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England and Wales High Court (Family Division) Decisions
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Cite as:  EWHC Fam 2
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IN THE HIGH COURT OF JUSTICE
IN THE MATTER OF AN APPEAL
UNDER THE CHILDREN ACT 1984
|Royal Courts of Justice|
Strand, London, WC2A 2LL
B e f o r e :
M Applicant - and - THE LONDON BOROUGH OF ISLINGTON First Respondent - and - L
(By his Guardian ad Litem)
Mr. D. Casey (for the 1st Respondent)
Miss E. Ginsburg (instructed by Hopkin Murray Beskine for the 2nd Respondent)
Mr R. White (instructed by White and Sherwin for the Intervenor)
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Dame Elizabeth Butler-Sloss, P.
Crown Copyright ©
Dame Elizabeth Butler-Sloss, P. :
This is an appeal from District Judge Crichton sitting at the Inner London and City Family Proceedings Court in a Children Act Part IV application. The appellant is the mother of a little boy, L, born on the 18th December 2000 who has been in the care of the local authority since the 22nd December 2000. The district judge was due to hear the substantive care application and issues as to contact. The mother through her counsel raised a preliminary issue that the district judge should disqualify himself from the case on the ground of bias. The district judge carefully considered the representations made by the mother and gave a considered judgment in which he concluded it was not necessary for him to withdraw from the case. The mother appealed to the High Court. The local authority, the mother and the child through his guardian were all represented at the appeal. I began the appeal on the 21st June 2001 at which point a broader issue was identified. I therefore gave leave to Coram Family to intervene and adjourned the case for representations on its behalf to be made on this issue. The case the subject of this appeal was transferred to another district judge and has been concluded.
At the adjourned hearing of the appeal, from the information helpfully provided by Mr Richard White on behalf of Coram Family including minutes of Steering Group and Legal Sub-Group meetings, it has become clear, and all parties now agree that, in the special circumstances of this case, the district judge ought to have withdrawn from hearing it. Consequently the appeal has to be allowed.
This appeal raises two separate issues. The narrower one is whether District Judge Crichton or any other judge or district judge should hear concurrent planning cases if a member of the Legal Sub-Group or the Steering Group. The broader issue to which I can only offer some tentative thoughts is the enormously difficult question of the involvement of family judges and family magistrates in inter-disciplinary conferences, committees, projects and so on.
In order to place the problem which has arisen in its context, it is necessary to explain a little the background to pilot projects recently set up in three areas of England as a result of similar projects carried out in the United States. In cases where a child is removed under court order there is inevitably a delay, often a substantial delay, before the court is able to decide whether the child can be returned to the natural family or will be placed in a substitute permanent family by way usually of adoption. The delay may be due to a number of factors including the requirement for assessment of the family, often the need for expert evidence, attempts to explore the possibility of reuniting the child with the family and the delays in fixing court hearings and availability of witnesses. In some instances a young child or baby has to be moved several times from one short-term carer to another and there is, in some cases, a worrying delay of up to three years or more before the child is adopted. This delay and multiple moves can be, and often are, extremely disruptive for the children who develop psychological problems which make it difficult to place them for adoption, difficult to avoid breakdown in placements and may have long term effects on children stretching into adulthood. There has been considerable research setting out the problems arising from delay in placement of children and it is an area of concern in children cases well known to family judges. To try to meet this problem, concurrent planning has been developed in the USA in Seattle with the objective of reducing the time spent by children in the care system. It was defined by Linda Katz, Programme Director of the Seattle Concurrent Planning Project, as
“the process of working towards family reunification, whilst at the same time establishing an alternative permanent plan.”
The policy is to pursue all the available options at once. Concurrent planning aims to provide children with one secure placement which would allow them to develop attachments to their carers whilst their birth family was assessed for rehabilitation.
The project is being piloted in Manchester, Brighton and Inner London. In London there are 2 local authorities involved, the London Boroughs of Camden and Islington with start up funding from the Department of Health. The two London Boroughs entered into service agreements with Coram Family, a charity set up by the Thomas Coram Foundation. Coram Family was responsible for managing the project in collaboration with the two local authorities. Suitable families were identified including the appellant and her child. The appropriate local authority retained control and responsibility for each child. A Project Steering Group was formed to advise on policy considerations, funding and other wider issues. Representatives of several disciplines were on the Steering Group including the director of the British Agencies for Adoption and Fostering (BAAF), a child psychiatrist, a guardian, senior social workers, the Chief Clerk of the Inner London Family Proceedings Court, the Coram Chief Executive and other Coram representatives. Also on the Steering Group were a judge and two district judges, one of whom was District Judge Crichton. The Project was also being independently monitored. The individual cases selected for the Project were expected to be tried mainly at the Inner London Family Proceedings Court. District Judge Crichton arranged for all cases going to the Inner London Family Proceedings Court to be heard by him.
