Neutral Citation Number: [2018] EWCOP 4 
Case No: COP1268512
IN THE COURT OF PROTECTION

ON APPEAL FROM THE COURT OF PROTECTION (Sitting at Ipswich)
HHJ ROBERTS

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/02/2018
Before:

MRS JUSTICE THEIS
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Between:

	A	1st Appellant	
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	B	2nd Appellant	
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	Z	1st Respondent	
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	Local Authority	2nd Respondent	
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	M (by her litigation friend Y)	3rd Respondent	
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Mr Stephen Simblet (instructed by Campbell-Taylor Solicitors) for the 1st & 2nd Appellants
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
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Judgment Approved

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Mrs Justice Theis DBE:

	Introduction

1.	This matter concerns an appeal from the order of HHJ Roberts made on 18 July 2018 in Court of Protection (COP) proceedings concerning M. The appellants are M’s mother and father in law who have the care of X, M’s son age 12. Permission to appeal was granted by Newton J on 22 November 2017. 

2.	I heard the appeal on 8 February 2018. At the conclusion of that hearing I announced the court’s decision that the appeal would be allowed, with reasons to follow. This judgment sets out those reasons.

3.	The tragic background to this case is M and X were involved in a serious car accident, which killed M’s husband and their two eldest children. X is their only surviving child. Due to the extent of her injuries M was in hospital for over a year before returning home where she required round the clock care. After the accident X was initially cared for by A and B, his paternal grandparents (PGPs) in their country of origin, they then came here with X and lived with M and X in the same home.

4.	The circumstances of the car accident gave rise to a personal injury claim on behalf of M. M has a brain injury and lacks capacity to conduct proceedings, and to make decisions about care and residence. Z was instructed to pursue the personal injury claim and was appointed deputy for property and affairs in 2015. Z has managed and administered the moneys in the claim against the insurer. Although in her recent application, Z sought to be appointed a welfare deputy, that order was not made.

5.	During 2016 the PGPs arranged to take X on holiday, Z applied and obtained a prohibited steps order. In the event the PGPs did take X on holiday, although Z sought a port alert which led to the Local Authority becoming involved, and ultimately care proceedings being issued in December 2016. It is the overlap between decisions taken in those proceedings and the approach taken by the same judge in the COP proceedings commenced by Z that form the background to this appeal.

6.	The more recent COP proceedings arose due to an issue about whether M should move to a specially adapted property. It was set out in the COP application form that this home should be separate from the PGPs.

Relevant Background

7.	Following the car accident, the extent of M’s injuries means she requires full time care. There was evidence of conflict between the PGPs and those providing the care for M, although some of this was disputed. Z applied for an order that it was in M’s best interests to live independently from the PGPs and X in a suitable property to be identified. In the COP application form, Z sought an order for the COP proceedings to be heard together with the family proceedings concerning X, by the same judge at the same time.

8.	Interim directions were made by HHJ Owens, the matter was allocated to the Personal Welfare Pathway and listed before a District Judge on 15 May 2017.

9.	The family proceedings had been issued in December 2016 and following assessments the PGPs were recommended as X’s special guardians. The PGPs were parties to the care proceedings, represented by different solicitors and counsel to those instructed within the COP proceedings. The care proceedings were listed before HHJ Roberts on 1 June 2017. The court was informed during the appeal hearing that due to increasing concerns about the position on the ground HHJ Roberts agreed, or directed, that she should also give directions in the COP proceedings on that day. The COP directions made on 1 June listed the matter for an interim hearing on 7 June 2017 before HHJ Roberts. The 1 June COP order made provision for disclosure of some documents from the family proceedings into the COP proceedings, and all the COP papers to be disclosed into the family proceedings. The order did not accede to Z’s position in her draft order, submitted with her COP application, that the family proceedings and the COP proceedings should be listed together.

