Q (Children)

A family judge may actively manage care proceedings and may invite parties to reconsider weak issues. That role permits preliminary views, but it does not permit a premature adjudication of disputed allegations or credibility without a fair and balanced process.

Applying the apparent-bias test in [2001] UKHL 67, a tribunal is disqualified where a fair-minded and informed observer would see a real possibility that the judge had formed a concluded view. Reliance on undisclosed material, without allowing an affected and vulnerable party to obtain instructions and answer it, may make the process unfair and support that conclusion.

Care proceedings concerning two children followed private-law litigation between their parents. The local authority relied substantially on allegations made by the mother against the father. At a case-management hearing, the judge received fresh police material and made strongly adverse observations about the mother’s allegations and credibility before she or the maternal grandmother had a fair opportunity to answer the material.

Following a lengthy fact-finding hearing, the judge rejected the mother’s allegations and found that the Children Act 1989 threshold was met on a different basis. The mother appealed, alleging apparent judicial bias and procedural unfairness. The central issue was whether the judge’s conduct at the earlier hearing gave rise to a real possibility that he had prematurely formed a concluded adverse view.

1. Appeal allowed. The court held that the hearing before the judge had been infected by apparent bias. The proceedings had to be completely reheard before a different judge.
2. The governing test was that in Porter v Magill, [2001] UKHL 67: having ascertained all relevant circumstances, the court asks whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The court held that this test was satisfied.
3. A family judge must actively manage proceedings under the Family Procedure Rules 2010. The judge may identify issues, question the strength of a case and invite a party to reconsider it. There is, however, an important distinction between permissible case management and deciding a live issue without a fair and balanced hearing.
4. The process at the case-management hearing was unfair. The judge relied on a police file which he alone had read. He treated an ambiguous police note as showing that the grandmother had prompted fabricated allegations. He did so without evidence from the note’s author and without allowing the mother or grandmother to explain the note. The mother’s representatives were not given an opportunity to take instructions on the new material. Her then lack of litigation capacity, vulnerability and representation by the Official Solicitor reinforced the seriousness of that failure.
5. The judge’s statements that the allegations were incredible, that parts of the threshold case had to go, and that the mother’s account was a pack of lies went beyond robust case management. Taken separately and together, they would lead the fair-minded and informed observer to conclude that there was a real possibility that the judge had already formed a concluded adverse view of the mother’s veracity. Later hearings could not cure that defect. The court did not determine the parties’ other criticisms, including the threshold finding.

1. Court of Appeal (Civil Division): Allowed the mother’s appeal on apparent judicial bias and directed a complete rehearing before a different judge.
2. High Court of Justice, Family Division: HHJ Tyzack QC conducted the fact-finding hearing and gave judgment on 28 January 2014, rejecting the mother’s allegations and finding the threshold criteria satisfied on a different basis.