K and L (Children: Fairness of hearing) [2023] EWCA Civ 686



John Schmitt appears as sole counsel in the Court of Appeal in this significant case.

John was instructed by Jonathan Jonas of Osbornes LLP in the representation of a Respondent father who had campaigned throughout longstanding care proceedings, for many months as a lone voice, for his children’s removal from the mother’s care, which he regarded to be dangerously unsafe.  

Following a final hearing in the Central London Family Court, in which John also represented the father, his position had been vindicated. The Children’s Guardian, who had given a reserved position until giving her oral evidence, agreed that the children could not safely live with the mother given the clear and present risks to their welfare. In judgment, the presiding judge at first instance had also agreed, emphatically, and made final Care Orders in respect of the children and sanctioned removal from the mother. This represented a rare turnaround in care proceedings where in summer 2022 there had been professional consensus that the children should remain with their mother.

The judgment was appealed on the basis of apparent bias, with the mother arguing the judge had given the appearance of a prejudiced approach to the mother’s evidence, by frequent interventions and perceived criticisms of the mother, and had failed to produce an appropriately balanced judgment with full consideration of the welfare checklist.

The Court of Appeal provided similar reasoning to John’s arguments on the issue of alleged judicial bias: there was no issue of bias because the judge’s observations during the hearing were squarely connected with the merits of the case.

However, the Court of Appeal allowed the appeal because the hearing had been unfair to the mother, in particular because of the judge’s conduct in inappropriately “taking over cross-examination” and “descending into the arena”. In doing so, with Lord Justice Baker providing the leading judgment, it provided an important recapitulation of the case law on judicial conduct during hearing of evidence and the acceptable parameters of judicial intervention, as well as on the core requirements of a judgment in matters of such gravity.

As such it provides an important companion to the recent judgment in C, D and E (Care Proceedings: Adequacy of Reasons)[2023] EWCA Civ 334 in which Tim Parker KC of Deka Chambers also appeared.

A re-trial has been ordered. John Schmitt remains instructed and Jonathan Jonas continues to represent the father, both fighting in pursuit of the safety of his children.

Click here to read the judgment.

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John Schmitt

Call 2013

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