Case No:  FB10C00243
Neutral citation no:  [2011] EWHC 1299 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Family Courts
The Priory Courts
33 Bull Street
Birmingham B4   6DS

Date: 14th February 2011.

Before:

HIS HONOUR JUDGE ROBERT OWEN QC
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Between:

BIRMINGHAM CITY COUNCIL                      Applicant
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‘RL’                                              Respondents
-and-
‘DS’
-and-
‘MS’
-and-
THE CHILDREN
(By the Guardian ad Litem)

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MISS OKUNNU of counsel appeared for the Applicant.
MISS WARRINGTON of counsel appeared for the First Respondent.
MISS PREEN of counsel appeared for the Third Respondent.
MR. PAYNE of counsel appeared for Lancashire County Council.
MISS BAKER appeared for the Guardian ad Litem.
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JUDGMENT

HIS HONOUR JUDGE OWEN, QC: 

1.	This is an application made on behalf of the Children’s Guardian in which I am invited to recuse myself from further hearing this matter which concerns the welfare of three children, ‘J’ (born [DOB] 05), ‘L’ (born [DOB] 06) and ‘LS’ (born [DOB] 10).
2.	At the opening of today’s hearing at 10.30am Miss Baker, who appears on behalf of the guardian, invited me to deal simply with the directions arising in the proceedings which were almost all agreed. I asked whether she had any other application to make to which she replied that she did not. Time was sought and granted to the parties to discuss the directions being sought.
3.	At about 12.10pm Miss Baker informed me that she had taken instructions as to whether she should make any further application, concerning my recusal, and that she would make her decision in consultation with the guardian and her instructing solicitor on that question after the hearing. I indicated that that would not be an appropriate way to proceed and that if she did not then know whether she was to make the application she should have further time to take specific instructions. Thus, at 2.15pm, the parties having largely agreed the directions for which they would seek my approval, Miss Baker first informed the court that she wished to make an application, namely, that I might consider recusing myself from further hearing these proceedings.
4.	Miss Baker explained that the basis of her application was in light of an exchange which I had had with her instructing solicitor, Miss Tierney at the previous directions hearing on 8 December 2010. That is, the exchange in question, it was submitted, might lead to the perception of bias on my part in that I might be seen not to accept that which the child may be reported as having said to the guardian in these proceedings hereafter. That is, as I understood the submission, that I might be perceived as having been biased against the guardian, Miss Cross, in that I might not accept what she reported as having been said by the children.
5.	The legal question is whether in light of the relevant circumstances which have a bearing on the suggestion of bias as explained or asserted by Miss Baker those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge, that is, me, was biased against the guardian or, presumably, the children also.
6.	That question necessarily requires the Court first to ascertain the circumstances which have a bearing on the suggestion that the judge was biased.  The Court must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased.
7.	Miss Baker has put the basis of the application thus: that the Children’s Guardian, Miss Cross, in her initial written report to the Court dated 3 December 2010, at paragraphs 48 and 49, indicated that she had received a material disclosure from the eldest child, ‘J’, in response to her questions (only): Question, “Do you know ‘A’?” (meaning ‘AH’).  Answer (at paragraph 49), “Yes, he hurts me.”  Question, “How does he hurt you, ‘J’?”  Answer, “He picks me up and it does just hurt.”  Question, “Can you show me how it does hurt?”  The report states, “‘J’ looked very seriously down the front of himself and then put his hand down the side of his trousers and pointed.”  Question, “Where is ‘A’?”  Answer, “He is not there any more.  They are at the beach.  He is not ever allowed at the beach any more.” 
8.	Miss Baker explained that I had then asked questions of Miss Tierney about that disclosure as to whether or not Miss Cross had sought any further detail from ‘J’ before setting in motion the investigations which were activated by her. 
9.	Miss Baker developed her submissions on behalf of the Children’s Guardian on the basis that the Children’s Guardian’s primary duty is to the child and the paramountcy of the child’s welfare and that having had such disclosure made to her she considered that she had no discretion other than formally to report it and to invoke the Child Protection Procedures which resulted in an investigation by social workers and the police. In consequence ‘AH’ was arrested, formally interviewed and subsequently bailed.  I was informed that there was no disclosure by ‘J’ to the police and that no further action has been taken. 
10.	Miss Baker expressed the concern held by the Children’s Guardian that during my exchange with Miss Tierney I had wrongly put to her questions to the effect that the Children’s Guardian did have a discretion to ask questions to ascertain whether there was in fact any disclosure which did require action. I explained to Miss Baker, as I had to Miss Tierney, that I wished to know what in fact was the gravamen of the allegation which was derived from that short discussion in her report and whether any other detail had been sought at the time. 
