Council and guardian win appeals over “premature determination” in care proceedings case

In C (Children: Premature Determination) [2025] EWCA Civ 1481, Lord Justice Peter Jackson and Lord Justice Miles concluded that the judge “could not have been criticised for sharing his reservations about adoption with the parties during the hearing in a manner that allowed them to consider and address them”, however, “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”.

In the case, the decision of the lower court was to stay its proceedings pending the outcome of an appeal for which it gave permission itself.

The Court of Appeal judges noted: “That unusual state of affairs arose after the judge had (as we find) brought the proceedings to a halt by expressing a concluded view about the main issue in the case in the middle of the final hearing. The appellants argue that this was a serious procedural irregularity amounting to injustice.”

Considering the issue of predetermination, Peter Jackson LJ and Miles LJ observed that 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.

The proceedings concerned two children - R and A. They had been separated in February 2024, and the original care plan was for them both to be adopted.

A five-day final hearing to determine their futures was listed for February 2025, when the matter came before His Honour Judge Oliver for the first time.

The hearing in February 2025 began with evidence being given by an independent social worker and a psychologist. The proceedings were then adjourned on the second day to allow the local authority to reconsider its care plan for R.

The local authority subsequently withdrew its application for a placement order in his case, and in August 2025, he was placed in a residential therapeutic unit, aged just 5. The judge conducted four further case management hearings in the summer before the final hearing resumed on 6 October 2025, with a time estimate of three days, allowing for four witnesses to be heard: the social worker, the mother, the family finder social worker, and the Children’s Guardian.

The position of the parties at the resumed hearing was that the local authority sought a care order for R and a placement order for A. The Children’s Guardian, who had represented the four children since the outset of proceedings, had originally recommended adoption for both R and A, but now supported the local authority’s revised position.

The mother sought the return of both children, and particularly opposed adoption for A.

In October, evidence was given by the allocated social worker and the mother. At the end of the day the judge gave an indication that he did not favour adoption for A.

However, by lunchtime the following day the judge had stayed the proceedings and granted permission to appeal.

The Court of Appeal judges noted: “How that came about can be understood from the electronic recording of that day’s hearing, helpfully supplied to us by the Central Family Court, to which we and the parties have listened.”

They continued: “The recording of the events on the Tuesday morning.... reveals that the judge started by asking whether the hearing was going to carry on as if nothing had happened after his “bombshell” of the previous day. The advocate for the local authority, Mr Coutts, then delicately probed what it was that the judge was saying, whereupon the judge went further by making it clear that he was not going to make a placement order in relation to A, no matter what evidence he heard from the remaining witnesses. He twice described the hearing of further evidence as being a waste of time. This led the parties to seek further time to consider how to proceed, which the judge readily allowed.”

From outside court, the local authority sent a message to the judge asking for permission to appeal on the basis that he had predetermined the issue of adoption for A. It did not ask him to reconsider his stance and it did not frame the matter in terms of recusal.

When the parties returned to court, the judge immediately granted permission to appeal without seeking the views of the other parties, and he stayed the proceedings.

The Court of Appeal judges observed: “The family finder, whose evidence would long since have been completed had she given it, was stood down. The remaining day and a half of court time was lost.”

In the present appeal, counsel for the local authority argued that the transcription of the hearing showed that the judge made a “plain and obvious error”.

It was contended that the judge’s remarks “went beyond permissible signposting” and amounted to a clear decision on a key issue in the proceedings. By removing the option of adoption from the table, he deprived A of a full (‘global holistic’) analysis of the options for her future.

The Guardian supported the submissions and advanced several additional grounds of appeal:

• The judge failed to properly consider the impact of further delay on children who had already experienced extreme delay. The course he took, with no clear onward timetabling, was unconscionable.
• The judge had no regard to the fundamental principle that specific analysis is required where the court departs from the recommendations of its appointed Guardian, which took account of wider considerations than those that he referred to.
• There was no proper welfare checklist survey, with the judge’s approach being reflected in limited references to aspects of the checklist that supported his view.

Counsel on behalf of the mother argued that the judge gave a “robust indication”, not a predetermination, as he himself said at the beginning of the first exchange on the Tuesday morning. On the Monday he had invited the Guardian to give evidence - these matters showed that he did not have a closed mind.

Discussing the case, the Court of Appeal judges said: “We reject the argument that the judge’s statements on the second day of the hearing amounted to no more than a robust indication. He repeatedly said that he could not sleep at night if he made an adoption order and that it would be a waste of time to hear further evidence. He said and repeated that he had “made the decision”. This was an unmistakeable predetermination by a judge who had closed his mind to the case being advanced by two of the parties in relation to a matter of profound and lifelong importance to A.”

The judges continued: “It is next said on behalf of the parents that the local authority and the Guardian could have averted the breakdown of the trial. On behalf of the father, it is argued that they should have persuaded the judge to reconsider his position by elaborating on all the ways in which the further evidence might have assisted him. We do not accept that submission.

“The local authority offered the judge an opportunity to give reassurance that he remained open to persuasion, but he did not do that, and instead expressed his views even more strongly. This placed the parties in an impossible position. It would have been unrealistic to simply call the witnesses in front of a judge who had already made his mind up on the things they would be speaking about. We also reject the submission that the advocates should have tried to persuade the judge to keep an open mind until he had heard all the evidence.”

The judgment described the judge’s lack of interest in hearing from the Children’s Guardian as “unaccountable”, noting that to determine the issue without hearing the evidence was “obviously procedurally unfair”.

Allowing the appeals of the local authority and Children’s Guardian, Lord Justice Peter Jackson and Lord Justice Miles concluded: “All 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 adoption 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.”

The proceedings were remitted to the Central Family Court for early determination by another judge, starting with an urgent case management hearing.

Lottie Winson