Court of Appeal finds Family Division judge failed to adhere to “fundamental principle” of justice being seen to be done

The Court of Appeal has criticised a judge for her “blatantly unfair conduct”, finding that an interchange with a father demonstrated a “complete failure of proper judicial process”.

Outlining the background to the case in The Father v Worcestershire County Council [2024] EWCA Civ 694, Lord Justice Lewison, Lady Justice King and Lady Justice Falk said that on 9 June 2023, District Judge Solomon made an order under section 31 (1) of the Children Act 1989 placing the children with whom the appeal was concerned in the care of Worcestershire County Council.

The children’s father, however, applied to the Family Division for an order of ‘habeas corpus’ for the purpose of securing the return of the children to his care.

The application came before Ms Justice Russell, sitting in the applications court, on 15 April 2024.

Russell J gave no judgment, but the Court of Appeal had a transcript of the conversation as follows:

“Mrs Justice Russell: What is it you're asking me to do?

Mr X: I'm asking for the writ of habeas corpus.

Mrs Justice Russell: You cannot have it.

Mr X: What?

Mrs Justice Russell: You cannot have it. It is an ill-conceived application.

Mr X: Why is it ill-conceived?

Mrs Justice Russell: Because it has no application in this case. The orders have been made lawfully. If you wish to deal with these orders, you appeal or you make other applications under the Children Act. The writ of habeas corpus is hardly ever used anymore, because there is statutory provision that you have to use first.

Mr X: Well, I've tried everything.

Mrs Justice Russell: No, you haven't appealed or tried to appeal.

Mr X: Every appeal that I filed was turned down, my Lady.

Mrs Justice Russell: Well, doesn't that tell you something? You are not getting a writ of habeas corpus. It is inappropriate, it is wrong, it is not the correct process."

The Court of Appeal judges observed: “It must be acknowledged that the applications court is often very busy and that judges who sit there are under considerable pressure to get through an overloaded list. For that reason a judge may seek to drill down into the essentials of an application; and reasons for a decision one way or another may be brief.

“Nevertheless, a line must be drawn between a short and robust hearing and no effective hearing at all. The interchange we have quoted demonstrates a complete failure of proper judicial process. The judge had clearly made up her mind before the father had said anything; and the father was hardly allowed to say a word thereafter.”

The Court of Appeal judges pointed to what Lewison LJ said in Re S-W (Care Proceedings: Case Management Hearings):

"It has long been a fundamental principle of English law that justice must not only be done, but must be seen to be done. Where a judge has apparently made up his mind before hearing argument or evidence that principle has undoubtedly been breached. A closed mind is incompatible with the administration of justice. But in such cases it is always possible that justice itself has not been done either."

The judges observed: “In this case the judge unquestionably failed to adhere to that fundamental principle.”

They noted that the father has now had the opportunity to present his argument in favour of the order that he seeks.

The father’s fundamental point was that the order of DJ Solomon, placing the children in the care of the local authority, was “made without jurisdiction because the threshold condition in section 31 (2) of the Children Act 1989 had not been satisfied”.

The Court of Appeal judges noted that because the father's challenge to the District Judge's jurisdiction was that the threshold condition had not been met, his challenge was “necessarily a challenge to her factual findings”.

They added: “The order that the District Judge made is therefore an order of a kind which stands unless and until set aside or discharged by following the procedures contained in the Children Act and the Family Procedure Rules.”

Considering the father’s challenge, the judges observed: “as Munby J explained in S v Haringey LBC (recently endorsed by this court in Re AB (a child) (Habeas Corpus), a child living with foster parents under a care order is not detained but is simply living in the same type of domestic setting as any other child of their age would be. That is not the kind of detention at which the writ of habeas corpus is aimed.”

The Court of Appeal was satisfied that as a matter of law, the district judge's ultimate conclusion was correct, and therefore dismissed the father’s application.

The judges concluded: “The lower court had power to dismiss the father's application for a writ of habeas corpus and accordingly so do we. We therefore set aside the judge's order on the ground that the hearing was unfair; but exercise the power given to this court by CPR 52.20 (1) to dismiss the father's application.”

Lottie Winson