10.	The PGPs applied to adjourn the 7 June hearing on two occasions, first by a paper application on 6 June and, secondly, on the morning of the hearing. Both applications were refused. The basis of the adjournment applications was they wished to respond to the evidence on behalf of Z. The directions order dated 1 June required the PGPs to file their evidence by 6 June, which they had been unable to do. As the PGPs position statement for the hearing on 7 June made clear, they had only been granted public funding on 5 June and had only received the case papers the day before that hearing. The position statement also raised the issue of the family and COP proceedings being heard together.

11.	At the hearing on 7 June HHJ Roberts made interim orders, which included provision that ‘pending further order’ M should live separately from the PGPs and X, orders for contact were made and directions leading to a final hearing on 18 July, with a time estimate for a day. The recitals included identification of issues to be determined at the next hearing as including ‘the identification of disputed facts and whether there is a need for a further hearing specifically a fact finding hearing’. Paragraph 14 of the 7 June order provided that the hearing on 18 July ‘will be the final hearing in respect of the issue of who [M] should live with’. M’s representation was also considered, and Y was appointed as M’s litigation friend. Mr Simblet, on behalf of the PGPs, makes the point in his skeleton argument for this appeal that ‘this decision was reached without any of the evidence from Z being tested or [PGPs] having had any proper opportunity to controvert it with their own evidence’. The 7 June order was not appealed, no doubt due in part to the fact that a hearing was listed on 18 July to consider any final orders. According to a note of the judgment given by HHJ Roberts on 7 June (which was not in the papers before this court) she observed, according to Mr Simblet’s skeleton argument, that Z’s case contained a suspicion of the family and their friends which she said was ‘unhelpful and distasteful. There is no reason to think the respondents motivation is anything other than love for [M], love for [X] and a sense of family duty as to what is right’.

12.	M moved to live in the specially adapted property following the 7 June order.

13.	In readiness for the hearing on 18 July detailed statements were filed by the PGPs, Z and Y, who had been appointed Litigation Friend for M, Mr Simblet said one of the statements on behalf of the PGPs dated 3 July ran to approximately 100 pages, including exhibits

14.	The family proceedings concerning X were listed for final hearing on 12 June 2017. The Local Authority were given leave to withdraw the care proceedings and the PGPs were made special guardians for X and a detailed order was drawn up, which included detailed provisions for contact between X and M. The PGPs were present and represented at that hearing and Z is recorded as being M’s ‘Deputy and Litigation Friend’. The position statement filed on behalf of Z sets out meetings in April about the planned move for M. It is unclear on the documentation this court has seen precisely what involvement the PGPs had in those meetings or that decision making process. Z and the Local Authority submit this order, although not expressly stated, was predicated upon M living separately from X, with the PGPs and included provision for contact between them. This is not accepted by the PGPs within the COP proceedings. Following the 12 June order no one sought to vary the issues to be determined at the hearing on 18 July or limit the evidence to be filed by the PGPs.

15.	In readiness for the COP hearing on 18 July the parties filed position statements. Z sought to continue the interim order and the PGPs sought for M, PGPs and X to live in the same property. They set out in the detailed position statement filed on their behalf why they considered this was in M’s best interests.

