C (Children: Premature Determination)

A judge may disclose provisional thinking during ongoing proceedings, and robust indication can assist the parties, provided the judge remains open to persuasion. Premature determination arises where the judge reaches a settled conclusion before hearing relevant evidence and submissions, indicating that further evidence would be futile. The assessment considers the proceedings as a whole and asks whether a fair-minded and informed observer would see a real possibility of an unfair hearing. Such conduct may amount to a serious procedural irregularity causing injustice under CPR 52.21(3). Where the judge’s mind has closed on a central issue, the appeal court may remit the proceedings for rehearing by another judge.

Care proceedings concerned the futures of two children, R and A. At the resumed final hearing, the local authority sought a care order for R and a placement order for A. The mother and A’s father opposed adoption, while the Children’s Guardian supported the local authority’s position.

After hearing the local authority’s social worker and the mother, the judge indicated that he did not favour adoption for A. The following day, before hearing the family finder and the Children’s Guardian, he stated that no further evidence could change his view, stayed the proceedings and granted the local authority permission to appeal. The local authority and Guardian appealed. The central issue was whether the judge had made a permissible robust indication or had prematurely determined the adoption issue, creating serious procedural unfairness.

Disposition. The Court of Appeal allowed the local authority’s appeal and the Children’s Guardian’s appeal, granted the Guardian permission to appeal, and remitted the proceedings to the Central Family Court for early determination by another judge.

1. Under CPR 52.21(3), an appeal may be allowed where the lower court’s decision was wrong or unjust because of a serious procedural irregularity. The appeal was procedural and expressed no view on the merits of the children’s future.

2. The court distinguished permissible disclosure of provisional thinking from premature determination. The English tradition permits a judge to identify concerns and express robust views to assist the parties, but the judge must remain open to further evidence and submissions. The principles in Arab Monetary Fund v Hashim [1994] 6 Admin LR 348, Singh v Secretary of State for the Home Department [2016] EWCA Civ 492 and London Borough of Southwark v Jiminez [2003] EWCA 502 applied equally to an evaluative decision.

3. Predetermination occurs where a judge reaches a final conclusion before possessing all relevant evidence and arguments, as described in Lanes Group Plc v Galliford Try Infrastructure Ltd [2011] EWCA Civ 1617. In ongoing proceedings, the question is whether a fair-minded and informed observer, considering the proceedings as a whole, would see a real possibility that a party would not receive a fair hearing, applying Re H (A Child) (Recusal) [2023] EWCA Civ 860.

4. The judge’s repeated statements that adoption could not be ordered, that further evidence would be a waste of time, and that he had made the decision amounted to unmistakable predetermination. It was unrealistic to expect the parties to call witnesses before a judge who had closed his mind or to argue that he should keep an open mind. A fair trial had become impossible.

5. Determining the issue without hearing the experienced Children’s Guardian was obviously procedurally unfair. Evidence from the family finder might also have assisted on contact as well as timing. The proceedings were therefore remitted for an urgent case management hearing and rehearing by another judge.

1. Court of Appeal (Civil Division) — In [2025] EWCA Civ 1481, permission to appeal was granted to the Children’s Guardian, the local authority’s and Guardian’s appeals were allowed, and the proceedings were remitted to the Central Family Court for early determination by another judge.
2. Central Family Court — During the final care hearing before HHJ Oliver in case ZC23C50240, the judge stayed the proceedings and granted the local authority permission to appeal after expressing a concluded view on adoption before hearing the remaining evidence.