SC v TC

In family proceedings, judicial communications with a guardian or other independent representative must be conducted openly and transparently. Communications concerning evidence, case management or possible outcomes must be disclosed to the parties and, where they raise an issue, dealt with in court. Undisclosed communications may create a serious procedural irregularity and undermine the fairness of the hearing. Where the communications may have influenced the judge’s decisions, the resulting judgment and order cannot stand and the appeal must be allowed.

The appeal concerned an interim residence decision affecting a child aged 14. The first-instance judge ordered a change in the child’s living arrangements after a hearing involving the parents and the NYAS representative. The appeal arose from undisclosed communications between the judge and NYAS before and during the hearing, including discussions about the proposed change of residence, the evidence, and arrangements for implementing the decision.

The central issue was whether those communications created procedural unfairness and rendered the hearing fundamentally flawed.

1. Appeal allowed. The first-instance judgment and order could not stand because the hearing was fundamentally flawed.
2. Judicial communications with a guardian or independent representative must be open and transparent. Routine communications may sometimes be necessary, but any communication raising an issue concerning evidence, case management or the outcome must be brought back before the court and conducted openly.
3. The first-instance judge had communicated with NYAS over several months without informing either parent. During the hearing, she sought advice about the mother’s likely reaction, the logistics of a change of residence, and arrangements for giving judgment and moving the child. The communications were not disclosed.
4. The issue was not cured by later evidence suggesting that the child supported the outcome. That did not justify communications which should not have occurred.
5. The communications indicated that the judge had received information outside the evidence and that this had, to some extent, influenced decisions concerning contact and other matters. They also created uncertainty about whether case management and decisions had remained exclusively matters for the court.
6. The established principle concerning undisclosed communications between a judge and a court welfare officer, identified in H v H and tracing back to Fowler, applied. The court therefore allowed the appeal without determining the remaining grounds.

• High Court (Family Division): On appeal from an interim residence decision of HHJ Raeside dated 28 November 2018, the appeal was allowed. The judgment and order could not stand because the hearing was fundamentally flawed.