16.	At the hearing on 18 July HHJ Roberts called the legal representatives into court, without the solicitors or lay parties. A transcript of the exchanges that took place is available in the appeal papers. According to the transcript Mr Simblet “questioned the appropriateness of discussing the substance of the case in the absence of the parties”. He submits the exchanges that took place demonstrated HHJ Roberts had a closed mind about any change in the interim arrangements. The judge made it clear to Mr Simblet that he may have ‘more of a chance if I was a different person, but as I am the same person, I am just very unlikely to…stand on my head’. This was a reference to her being the judge in the family proceedings. She referred to having dealt with matters ‘comprehensively in the other [family] proceedings’.  A little later she said ‘You do not expect me to take a different stance from what I have already taken. It would be a nonsense and I pushed as far as I possibly could. What power can this court or the family court have over the defendant insurers…what was very clear in the evidence in the other [family] proceedings was that the goodwill was fraying…so reality, please and again, your clients [PGPs] were party to those proceedings, so they are well aware of that order to which they agreed…’. The parties were given further time to negotiate, but were unable to reach agreement. HHJ Roberts heard submissions at 2pm and then gave an ex tempore judgement where she referred to her ‘clear memory of much of the evidence’ in the family proceedings. She referred in her judgment to the special guardianship order in the family proceedings being made on the basis that the PGPs and X would live in separate accommodation than M and that it was not said to her that the ‘[PGPs] wanted this arrangement only to be until today [18 July]’. She refers at paragraphs 22 and 23 of her judgment to what she understood had been the agreed position about where M should live and expressed surprise in paragraph 24 that the PGPs have not grasped the important message from the family proceedings that it was not in X’s best interests for him to continue to live with the PGPs, M and the carers. At paragraph 25 HHJ Roberts states ‘in a nutshell, I do not understand how [PGPs] think that I, as the Judge, having found that it is in [X’s] best interests last month, to live apart from [M], that I should now make an Order that [X] should live with [M]’.

17.	The order made on 18 July provided for M to remain in her own home, separate from the PGPs and X.

The Grounds of Appeal

18.	Mr Simblet relies on four 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.
 
19.	Mr Simblet submits the judge had in her remarks, in the absence of the parties, expressed a view consistent with her having pre-determined the principal issue in the proceedings, namely, where M should live. When she used terms such as being very ‘unlikely to stand on her head’ and not being expected to take ‘a different stance’ it was clear, he submits, she had a closed mind to the issue that the hearing was listed to determine, namely who M should live with, as identified in paragraph 14 of the order dated 7 June. The relevant test is set out in Porter v Magill [2011] UKHL 67 at paragraph 103 per Lord Hope ‘The question is whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased’. The Local Authority and Z submit that it was appropriate and proportionate for the Judge to seek to narrow the issues to be decided in her initial exchanges with the advocates, she gave further time for the parties to negotiate and listened to oral submissions before giving her judgment. They recognise the tension between rigorous case management and impartiality as to the issues, particularly when the tasks of case management and trial are undertaken by the same judge (see Re Q [2014] EWCA Civ 918 per McFarlane LJ at paras [44] – [50]). They submit this judge did not step over this line and at no stage did the appellants object to HHJ Roberts dealing with both sets of proceedings or invite the judge to recuse herself. The judge encouraged further negotiation and allowed time for the negotiation to take place. They submit the principal issue was not whether M should be separated from X and the PGPs, the relevant question for the court was where is it in M’s best interests to reside. Mr Simblet made clear in his skeleton argument in response, that reliance on the fact there was no application for the judge to recuse herself is inappropriate when that assessment can only really be made after the event and the circumstances giving rise to any grounds to recusal took place in private. He submits the appellants ‘cannot be deprived of their right to a hearing before a judge who not only is unbiased but appears unbiased when some of the circumstances giving rise to the concern came about in their absence’. He submits McFarlane LJ in Re Q makes clear at para [15] that if there is unfairness it cuts ‘across the entirety of the process’.

20.	In relation to ground 2 Mr Simblet essentially relies on his submissions regarding ground 1. Put simply, he states the judge stated at an early stage she did not want to reach a decision inconsistent with that she had already made in the family proceedings concerning X, and that whilst accepting the family order was relevant he submits by its terms it did not specifically concede the family should live separately. The Local Authority and Z submit the family order was relevant background to the COP proceedings and that in reality no other decision was open to the judge on 18 July. HHJ Roberts was correct to place M’s wishes and feelings at the centre of the COP decision. They submit in light of the consensus of evidence from M (through her litigation friend), from a number of professionals responsible for her care and the evidence of the obstruction in M’s care there was no other realistic order open to the judge than to determine that M’s best interests were met by continuing to reside in separate accommodation.  

