This is an interesting Court of Appeal authority about where the line is between a Judge giving an indication of their preliminary thinking and a Judge pre-determining the outcome of the case before hearing all of the evidence.
C (Children: Premature Determination) [2025] EWCA Civ 1481 (19 November 2025)
https://www.bailii.org/ew/cases/EWCA/Civ/2025/1481.html
In this case, the Local Authority were seeking Care Orders and placement orders for two children aged 4 and 2. They were part of a sibling group of 6 (two older siblings having been adopted in previous proceedings and two other older siblings having been placed with family members under Special Guardianship). By the time of THIS hearing, there having been an aborted final hearing several months earlier, the Local Authority were now seeking a Care Order for the 4 year old R and a Placement Order for the two year old, A. The proceedings were in week 122, so 27 1/2 months since issue.
At the final hearing for these two children, the Court heard evidence on the first day from the allocated social worker and the mother. The Court was due to hear evidence from the family finding social worker (about prospects and timescales for finding an adoptive placement), father and the Guardian – who supported adoption)
At the end of the first day the Judge gave an indication that he did not favour adoption for A, the younger of the two children. Everyone accepted that this was an appropriate judicial indication of preliminary thinking.
However, on day 2, the Judge said this at the beginning of the case :-
“THE JUDGE: Well how are we going to proceed after I dropped the bombshell yesterday? Carrying on as if nothing’s happened?
LA ADVOCATE: Well I need to address you on that.
THE JUDGE: Please, yes.
LA ADVOCATE: Your Honour, yesterday afternoon you gave comments and quite significant comments…
THE JUDGE: Yes.
LA ADVOCATE: The problem I have is that your comments could be characterised as a preliminary determination of the application. I’m not trying to read Your Honour’s mind, I know that Your Honour might have a different impression of the language with which that message was delivered.
THE JUDGE: No, Mr Coutts, I don’t mind not beating about the bush, no, it’s not a preliminary determination, it’s a clear indication that I cannot at the moment accept the care plan, I decided to tell you at this stage in proceedings because I didn’t want us to waste time hearing evidence that I cannot see in any way shape or form will change my view. We’re going to hear from the family finder but that is not going to tell me anything about the principle of whether adoption is the correct course of action… it’ll tell me how quickly it can be done. I don’t say that the child should be returned to mother, I’m not in any way suggesting that that is my view at the moment but what I’m saying is that I cannot at the moment… I can’t think of any evidence that I’m going to hear from the Guardian that will change my mind.
LA ADVOCATE: I think Your Honour, that’s the problem. Your Honour has in effect indicated at this stage of the case that you cannot see any way in which evidence that you now continue to hear at this hearing will affect your Honour’s view that adoption is not in [A]’s best interests. Ergo, you have determined that, in my respectful submission, and if that is right, and I know Your Honour may disagree with me about that, if that is right, then it might be prudent for me to ask you to make a formal ruling about that…
THE JUDGE: Very happy to do that, yes. I’ve thought about it long and hard, read the Guardian’s analysis, I see what she says… though I don’t see the Guardian’s position in this case will change from that which she has set out… I’ve tried to give people a heads up and I’d rather do it now, rather than at the end of the hearing everyone think “Why didn’t he tell us earlier on? Waste of time”.
LA ADVOCATE: Well I don’t want to debate it with Your Honour…
THE JUDGE: No, no… I’m just trying to be upfront, I’m very happy to give it as a ruling if you like, yes, please, I’m very happy to do that, I stand by what I have said, I am entirely satisfied that at the moment the evidence I’ve heard and relating to evidence that is about to come, I do not see that there is any evidence that I would hear, could hear, that will change the view I have which is that adoption… it may appear to be the only realistic option, feasible option for the long term… but I’m sorry, I don’t accept that this, doing the way it’s been done with [R] staying in residential care… that [A] will not feel in the long term that her interests have been ignored by the court in reaching the decision and when I apply the criteria in section 1 subsection 4(f) [recites from checklist, with some comment]… I am just very, very concerned that if we go down the course of action proposed by the local authority and supported by the Guardian, we are going to have [A] in all sorts of difficulties as she grows older, because she’s going to have abandonment issues, there are attachment issues and she potentially when she hears it I can envisage her self harming, becoming dysregulated and ending up in the DOLS court, and I’m sorry, I simply cannot in all conscience make an order which gives an adoption away… I can’t do it. I usually am certain of cases, and I sleep at night, but I cannot sleep at night if I make an adoption order in this case. I really am sorry… I simply don’t believe that it is the right course of action. Anyhow, I’ve been even more strident probably…
LA ADVOCATE: You have, Your Honour, yes, and I’m obviously on behalf of the local authority I would prefer if at all possible that we carry on and hear the evidence and Your Honour will give a full judgment and have the opportunity to hear submissions, so I reserve my position for another tribunal…
THE JUDGE: Of course.
