A little too robust!? Judicial indications in care cases

25 Jul


There is a recent decision of the Court of Appeal called Re Q 2014 EWCA Civ 918 in which Lord Justice MacFarlane sets out the role of judges in care proceedings where they are asked to “robustly case manage” a case.

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Royal courts of justice
There is a recent decision of the Court of Appeal called Re Q 2014 EWCA Civ 918 in which Lord Justice MacFarlane sets out the role of judges in care proceedings where they are asked to “robustly case manage” a case.

There were factual issues about the parent’s conduct centring on a series of allegations made by the mother. These were tried at a fact finding hearing and dismissed. Prior to the fact finding hearing – at a CMH - the circuit judge had made a number of comments about the merits of the mother’s case and the stance she was taking. These words came back to haunt him when the parties for various reasons but primarily the issue of bias appealed the fact finding decision.

The Court of Appeal restated the test for judicial bias from the case of Porter v Magill 2001 UKHL 67 at paragraphs [102 & 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 the tribunal was bias”

In Re Q MacFarlane LJ stated variously –
- Robust case management was encouraged in care proceedings.
- The primary judicial role is to determine by a fair process those issues which remain live and relevant to the proceedings.
- There is a difference between a judge at a preliminary state inviting a party to consider their position on a particular point (which is permissible and encouraged) and the situation when a judge summarily decides the point there and then without a fair and balanced hearing.
- Indication and encouragement to a party to reconsider its view was permissible if the Court was able to couch those entreaties in terms that clearly indicted the Courts mind was still open and that this was a preliminary view over any particular issue based on the information available.
- The test in Porter v Magill was to be applied as the yardstick to determine if the Court had gone too far.

In Re Q the judge had gone too far and a retrial of the fact finding hearing was ordered.

Dylan Morgan 
 

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