K and L (Children: Fairness of Hearing)

This is an appeal by a mother against care orders made in respect of her children, K (a girl, now aged 13) and L (a boy, aged 10).

At the conclusion of the hearing, we informed the parties that the appeal would be allowed for reasons to be given in a judgment at a later date. These are my reasons for agreeing with that decision.

The family has been known to the London local authority children’s services department throughout the children’s lives because of a range of problems, including domestic violence between the children’s parents, violent incidents between the parents and other adults, drug and alcohol misuse by the parents, difficult behaviour exhibited by the children, and very low school attendance. On three occasions, in 2016, 2018 and 2020, the children were placed under Child Protection Plans. The parents separated, with the children remaining with the mother, but incidents of domestic abuse continued, some in the presence of the children. By the Spring term of 2021, L’s school attendance had declined still further to 15%. In June 2021, a report from Dr Nicholas Banks, a clinical psychologist, concluded that the mother was not emotionally attuned to the children due to her own unmet psychological needs and that they were likely to suffer significant emotional neglect if they remained in her care. The local authority decided to start care proceedings and instigated the pre-proceedings protocol.

In September 2021, L started at a new school in a different area of London. On 3 September, the local authority filed an application under s.31 of the Children Act 1989. At the first hearing before the magistrates, interim supervision orders were made in respect of both children who remained living at home under a written agreement. Directions were given for further hair strand testing of the parents, a further report from Dr Banks, and viability assessments of various members of the extended family to establish whether they could care for the children. Shortly afterwards it became known that the mother was pregnant. An initial child protection conference in respect of the unborn baby was postponed because the mother refused to provide contact details for the putative father.

In his supplemental report, filed in March 2022, Dr Banks continued to express concerns about the children’s future care if they remained with their mother. He reported that L was functioning at least two to three years below his age expectation and that he was showing characteristics of ADHD for which he should be assessed. He described the relationship between the children as emotionally positive and recommended that they should not be separated. A parenting assessment of the mother recorded that the children’s basic care needs were met, that the mother’s level of engagement with professionals had improved, that she was attending all antenatal appointments, and that domestic abuse was no longer a feature in her relationships. The assessment concluded, however, that the children should not remain in her care because they would “continue to receive maladaptive parenting” which would “impact negatively on all aspects of their development”. Meanwhile, a viability assessment of the paternal grandmother recommended that the children be placed in her care if the court concluded that they should not remain with either of their parents.

On 27 April 2022, the mother gave birth to a baby boy. No proceedings have been taken in respect of the baby who remains living with the mother.

Following a change of social worker, the local authority filed what was intended to be its final evidence with care plans proposing that the children remain at home with the mother under supervision orders. In June 2022, the guardian filed her final analysis supporting this plan. The father, however, continued to oppose it and instead contended that the children should be placed with the paternal grandmother. Over the course of the summer, the local authority continued to receive reports about L’s disruptive behaviour. On one occasion he was found alone and unconscious and taken to hospital after being trapped in a lift.

On 9 September 2022, a further case management hearing took place before HHJ Harris. By this stage, the guardian was on maternity leave. The court order recited that her replacement endorsed the recommendation supporting the care plans. The father continued to oppose the children remaining with the mother and the case was therefore listed for a final hearing starting 6 March 2023 (eighteen months after the start of the proceedings). The order required the local authority to submit a timed witness template allowing for judicial reading and “with a court sitting day of five hours (11 – 4)”. Over the next few months there were continuing difficulties about the father’s contact and renewed concerns about the mother’s capacity to manage the children’s behaviour. K was said to be associating with older disruptive teenagers who the mother had allowed to visit the home. There was evidence that L was coming into contact with drugs. On the other hand, his school attendance was significantly higher. The new guardian visited the children who told her that they wished to remain at home. A professionals meeting took place at which Dr Banks confirmed his view that the children would continue to be at risk in their mother’s care.

At a pre-trial review before HHJ Sapnara on 15 February 2023, the judge gave further directions for the final hearing, including that (1) the local authority should file an updated care plan adding “an alternative plan to set out the details of a placement in foster care should the court not approve the primary plan for placement with mother”, (2) an advocates meeting should be convened on 23 February 2023, (3) the guardian should file and serve her final analysis and recommendations by 3 March 2023, (4) (varying the order of 9 September) the final hearing days “shall start at 10am with parties present at 9am”, and (5) the agreed threshold document and the finalised witness template “to be lodged with this order”.