At a meeting of the Steering Group Committee a Legal Sub-Group was set up to discuss legal issues. The membership of this Sub-Group included the two district judges. At one of its meetings in September 2000 the Legal Sub-Group considered the position of District Judge Crichton and agreed that details of cases considered for concurrent planning would not be discussed in his presence. But he would take part in discussions of matters arising from individual cases. It appears from the minutes of the meeting of the Legal Sub-Group on the 24th January 2001 which District Judge Crichton attended that the difficulties arising from placing L in the concurrent planning project had been discussed. The child had been identified by first name and initial.
District Judge Crichton was due to hear the case of L for three days starting on the 30th May 2001. He heard the application for him to withdraw from the case on the 18th May and gave his decision not to do so on the 23rd May. In his reasons he set out the purpose of the Pilot Project and said:
"The issue is quite short. The London Borough of Islington, together with the London Borough of Camden, are engaged in a pilot project organised by Coram Family. The project seeks to identify children under the age of two who cannot at present live with their birth parents and for whom there is a viable but not strong possibility that they may be rehabilitated with their birth parents. The Project also seeks to identify a very particular category of foster carer who will look after the child, work with the birth parents in order to maximise that possibility of rehabilitation, but who will adopt the child in the event that rehabilitation is not possible. The priority is to rehabilitate. Should that not prove possible, the next choice is for the child to be cared for by members of the extended family. Adoption by the foster carer is the last resort. In the event that the child is adopted, the benefit is that he/she will have received continuity of carer, and will not have suffered a change of carer and disruption of attachment.
Before I deal with the circumstances of this case I would make some preliminary observations:-
1) Since the implementation of the Children Act everybody engaged in family work has been encouraged to become involved in multi-disciplinary, inter-disciplinary training and other activities. This is an approach fostered and encouraged by the then President, Sir Stephen Brown. It is an approach which has been continued by his successor. Many judges, at whatever level, have involved themselves in work relating to and touching upon the sort of work undertaken in their courts. This includes sitting on committees, speaking at conferences and training events. The benefit derived from this approach is that by sharing with other professionals of different disciplines information in relation to common problems they develop a greater understanding of different approaches to those problems, and availability of services and of assistance for the benefit of those whom we seek to serve. It was in that spirit that I accepted an invitation to sit on the Project Steering Group. The Project is a new initiative. I have already set out its purposes, and I stress that the primary object is rehabilitation, not adoption.
2) In the early stages of the work of the Group I assisted in developing procedures which would be followed at the Inner London Family Proceedings Court, and assisted in drafting directions which it was thought would be appropriate to project cases. Those directions were based on directions which had been drafted by the Circuit Judge in Manchester who presides over similar cases run by the Goodman Project in Manchester. Since then my role has been to advise, assist and serve the group by contributing to discussions in relation to general problems which need to be addressed.
3) It was decided by the Steering Group that, at least in the earlier days of the Project, all Project cases would be referred to me as the Resident District Judge (Magistrates’ Court) if I was available. It was felt important to develop a uniformity of approach in dealing with timetabling Project cases, and that the knowledge gained from being a member of the Steering Group would give me a greater awareness of the issues. There are approximately 150 lay justices on the Family Panel at my court, as well as some eighteen district judges who sit on a rota basis. It was thought beneficial, from every point of view, that cases should come to me rather than for the parties to be put in the position of having to explain the Project in detail to a different tribunal on almost every occasion that they came to court. Of course, if I were not to be available the matter would be listed in front of another tribunal, and those explanations would have to be made. There was to be no question of delay in waiting until I was available. Further, it was thought to be advantageous to achieve continuity of tribunal where possible, and thereby firm control of the proceedings by the court. Continuity of tribunal is very difficult to achieve, but it was felt that a degree of continuity would be achievable in this limited category of cases. In fact in L's case I have been available for very few of the hearings.
