Judge terminates appointment of guardian after criticism of solicitor to father

A Family Court judge has taken the rare step of terminating the appointment of a children’s guardian in care proceedings after a dispute about contact with lawyers in the case.

Her Honour Judge Carter made the ruling in N (A Child) (Termination of children's guardian) [2022] EWFC B16, a case involving Birmingham City Council and an unnamed mother, father and child.

The father had applied to terminate the appointment of the guardian in care proceedings concerning his son.  

Child N was taken into care at birth and is now in a foster placement. his mother has alleged domestic abuse against the father, who is a registered sex offender, having pleaded guilty in  2016 to grooming a girl aged under 16.

In November 2021, an application was filed on behalf of the father to instruct an independent social worker to complete a full assessment of him.

An advocates’ meeting was arranged for later that month before which an email was sent by the father’s solicitors to the local authority. 

It said: “In advance of the advocates’ meeting this afternoon and in response to the assessment plan of the local authority, I would be grateful if you could confirm how many sexual risk assessments [social worker] ND has prepared and what relevant experience she has in relation to this kind of assessment? Please can you also confirm what tools she proposes to use for the assessment?”

Birmingham replied that ND had not completed a sexual abuse risk assessment before, but could access guidance from colleagues and noted there were other risks to consider regarding the father.

A few days later the guardian emailed the head of the family law department at the solicitors’ firm representing the father.  

The judge said the pair knew each other well, and that the latter’s law firm conducted work for parents and represented children through their guardians.

The guardian was critical of the father’s solicitor for having briefed counsel and suggested this was inappropriate, “particularly, as in his view, the solicitor had questioned the competence of the social worker, but then had not argued that case himself at the hearing”. 

He went on to tell the head of the family law department he was “further concerned that following the making of such application, father’s solicitor wrote to the local authority seeking to ascertain the professional competency of the local authority social worker, what skills and qualifications they had, what tools they would be using to assess father and whether they had the necessary acumen and experience to undertake a task which they considered to be sufficiently complex that only an ISW would have the necessary skills required to complete the report”.  

The guardian added his concern “that having questioned the competence of the social worker to undertake their role the solicitor appears to have abdicated their own role in this matter and asked someone else to present an argument to the court for them”.

The father argued there is a requirement for impartiality and a right to a fair hearing in Article 6 of the European Convention of Human Rights and he was not confident the guardian would execute his duties fairly given his explicit opinion of him and those he instructs.

He also felt the guardian had predetermined his case before assessments were completed and expressed a view in writing which should be considered as unfair.

The guardian’s advocate said however unpalatable those representing the father may have felt the guardian’s comments to be, “they do not or cannot lead to a causal link that the guardian would fail to execute his duties fairly, or why the guardian would show any form of lack of impartiality, or being incapable of being fair in his recommendations about the case”.

HHJ Carter said the first criticism of the guardian was that his email to the solicitor sought to undermine the competence of the social worker, and to argue that only someone with a significant level of experience in assessing sex offenders could undertake such a task.

She said: “[The guardian] has had a significant time to reflect upon the emails that he sent in relation to this issue. He has then had, upon being notified that such an application was going to be made to terminate his appointment, another opportunity to reflect. He then had a substantial period to file a statement with the benefit of legal advice.  It is quite apparent that [the guardian] stands by his criticisms of [the father's solicitor], with the only potential qualification being that he may have been ‘too harsh’.”

HHJ Carter said the email sent to Birmingham on behalf of the father contained “nothing at all…to justify the criticisms made by [the guardian]”.

She continued: “In considering the question sent to the local authority on behalf of the father, the emails sent by [the guardian, and his statement, there is no possible other conclusion than that he is wrong in his assertions, he has been unable to reflect upon those assertions, and he believes he is correct even in the face of overwhelming evidence to the contrary. That is an extremely concerning situation in relation to a professional guardian.”

“Unpleasant” criticisms of [the father's solicitor] for having briefed counsel to undertake a hearing within care proceedings “are wholly misconceived, indeed without any basis at all. 

“There are many reasons why solicitors instruct counsel…it is inappropriate for that to be the subject of comment, still less straightforward and personal criticism”, the judge said.

She said the guardian was an extremely experienced guardian and so it was “extremely difficult to understand how [the guardian] could possibly genuinely believe that it was inappropriate for [the father's solicitor] to instruct counsel for a contested Part 25 application, or that it could be appropriate effectively to suggest [the father's solicitor] either is not competent to make the application in court,  or that in some way he was acting against his client's interests in instructing counsel”

The father's solicitor had done nothing wrong in the course of the case, the judge said.  

The judge also criticised the guardian for raising concerns “by way of what he refers to as ‘private emails’ between himself and [the head of the family law department]..”

He should have been “under no illusion that within care proceedings there is no such concept as him being able privately to email a solicitors’ firm acting at that time for another party and discussing a case”.  

HHJ Carter concluded: “In my view, on the facts of this particular case, the Guardian’s actions have fallen short of the degree of fairness required of him and have created unfairness for the father. 

“They have also been manifestly contrary to the child’s best interests. His actions require the termination of his appointment.”

Mark Smulian