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Children: Public Law Update (July 2014)

John Tughan, barrister, of 4 Paper Buildings reviews recent important judgments in public law children cases.

John Tughan, barrister, 4 Paper Buildings

John Tughan, barrister, 4 Paper Buildings

In this article I will consider:

Judicial bias

In Q (Children) [2014] EWCA Civ 918 the Court of Appeal was dealing with an allegation of judicial bias.  Judges are encouraged to exercise robust case management at all stages of the proceedings.  The judge at first instance on this case attempted such management in relation to the factual issues and the investigation that was required. However, the Court of Appeal agreed that judicial bias was exhibited and that the appeal had to be allowed.  The bias in this case was the premature expression of a firm judicial view as to the merits of an allegation prior to all of the evidence being before the court.  Given the recent emphasis on the absence of delay, the 26 weeks rule and the exhortation on courts to case manage robustly and as early as possible, this is an important decision and an example of such case management going too far.

The mother in the case had a significant learning disability (IQ of 61) and epilepsy.  The proceedings started as private law applications but the local authority intervened and issued care proceedings.  The family were well known to the local authority and had moved ten times in ten years.  A level of concern was generated in respect of the care given to the children.  The private law proceedings included allegations of domestic violence and rape against the father.  Following an interview of the mother, the father was arrested and granted bail on a condition that he had no contact with the mother.  The couple then jointly presented to the police station indicating that they had reconciled.  As a result, the local authority arranged for the grandmother to care for the children and issued care proceedings.  The 13 day fact-finding hearing concluded with a dismissal of the mother's allegations, which the local authority had relied upon to inform the threshold criteria.  The judge found the threshold criteria to be met on a different basis.  All parties, except the Guardian, appealed.  The Court of Appeal dealt only with the bias issue as it was accepted that, if established, that issue cut across everything else and must lead to an inevitably successful appeal.

The essential case of the mother was that the judge had, at a CMH some nine months prior to the fact-finding judgment, made a number of clear indications that he had formed a concluded view as to the validity of her allegations.  At the CMH a report was received which included fresh allegations against the father, by the mother.  Clarification was sought and a police officer asked to attend the hearing.  The officer gave evidence and the judge (but not the parties) read the prosecution file.  The file included a comment that the mother had not said that offences had been committed but was worried that they had.

The mother's explanation for her retraction of allegations included that she had been kidnapped, placed in a van and forced to retract upon arrival at the police station.  The CCTV showed the parents kissing and cuddling in the foyer of the police station.

During the hearing the judge said:

"What the notes … reveal … is that first of all the grandmother prompts the mother to make allegations, that then they are not really allegations at all, but just thoughts in the mother's head."

The judge asked "How is it credible? How is any of that credible?" and stated that he found it "simply incredible" that these allegations were not raised during the lengthy ABE interview.

The judge then further queried the basis upon which the local authority could establish the allegations emanating from the mother which underpin the proposed threshold criteria:

"Well I think that, for myself, how it can be proved, in relation to a lady who within minutes of getting to a police station withdraws her allegation that she has been kidnapped there by the father, and is observed on the DVD at the police station kissing and cuddling him. That is what I am told by a police officer on oath this afternoon. How then can the local authority bring a lady like this into the witness box and say to a court, 'We want you to believe this lady on a balance of probabilities?' At the moment, as I see it, I do not see how it can happen."


"Indeed, the breach of bail allegation, of course, was not pursued either, in the light of the fact that the mother retracted that fact that she had been abducted by the father in his van and brought to the police station; that turned out to be a pack of lies, it would seem."

After recording that consideration had to be given to the fact that the mother was a very vulnerable person, and represented by the Official Solicitor, and was recorded as having a mental age of twelve, the judge went on to say:

"…[E]ven a twelve year old person would know what is happening if a child is being sexually abused or not. And even a twelve year old would be able to say in an interview if it had happened, how it had happened and when it had happened. The mother had an ample opportunity in the hours of her ABE interview to make clear, if indeed it had been the case, that W had been sexually abused, and it is that that the police were concerned about in the notes, as everybody will be able to read for themselves in due course."