4) The Steering Group recognised that there was a possible difficulty if individual cases came to be discussed by the Group. They therefore resolved that no individual case would be discussed in my presence. If it became necessary to do so, I would absent myself. This step was taken in order to preserve my impartiality, and it has always been recognised that it is no part of my role to “sell” the Project to parties."
The district judge then considered a number of decisions to which reference had been made during argument. His conclusion was:
"A balance of common sense has to be struck. Ms Erwood submits that the presence on the Steering Group of the local authority's solicitor and of two of the Project workers further affects my position. If a judge sits on the same conference platform as someone who may later appear in front of him as a witness, should he disqualify himself? If a judge serves on a committee with a person who may later appear as a witness before him would he disqualify himself? If a judge assists (eg by giving an address upon presentation in court) in training of social workers, or other professionals, should he then disqualify himself if such a person later appears as a witness before him? In all cases I believe that the answer must be "no". I see no significant difference between these situations and my membership of the Steering Group. In paragraph 7 of her position statement Ms Erwood asks me to draw an analogy with the situation of a lay magistrate being in the employ of a local authority. Of course such a person must withdraw from hearing proceedings involving that authority. However, I am not employed by Coram Family. I merely sit on a Steering Group. I do not seek to "sell" the aims of the Project to parents. Indeed, children are placed with Project foster carers only with the consent of their parents, they having had the Project and its aims fully explained to them……….
At the end of the day I am satisfied that my membership of the Coram Concurrent Planning Project Steering Group does not in any way hinder me in the exercise of judicial impartiality."
It is clear that, when he gave his reasons, the district judge had no recollection that the case of L might have been discussed in his presence. He was due to hear the final care application and contested cross-applications over contact, both as to quantity of contact and whether the local authority should be given leave to terminate contact. It is right to mention that Coram Family had a policy of quantum of contact in these cases, a policy with which the district judge did not agree and, in his reasons, made clear was too restrictive.
I turn now to the decisions on judicial bias. In re Medicaments and Related Classes of Goods (No 2)  1 WLR 700 a lay member of the Restrictive Practices Court applied for a job with an economic consultancy firm. One of the principal expert witnesses in an application by the Director of Fair Trading to the court was a director of that firm. The Restrictive Practices Court found that the lay member had not been aware of the potential conflict of interest when she made her job application and she no longer had any chance of obtaining the job. It held that there was no objective justification for fears of lack of impartiality on the part of the lay member and dismissed the application by two trade associations for her to withdraw from the case. The Court of Appeal allowed the appeal. Lord Phillips of Worth Matravers, MR, giving the judgment of the court considered the earlier cases on bias and in particular the test set out in the decision of the House of Lords in R v Gough  AC 646 in the light of the Human Rights Act 1998 and Article 6(1) of the European Convention on Human Rights. He set out the relevant decisions of the European Court at Strasbourg and concluded at page 726 paragraph 83:
“We would summarise the principles to be derived from this line of cases as follows. (1) If a judge is shown to have been influenced by actual bias, his decision must be set aside. (2) Where actual bias has not been established the personal impartiality of the judge is to be presumed. (3) The court then has to decide whether, on an objective appraisal, the material facts give rise to a legitimate fear that the judge might not have been impartial. If they do the decision of the judge must be set aside. (4) The material facts are not limited to those which were apparent to the applicant. They are those which are ascertained upon investigation by the court. (5) An important consideration in making an objective appraisal of the facts is the desirability that the public should remain confident in the administration of justice.
This approach comes close to that in R v Gough  AC 646. The difference is that, when the Strasbourg court considers whether the material circumstances give rise to a reasonable apprehension of bias, it makes it plain that it is applying an objective test to the circumstances, not passing judgment on the likelihood that the particular tribunal under review was in fact biased.
When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.
The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced. Thus in R v Gough, had the truth of the juror’s explanation not been accepted by the defendant, the Court of Appeal would correctly have approached the question of bias on the premise that the fair-minded onlooker would not necessarily find the juror’s explanation credible.”
There is no evidence whatever before me to suggest that the district judge was biased nor has counsel suggested actual bias. These were obviously very unusual circumstances in which the attempts by the Legal Sub-Group to carry out the intention not to discuss actual cases in the presence of the district judge had by an oversight failed. It is however a clear case for this court to find, applying the test set out in re Medicaments and Related Classes of Goods (No 2) above, that the circumstances were such as to lead a fair-minded and informed observer to conclude that there was a real possibility that the district judge was biased and should not therefore try the case of L.
