Emails: Inappropriate conduct by guardian
A circuit judge has terminated the appointment of the guardian of a young child in care proceedings after he criticised the father’s solicitor in a letter to the law firm’s head of department.
Her Honour Judge Carter in Birmingham said that the guardian not only made “inaccurate and unfair criticisms” of the solicitor but “made them in an inappropriate way by asserting and maintaining that he can do that by way of ‘private’ emails”.
‘N’ was taken into care shortly after he was born last year and is now in a foster home. The mother alleged domestic abuse by the father, a registered sex offender.
HHJ Carter said that, following the father’s application for his assessment to be carried out by an independent social worker, the guardian in the case, a Mr Turner, emailed Jas Tamber, head of the family department at the law firm representing the father. He was not personally acting.
The judge recorded that the two knew each other “well”; Mr Turner said he was contacting him with his “thoughts” about the case, expressing surprise that the father had applied for the independent assessment.
HHJ Carter said Mr Turner particularly criticised the father’s solicitor for having instructed counsel in the application.
The guardian said: “It again concerns me 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…
“I can’t help but think that in demonstrating an inability to undertake fundamental tasks relating to their own practise they are in no position to offer comment on the competence or ability of other professionals to do theirs.”
Mr Tamber replied that, under Solicitors Regulation Authority rules, he would need to make the father aware of the correspondence and seek his instructions.
In his response to that, Mr Turner said he accepted that the members of Mr Tamber’s team were all suitably qualified, but that “the competence of this particular individual, in my opinion, was questionable”.
HHJ Carter said Mr Turner was not only “clearly and obviously wrong” in the assertions that he made about the solicitor, but he had not been able to accept that he was wrong.
“The fact that, in the face of overwhelming factual evidence showing that he is wrong, he maintains his views, and repeats them, inevitably has a significant impact not only upon the father’s views of the guardian’s action and analysis in this case, but upon all the other professionals working within this case, and the mother.”
She went on: “Professionals within these courts are currently acting under simply enormous pressure. Each of the advocates addressed me on the issue that people make mistakes, people send emails that they later regret, people reflect with the benefit of time and perhaps less pressure.
“That is however simply not the situation here. That fact goes to the ultimate confidence that the court and the other parties can have in the guardian’s ability to make fair and sound judgments and recommendations in this case.”
HHJ Carter said Mr Turner had not only made “inaccurate and unfair criticisms”, but he also made them “in an inappropriate way by asserting and maintaining” that he could do that by ‘private’ emails, leading to an “inevitable belief for both the mother and particularly for the father, that this is a guardian who does not consider that the normal rules apply to him”.
If Mr Turner remained the court-appointed guardian, the father would “surely believe that an extremely important person in these proceedings views his solicitor as not being competent” and consider that he had been “placed in the middle of a substantial argument between his solicitors and the guardian”.
HHJ Carter concluded that Mr Turner’s actions had “fallen short of the degree of fairness required of him and have created unfairness for the father”, while being “manifestly contrary to the child’s best interests”. They required the termination of Mr Turner’s appointment.
The judge also mentioned email etiquette in passing, having drafted one to the parties on a Sunday but delayed its transmission until 7am on Monday.
“In my view, it is inappropriate for judges these days to be emailing advocates asking them to undertake tasks at the weekend, such as sending documents which have not been sent to the court,” she said.
“It is, of course, still relatively routine for judges to be emailed documents over the weekend, but in my view that falls into a slightly different category as that is often done by self-employed people working at times that suit them, and indeed there is no compunction on the court to read them.”
“Compunction”?