The final threshold document (that is to say, the document setting out the basis agreed between the parties on which the threshold criteria for making care or supervision orders under s.31 of the Children Act 1989 were satisfied) was filed in accordance with the order. In summary, it stated that the children had experienced significant domestic violence throughout their lives; that the parents’ relationship continued to be acrimonious despite no longer living together; that the children had additional emotional needs and behavioural difficulties believed to result from the parental conflict; that despite extensive professional involvement, the mother did not engage effectively with children’s services; that the children suffered from poor school attendance; that there were ongoing concerns that their basic needs were not being consistently met; that hair strand tests showed that the parents were continuing to take drugs and/or drink excessively; and that Dr Banks’ assessment had concluded that the children were likely to continue to suffer emotional neglect in their mother’s care.

In the event, the advocates meeting did not take place until Thursday 2 March. It was attended by counsel for all parties, including Ms Charlotte Brazier, who had been recently instructed to represent the mother and had not at that point met her client. In accordance with the order of 9 September 2022, the original witness template had provided for judicial reading time on the first morning of the hearing, and Ms Brazier had arranged to have a conference with the mother at that time. It was only at the advocates meeting that counsel realised that the template filed with the court did not reflect Judge Sapnara’s direction about the timetable for the hearing. They arranged to file an amended template. At the time of the advocates meeting, the parties had not received the guardian’s report. It was served on the parties the following morning, the last working day before the hearing. In the report, the guardian indicated that, contrary to her earlier position in which she had confirmed her predecessor’s endorsement of the local authority’s plan, she now wished to hear the evidence before making final recommendations.

Thus, at the start of the final hearing, the position of the parties was as follows. The local authority and the mother were proposing that the children remain at home under supervision orders. The father was proposing that the children be removed from the mother and placed initially in foster care with a view to being moved to the paternal grandmother in due course. The guardian was reserving her position until the conclusion of the evidence.

The hearing continued over four days. The conduct of the hearing lies at the heart of this appeal and it will be necessary to describe what happened in some detail later in this judgment. In brief, the hearing took the following order. On the first day, after very brief initial exchanges, the previous and present social workers gave evidence. On the second morning, Dr Banks gave evidence by video link. The mother’s evidence started on the second afternoon and continued on the third morning. After the lunch adjournment, the father gave evidence and was followed by the guardian giving her evidence in chief. It was at this stage that the guardian recommended that the children be removed from the mother’s care and placed in a long-term foster placement. The guardian’s cross-examination took place on the morning of the fourth day and continued into the afternoon. Counsel then delivered oral submissions (no written submissions were required) and the judge reserved judgment until the following day.

The judgment began with an exposition of the issues and the background. The judge then summarised the evidence of the six witnesses who had given oral evidence. She continued :

The judge then stated that she needed to give herself a Lucas direction and set out in some detail the case law concerning the treatment of lies in the family court. She made some observations about the father and referred to s.1 of the Children Act 1989. She then set out her conclusions in these terms:

The mother filed a notice of appeal on 16 March 2023. Permission to appeal was granted on 24 March. The appeal was opposed not only by the father and the children’s guardian but also by the local authority.

The mother relied on five grounds of appeal:

Before considering the substance of the appeal, I must mention a preliminary application we considered at the outset of the hearing. Very unfortunately, on the previous day, Ms Brazier, who had represented the mother before the judge and settled the grounds of appeal and skeleton argument, was taken ill and was therefore unable to appear at the hearing. Alternative counsel Ms Kemi Ojutiku was instructed in her place, but nonetheless at the start of the hearing she applied for an adjournment because the mother wished to be represented by counsel who had appeared below. We sympathised with the mother’s wishes but decided that any further delay would be contrary to the interests of the children. A decision on their future was urgently required. If the appeal succeeded, a rehearing would almost certainly be necessary. The proceedings had already been ongoing for over 21 months, well in excess of the statutory 26-week time limit. Accordingly, we refused the adjournment application, whilst indicating that we would keep the issue under review during the hearing.