LA ADVOCATE: In view of what your Lordship has said…
THE JUDGE: Entirely so… it’s because when I give them I do give these indications, I give them very rarely, it’s because I know that… I would be concerned, I really wouldn’t sleep at night, I always believe that I’ve made the right decisions for young people and I’m not convinced that adoption is the right decision…
LA ADVOCATE: Your Honour, thank you.”
The was then this exchange between the judge and the Guardian’s solicitor, Ms Little:
“CG ADVOCATE: … The Guardian has filed a report in February and has thought about things very carefully since your indication. She has a lot to say but given your very strong indication, I think that we need to reflect on whether we proceed because you’ve said what you’ve said and taken a view… (inaudible) before making a final decision, and you have pre-empted that…
THE JUDGE: Has she changed her mind?
CG ADVOCATE: She hasn’t changed her mind but she has thought about your concerns very carefully, as have I, and we’ve discussed them, we’ve done a lot of work over what you’ve said… she has a lot to say, but given your indication, I would need to reflect on whether we go ahead, because…
THE JUDGE: Fair enough, entirely, I do understand that.
CG ADVOCATE: … I don’t know whether we should have a little more time to think about how to proceed… Because what you’re saying is whatever the Guardian says to you, whatever she says, and she’s got a wealth of expertise, more than the social worker, much more, in all sorts of fields: long term fostering, social work, guardian work and adoption. So she thought about all the issues and the welfare of all the children, that’s her duty, and the relationships between all the parties… she’s reflected on the expert evidence but you have said, in terms, this morning that whatever she says to you won’t make any difference what she says to you. So I do think some time is needed…
THE JUDGE: No no, I’m very happy…”
During the adjournment, the Local Authority decided that this in their view had crossed the line between a Judge properly giving a preliminary indication as to the state of the evidence and a Judge stating that their mind was made up. They applied for a stay and leave to appeal, which the Judge granted.
In looking at it, the Court of Appeal set out the relevant principles and authorities about the appropriateness of judicial indications and the care that needs to be taken.
In Lanes Group Plc v Galliford Try Infrastructure Ltd [2011] EWCA Civ 1617; [2012] Bus LR 1184; [2012] 1 EGLR 27; [2012] BLR 121 at [45-46], Jackson LJ noted that predetermination arises when a judge or other decision-maker reaches a final conclusion before they are in possession of all the relevant evidence and arguments. In practice, findings of actual predetermination are rare, because of the difficulties of proof, and most cases therefore concern apparent predetermination.
As Lewison LJ explained in Re H (A Child) (Recusal) [2023] EWCA Civ 860; [2023] 4 WLR 64 at [63-74], the classic authorities on the question of judicial bias are not always adequate to cover the various circumstances in which a judge may be asked to recuse themselves. The question that arises in a case where proceedings are ongoing is whether a fair-minded and informed observer, having considered the facts in the context of the proceedings as a whole, would conclude that there was a real possibility that a party would not receive a fair hearing.
There is an important difference between a judge disclosing their provisional thinking for the benefit of the parties and a premature arrival at a settled decision. The first is acceptable and may be beneficial, while the latter is inappropriate and may well be unjust. As Sir Thomas Bingham MR said in Arab Monetary Fund v Hashim [1994] 6 Admin LR 348 at 356a-c:
“In some jurisdictions the forensic tradition is that judges sit mute, listening to advocates without interruption, asking no question, voicing no opinion, until they break their silence to give judgment. That is a perfectly respectable tradition, but it is not ours. Practice naturally varies from judge to judge, and obvious differences exist between factual issues at first instance and legal issues on appeal. But on the whole the English tradition sanctions and even encourages a measure of disclosure by the judge of his current thinking. It certainly does not sanction the premature expression of factual conclusions or anything which may prematurely indicate a closed mind. But a judge does not act amiss if, in relation to some feature of a party’s case which strikes him as inherently improbable, he indicates the need for unusually compelling evidence to persuade him of the fact. An expression of scepticism is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be.”
These observations were made in a fact-finding context, but they apply equally to an evaluative decision.
