Child guardian wins appeal against family judge’s ruling over ‘unjust’ and ‘wholly unsatisfactory’ handling of case

The England and Wales Family Court found that the district judge had “crossed the line” during the course of the guardian’s examination in chief, creating a “hostile atmosphere” which made it “impossible to have a fair hearing”.

His Honour Judge Mark Rogers held that the decision of District Judge Mian was “unjust” and allowed the appeal by the mother and appointed guardian of the one-year-old child, who had been made subject to a care order rather than being placed with her grandparents.

The Family Court in Nottingham heard that the district judge had decided to make a care order followed by a placement order to facilitate a care plan for the adoption of the child “M”.

The judge rejected the alternative option of a placement with the child’s maternal grandparents, due to an existing care plan which was in place for one of the child’s three siblings, “N”.

Fourteen-year-old N, who has medical and behavioural issues, was due to return to live with his grandparents, but his challenging and aggressive behaviour posed a serious threat to the safety and wellbeing of those around him, including baby “M”.

‘Serious procedural irregularity’

Both the mother and M, through her guardian, challenged the decision and both complaints arose from the central factual issue of how the Judge had to deal with the complicating feature of N’s care plan.

The mother’s appeal was essentially a challenge to the substantive decision, but the guardian’s appeal alleged “procedural unfairness”.

On behalf of the guardian it was argued that the conduct of the judge amounted to “serious procedural irregularity”, which denied the parties an opportunity for a fair hearing and thereby breaching the fundamental article 6 of the European Convention on Human Rights.

The judge’s frustration stemmed from her view that the guardian had not grappled with the central issue of the case, namely the interplay of the care plans. 

HHJ Mark Rogers said he had listened to the recording of the hearing himself and heard “with dismay, the anger and tension in the judge’s voice”, adding that he also heard her “banging her desk”.

At one point the district judge intervened in the questioning of the guardian, and clearly exasperated, she said: “No. No. No. Oh my God, I am sorry. I am sorry. I am really sorry. I am going to try one more time and then we are just going to carry on with the hearing. I do not know how many ways in which to say this. I cannot interfere with N’s plan.”

But no party was suggesting the judge could or should interfere with the plan - she was simply being asked to to bear in mind the reality that there was credible evidence that the likelihood was that the plan would never be implement.

The district judge’s treatment of the guardian and her barrister was described as “unacceptable”.

The judge’s conduct was exemplified by, in the words of the child’s barrister, “blasphemous words, shouting, storming our of court and general intemperate behaviour”. 

She was being “sarcastic, shaking with rage, turning her chair away from the court and sitting with her back to everyone for several seconds, mimicking the advocate’s words and intimidating the guardian”.

‘Judge crossed the line’

Having taken the decision to deliver a full judgment on the appeal and identify the district judge by name, HHJ Mark Rogers said: “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. ”

HHJ Rogers said it was a “fundamental tenet” of fairness to listen carefully to competing argument before coming to a firm decision.

Her exchanges with the child’s barrister were “sharp and substantially inhibited counsel from doing her job”.

The appeal judge considered that the district judge had “overstepped the mark”.

The judgment stated: “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. 

“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. 

“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.”

He added that family proceedings should not be “unnecessarily adversarial”.

“One important function of a judge,” he continued, “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.”

HHJ Rogers concluded: “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.”

After the hearing, the child’s grandparents wrote to the guardian saying parts of the hearing were “extremely distressing” with a “constant barrage of interruptions aimed at professional witnesses and barristers questioning them”, which was “particularly unprofessional” and brought into question the “impartiality of proceedings”.