11.	I wished to know because it did not appear in the report, for example, whether there was a suggestion of some form of sexual abuse. I had dealt with this suggestion (that ‘AH’ had sexually abused ‘J’ according to the local authority’s Schedule in these proceedings) at the hearing before me in these proceedings on 22nd October 2010 and which was dealt with in my judgment of that date.  I also wished to know what the position was thereafter as between ‘J’ and ‘AH’.  For example, whether ‘AH’ was suddenly prevented from having contact with, for example, ‘J’ and vice versa given the fact that he would regularly take ‘J’ to/from school.  These were legitimate questions put by a judge whose duty also concerns the paramountcy of the welfare of the children.  I wished to know whether there was more detail about the disclosure and report beyond that shown in the few questions and answers in the report, and if not, why not.
12.	In the schedule of findings of fact, originally submitted by the local authority there was an allegation that the children had suffered significant harm by reason of sexual abuse perpetrated by ‘AH’.  For the reasons given in my earlier judgment I explained why that bald assertion was unwarranted on the evidence.  The evidence was confined to two paragraphs in the initial statement of the allocated social worker who had been allocated to this case since early 2008.  That evidence as such was limited to an unidentified assertion by someone that ‘AH’ had an indecent photograph of ‘J’ on his mobile phone, an assertion which was specifically denied by the mother. That suggestion was made in October 2008.  In the subsequent paragraph of the initial statement it was explained why the social workers, whose paramount duty also concerned the welfare of the children, and not least in this case ‘J’, had determined, no doubt with all of the available information before them, by no later than February 2009, that ‘J’ could appropriately and safely be taken to and collected from his school, alone by ‘AH’.  The local authority subsequently amended the schedule and removed the allegation of harm caused by alleged sexual abuse.
13.	That is the background and circumstances which gave rise to my questions. I recall Miss Tierney being in difficulty in answering those questions. She sought instructions from Miss Cross behind her. It transpired that she was unable to provide any further information after taking instructions beyond those in the report which I have recited.  
14.	Those are the circumstances in which I indicated that whilst those who engage in this work have difficult tasks to perform and there is a limit to the information which should be sought from the child, nevertheless there exists a discretion to determine what questions are put and a discretion which had to be exercised also in determining whether there was anything of real substance or disclosure which triggered the need for further steps (such as invoking the Child Protection Procedure, reporting to the police and all that which therafter necessarily follows, including, for example, the arrest of a person,  interview, bail and so on).  
15.	Miss Tierney had raised with me the existence or not of any discretion and submitted on behalf of Miss Cross that she, Miss Cross, had no option but to report what she had heard and set the protection procedures in motion.  I do recall indicating that all I had in mind was that in this difficult area there was a point at which there is a discretion, which must be right, to determine whether or not any further question is put or further fact sought from the child before deciding whether it is in fact necessary to set in motion the Child Protection Procedures.   
16.	Be that as it may, Miss Baker’s application is not directly based upon my questions put to Miss Cross through Miss Tierney concerning the adequacy of the information elicited by questions put to ‘J’. Rather, it is submitted by Miss Baker that, having regard to the nature of that exchange, it is suggested that there could be a perception of bias in the sense that I would not give weight to that which a child might hereafter (in these proceedings) be reported as having said to the Children’s Guardian in circumstances not yet known, but which might, for example, concern the ascertaining of the child’s wishes and feelings and which, it might be perceived by the fair- minded and informed observer, I would not somehow take into account or accept.
17.	I am bound to say that taking Miss Baker’s submissions in their most favourable light or at their highest there is no real basis to suggest bias against the guardian, or anyone, on my part.  From my questions put to Miss Tierney, even if they were taken by Miss Cross to be critical of her, it is not possible reasonably to conclude that any fair-minded and informed observer, not least a professional on behalf of whom the suggestion is made, that the Court was in some way biased, against the guardian or anyone.  
18.	It may well be that Miss Cross took offence at the nature of my questions. It is also true that for the reasons explained in the judgment I had not followed Miss Cross’ original opinion and recommendation (expressed orally only) which was for the immediate removal of the children from the care of the mother. At that time the guardian had not seen the mother or the children or their home conditions. During my exchange with Miss Tierney Miss Cross had made a facial expression demonstrating dissent or disagreement with something I had said and I do recall informing Miss Tierney that Miss Cross’s expression was inappropriate.  It seems that Miss Cross also took offence at that rebuke. Incidentally, I stand by my response to such an expression made to a judge in court. If dissent or disagreement with the judge is appropriate or necessary then it should be articulated appropriately by the advocate and not otherwise by pulling a face in court.  
19.	I am quite satisfied that the concern expressed by the Children’s Guardian through Miss Baker, and the way in which it was presented to me today, even if sincerely held, is entirely misplaced.  It is true that when Miss Cross gave evidence without a report or any other documentary support at the hearing on 22nd October I did not prefer her evidence to that given by the allocated social worker, Miss Pinnock-Ouma but I gave my reasons and my reasons were based on the evidence before me. 