Disclosure of a judge’s current thinking may be positively helpful. In Singh v Secretary of State for the Home Department [2016] EWCA Civ 492; [2016] INLR 679 Davis LJ put it this way at [35]:
“… such statements can positively assist the advocate or litigant in knowing where particular efforts may need to be pointed. In general terms, there need be no bar on robust expression by a judge, so long as it is not indicative of a closed mind. In fact, sometimes robust expression may be positively necessary in order to displace a presumption or misapprehension, whether wilful or otherwise, on the part of an advocate or litigant on a point which has the potential to be highly material to the case.”
However, as Peter Gibson LJ warned in London Borough of Southwark v Jiminez [2003] EWCA Civ 502; [2003] IRLR 477; [2003] ILR 477, [2003] ICR 1176 at [40]:
“… I would add a word of caution for tribunals who choose to indicate their thinking before the hearing is concluded. As can be seen from this case, it is easy for this to be misunderstood, particularly if the views are expressed trenchantly. It is always good practice to leave the parties in no doubt that such expressions of view are only provisional and that the Tribunal remain[s] open to persuasion.”
It is unnecessary to make further reference to authority. 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.
In my personal experience, I have found it helpful to have indications from the Court – even if those indications are that the Court is going to need some substantial persuading to agree with some element of my case – and I think that it is reasonable for the Court to have indicated that they found the social work evidence given in support of the proposals for adoption lacking in cogency and that at this stage they were falling somewhat short of persuading the Court that the LA would at the conclusion of the case meet the high level bar for making a Placement Order.
Where the Court of Appeal considered that the Judge had gone too far was not in the comments at the end of day 1 that he was not favouring adoption for A, but in day 2, when saying that he would not make the placement order and that hearing further evidence would not change his mind.
We emphasise that this is a procedural appeal. It is not about the merits of the decisions that will be made about R and A’s futures, and we express no view whatever about that. We are only concerned to ensure that these decisions are taken with a minimum of further delay.
We do not doubt that the judge had given anxious thought to the questions that he had to decide. Furthermore, his extensive knowledge of the case, gained over the course of several hearings, placed him in a good position to give a judicious indication of his preliminary thinking, if he thought that might help the parties. He had done that in February in relation to R, and they had responded. He did so again on the first day of the October hearing, having heard the local authority’s principal witness, and no complaint is made about that. These matters are important context for what occurred on the second day, and we take them into account.
We also take account of the fact that, over the course of the care proceedings as a whole, aspects of the local authority’s planning had been subject to what it accepts was justified criticism.
We nevertheless find the Appellants’ submissions to be unanswerable. 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.
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. Parties are entitled to expect that of a court, and should not have to argue for it. In any event, as the transcription shows, further argument (in effect premature final submissions in favour of adoption) would have been futile.
We regret to say that the judge’s escalating intervention had the predictable effect of derailing the trial that he was conducting. The only way the hearing could have continued would have been if the local authority and the Guardian had fallen in with his view. That is clear from the one question that he asked of the Guardian: “Has she changed her mind?” A fair trial was now impossible.
The appellants are therefore entitled to succeed, but before concluding we express our concerns about what has occurred in this case.
First, whilst the staying of the proceedings became inevitable once the judge had declared his hand, we do not share the equanimity with which he made that order. The Guardian is right to describe the course that he took as unconscionable. If ever a set of care proceedings should not have been indefinitely stayed, this was it. These children’s lives had been on hold for years, and delays on this extravagant scale can become decisions by default as time forecloses on the range of available options. In creating the conditions in which the hearing could not continue, the judge deprived all parties of a long-overdue decision. Even if the case could now be remitted to him, several more months would pass before a final order could be made. As it is, it may take even longer, as another judge will now have to regather the evidence.
Second, we have considerable sympathy with the position of the parents. The judge’s statements will have led them to feel that they had fended off the prospect of placement orders, and it is understandable that they resisted the appeal. The mother is a vulnerable person who has been involved in proceedings since the middle of 2023 and now faces the prospect of more delay, and perhaps the prospect of having to give evidence again.
Third, the judge’s lack of interest in hearing from the Children’s Guardian was in our view 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. To determine the issue without hearing that evidence was obviously procedurally unfair. We also agree with the local authority that brief evidence from the family finder might have assisted the judge’s understanding of contact issues as well as timings, but the failure to hear that evidence was not of the same significance.
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.
We therefore made an order:
1) Granting permission to appeal to the Children’s Guardian.
2) Allowing the appeals of the local authority and Children’s Guardian.
3) Remitting the proceedings to the Central Family Court for early determination by another judge, starting with an urgent case management hearing.
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