QS v RS & Anor

An application to terminate a children’s guardian’s appointment should be approached by reference to the guardian’s duty to act fairly, rather than the apparent-bias test applicable to judicial or quasi-judicial decision-makers. The court’s discretion under Family Procedure Rules 2010, rule 16.25(1)(b), is full but should be exercised sparingly. Methodological shortcomings will ordinarily be matters for evaluation at the final hearing, including through cross-examination, unless the guardian acts manifestly contrary to the child’s best interests or the circumstances are very rare. The guardian is a witness and adviser, not the decision-maker, and has no special status. The court must determine welfare issues by considering the statutory factors and the totality of the evidence. Delay, procedural fairness, proportionality and compliance with the evidential requirements for the application are relevant to the exercise of the discretion.

The mother applied orally under Family Procedure Rules 2010, rule 16.25(1)(b), to terminate the appointment of the children’s guardian. She relied on an apparent-bias argument, alleging that the guardian had expressed a settled view about the child’s living arrangements before receiving all the evidence directed by the court.

The guardian’s position statement referred to the child’s wishes and feelings and suggested arrangements preserving the advantages of her living with her father in Dubai. The mother contended that the statement appeared to favour the father’s case and that the guardian had prejudged the welfare issue. The father and the child’s representative opposed the application, emphasising that the court remained the decision-maker and that the guardian’s methodology could be tested at the final hearing.

The central issues were whether the guardian had failed to act fairly and, if so, whether that justified terminating his appointment and restarting the welfare assessment.

Application dismissed. Mr Justice MacDonald held:

1. The apparent-bias test in Porter v McGill [2002] 2 AC 357 is directed principally to persons occupying judicial or quasi-judicial roles. A children’s guardian is not the decision-maker. The issue was therefore whether the guardian had complied with the duty to act fairly and whether termination was justified.
2. The discretion under Family Procedure Rules 2010, rule 16.25(1)(b), is full but must be exercised sparingly, consistently with the overriding objective. Termination may be justified where the guardian acts manifestly contrary to the child’s best interests or, in very rare cases, where conduct that would ordinarily affect the weight of the evidence is so serious that the guardian should be replaced.
3. The position statement was expressed as a recommendation before the guardian had considered all the evidence. That was unfortunate and reasonably generated concern, particularly because the outstanding evidence might bear on the feasibility of continuing contact between mother and child. It did not, however, establish unfairness requiring termination.
4. The court, not the guardian, determines the child’s welfare by applying Children Act 1989, section 1, to the totality of the evidence. The guardian has no special status and his evidence is scrutinised like that of any other witness. The mother could challenge the guardian’s methodology and any alleged prejudgment through cross-examination and submissions, and the court could then decide what weight to give his views.
5. Replacing the guardian would cause delay and require the child to repeat the process with another professional. That was a further, although not decisive, reason to refuse the application. The application was also made orally without notice in the mother’s position statement and without supporting evidence, contrary to rule 16.25(2).

The appointment remained in place. The court expressed concern about CAFCASS Legal’s failure to comply with the earlier directions requiring the guardian to consider specified evidence before filing the position statement.