In the event, the mother’s case was not materially affected by Ms Brazier’s absence. We were extremely grateful to Ms Ojutiku for taking on the brief at very short notice and impressed by her mastery of the extensive documentation and the issues arising. We were also grateful to all counsel and to their instructing solicitors for taking steps to ensure that the appeal could be heard urgently and efficiently.

It is convenient to start with the last ground of appeal which was the principal focus of the appeal hearing.

In Re AZ (A Child) (Recusal) [2022] EWCA Civ 911 at paragraph 54 and 55, this Court observed:

Although the ground of appeal referred only to bias, it was clear from the skeleton argument filed by Ms Brazier in support of the appeal that both apparent bias and unfairness were alleged. The argument advanced was that the judge’s management of the final hearing was biased (or appeared biased) against the mother or alternatively was unfair to her.

It is unnecessary in this judgment to review the legal principles which have been extensively considered in the case law in recent years – see in particular, regarding unfairness, Re G (A Child) [2015] EWCA Civ 834 and Serafin v Malkiewicz [2020] UKSC 23, and, regarding bias, Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 1515, Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 and Re AZ (A Child) (Recusal) [2022] EWCA Civ 911. The following points are of particular relevance to this appeal.

First, the overriding objective in Part 1 of the Family Procedure Rules 2010 requires a judge "to deal with cases justly, having regard to any welfare issues involved." “Dealing with a case justly” includes amongst other things ensuring that it is dealt with expeditiously and fairly, in ways which are proportionate to the nature, importance and complexity of the issues, and ensuring that the parties are on an equal footing. The rules require the court to further the overriding objective by active case management. As this Court observed in Re AZ at paragraph 56:

Secondly, a judge who becomes too actively involved in the hearing may impede his ability to exercise judgment. The risk was identified in the well-known passage in the judgment of Lord Greene MR in Yuill v Yuill [1945] P 15 at page 20:

Thirdly, an appellate court must be careful when reviewing the conduct of the hearing to bear in mind all the vicissitudes and difficulties that arise at trial. As Black LJ observed in Re G at paragraph 31:

Fourthly, the fact that a judge has intervened frequently during the hearing, or interrupted one advocate but not others, is not by itself unfair. As Hildyard J succinctly put it in M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) at paragraph 23, “interventions need to be assessed not only quantitatively, but also qualitatively.” In the words of Black LJ in Re G, supra, at paragraph 39:

Fifthly, a hearing that has been conducted unfairly cannot be saved by the judgment. As Black LJ put it in Re G at paragraph 52:

Finally, the authorities draw a distinction between judicial interventions during the evidence and in the course of closing submissions – see for example the observations of Jonathan Parker LJ in the Kofi-Adu case cited above. In the M&P Enterprises (London) Ltd case at paragraphs 223 to 225, Hildyard J noted that:

The test for apparent bias is different and involves a well-established two stage process summarised by Leggatt LJ in Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 at paragraph 17 in these terms:

Bias means a prejudice against one party or its case for reasons unconnected with the merits of the case: Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, per Scott Baker LJ at paragraph 28; Secretary of State for the Home Department v AF (No2) [2008] EWCA Civ 117, [2008] 1 WLR 2528, per Sir Anthony Clarke MR at paragraph 53; Bubbles and Wine, supra, per Leggatt LJ at paragraph 17. As Lord Wilson observed in Serafin v Malkiewicz at paragraph 39, this definition of bias is “quite narrow” and excludes cases (such as Serafin v Malkiewicz) where the judge’s apparent prejudice against a party is seemingly the product of his view as to the merits of the case.

In ascertaining all the circumstances,

The fact that during a hearing a judge expresses a view about an aspect of the evidence does not by itself indicate that he or she may be biased.

In her skeleton argument in support of the appeal, Ms Brazier identified three points at which the judge’s management of the final hearing was unfair and/or gave rise to an appearance of bias, namely (1) insufficient time was afforded to the mother to consider the changes in the guardian’s position at the outset of the final hearing and later after her evidence; (2) cross-examination of the father was restricted in circumstances where the cross-examination of the mother had far exceeded the time estimate, and (3) closing submissions on behalf of the mother were interrupted repeatedly by the judge in circumstances where no other advocate was interrupted at all.

