K and L (Children: Fairness of Hearing)

Fairness in family proceedings must be assessed by considering the hearing as a whole. Active case management is permitted, but excessive and challenging intervention during evidence may impair the judge’s ability to evaluate the evidence and render the hearing unfair. Intervention during closing submissions may test an argument, but must not become an argument that prevents counsel advancing the case. A late change in a children’s guardian’s recommendation requires a fair opportunity to prepare and respond, and duties concerning vulnerable witnesses continue throughout proceedings. Before removing children to long-term foster care, the court must rigorously evaluate and compare realistic options, including the harm caused by remaining at home and the harm caused by separation. The likely effect of changed circumstances is a critical welfare-checklist factor requiring specific consideration.

The mother appealed against care orders made by HHJ Hughes KC in the Family Court at Central London on 10 March 2023. The orders authorised the removal of K and L from her care and placement in foster care. The appeal concerned the judge’s management of the four-day final hearing, including her treatment of the children’s guardian’s late change of position, her interventions during evidence and submissions, and the adequacy of her welfare analysis. The mother relied on five grounds, including unfairness or apparent bias and failure to evaluate the likely effect of removal and other changes in the children’s circumstances.

Lord Justice Baker gave the leading judgment. Lady Justice Andrews and Lord Justice Holroyde agreed.

1. Unfairness. The appeal was allowed on the ground that the hearing, considered as a whole, had been unfair. Judges in family proceedings have extensive case-management powers under Part 1 of the Family Procedure Rules 2010, but interventions must be assessed qualitatively as well as quantitatively. Excessive intervention during evidence risks the judge descending into the arena and impairing the proper evaluation of evidence, as explained in Yuill v Yuill [1945] P 15, The Mayor and Burgesses of the London Borough of Southwark v Maamefowaa Kofi-Adu [2006] EWCA Civ 281 and Re G (A Child) [2015] EWCA Civ 834. The judge asked more than 500 questions of the mother, at times taking over the father’s cross-examination. Her conduct created a serious risk of unfairness and of influencing the guardian’s recommendation.
2. Intervention during closing submissions is generally permissible to test the case and expose a provisional view. It must not descend into an argument which prevents counsel presenting the case. The judge’s repeated interruptions of the mother’s counsel went beyond reasonable testing and prevented the mother’s arguments being advanced fully. The late change in the guardian’s recommendation and the judge’s peremptory responses to requests for further preparation were not, viewed individually, unfair. They had to be assessed in the context of the hearing as a whole.
3. The court also held that the judge had failed to comply properly with the continuing duties under Part 3A of the Family Procedure Rules 2010. The mother’s request to give evidence behind a screen was dismissed summarily because it had been made late, without a proper consideration of whether vulnerability arising from domestic abuse might diminish the quality of her evidence.
4. Welfare analysis. Removal into long-term foster care is a grave step and requires a rigorous evaluation and comparison of realistic placement options. Applying Re D (A Child: Placement Order) [2022] EWCA Civ 896 and H-W (Children) [2022] UKSC 17, the court held that the judge had to consider the harm of remaining at home, the harm of separation from parents and siblings, educational disruption, placement breakdown and absconding risks, and the possibilities of reducing or mitigating harm. The judge’s brief reasoning did not undertake that comparison or adequately consider the likely effect of changed circumstances under section 1(3) of the Children Act 1989.
5. The remaining grounds were not considered because the matter required a rehearing and further observations might influence it. The care orders were set aside, the applications under section 31 of the Children Act 1989 were directed to be reheard, and the interim supervision orders were continued pending case management.

• Court of Appeal (Civil Division) — On 20 June 2023, allowed the mother’s appeal, set aside the care orders made on 10 March 2023, directed a rehearing of the applications under section 31 of the Children Act 1989, and continued the interim supervision orders.
• Family Court at Central London — HHJ Hughes KC made care orders in respect of K and L on 10 March 2023.