20.	When I posed my questions to Miss Tierney on 8 December, they were questions which could and I would suggest should be raised by a judge interested in the welfare of these three children.
21.	If Miss Cross’ perception is sincerely held and also rightly held, in that I gave to her the impression that I had in some way misunderstood the extent of any discretion she might have and that I had in some way wrongly criticised her, such matters could have no material effect on the proper conduct of this case and the important questions which would arise in relation to these three children. At the very least in those circumstances those representing the Children’s Guardian could make their submissions and indicate to the Court the correct approach in relation to Miss Cross’ duties and ensure the correct approach is in fact understood and taken on board by the judge. However, to make good the suggestion of bias the guardian must go further and show that it is a real possibility that the fair-minded and informed observer would or might think that the judge, having made such an error in understanding as to the role of the guardian, in light of the exchange complained of was or would be biased against the guardian (and to the detriment of the children).
22.	The suggestion that a fair-minded and informed observer, who understood the factual background of this case and the issues, would or might conclude that there was a real possibility that the judge was biased is, in my judgment, patently wrong. The application should not have been made.
23.	I draw attention also to the manner in which this application finally emerged. I refer also to the fact that the events now complained of took place over two months ago. There has been considerable delay in making the suggestion of apparent bias. It was made to the other parties for the first time when the application was made. In the meantime the Children’s Guardian, certainly so far as the parties were concerned, had been proceeding on the basis that the proceedings should indeed proceed in the normal way before me.
24.	The application, if it had any possible merit, could and should have been made properly on notice long before today’s hearing. Indeed, it should have been made no later than at the outset today. Rather, the guardian was content first to secure the other parties’ agreement as to the directions to be ordered today, by me, to replace the court’s earlier directions.
25.	The application was not supported by any other party in these proceedings all of whom were present at the hearing on 8 December 2010.
26.	I dismiss the guardian’s application.  
27.	Finally, I must refer to today’s proceedings.  On 8th December 2010, essentially by agreement between the parties, directions were given and embodied in an order which provided for, amongst other matters, an interim report to be filed in relation to the parenting assessment of the mother, and her current partner, to be filed by 11th of February 2011. It was also ordered that (today) there shall be a re-consideration of the issue concerning the identity of the designated local authority.  This is an important matter on the facts of this case given the history, which I do not propose to reiterate, save to say that that history could be found in the judgment, if necessary, which I gave on the determination of this question on 8th October 2010 and in my judgment of 22nd October 2010. 
28.	Those directions also provided for a timetable of exchange and an orderly presentation of evidence leading to the Issues Resolution Hearing which was listed for 9th May 2011.  It appears that by no later than the 7th January 2011 the parties including the Children’s Guardian were aware of the fact that the Independent Social Worker jointly instructed in this matter would be unable to provide an interim report by the due date though it was hoped would be able to meet the later date due for the full report.
29.	I understand that about a week later the Children’s Guardian distributed her notes of the hearing of 8 December in relation to my short exchanges with Miss Tierney to the other parties for their agreement or comment. I understood from Miss Baker that there was no comment from the other parties who, it appears, did not appreciate the purpose of the notes for which the guardian had in mind.  
30.	In the hearing bundle, but not in the court file, is an application notice by the Children’s Guardian dated 8th February and which records the consent of the other parties. That was an application, on an urgent ex parte basis, annexing a draft order to be approved prior to the hearing listed before me.
31.	 The application notice shows that the parties had (amongst themselves) agreed to discharge paragraph 7(c) of the order of 8th of December relating to the interim report and also paragraph 11 of that order which required the matter to be listed for further directions and consideration of the issue of designated authority. The draft order set out (at paragraph 1) that paragraph 7(c) of the earlier order be discharged.  Paragraph 4 of the draft order confirmed that the paragraph relating to the designated local authority contested issue shall also be discharged. Paragraph 5 reads as follows:  
“Paragraph 11 [that is of the order of 8th December] shall be varied to state that the matter is listed for further directions on 14th of February 2011 only.  The matter of the issue of designated local authority will be considered at a hearing to be listed after 25th of March 2011.  The Court will give further consideration to directions with regard to the matter of designated local authority at the directions hearing on 14th of February.”  