The respondents all submit that the judge’s conduct of the hearing fell within the ambit of her case management powers. As the father had consistently opposed the children remaining with their mother, she and her representatives ought to have been prepared for a contested hearing at the outset on the first morning. The fact that the guardian withdrew her support for the local authority plan and said that she wished to hear the evidence before making a recommendation did not extend the scope of the hearing and the judge was entitled to insist on the hearing starting as planned. The judge was rightly conscious of the need to complete the hearing within the allocated five days and all parties were subject to time constraints. It is accepted that the judge intervened during the evidence but that was a sign that she was engaged with and focused on the key issues. On occasions she corrected or challenged all of the advocates. Overall, the hearing was conducted in an even-handed fashion and each party was given a fair opportunity to present their case. A fair-minded and informed observer would not conclude that there was a real possibility that the judge was biased.

I shall consider the allegation of unfairness or apparent bias under three headings foreshadowed in the appellant’s skeleton argument: (1) the guardian’s change of position, (2) the judge’s conduct during the evidence, and (3) the judge’s interventions during closing submissions.

Under s.42(2)(b) of the Children Act 1989, the children’s guardian is under a duty to safeguard the interests of the child in the manner prescribed by rules of court. Under FPR rule 16.20(3), a guardian appointed in care proceedings must have regard to the principle that the child’s welfare is the paramount consideration and to the factors in the statutory welfare checklist in s.1(3). Although it is not uncommon for a children’s guardian’s assessment of the child’s welfare and recommendation for future care to change during the course of proceedings, it is less common for such a change to occur at a relatively late stage as happened in this case. There is no reason to question the good faith of the guardian when she decided to withdraw her original recommendation, informed the court that she wished to hear the evidence before reaching a final opinion, and then at the end of the evidence put forward a recommendation that was fundamentally different from her initial view. But on any view this was a significant development which required careful handling by the judge, in three respects. First, given the lateness of the guardian’s change of position, it was essential that all parties, in particular those who might be disadvantaged by the development, to be given a fair opportunity to prepare and respond. Secondly, given the guardian’s wish to hear the evidence and the likelihood that her ultimate recommendation would be based substantially on her impressions of that evidence, in particular that given by the mother, it was important for the judge to ensure that the evidence was presented in a way that was fair to all parties. Thirdly, once the guardian had reached her ultimate conclusion and made her recommendation, it was essential that the judge afford the party adversely affected by it the opportunity to put forward her case in response so that the court would have the fullest material on which to base its decision.

At the outset of the hearing, Ms Brazier asked for more time to take further instructions in the light of the guardian’s analysis which had been received at the end of the previous week and with a view to preparing an updated statement on behalf of the mother. The judge refused this request, saying:

This was a peremptory dismissal of an application to put the start of the hearing back. Other judges might have granted this application or, if they decided to refuse it, to do so in less dismissive terms. But the judge was plainly concerned about risk of the hearing overrunning. Ms Brazier was not suggesting that her ability to cross-examine the social workers might be prejudiced if she were not allowed time to talk to the mother. Although it was plainly necessary for her to have an opportunity to discuss the guardian’s change of position with her client, I am not persuaded that it was essential that she be allowed that opportunity at that point. Taken by itself, therefore, this exchange was not unfair. As the authorities make clear, however, an assertion of unfairness has to be evaluated in the context of the hearing as a whole.

Towards the end of the third afternoon of the hearing, the guardian gave her evidence in chief in which she recommended that care orders be made in respect of both children and alternative placements found for them. On the fourth morning of the hearing, the guardian continued her evidence. At the outset of her cross-examination, Ms Brazier expressed concern that details of the guardian’s final analysis were still being divulged in oral evidence and that it would be more normal for there to be a further written report. The judge observed “that has never happened in the 21 years that I have been a judge and I am not expecting it to happen now”.