The broader picture presents some problems for judicial involvement in inter-disciplinary matters and where to draw the line. Since the passing of the Children Act 1989 and against the background of serious failures in inter-disciplinary co-operation dramatically illustrated in several inquiries in the 1980s, notably Jasmine Beckford in 1985,Tara Henry in 1987 and the Cleveland Child Abuse Inquiry in 1987-8, there has been increasing pressure on all disciplines involved with children to co-operate fully in child issues. The police and social workers work together on child protection investigations. The Children Act Sub-Committee was until its demise a useful inter-disciplinary forum. The Family Court Business Forum is inter-disciplinary. There are regular conferences devoted to inter-disciplinary issues. The President’s Inter-disciplinary Committee, chaired by a Lord Justice meets regularly and holds biannual conferences supported by the Lord Chancellor’s Department and the Department of Health. The family Bar, family solicitors and family judges at all levels together with family magistrates attend and play a prominent part in inter-disciplinary conferences, training seminars and other activities and meet a wide range of other disciplines, including child psychiatrists, paediatricians, senior social workers, guardians and senior officials from the relevant Government Departments and Agencies. It is inevitable that judges will therefore meet professionally those who may give evidence before them in cases. In my judgment the involvement of judges and sharing of experience and expertise are vital parts of the extremely important inter-disciplinary dialogue which has to be sustained and supported in order to provide a better service for children whose welfare is at stake. I entirely agree with the observations of District Judge Crichton on this point, see above. I have no doubt at all that judges ought to continue, often in their own time, to make their contribution to this inter-disciplinary dialogue and nothing I say in this judgment is intended to discourage or inhibit judicial support in inter-disciplinary matters. The question is, as I have already said, what is the point at which a judge ought not to become involved or put another way, where to draw the line. The question is not of course a purely family one and judges in other areas of the law may have similar problems to resolve. It is particularly difficult however for family judges to draw a clear line since it is so clearly to the advantage of all, including parents and their children exposed to court intervention to have the judiciary well informed about the problems and the possible outcomes available and able to distinguish between them. As an example, an understanding of the meaning of concurrent planning, its possibilities, its limitations and the potential outcomes would be very helpful to all parties as well as the judge and would undoubtedly shorten the hearing.
In my view, family judges should continue to play as full a part as possible in the evolution of child and family matters in as wide a spectrum of situations as possible. Judges are and should be part of advisory committees. There is, however, a difference between general interdisciplinary contacts, on conferences and committees, including family court business committees where local protocols may be developed, and participation in a child care agency’s novel scheme for handing individual cases which are bound to come before one’s own court. A judge does have to ask him/herself, when invited to play a part in such an activity, how involved is he or she likely to become in the management of a scheme, the detail of it or in formulation of specific criteria necessary for the scheme which might have an inhibiting effect on the trial of a particular case or lead the fair-minded observer to conclude that there is a real possibility that the judge may be influenced by his membership of a working party or committee to a certain point of view relevant to the outcome of the case before him/her. To take the actual situation of this appeal, clearly the district judge cannot hear a case which has been specifically referred to in his presence in the Legal Sub-Group. I would question whether he should sit on sessions which discussed potential real-life cases due to come before the courts or outcomes of cases in respect of which there was the slightest possibility they might be revived. It is clear that the considerable expertise of a district judge in a busy specialist Family Proceedings Court is enormously valuable to the setting up of a project such as Concurrent Planning. But I would question the wisdom of sitting on the Legal Sub-Group at all, because of the risk of becoming aware of the details of and forming a view about individual cases which might still come before the court. Attending Steering Group meetings to discuss issues of general policy and the future development of the scheme should not give rise to problems. But becoming a party to those policy decisions, for example as to the amount of contact to be permitted under the scheme, which might be the subject of later controversy in court would do so, unless the parties were fully informed of the extent of the judge’s involvement in that decision and were nevertheless content for him to hear the case.
There is no clear cut line that can be drawn. I hope that my comments may be helpful. At the end of the day it is however for the individual judge to decide, applying the Medicaments test, whether he/she is putting in jeopardy his/her ability to try a case. It is of crucial importance that, if an organisation in which a judge has any involvement plays any part in the proceedings, the judge should make his involvement and its extent entirely clear to the parties, preferably before or at the beginning of a hearing or when the connection becomes clear to the judge.
I therefore allow the appeal.