Placement orders for two children in long-term foster care were overturned because the judge’s conduct during the final hearing had rendered the process unfair to the mother.

The case involved a family that had been known to the local authority throughout the children’s lives.

The parents separated and the children remained with the mother, but problems continued and a report indicated that the children were at risk of significant emotional neglect.

The children’s guardian supported the local authority’s care plan that the children remain with the mother under supervision orders. The father sought their placement with the paternal grandmother.

Just before the final hearing, the guardian’s successor indicated that she wished to hear the evidence before making final recommendations.

At the outset of the hearing, the mother’s counsel asked for more time to take further instructions with a view to preparing an updated statement. The judge refused.

On the third day of the hearing, the guardian gave her evidence-in-chief and recommended that the children be moved to a long-term foster placement. She continued her evidence on the fourth day.

At the outset of the cross-examination, the mother’s counsel expressed concern that details of the guardian’s final analysis were still being divulged and that it would be more normal for there to be a further written report.

The judge again refused. She refused the supervision order and ordered the children’s placement in foster care.

The Court of Appeal ruled that the judge’s management of the final hearing was unfair.

It accepted the mother’s submissions that the judge had declined to listen to interim submissions or her counsel’s attempts to raise issues and was unwilling to cross-examine the father on domestic abuse.

Her interventions went beyond active case management.

The issue of whether the mother should give evidence from behind a screen was not raised until the second day of the hearing, and when the mother’s counsel attempted to raise it, she was told to sit down.

The judge had also intervened repeatedly in the mother’s evidence-in-chief and cross-examination, asking over 500 questions.

She frequently challenged the mother’s evidence, particularly about her attempts to manage the children’s behaviour and her use of cannabis. She also intervened frequently in the cross-examination of the father, effectively taking over the process.

By intervening on such a scale, and in such a challenging manner, the judge ran the risk 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.

That degree of judicial intervention exceeded what was reasonable or fair and went far beyond testing the case, giving the impression that the mother’s counsel had been prevented from putting her case in the way she intended.

A review of the whole hearing led to the inexorable conclusion that the hearing was unfair to the mother.

Accordingly, there would have to be a retrial.

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Source:

Foster care placements overturned because of judge’s conduct
K (Children: Fairness of Hearing), Re
Court of Appeal (Civil Division)
20 June 2023
[2023] EWCA Civ 686