A question of bias: from the children’s guardian? by Jason Hadden MBE

For a whole variety of reasons, it is not uncommon for parents in care cases to allege that the children’s guardian is biased against them. Over the years, I have had many parents tell me that the guardian has ‘taken against us’, ‘will not listen to us’ or simply ‘does not believe a word that we say’. More colourful language is not uncommon.

A similar argument recently came before Mr Justice MacDonald in QS v RS (No 2) (Application to Terminate Appointment of Guardian) [2016] EWHC 1443 (Fam).

Mother applied for the termination of the guardian on the basis of an allegation of bias. The matter related to the living arrangements of a child adopted in Nepal by British citizens.

The mother’s complaint was that prior to receiving all of the evidence, a position statement had been filed on the guardian’s behalf expressing a view as to the child’s best interests. The mother also made wider generalised assertions of unfairness.

The mother considered that the position statement appeared to favour the father’s case. She therefore applied for the termination of the appointment of the children’s guardian pursuant to FPR 16.25(1)(b). Mr Justice MacDonald dismissed her application, considering it to be misconceived.

He first reminded himself that where an allegation of apparent bias is made the test set out in Porter v McGill [2002] 2 AC 357 falls to be considered; namely “whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

Thus, the issue of apparent bias arose in the context of the conduct of a person occupying a judicial or quasi-judicial role. This however is not role of the guardian. The guardian does not make a determination, simply a recommendation. Whilst the guardian is under a statutory duty to advise the court, he or she is not the decision maker in the process – that responsibility lies with the tribunal.

The court further acknowledged that the right to a fair trial guaranteed by Art 6 is not confined to the ‘purely judicial’ part of the proceedings. Unfairness at any stage of the litigation process may involve a breach of Art 6 (Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730). However, where it is said that biased or unfair conduct on the part of a person under a duty to advise the court will lead to bias or unfairness in the proceedings, a causal link must be demonstrated.

In reality, this will be extremely difficult to prove. You would have to show that this person would impose his or her influence on the tribunal.

The court reiterated the role of the guardian – they are not a “neutral” party nor do they have a “special” status within the proceedings. Whilst this is perhaps trite, there are many guardians and indeed tribunals who forget this but ultimately the court is the decision maker and must reach its decision by reference to the matters set out in the Children Act 1989 s 1 having regard to the totality of the evidence before the court.

In this case Mr Justice MacDonald held that there was no real likelihood that the approach of the guardian would lead to unfairness in the proceedings such that it required the termination of his appointment.

The court’s discretion to terminate the appointment of a children’s guardian was one that should be exercised sparingly; taking into account the need to deal with cases justly having regard to the welfare issues involved.

This decision should not come as a surprise but it perhaps reminds us of two points:

1.       It is perhaps a case to have to hand, simply sometimes to remind tribunals of the observations of Macur LJ in MW v Hertfordshire County Council [2014] EWCA Civ 405 at [32] that the children’s guardian is a witness subject to the same judicial scrutiny as any other witness and starts with no special advantage in proceedings as compared with other witnesses. Far too often tribunals appear to forget this and perhaps, dare I say, take their word as gospel.

2.       And for advocates everywhere to remember the words of Ward LJ in Re J (Adoption Appointment of Guardian ad Litem) [1999] 2 FLR 86 where he re-iterated that frequently, a children’s guardian holding a certain view can be persuaded under cross-examination to change their minds, that the “flexibility, rigidity, competence, balance, wisdom or other aspects of her conduct of the case are matters which the court will be invited to take into account when deciding whether to accept her evidence or recommendations”. Whilst I am not sure I can agree with the word ‘frequently’, let me assure you that it can and does happen: sometimes.

Author: Jason Hadden MBE