When does a judicial indication go too far? This was effectively the premise of this recent case heard by the Court of Appeal.
The Local Authority first made an application for public law orders in June 2023 in respect of 4 children. In December 2024, proceedings concluded in respect of the elder of these 2 children with a family placement. A 5-day final hearing was listed in February 2025 to consider the future of the younger 2 children; R (aged 4 at the time) and A (aged 2 at the time). The care plan at that time was for adoption of both children [10].
On Day 1 of that final hearing, evidence was heard by an ISW and a psychologist. The proceedings were then adjourned on Day 2 to allow the LA time to consider the care plan for R. The LA withdrew the application for a placement order for R. In August 2025, he was placed in a residential therapeutic unit, aged just 5 [11].
The matter was listed for a further 3-day final hearing in October 2025. At that hearing, the LA sought a Care Order for R and a placement order for A. The Guardian supported the Local Authority’s position. Mother sought the return of both children and particularly opposed adoption for A. A’s father also opposed adoption. R’s father played no part in proceedings [12].
Proceedings were now in Week 122. A, now aged 3 ½ had been waiting a decision for 27 months [13].
On Day 1 of the final hearing, the Court heard evidence from the social worker and the Mother. At the end of the day, the Judge gave an indication that he did not favour adoption for A. All parties accept that was a proper judicial indication [14].
However, on the morning of Day 2, the Court started by asking whether the hearing was just going to carry on after the ‘bombshell’ of the previous day [17]. The appeal judgment sets out the discussions the trial Judge had with the Local Authority advocate [20]. Whilst the Judge stated that this was not a preliminary determination and was a clear indication, the Judge went on to say that they did not want to waste time hearing evidence that will not form a change in their view. The Judge said that evidence from the family finder was not going to tell the Court about the principle of adoption. The Court also stated that they couldn’t think of any evidence that the Guardian would give that would change their mind. The Judge also stated twice during the exchange with the Local Authority that they cannot sleep at night if an order for adoption was made.
There was then an exchange between the Judge and the Guardian’s solicitor. Within that exchange, the Judge asked whether the Guardian had changed her mind in light of his comments. The Guardian had not done so.
Parties were given time as to how they were going to proceed. When parties came back into Court, the Local Authority had already sent the Judge an email seeking for permission to appeal. The Judge granted that, seemingly with no questions asked. The Judge was clear that they did not think they were wrong, but because they did not want to waste time. The Judge was also quick to stay the rest of the hearing [23].
The hearing ended shortly after that. The only substantive orders made were the staying of proceedings and granting of permission to appeal. No timetable was set for the filing of an Appellant’s notice [26].
The Judge was clear that no decision had been made on whether the children should be returned to their Mother.
The matter therefore came before the Court of Appeal. Following the hearing in October, the Guardian had lodged a Respondent’s Notice, seeking permission to appeal on additional grounds. That application was listed with the Local Authority’s appeal.
The Local Authority argued that the Court had made a plain and obvious error. They stated that ‘by removing the option of adoption from the table, he deprived A of a full (global holistic) analysis of the options for her future’ [28].
The Guardian supported those submissions and said that the Judge’s mind had closed. The Guardian also advanced several other grounds of appeal [29]:
- The Judge had failed to properly consider the impact of further delay on children who had already experienced extreme delay. The course that was took, with no onward timetabling was unconscionable.
- The judge had no regard to the fundamental principle that specific analysis was required where the court departs from the recommendations of its appointed Guardian
- There was no proper welfare checklist survey.
Both parents did not agree that the Judge’s comments were premature determination.
The Court of Appeal start their judgment by considering the authorities around predetermination. They conclude that summary by saying ‘For a judge to share their provisional thinking for the benefit of the parties in appropriate circumstances is a normal element of judgecraft, but premature determination that indicates a closed mind is not. A conclusion about which side of the line a judicial intervention falls requires a sensible, and not over-sensitive, assessment of whether it gives rise to a real possibility that the proceedings as a whole would not be fair. That calls for an understanding of the intervention and the context in which it arose’ [9].
In considering this case, the Court of Appeal considered that the Local Authority’s submissions were unanswerable. The Court of Appeal relied on the fact that the Judge had repeatedly said he could not sleep at night if he had made an order and that it would be a waste of time to hear further evidence. ‘This was an unmistakeable predetermination by a judge who had closed his mind to the case being advanced by two parties in relation to a matter of profound and lifelong importance to A’ [36].
The Court of Appeal also rejected the argument made by the parents that the Local Authority and the Guardian could have avoided the breakdown of the trial. It was clear that the Judge had already closed their mind at that point. The parties were placed in an impossible position [37].
The Court of Appeal determined that the Appellants were to succeed in their appeal, but they also went on to express further concerns.
First, the Court of Appeal agreed with the Guardian that the way the matter was timetabled after it was stayed was unconscionable. ‘If ever a set of care proceedings should not have been indefinitely stayed, this was it’. They went on to say ‘In creating the conditions in which the hearing could not continue, the judge deprived all parties of a long-overdue decision’ [40].
Second, the Court of Appeal expressed sympathy for the parents. They noted that the trial judge’s comments would have led them to feel they had fended off the prospect of placement orders. They noted that this was a Mother who was vulnerable and may now have to give evidence again [41].
Thirdly, they felt that the Judge’s lack of interest in hearing from the Guardian was ‘unaccountable.’ ‘Children’s Guardians are a cornerstone of our public law system. The decision was not straightforward. Even if the judge’s ultimate decision was to dismiss the application for a placement order, his understanding of A’s situation could only have been enhanced by hearing from her experienced Guardian’ [42].
The Court of Appeal concluded by stating that ‘all of these difficulties could have been avoided if the judge had performed his duties in the normal way, by listening to the evidence and submissions and giving a suitable judgment. He could not have been criticised for sharing his reservations about adoptions with the parties during the hearing in a manner that allowed them to consider and address them. But in attempting to short-circuit the process and impose his own views without hearing important evidence and attending to submissions, his actions had the very opposite effect’ [43].
The Court of Appeal therefore gave permission to the Guardian for their appeal, allowed the appeal and that of the Local Authority and remitted the matter back to the lower Court in front of a different judge.
This judgment highlights the fine line between indications and predetermination. An indication cannot be criticised, but it is important that the Court’s perform their duties in the usual way and to keep an open mind throughout.