The judge then made clear that he required the local authority to tell the court what evidence they were relying upon:

"because, as I say, at the moment, on the basis of what I have read in those police papers, I very much doubt, and I put it no higher than this, but I very much doubt that threshold would be made out. I can put it no higher than that at the moment, because obviously I need to give the parties an opportunity to investigate that, and the local authority, perhaps to file further threshold documents."

The Court of Appeal remind us all that the test to be applied on the issue of apparent judicial bias is set out in Porter v Magill [2001] UKHL 67; [2002] 2 AC 357. The House of Lords approved the test to be applied in such cases in the following terms [at paragraphs 102 and 103]:

"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 … that the tribunal was biased."

The court recognised the duty to focus on the real issues in the case as contained in the provisions of the Family Procedure Rules 2010, in particular PD12A.  However, more generally, a judge hearing a family case has a duty to further the overriding objective of dealing with cases justly (having regard to any welfare issues) by actively managing the case [FPR 2010, rr 1.1(1) and 1.4(1)].  Active case management involves a range of matters set out at FPR 2010, r 1.4(2) which include identifying the issues at an early stage [r 1.4(2)(b)(i)] and  deciding promptly which issues need full investigation and hearing and which do not [r 1.4(2)(c)(i)]. 

McFarlane LJ said:

"Family judges are encouraged to take control of the management of cases rather than letting the parties litigate the issues of their choosing. In undertaking such a role, a judge must necessarily form, at least a preliminary, view of the strength and/or merits of particular aspects of the case. The process may well lead to parties reviewing their position in the light of questioning from the judge and, by agreement, issues being removed from the list of matters that may fall to be determined.

Despite having to adopt a 'pro-active' role in this manner, judges must, however, remain very conscious of the primary judicial role which is to determine, by a fair process, those issues which remain live and relevant issues in the proceedings. The FPR 2010 makes provision for an 'Issues Resolution Hearing' ['IRH'] at a later stage of care proceedings. As the IRH label implies, it is intended that some, if not all, of the issues will be resolved at the IRH stage. The rules are however plain [FPR 2010, PD12A] that the 'court resolves or narrows issues by hearing evidence' and 'identifies the evidence to be heard on the issues which remain to be resolved at the final hearing'.

The task of the family judge in these cases is not an easy one. On the one hand he or she is required to be interventionist in managing the proceedings and in identifying the key issues and relevant evidence, but on the other hand the judge must hold back from making an adjudication at a preliminary stage and should only go on to determine issues in the proceedings after having conducted a fair judicial process.

There is, therefore, a real and important difference between the judge at a preliminary hearing inviting a party to consider their position on a particular point, which is permissible and to be encouraged, and the judge summarily deciding the point then and there without a fair and balanced hearing, which is not permissible.....

I am clear that a fair-minded and informed observer would indeed have concluded that there was a real possibility that the judge had formed such a concluded view at the [CMH].... the process conducted at the CMH....was seriously flawed if, as it was, it was used by the judge to reach any conclusion as to the state of the mother's allegations. It was not a fair process and it was not an evidentially sound process."

A word of caution to practitioners.  McFarlane LJ sets out some comments made by the Judge at the CMH that are "commonplace" and would not give grounds for similar appeals, for example:

"[I]t seems to me that the local authority could be, I am using that word advisedly, could be in some difficulty in getting over the threshold in this case

… [A]t the moment, on the basis of what I have read in those police papers, I very much doubt, and I put it no higher that this, but I very much doubt that threshold would be made out. I can put it no higher than that at the moment, because obviously I need to give the parties an opportunity to investigate that, and the local authority, perhaps, to file further threshold documents."

Access to DNA samples emanating from criminal investigations

Re Z (Children)
[2014] EWHC 1999 (Fam) was a case that dealt with the issue of the access to DNA samples held by the police.  It concerned the paternity of a child.  X asserted he was the father but refused to submit to DNA sampling.  X murdered the mother and is serving a life sentence. 