This was another peremptory dismissal of an application for the guardian’s amended analysis to be committed to paper. Again, other judges might have granted this application or, if they decided to refuse it, to do so in less dismissive terms. In the event, the day’s hearing concluded at the end of the guardian’s evidence in chief. Ms Brazier therefore had the overnight adjournment to take stock and discuss her recommendation with her client. She then conducted a very thorough cross-examination of the guardian on the following morning. In my view, the judge’s refusal to require the guardian to commit her analysis to paper was within her case management powers. Taken by itself, it was not unfair. Again, however, I remind myself that an assertion of unfairness has to be evaluated in the context of the hearing as a whole.

For my part, the fact that the guardian changed her position at a late stage, and the judge’s treatment of Ms Brazier’s consequential requests, did not amount to unfairness. I have much more concern about the judge’s conduct during the mother’s own evidence and counsel’s submissions on her behalf.

Various complaints were made to us about the judge’s conduct during the evidence. In particular, it was asserted that (a) she had declined to listen to interim submissions or attempts on behalf of the mother to raise issues, (b) she was unwilling to entertain cross-examination of the father on the subject of domestic abuse, and (c) her interventions strayed beyond active case management.

On the second morning, the hearing did not start until 10.57. Dr Banks was due to be the first witness, giving evidence remotely. Following the judge’s indication, the mother’s team had prepared a 10-page updating statement but there had been a delay in filing it that morning and in sending a copy to Dr Banks. During a short pause while the link was established, Ms Brazier tried to raise an issue:

Part 3A of the Family Procedure Rules, headed “Vulnerable persons: participation in proceedings and giving evidence”, imposes duties on a court conducting proceedings in the family court. Under rule 3A.5:

Under rule 3A.1, the “participation directions” referred to in rule 3A.5 includes a direction that a witness should have the assistance of one or more of the measures in rule 3A.8 which include (under rule 3A.8(1)(a)), measures which “prevent a party or witness seeing another party or witness.”

Under rule 3A.9:

The following paragraphs of the Practice Direction 3AA are also relevant:

Thus, the scheme of this rule and Practice Direction, so far as relevant to this appeal can be summarised as follows. (1) The potential vulnerability of a witness or party must be raised at the earliest possible point in the proceedings and addressed in a “ground rules hearing”. (2) The court nevertheless remains under a duty throughout the proceedings to consider whether the quality of a witness’s evidence is likely to be diminished by way of vulnerability and if so whether to make participation directions. (3) In exercising its duties and powers under Part 3 the Rules, the court must also have regard to its other duties and powers under the Rules, including the overriding objective in Part 1 and general case management powers in Part 4.

We were not told of any earlier hearing at which the issue of potential vulnerability or participation directions were considered by the court. For whatever reason, the issue of whether the mother should give evidence from behind a screen was not raised until the start of the second morning. When Ms Brazier attempted to raise it she was told to sit down. When she succeeded in raising it just before the end of the morning session her application was dismissed summarily by the judge on the grounds that (1) it should have been raised at an earlier stage and (2) the mother was sitting two seats away from the father in court, the implication being that the judge did not consider that the case for any special measures was made out.

I understand the judge’s irritation that the issue was being raised at the last minute. In considering the application, she was bound to take into account the requirement under the overriding objective to ensure that the case was dealt with expeditiously and fairly to all sides. Nevertheless, in dealing with the application in the peremptory way described, she was in my view failing to comply with the obligations under rule 3A.5 to consider whether the quality of the mother’s evidence was likely to be diminished by reason of vulnerability arising out of the history of domestic violence. Ms Brazier did not have a fair opportunity to make submissions on this issue. Had she been able to do so, the judge might have given the point appropriate consideration.

The mother’s evidence started after lunch on the second day and continued in the morning and into the afternoon of the third. The judge intervened repeatedly, both in chief and cross-examination. The transcript indicates that she asked over 500 questions. On many occasions she challenged the mother’s evidence, in particular about her attempts to manage the children’s behaviour and her use of cannabis. The frequency of judicial interventions increased during the cross-examination by Mr Schmitt on behalf of the father. During that part of the cross-examination that took place on the third morning, the judge asked over 200 questions, significantly more than Mr Schmitt. At times, the judge in effect took over the cross-examination.