32.	Thus, without reference to the Court or regard to the court order the parties, apparently driven by the Children’s Guardian, had seen fit to substitute the Court business which the Court understood was to be conducted on 14th of February with business of their own preference. The Court should have been informed had the parties been acting properly, and I shall say, professionally, by no later than the first week of January 2011 of their proposed variation to the order subject to the court’s approval. The existing timetable, including the Issues Resolution Hearing which had been fixed was put in jeopardy.
33.	Not only did the Children’s Guardian and her instructing solicitor in formulating this application not deal appropriately with the Court, she failed to deal efficiently with Lancashire County Council who instructed counsel, Mr. Payne, to appear before the Court today fully briefed and expecting to deal with the business as listed. Mr. Payne arrived in court with the two social workers who travelled from Lancashire to find that the application could not properly proceed in light of the arrangement made by the guardian that the question be postponed to a later date and that the other parties had attended court on the basis that the issue would be put off to another date. 
34.	Mr. Payne indicated, not unreasonably, that had this state of affairs with which Lancashire County Council was presented today been the responsibility of a non-publicly funded party, an application for costs would probably be sought.  Mr. Payne indicated that he would seek instructions in due course as to whether, in all of the circumstances, an application for a wasted costs order would be made.  
35.	The result is that the deck for today’s hearing was apparently cleared, as it were, so far as the guardian was concerned. The contentious business, the designated local authority issue, had been put off for a different day, and I have no doubt, it was assumed, before a different judge. 
36.	By letter dated 31st January 2011 the Children’s Guardian through her instructing solicitor wrote a private letter to the Designated Family Judge and asked that the case be removed from me and transferred to another judge in light of that which Miss Cross took as criticism by me at the hearing on 8 December. I know this because I was shown that letter on 9 February (along with its enclosures, namely, the extracts of the notes of the exchange referred to earlier and, indeed, a copy of the confidential report made to this court for the purposes of these proceedings by Miss Cross). Miss Baker informed the court that the reply from the Designated Family Judge is dated 10 February. I informed her that I did not know that a reply had been sent. I had no knowledge of its contents. I had had no communication at all with the Designated Family Judge since being shown the letter on the 9th February.
37.	The case has remained in my list. The correspondence has not been produced. I have had to deal with the case as it unfolded today.
38.	My immediate concern is the evident attempt to interfere with the judiciary’s independent management and conduct of the case, which was in my list, and the re-arrangement of the Court business, also made without reference to the court. 
39.	Miss Baker submitted that the actions of the Children’s Guardian were well-intentioned and designed solely to save Court time and that the unfortunate consequences which have in fact arisen (not least the loss of a full day in Court today and the knock-on effect on the next case in which the parties and witnesses have had to wait patiently while this matter unfolded during the day (a five-day care case listed some time ago) and the unfortunate attendance today of Lancashire County Council) were unintended and for which the guardian was sorry.
40.	The Children’s Guardian and the solicitor acting on her behalf were, Miss Baker submitted, simply endeavouring to be helpful to the Court in rearranging the business of the court. That assertion, of course, ignores the steps taken privately at the same time to have the judge in the case changed.
41.	It does appear that what has completely escaped the Children’s Guardian and those who supervise her and who approved her letter and indeed those who represent her is that in making such a private communication to one judge about another judge and making private criticisms of him and thereby seeking to have the case transferred to a different judge such conduct by her was, and would be seen to be, an improper attempt to influence the proper administration of justice in the family court. It was wholly inappropriate and should never have happened.
42.	Unsurprisingly, it is evident that such private communication, rightly, had no effect on either the Designated Family Judge or on me in the proper determination (by me) of this case today. If the Children’s Guardian (and if, on reflection, she is sure that she has not been a trifle thin-skinned, to say the least, at the earlier hearing) truly had something about which properly to complain the appropriate response could and should have been made at the time and certainly long before today. In the meantime, it was quite improper to seek to influence the judiciary by private communication as occurred. It was equally improper to seek to alter the court business as occurred in this case. 
43.	It was in these circumstances that during Mr. Payne’s address to the Court I enquired whether his client sought a wasted costs order. In the circumstances he asked for, and was granted, time to take instructions. I indicated to Miss Baker that I would reserve the questions of costs and I should wish to hear from her in due course on behalf of the guardian and those instructing her on that question.  
44.	I understand that counsel seek a further short adjournment to check the agreed directions in light of the postponement of the designated local authority issue and to give consideration to whether it is realistic, given what has happened today, for the issues resolution hearing of 9th May to be maintained.

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