Q (Children)

On 5^th June 2014, following oral submissions, we determined that permission to appeal should be granted and the appeal allowed in relation to a mother’s challenge to proceedings which are continuing with respect to two children before His Honour Judge Tyzack QC, sitting as a High Court Judge. As a result of our decision the proceedings are now to be completely re-heard in front of a different tribunal. The purpose of this judgment is to record the reasons that support our decision.

The case concerns two boys, W, born 12^th January 2003 and therefore now aged 11 years, and R, born 9^th 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 28^th 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 13^th 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 3^rd 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 7^th 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 28^th 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 13^th 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.

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.

One of the central matters raised by the mother is a complaint that at an early case management hearing [‘CMH’] on 20^th 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.

In the circumstances it has not been necessary for us to give detailed consideration to the various other issues raised in the Notices of Appeal. As a matter of record, however, it is of note that each of the five parties before the court submitted that the judge’s conclusion as to the threshold criteria was open to substantial criticism. The local authority, supported by the children’s guardian, drew attention to the fact that the hearing before the judge had been established by earlier directions solely for the purpose of considering the factual allegations, prior to a later hearing at which the local authority would present its final case relating to the threshold criteria which would be more widely based and could include an evaluation of the potential for emotional harm to the children. Both the mother and maternal grandmother complained that the threshold finding made by the judge, to which I have already made reference, which related solely to the potential for harm in the care of the mother and grandmother, had not been argued for by any party in the proceedings and had not been adequately trailed by the judge during closing submissions. Finally the father submitted that the threshold finding focussed entirely upon care in the home of the mother and maternal grandmother and that this factual context only really arose after the “relevant date” of 13^th November 2012 and, as a result, it was not open to the judge to establish the threshold criteria on that basis.

In the event, the appeal has been allowed solely on the issue of apparent premature judicial determination and it is neither necessary, nor appropriate, to comment further on these additional matters in this judgment.

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 20^th 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 11^th 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 11^th 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:

During exchanges with counsel following the conclusion of the police officer’s oral evidence the judge is recorded as making the following observations:

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].

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:

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:

The judge gave a short judgment at the conclusion of the hearing on 20^th 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.”

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 20^th 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 20^th March, Mr Sharp drew attention to the following passage [appeal bundle page M543]:

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 20^th 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 20^th March.

Given the change of stance of the local authority and those acting for the children, we heard further submissions in reply from Miss Cook. After referring to the legal context, to which I will turn in a moment, 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 20^th 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 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]:

Miss Cook is right to counsel caution in any assessment of the judge’s presentation during the CMH on 20^th March 2013. 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:

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 20^th 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:

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 20^th 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 conclusions.

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:

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:

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.

For the reasons that I have given, I am clear that the process conducted at the CMH on 20^th 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.

I agree.

I also agree.