By way of example, I cite a passage when the mother was being asked questions about K’s association with two older girls. There had been evidence that the girls had stayed over a weekend and smoked cannabis in the house. The mother asked the judge whether she wanted to hear the story.

I regret to say that this passage from the evidence is a clear example of a judge descending into the arena. By intervening on such a scale, and in such a challenging manner, the judge ran the risk (in Jonathan Parker LJ’s phrase in the Kofi-Adu case) of so hampering her ability properly to evaluate and weigh the evidence before her as to impair her judgment and thereby render the trial unfair. Furthermore, in circumstances where the guardian had expressly said that she wanted to hear the evidence before finalising her recommendation, it was even more important for the judge to exercise restraint and avoid excessive interruption of the evidence. By intervening very frequently during the mother’s evidence in the challenging manner illustrated above, going so far at times as to take over the cross-examination from the father’s counsel, the judge created a risk of influencing the guardian’s recommendation which was likely to turn on her impression of the evidence generally and the mother’s evidence in particular.

The mother’s evidence concluded in the course of the afternoon on the third day. The following exchange then took place between Ms Brazier and the judge:

The father’s evidence followed and was completed during the afternoon on the third day. The judge asked relatively few questions but intervened during Ms Brazier’s cross-examination on behalf of the mother to restrict the extent of questioning about the father’s behaviour during contact with the children.

The guardian’s evidence concluded at 3pm and, after a short adjournment, counsel made oral closing submissions in the following order – father, mother, local authority and guardian. No written submissions were requested or prepared. The submissions on behalf of the father, local authority and guardian were delivered without any intervention from the judge, save for one question to counsel for the local authority about the care plan in the event that she rejected their plan for a supervision order.

During Ms Brazier’s submissions on behalf of the mother, however, the judge adopted a completely different approach. In the course of submissions lasting about 50 minutes, the judge spoke on no fewer than eighty occasions.

By way of example, I cite the following exchange:

Further on the following exchange occurred:

A third example occurred later during exchanges about K’s homework:

It is plain from this exchange that the judge mistakenly interpreted counsel’s comment “if the court could not see what has happened” as discourteous when in fact Ms Brazier was identifying L’s experience as a comparator for assessing K’s position. It is equally plain from her reference to being “grilled” – and was even clearer listening to the recording – that counsel felt under considerable pressure during these submissions.

As noted above, the reported cases on unfairness draw a distinction between judicial interventions during the evidence and in closing submissions. The distinction is that interventions during submissions are less likely to hamper the judge’s ability to evaluate and weigh the evidence before him and impair his judgment. For my part, I would not agree with Hildyard J’s suggestion in the M&P Enterprises (London) Ltd case that by closing submissions the trial has entered the adjudication stage. Adjudication comes after evidence and argument. It is certainly correct, however, that submissions offer the court the chance to test each party’s case, that intervention and close questioning of counsel may well be both appropriate and necessary so that the court understands and tests the argument, and that in doing so the court may fairly divulge a preliminary view as to its merits. That is how legal argument works in all courts, both at first instance and on appeal.

Oral advocacy lies at the heart of our justice system, and often makes a difference to the outcome of a case, particularly one in which the issues are finely balanced. No advocate enjoys addressing a judicial Sphinx. Stony silence can be hard going. A degree of judicial intervention in closing submissions is to be expected. Indeed it should be welcomed, as it is generally helpful to the advocate to be told what aspects of their client’s case are causing the judge difficulty or concern, and to be given a fair opportunity to address them. Their answers may help to persuade the judge to take a different view from the one that he or she has provisionally expressed. Even if it becomes apparent in the course of exchanges with the judge that the advocate’s submissions are not finding favour, that does not signify that the judge has a closed mind, but, rather, that he or she has not been persuaded. In general terms that would not be a legitimate ground of complaint.

There remains, however, a danger, both at first instance and on appeal, that excessive intervention may prevent counsel advancing their client’s case. While closing submissions offer the judge the opportunity to test the case being put forward, this should not descend into an argument. The purpose of submissions is for counsel to persuade the judge that her client’s case should prevail, not for the judge to persuade counsel that it should not.

