G (Child), Re

A hearing is unfair where the judge’s conduct, assessed cumulatively and in context, deprives a party of a fair opportunity to present and test the case. Robust case management and judicial intervention are permissible, but interventions must remain within acceptable limits. They must not substantially impede cross-examination, consume a disproportionate share of the available time, or undermine counsel before a witness.

A carefully reasoned judgment cannot cure procedural unfairness that prejudiced the exploration of material evidence. Findings reached after such a hearing must be set aside, although the court considering a rehearing should determine whether changed circumstances still make fresh findings necessary.

The mother appealed against findings of fact and subsequent child-arrangements decisions made by Judge Pearl in proceedings concerning the care of her eight-year-old daughter. The judge had rejected the mother’s principal allegations of domestic violence and had later made an interim sole residence order in the father’s favour.

The mother alleged that the fact-finding hearing was rendered unfair by the judge’s conduct towards her counsel and by extensive intervention during counsel’s cross-examination of the father. Complete transcripts and relevant audio recordings were placed before the Court of Appeal. Later first-instance orders and developments had overtaken the challenges to the child-arrangements decisions. The central issue was whether the judge’s conduct had denied the mother a fair opportunity to present her case.

1. Appeal allowed in part. The fact-finding hearing was unfair. The findings of fact were set aside and the proceedings were remitted to the Family Court for directions before a judge other than Judge Pearl (Black LJ, Sullivan LJ and Sir Colin Rimer agreeing).
2. A family judge may manage proceedings robustly and intervene to clarify evidence, regulate questioning and make effective use of limited court time. Litigants do not have an unrestricted right to present their cases in whatever manner they or their representatives choose. Allowance must also be made for differing judicial styles and the practical pressures of trial management.
3. The conduct of the hearing nevertheless exceeded acceptable limits when assessed cumulatively. At its outset, the judge subjected the mother’s counsel to unwarranted criticism concerning her delayed arrival following exceptional transport disruption. The judge also pressed counsel to endorse criticism of a CAFCASS officer, although counsel’s personal opinion was immaterial and her account of the officer’s actions was accurate. This conduct could reasonably have undermined the mother’s confidence that counsel could present her case effectively.
4. The judge’s interventions during the second day of counsel’s cross-examination of the father largely prevented the questioning from developing, significantly hampered its progress and consumed a disproportionate amount of the available time. Some interventions were justified, but their overall quantity and character disrupted counsel’s questioning and risked undermining her before the witness. Credibility was central to the disputed allegations, so effective cross-examination was necessary for reliable findings. The court could not be satisfied that the father’s evidence had been adequately tested.
5. The question was whether the mother, rather than her counsel personally, had received a fair opportunity to put her case. Nor would equivalent unfairness towards both parties have made the hearing fair. The careful and cogently written judgment could not redeem a process in which judicial intervention had prejudiced the exploration of the evidence.
6. Because the family’s circumstances had changed materially, the remitted directions hearing was to determine whether fresh findings were still necessary. The remaining challenges to the earlier orders required no determination because later orders and developments had overtaken them.

1. Court of Appeal (Civil Division): Permission to appeal was granted. The appeal in [2015] EWCA Civ 834 was allowed to the extent that the findings of fact were set aside. The matter was remitted to the Family Court for directions before a different judge.
2. Court of Appeal permission proceedings: Ryder LJ adjourned the applications for permission to an oral hearing and directed that the recording of the fact-finding hearing be obtained. Following a two-day oral hearing, he directed that the applications and appeal be listed before the present constitution.
3. Principal Registry of the Family Division: Judge Pearl made factual findings on 27 November 2013 after a hearing in October 2013. On 7 January 2014 she made an interim sole residence order in the father’s favour. That residence order was subsequently rescinded and replaced by an interim arrangement under which the child lived equally with both parents.