The President agreed with the earlier authorities that where PACE prevents the use of a DNA sample in circumstances where the Family Court would wish to have access to that sample, or information derived from it, in a case where paternity is in issue, PACE trumps the needs of the Family Court.   Neither the Family Court, nor the High Court in exercise of its inherent jurisdiction, can order the release or use of DNA material in circumstances prohibited by PACE: see Lambeth London Borough v S, C, V and J (by his Guardian) [2006] EWHC 326 (Fam), [2007] 1 FLR 152, and Lewisham London Borough Council v D (Police Disclosure of DNA sample to local authority) [2010] EWHC 1239 (Fam), [2011] 1 FLR 908.

The President also considered the provisions of the Human Tissue Act 2004.

The decision turned on the precise circumstances of the case.  X murdered the children's mother. In the course of his attack he wounded her. Evidence at X's criminal trial referred to the mother's wound as "bleeding". There was also evidence that X had cut his wrists, which were also bleeding, with a knife. Various samples of blood were taken from the crime scene and submitted for analysis. A sample of blood from the knife was also analysed. A sample of the mother's blood was obtained during the post mortem examination of her body and analysed. A comparison of the various samples showed that two of the samples taken from the crime scene matched the mother's DNA profile. The remaining samples from the crime scene did not match the mother's DNA profile and were therefore each from a person other than the mother.  The President reiterated that if the samples had been caught by Part V of PACE that would be an absolute bar to their use.

In this case the blood evidence was entirely independent of any samples or DNA profiles.  The President held:

"The unidentified DNA profiles obtained from those samples can, without reference to any other samples (whether obtained under Part V of PACE or, post mortem, from the mother's body), be compared with the DNA samples obtained...from the children. If those unidentified DNA profiles identify two persons as being parents of the children, then that will, without more, establish X's paternity. If those unidentified DNA profiles identify one person as being a parent of the children, then it will be necessary to compare the relevant profile with that obtained from the mother's post mortem sample to establish whether it is hers or, by elimination, X's.

... [In this case] No reference is made to any Part V [of PACE] samples; no reference is made to any comparison with any Part V sample; no disclosure is sought of any Part V sample (or, I might add, anything derived from a Part V sample)."

However, that was not an end of the matter.  Having decided that there was no statutory bar to the use of the evidence held by the police, the President went on to conduct a balancing exercise. The court concluded that such an exercise came down in favour of the children.

The advice from the court for future applications included this:

"Every case where an application is made for access to DNA samples or profiles requires the most anxious scrutiny and an intense focus on the specific facts and circumstances of the particular case. Even if there is no statutory prohibition of what is sought, an order is never to be had just for the asking."

Jurisdictional basis for care proceedings

In Re F (A Child) [2014] EWCA Civ 789 the Father had appealed an order that the child was habitually resident in England and Wales, made within care proceedings.  The President re-visited his decision in Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam) and described the consequences as follows:

i)   Where BIIR applies, the courts of England and Wales do not have jurisdiction merely because the child is present within England and Wales. The basic principle, set out in Article 8(1), is that jurisdiction under BIIR is dependent upon habitual residence.  It is well established by both European and domestic case-law that BIIR applies to care proceedings.

ii)  In determining questions of habitual residence the courts will apply the principles explained inA v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1. For present purposes the key principles (para 54) are that the test of habitual residence is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned and that, as the social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent, it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

iii)  Jurisdiction under Article 8(1) depends upon where the child is habitually resident "at the time the court is seised."

iv)  Since the point goes to jurisdiction it is imperative that the issue is addressed at the outset. In every care case with a foreign dimension jurisdiction must be considered at the earliest opportunity, that is, when the proceedings are issued and at the case management hearing.

v)  Good practice requires that in every care case with a foreign dimension the court sets out explicitly, both in its judgment and in its order, the basis upon which, in accordance with the relevant provisions of BIIR, it has either accepted or rejected jurisdiction.

vi)  Judges must be astute to raise the issue of jurisdiction even if it has been overlooked by the parties.

For an article on the subject of care proceedings with a European dimension (written before the Re F judgment), please click here.