Re L (Children) (Care Proceedings: Cohabiting Solicitors)
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Date | 2000 |
| Year | 2000 |
| Court | Family Division |
Care proceedings – Local authority – Bias – Solicitor acting for local authority cohabiting with solicitor representing two other parties to the proceedings – Third party alleging perception of bias on part of local authority against her in favour of other parties – Whether solicitors should continue to act – Whether court should intervene.
In August 1999 the local authority initiated care proceedings in respect of four children. The first and second respondents, who were the natural parents of three of the children, had also been bringing up the third respondent’s child as their own, but the current relationship between them was acrimonious. In April 2000 the third respondent discovered that the female solicitor with the conduct of the local authority’s case was cohabiting with the male solicitor representing the first and second respondents. The third respondent’s solicitor wrote to the local authority seeking to object to their solicitor’s continued conduct of the case and the letter was couched in the context that she perceived bias in their treatment of her, rather than that bias actually existed. Following both solicitors’ refusal to relinquish the personal conduct of the case to another solicitor, the third respondent applied for an order ensuring that they should not both personally retain conduct of the proceedings.
Held – Where a solicitor with the conduct of the local authority’s case in contested care proceedings was cohabiting with the solicitor representing another party to those proceedings, the fact of that cohabitation could give rise to a reasonable lay apprehension of bias. Accordingly where a third party to the proceedings learnt of the cohabitation and objected in good faith, the court should intervene in order to preserve the fairness of the trial and, specifically, the expectation that the local authority would maintain a professional distance from the other parties. Whilst most civil litigation and, until sentence, all criminal litigation comprised a confined investigation of past events, the inquiry in care proceedings was far wider. It extended to the general history of the child and his family; to major specific events; to the current and likely circumstances, physical, mental and emotional, of the family’s active members; to the nature of their characters and the quality of their relationships; and to the merits and demerits of the various proposals for the child’s future care. The role of the local authority, as the arm of the state, in that inquiry was of crucial importance and the way they chose to present their case could have a profound effect on the
outcome of the proceedings. It was therefore of great importance that they were seen to be acting impartially. In the instant case, as the solicitors had indicated that if the court concluded that one or other of them should stand down they would do so without the need for an order, and to give them time do so, the court would make an order in seven days’ time declaring that the local authority’s solicitor on record was no longer representing the local authority in the proceedings.
Editorial Note. Following the judgment the local authority forthwith transferred conduct of the proceedings away from the solicitor concerned with the result that the proposed order was never made.
Cases referred to in judgmentBolkiah (Prince Jefri) v KPMG (a firm) [1999] 2 AC 222, [1999] 1 All ER 517, [1999] 2 WLR 215, HL.
Locabail (UK) Ltd v Bayfield Properties Ltd, Locabail (UK) Ltd v Waldorf Investment Corp, Timmins v Gormley, Williams v HM Inspector of Taxes, R v Bristol Betting and Gaming Licensing Committee, ex p O’Callaghan [2000] 1 All ER 65, [2000] 2 WLR 870, CA.
R v Batt [1996] Crim LR 910, CA.
R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet (No 2) [2000] 1 AC 119, [1999] 1 All ER 577, [1999] 2 WLR 272, HL.
R v Gough [1993] AC 646, [1993] 2 All ER 724, [1993] 2 WLR 883, HL.
R v Sussex Justices, ex p McCarthy [1924] 1 KB 256, [1923] All ER Rep 233, DC.
Solicitors, Re a firm of [1992] QB 959, [1992] 1 All ER 353, [1992] 2 WLR 809, CA.
T and A (children) (risk of disclosure), Re[2000] 1 FCR 659, [2000] 1 FLR 859, CA.
Webb v R (1994) 181 CLR 41, Aust HC.
ApplicationThe third respondent, Miss L, applied for an order that the solicitor conducting the local authority’s case in contested care proceedings, and the solicitor representing the first and second respondents should not both personally retain conduct of the proceedings, following her discovery that they were cohabiting together. The case was heard and judgment was given in chambers. The case is reported with the permission of Wilson J. The facts are set out in the judgment.
Elizabeth Szwed (instructed by Celia Morris Solicitors) for Miss L.
John Critchley (instructed by the local authority solicitor) for the local authority and Miss T.
Nicholas Baker (instructed by Stephens & Sons) for Mr and Mrs B and Mr P.
Michael Sherwin, solicitor-advocate, agent for Stantons for the children by their guardian ad litem.
Cur adv vult
21 July 2000. The following judgment was handed down.
WILSON J. Section A: Introduction1. An unusual issue has arisen in care proceedings brought by Medway Council (Medway); and the jurisprudence cited to me lies at some distance from it. The issue arises from the fact that the female solicitor with conduct of the case within the legal department of Medway cohabits with the male solicitor with conduct of the case within the firm which represents two other parties to the proceedings. A further party applies for an order which would ensure that the two solicitors should not both personally retain conduct of the proceedings.
2. There are seven respondents to the proceedings, namely three adults and, by their guardian ad litem, the four children who are the subject of them. The four children, the fourth to seventh respondents, are a boy, A, aged six, and three younger children. The first and second respondents are Mr and Mrs B. They are the parents of the three younger children and are represented by Messrs Stephens & Sons of Chatham. Mr P, a partner of Stephens & Sons, has conduct of the case on behalf of Mr and Mrs B; and it is he who cohabits with the solicitor, namely Miss T, who has conduct of the case on behalf of the solicitor on record as acting for Medway in the proceedings, namely the head of legal administration within Medway.
3. The third respondent is Miss L. She is the mother of A and the younger sister of Mrs B. Miss L was only 14 years old when A was born and until recently Mr and Mrs B brought him up with their own children. Miss L is on bad terms with Mr and Mrs B.
4. It is Miss L who objects to the participation in the proceedings of both Miss T and Mr P. She says that either Miss T should pass conduct of the case to another solicitor in Medway’s legal department or Mr P should pass its conduct on behalf of Mr and Mrs B to another partner in his firm or to another firm of solicitors. But both Miss T and Mr P refuse to do so. The head of legal administration in Medway and Medway themselves indorse Miss T’s firm stance. Mr P’s senior partner and Mr and Mrs B indorse Mr P’s firm stance. Miss T and Mr P say that their stance is a matter of principle. They use harsh words, reflective of injured feelings, to describe the application of Miss L and the conduct of her advisers. Mr P argues that Miss L’s advisers should never have told her of his cohabitation with Miss T and that they have orchestrated the issue for tactical reasons. Miss T, through Medway’s advocate, describes Miss L’s application as frivolous and as a ‘distracting, misguided and wastefully expensive satellite’. Miss T and Mr P argue that the relinquishment of the case by one or other of them would set a highly unfortunate precedent.
5. Full skeleton arguments have been filed on all sides; and the supplementary oral argument has itself occupied an extended day. Very properly, however, Miss T and Mr P have indicated that, if my conclusion was that one or other of them should stand down, she or he would do so without the need for me to make an order to that effect. If such was my conclusion, perhaps the best mechanism
would be for me to state today that I proposed to make an order at the end of seven days; in the interim Miss T or Mr P would relinquish the file; so there would become no need for me to implement my proposal to make the order. At all events their indication does not, I fear, absolve me from considering the jurisdiction to make an order in these circumstances and the proper form of any such order as well as the factors relevant to the exercise of the jurisdiction.
Section B: The shape of the proceedings6. Miss L, who is now 21...
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