ON APPEAL FROM THE COURT OF PROTECTION (Sitting at Ipswich)
Strand, London, WC2A 2LL
B e f o r e :
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|M (by her litigation friend Y)
Mr Tim Parker (instructed by Hodge Jones & Allen) for the 1st Respondent
Ms Asma Nizami (instructed by LA Legal Services) for the 2nd Respondent
The 3rd Respondent did not attend and was not represented
Hearing date: 8th February 2018
Crown Copyright ©
Mrs Justice Theis DBE:
The Grounds of Appeal
(1) There was apparent bias, in that the judge stated her intention in the exchange between the judge and the legal representatives, in the absence of the parties, to decide the application consistent with decisions made in different proceedings.
(2) The judge wrongly felt constrained to reach a decision that would be consistent with a decision she had reached in different proceedings.
(3) There was a material irregularity, in that the Judge took into account material from different proceedings, and the PGPs within the COP proceedings were unable to properly know the case against them or that they had to meet.
(4) In reaching her decision the judge failed to identify or give sufficient weight to factors that were relevant to M's best interests.
'must consider, so far as is reasonably ascertainable—
(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity, and
(c) the other factors that he would be likely to consider if he were able to do so.'
Discussion and Decision
'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…'. After referring to provision in the Family Proceedings Rules 2010 (FPR) relating to Issues Resolution Hearings in care proceedings which are intended to resolve some, if not all, of the issues, the FPR makes it plain in 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'. He continues at  and 
'47. 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.
48. There is, therefore, a real and important difference between the judge ta 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.'
(1) Having considered the transcript as a whole, in particular the hearing with advocates only, the language used by the judge could only reasonably be interpreted as meaning there was a real possibility she had formed a concluded view. What she said stepped over the line between robust case management and premature adjudication. Phrases such as the PGPs having more of a chance if the judge was a 'different person' [as the judge in the family proceedings] but as she isn't she is 'very unlikely to…stand on my head', she said she had dealt with issues regarding X and the PGPs accommodation 'comprehensively in the other [family] proceedings' and 'to take a different stance from what I have already taken. It would be a nonsense and I pushed as far as I could'. These comments are inconsistent with an open mind on the issue the hearing was listed to determine.
(2) The position was not rescued by the judge giving further time for the parties to negotiate outside court, or by giving the parties the opportunity to make oral submissions. As was said in Re Q the unfairness, if established, cuts across the whole process.
(3) The fact that no application was made for the judge to recuse herself does not, in the circumstances of this case, undermine the grounds now relied upon. The fact that what was said took place in the absence of the parties adds to the complexity of the situation. The PGPs did not hear first hand what had been said, but the test is would a fair-minded and informed observer have concluded that there was a real possibility that the judge had formed a concluded view prior to the parties making their oral submissions. In my judgment they would have done, as the language used was clear and unambiguous.
(4) This conclusion is supported by the references to the hearing in the family proceedings on 12 June, which although the PGPs would have been present at, the representatives in the COP proceedings were not. Reliance by the Local Authority and Z on the argument that the PGP's solicitors agreed to some of the material from the family proceedings being removed from the court bundle for the COP hearing on 18 July does not stand up to close scrutiny; as it was without any express or corresponding reference between the parties to any agreement that the issues to be determined on 18 July had in some way been limited by the events and order made on 12 June.