I regret to say that in the present case the degree of judicial intervention during Ms Brazier’s submissions exceeded what was reasonable or fair. I bear in mind Black LJ’s observation in Re G, cited above, that “it is very difficult to tell from a transcript, or even from listening to a recording, precisely what was going on at all stages during the hearing”. Nevertheless, it is plain from the transcript of Ms Brazier’s submissions – and even clearer from listening to the recording – that the judge’s challenges to her arguments went far beyond testing the case. As a result, I was left with the strong impression that Ms Brazier had not been able to advance all of the arguments she wanted to make and had certainly been prevented from putting forward her arguments in the way she intended. I would commend her for remaining courteous throughout and doing her best to present her client’s case.

Listening to argument without excessive interruption is important in all cases. But it was particularly important here, for three reasons. First, the issue at stake was the future care of two very troubled children. The judge’s decision would have a lifelong impact on all members of the family. Secondly, on paper at least, the issue looked finely balanced. Until shortly before the hearing, both the local authority and guardian supported the mother’s case that the children should remain at home. At the point when Ms Brazier stood up for her closing submissions, the guardian had changed her position. Two parties now supported the children staying at home, two proposed their removal under a care order. In those circumstances, it was plainly important for the court to listen to all the parties’ arguments before reaching its decision. Given the lateness of the guardian’s change of position, it was particularly important that the mother’s counsel be given a fair opportunity to put forward the contrary arguments not only in cross-examination of the guardian but also in submissions. Thirdly, unlike in many cases, counsel did not have the opportunity to file written submissions in which they could put forward their full arguments in a structure of their choosing. It was therefore necessary for all counsel to be able to develop their argument orally so that the judge had every point before her when she came to her decision. Three counsel were heard without any interruption. The fourth was interrupted repeatedly throughout.

In Re G supra, Black LJ (at paragraph 53) identified three final points which had to be borne in mind in assessing the allegations of unfair conduct by the judge in that case.

All of those points are relevant to the present appeal. The pressures on judges in the family justice system are even greater now than they were in 2015 at the time of the hearing in Re G. The number of children caught up in public and private law proceedings and the delays in resolving those proceedings have increased substantially before and during the pandemic. As in Re G, this appeal is not about the treatment of counsel. It is not about whether Ms Brazier was “grilled”. The exchanges between counsel and judge are only relevant to establishing whether the mother was given a fair hearing.

And again, as in Re G, we have not heard from the judge. Although we have heard the tape recording of closing submissions, we were not present during the hearing and inevitably have an incomplete picture of what occurred. I am acutely aware that this judge, with her deep experience of family law cases, has had no chance to respond to the criticisms levelled at her in the course of the appeal. Nevertheless, I reached the clear conclusion, with regret, that the criticisms are substantially justified and that the appeal should be allowed.

An allegation that the conduct of the proceedings was unfair or that there was an appearance of bias must be assessed by considering the proceedings as a whole. In this case, a review of the whole of the hearing between 6 and 9 March leads to the inexorable conclusion that the hearing was unfair to the mother. Taken by itself, the judge’s refusal at the outset of the hearing to allow the mother an opportunity as requested to discuss with her lawyers the guardian’s withdrawal of her recommendation would not be sufficient to persuade me that the hearing as a whole was unfair. Similarly, whilst the peremptory rejection of the request that the mother should give evidence behind a screen was contrary to the guidance in the rules and Practice Direction, it would not by itself lead me to conclude that the hearing was unfair. Likewise, the judge’s refusal of Ms Brazier’s request for more time to speak to her client before she cross-examined the father would not, by itself, lead to that conclusion. But those events did not occur in isolation. They have to be evaluated in the context of the whole hearing and in particular the judge’s manifestly excessive intervention during the cross-examination of the mother and during Ms Brazier’s closing submissions. Looking at all these issues together, I conclude that the mother, in this finely-balanced case, did not have a fair opportunity to put forward her argument that the two children should stay at home.

Having reached that conclusion, it seems to me to be unnecessary to go on to consider whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased. The definition of bias as now approved by this Court (“a prejudice against one party or its case for reasons unconnected with the merits of the case”) is, as Lord Wilson observed in Serafin, “quite narrow”. Insofar as the judge in the present case demonstrated any prejudice against the mother, it plainly arose out of her views as the merits of the case.

