusion that, ironically, the quality of the Guardian’s evidence was severely diminished by the Judge’s own interventions.
  1. Family proceedings should not be unnecessarily adversarial. One important function of a Judge, in a quasi-inquisitorial jurisdiction, is to help the witnesses give their evidence in a clear and unflustered fashion. Of course, points can be questioned and tested but not, in my judgment, to an extent that a witness is unable properly to fulfil his or her role. This, it seems to me, is all the more so in care proceedings when a Guardian is trying to explain her professional view to the Court. Here, Ms Hobbs reported that the Guardian felt considerably stressed and upset to the extent that her answers towards the end of her evidence became flat and virtually mono syllabic. It seems to me that the transcript broadly bears that out.
    1. The difficulties surrounding this hearing must have been obvious. It is of significance that they were mentioned explicitly. At E247 Ms Hobbs says “Madam, if I am frank, I am a little concerned about the atmosphere in the Courtroom. I really am and I do not know………”. The Judge intervenes; “Well, please do not be.” Later, Mr Bainham, although acting for the mother, informs the Judge on behalf of the unrepresented grandmother, who he has been told is highly distressed and will not re-enter the room, at E265;
“I think, madam, she also found that there was a lot of interruption of witnesses, a lot of interruption of the advocates. She found that difficult to deal with and I regret to say that she also told me that she thought it was unprofessional that there were certain outbursts from the judge which she found unprofessional.”
    1. Equally worrying is the letter that the grandparents sent to the Guardian before judgment was delivered which is reproduced at A53. I suspect the grandparents anticipated the probable outcome of the case, but I get no sense that the letter was written with any ulterior motive or to gain strategic advantage. The material passages read:
“1. I would like to recognise and give thanks for the care and consideration we received from Judge Mian whilst dealing with us personally throughout the week. However, we found the rest of the hearing highly distressing.
3. I wish to object to the constant barrage of interruptions aimed at professional witnesses and barristers questioning them………This in my mind brings into question the impartiality of the proceedings.
4. The way the Children’s Guardian was questioned by the Judge for most of the day was in my view very wrong and particularly harrowing for both her and us. This seems particularly unprofessional.”
  1. This letter encapsulates the tragedy in this case. I have no doubt that the Judge was desperately trying to move a difficult case forward. I am sure she believed that the family members and the Guardian had missed the point about N’s care plan and hoped to persuade them to see the reality as she perceived it. I am also sure, as the Judge said more than once and as the grandparents seem to have appreciated, that she had nothing but sympathy for their position. Yet, by the insistence of her position and her apparent refusal to listen to the contrary arguments before making a reasoned judgment, she not only derailed the substance of the hearing but created an atmosphere where completing a fair hearing became impossible. She seems to have alienated even those whom she sought to praise and encourage.
  2. Examples of Judges overstepping the mark appear in the authorities. It is impossible and would be wholly unwise to be prescriptive as to what conduct and words are or are not acceptable. There is no advantage in a Judge of Circuit Judge level, sitting in that capacity, to seek to lay down rules or give guidance. I would simply say that it is a fundamental tenet of fairness to listen carefully to the competing arguments before coming to a firm decision.
  3. In Re A (Children) [2015] EWCA Civ 133 the Court of Appeal allowed an appeal against a decision of a Circuit Judge whose interventions were premature and whose language was intemperate. The consequence in the view of Lady Justice King was to leave the advocates feeling browbeaten and impotent. Lord Justice Aikens’s criticism of the Judge’s approach was even more pointed. The Court found the Judge’s conduct to be a serious procedural irregularity.
  4. Similarly, in Re B (Children) [2017] EWCA Civ 1635 the Court of Appeal allowed an appeal against a Deputy Circuit Judge, characterising his approach as interventionist and his tone as unnecessarily adversarial. Lord Justice McFarlane, giving the leading judgment, indicated that it would have been preferable had the Judge allowed the parties to get on and ask their questions.
  5. Each of these cases depends upon the individual factual context but are indicative of conduct which can, on occasion, overstep the line, even allowing a generous margin of discretion in the management of trial procedures.
  6. Re B is also useful in describing the role of the advocate in these difficult circumstances. In paragraph 31 of the judgment Lord Justice McFarlane makes clear that there is an onus upon the advocate to stand up for his or her case and, at least, to get over the central points, however resistant might the Judge be. In this case, Ms Hobbs tried hard to explain the Guardian’s position, ultimately to no avail. Even in the final submissions, from E 299 onwards, the predominant speaker is the Judge, appearing to challenge Ms Hobbs almost line by line.
  7. As I said earlier, with the benefit of hindsight, it would have been wise for counsel to have asked the Judge to give a formal ruling on relevance or admissibility rather than allow the point to appear again and again in the unstructured way it did. Had that happened the Judge would have had to focus on the point and, even if she ruled against counsel, the hearing could have continued in an orderly fashion, with the Guardian’s appeal rights reserved and protected. I realise that such a course might not easily have been pursued in the prevailing atmosphere.
  8. In short, looking at the whole picture, I am quite satisfied that the Judge on this occasion crossed the line and that the hearing amounted to a serious procedural irregularity. But for the fortuitous change of circumstances described before, I would have been bound to allow the appeal on this Ground also and direct a full rehearing. Mercifully, that is not now necessary.
  9. I have taken the decision to deliver a full judgment and identify the Judge by name, having heard argument on the point. I have no wish to embarrass or discomfort the Judge, but I am convinced that the public interest in the Family Court being transparent and open to scrutiny is the decisive factor. The anonymity of the children, the lay parties and the Guardian however has been preserved. At the request of the appellants, I am content for this judgment to be published on bailii.org but stress that it is merely illustrative of an issue rather than in any way a definitive statement of approach.