21.	Turning to ground 3, Mr Simblet’s essential point is that although there had been some disclosure from the family proceedings to the COP proceedings, the disclosure did not include all the documents. In addition, the way the judge expressed herself meant that she appeared to take into account matters in the family proceedings that were not known to the parties in the COP proceedings, for example the judgment she gave in those family proceedings was not available to the parties in the COP proceedings. He relies on the case of Al-Rawi v Security Service [2011] UKSC 34 per Lord Dyson at paras [10] to [14], in particular the need for a party to know the case against him and the evidence upon which is based. The Local Authority and Z submit the PGPs were legally represented in both sets of proceedings and the 1 June order provided for disclosure between the two sets of proceedings and in paragraph [19] of the judgment on 18 July, HHJ Roberts records that M agreed with the professionals’ views in the family proceedings that it was not in X’s best interests to reside with her. The circumstances of this case were very different than that in Al-Rawi, which involved closed hearings, in the national security context.

22.	Mr Simblet did not place great emphasis on ground 4. He candidly conceded that if he relied on that ground alone he may not be on such a secure foundation. In his skeleton argument he submits in determining M’s best interests the court is bound to consider the matters set out in s 4 Mental Capacity Act 2005, in particular s4 (6) the court
‘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.’

23.	He submits the judge did not properly balance the factors relevant to keeping the family together. The circumstances of this case require the court to consider M’s connection with her only surviving child and the need to require particularly cogent evidence before deciding to separate M from her son. He submits what is in M’s best interests includes taking into account what she would decide if she had capacity. This would include matters such as M wanting to be close to X, for X to live with her, X’s wishes, M’s background and the importance of family ties. The Local Authority and Z submit the judgment given on 18 July is reasoned and considered all the relevant evidence. The judgment carefully took into account the respective position of the parties, the issues, the relevant considerations in s 4  Mental Capacity Act 2005 the evidence since the previous hearing, M’s wishes and feelings and M’s best interests.      

Discussion and Decision

24.	As McFarlane LJ made clear in Re Q, if the claim of apparent judicial bias is established, it would ‘cut across the entirety of the process before the judge’, the appeal must be allowed, and a rehearing take place before a different judge. The parties agree in this case if the appeal is allowed on this basis that course should be followed. It is right that at paragraphs [44] – [48] of Re Q McFarlane LJ deals with the balance to be struck with active case management. He states at paragraph [46]
‘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 [47] and [48] 

‘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.’  

25.	In paragraph 54 of Re Q McFarlane LJ refers to the line to be drawn between robust case management on the one hand and premature adjudication on the other. In that case he considered the words of the judge went over that line and indicate ‘at least the real possibility that the judge had formed a concluded view that was adverse…’.
  
26.	Although Re Q is a family case, the wider fairness principles are equally applicable in this appeal. 

27.	In relation to grounds 1 – 3 this court needs to ask itself whether the words of the judge in the exchanges that took place in the preliminary hearing, without the lay parties or solicitors being present, meant there was a real possibility that the judge had formed a concluded view that was adverse to the case being presented by the PGPs on 18 July. Whilst acknowledging that the judge was seeking to try and focus the parties on the issues in the case, I have reached the conclusion that when what she said is looked at it did mean there was a real possibility she had formed a concluded view adverse to the PGPs case. I have reached that conclusion for the following reasons:

(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. 
 
28.	Having reached that conclusion, I am satisfied that the appeal should be allowed, as the unfairness cuts across the entirety of the hearing on 18 July. In those circumstances it is not necessary for the court to reach any conclusion on ground 4.

29.	If the appeal is allowed the parties agreed the matter should be re-allocated to be heard by a High Court Judge and be listed for directions.  I have deliberately not expressed any view about the merits of the decision reached by HHJ Roberts on 18 July. That will be a matter for the re-hearing.