For those reasons, I concluded that the appeal should be allowed on ground five.

Under this ground, it was submitted that the judge failed in particular to give any consideration to an important factor in the checklist – the likely effect on each of the children of a change in their circumstances. It is submitted that the judge failed to take into account (1) the emotional impact on both children of removal from their mother, who was identified by Dr Banks as their primary attachment figure; (2) the impact on each child of being separated from the other and from their baby half-brother; (3) the significant risk of a breakdown in any alternative placement as a result of the children’s behaviour; (4) the risk of K absconding from a foster placement, and (5) the disruption to the assessment of the children’s educational and associated care needs.

In response, on behalf of the local authority, it was acknowledged that the judge did not work her way through all the factors in the welfare checklist but it was submitted that all of the matters said to be omitted from consideration were well explored during the evidence. On behalf of the father, it is submitted that the transcripts demonstrate that this experienced judge was fully immersed in the evidence, rigorously processing it through frequent intervention. Insofar as she failed in her judgment to refer expressly to any of the specific factors in the checklist, it can be fairly assumed that she took them into consideration but that they were outweighed by the compelling reasons which emerged from the evidence as to the need to sanction the immediate removal of the children from their mother’s care. These arguments were reiterated on behalf of the guardian for whom it was submitted that any reasonable reading of the judgment demonstrated the judge had the checklist in the forefront of her mind when considering the children’s welfare interests. It is also pointed out that she expressly acknowledged the distress which her decision was likely to cause to the children but that this was outweighed by the very substantial risks of remaining at home.

In Re D (A Child: Placement Order) [2022] EWCA Civ 896 at paragraph 1, Peter Jackson LJ summarised the approach to be followed by judges deciding the order to be made following a finding that the threshold criteria under s.31 are satisfied. Although he referred specifically to adoption, the approach is to be followed wherever a court is considering the removal of a child from his or her family.

A move into long-term foster care does not involve as severe an interference with the right to respect for family life as placement for adoption. Nevertheless, it represents a significant interference and a very grave step for any child and calls for an equally rigorous process of evaluation in which the advantages and disadvantages of each option are identified and compared. As Peter Jackson LJ noted, that comparison will inevitably include a consideration of any harm that the child would suffer in the family placement and any harm arising from separation from parents, siblings and other relations. 

In the present case, no such comparison took place. The judge simply stated her decision in the brief paragraphs quoted above. Nowhere in the judgment was there any or any adequate identification of the possible harm that the children might suffer if removed from home. I accept the submission made on behalf of the mother that the likely effect of a change of circumstances was a critical factor in the welfare checklist which called for specific consideration. It is possible that, had it been properly considered, the judge might nevertheless have come to the conclusion that the potential risks to the children from remaining at home outweighed the risks that would arise if they were removed. But the factors identified on behalf the mother – the emotional harm of separation from their primary attachment figure, the further emotional harm if the siblings were separated, the potential disruption to their education, and the risk of placement breakdown and absconding – all required evaluation, particularly in circumstances where the local authority had not formulated any specific plan for the placement of the children away from home. There is no basis for thinking from the brief analysis contained in the judgment that these matters received any evaluation in this case. Whilst recognising the caution which any appellate court must exercise when interfering with the evaluation of the evidence carried out by a trial judge, I formed the view that on this occasion the judge failed to carry out a clear and proper analysis of the factors in the welfare checklist. For that reason, I concluded that the appeal should also be allowed on ground three.

In those circumstances, as there will have to be a retrial of the final hearing, I consider it unnecessary and potentially unhelpful to consider the remaining grounds of appeal which concern the judge’s treatment of various aspects of the evidence. There is a risk that any comments by this Court about that evidence may unintentionally influence the conduct or outcome of the rehearing. I emphasise that nothing I have said in this judgment should be taken as indicating any view as to the right outcome of the rehearing.

Following the appeal hearing, we approved an order under which the appeal was allowed, the care orders made on 10 March 2023 set aside with a direction that the applications under s.31 be reheard and to that end listed before the Designated Family Judge for Central London for case management. In the interim the supervision orders made on 7 October 2021 will continue.

I agree.

I also agree.