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Re G (A Child) [2015] EWCA Civ 834

Date:29 JUL 2015
Law Reporter
(Court of Appeal, Sullivan, Black LJJ, Sir Colin Rimer, 28 July 2015)

Private law children – Contact – Fact-finding hearing – Appeal from findings – Whether the judge had prejudiced the exploration of the evidence

The mother’s appeal was allowed, the findings of fact made by the judge were set aside and the case was remitted for rehearing. 
 Case No: B4/2014/0280 & 0286
 Neutral Citation Number: [2015] EWCA Civ 834


 Royal Courts of Justice

 Date: 28/07/2015

Before :


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 Between :


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 Mr Michael Phillips (instructed by Thomas Dunton) for the Appellant
 Mr James Turner QC(instructed by Hunters) for the Respondent

 Hearing date: 9th July 2015

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 [1] The mother of G (who is 8 years old) seeks to appeal in relation to decisions taken by Her Honour Judge Pearl in late 2013 and early 2014 in proceedings concerned with the care of G. The matter was listed before us for consideration of whether permission to appeal should be granted and, if so, for the determination of the appeal itself. I should say at the outset that I would grant permission to appeal for reasons that will be apparent from the rest of this judgment. The central issue in the case is whether a hearing which took place before Judge Pearl in October/November 2013 was unfair because of the conduct of the judge.

 [2] The respondent to the appeal is G’s father. He and the mother have spent the years since they separated in 2011 engaged in litigation of various types, of which the proceedings in relation to G form only a part. A full chronology of what has occurred will not assist in the determination of the appeal and I will confine myself to that which is essential for that purpose.

 [3] It seems that following the separation, the parents were able to agree that care of G would be more or less shared between them. Difficulties quite soon arose, however, and in 2012, the father began proceedings for contact. They were satisfactorily resolved by the making, by consent, of a shared residence order in May 2012.

 [4] In November 2012, the mother applied to vary the shared residence order because, she said, she had agreed to it on the basis that the father’s parents would be available to care for G whilst she was with him and they had subsequently returned to India. In her application form, she voiced concerns about the father’s care of G, asserting that the father’s life appeared to be “spiralling out of control due to his addiction to gambling” and she said there had been “significant domestic violence from [the father] towards me throughout the relationship” (B92).

 [5] A CAFCASS report was commissioned in January 2013 but, for various reasons, no progress was made with this until 8 August 2013 when the CAFCASS officer, Mr Ryan, went to see the mother and G at home. The mother alleged to him that the father had been physically and emotionally abusive to her during their relationship, including stabbing her in the leg. When Mr Ryan spoke to G in the presence of the mother, G told him that she recalled an incident when her father had put a knife in her mother’s leg whilst she was sitting on her mother’s lap. She also said that her father leaves her for an hour during contact whilst he goes to get food. Mr Ryan considered that G’s account of both events was “plausible”. His immediate response was to refer the case to the local authority (to whom there had also been a referral earlier in the year by the duty CAFCASS officer) with a suggestion that there be an immediate section 47 (Children Act 1989) investigation in view of the nature of the allegations. He also wrote to the court on 8 August 2013, setting out what had occurred, including the fact of his referral to the local authority, and saying that he “would respectfully suggest that all contact is suspended until the outcome of the investigation is known”. He concluded the letter by saying that he had requested that the solicitors acting for the mother place his letter before the court on 9 August 2013.

 [6] The mother’s solicitors applied immediately for contact to be suspended and a hearing took place on 9 August 2013 before a district judge, without notice to the father. The district judge suspended contact between G and her father until further order, directing that there be a hearing before His Honour Judge Everall QC on 19 August 2013, attended by CAFCASS.

 [7] On 19 August 2013, Judge Everall heard counsel for the mother, the father in person, and Mr Ryan. He gave various directions for the progress of the case towards a fact finding hearing, then scheduled for September 2013, including requiring a report from the local authority as to the enquiries it had made so far and a report from Mr Ryan on the question of interim arrangements for the care of G pending the final hearing. He directed that pending the next interim hearing, the mother was to make G available for supervised contact at a contact centre.

 [8] The fact finding hearing was adjourned in September so that the father might obtain legal representation. Contact remained supervised, although the mother agreed to it being for rather longer than had been the case.

 [9] The fact finding hearing commenced on 28 October 2013 before Her Honour Judge Pearl and lasted until 30 October when the judge reserved her main judgment but made various orders with immediate effect, including restoring the shared residence order of May 2012, including its detailed arrangements for how G’s time was to be divided between her parents. A short ex tempore judgment was given that day dealing with those orders.

 [10] Judgment in relation to the factual findings was handed down on 27 November 2013. In it, the judge picked her way through the evidence that she had considered in relation to the main allegations, setting out her analysis of it. I think it would be fair to say that both sides largely failed to establish their main allegations. The judge found that the mother had not been subjected to violence by the father. The father accepted that he had accumulated large debts, substantially from his betting activities, but the judge rejected the mother’s case that he reacted to losing money when betting by becoming angry and violent towards her and, furthermore, said that she was “not going to be drawn into making a psychiatric diagnosis of the father that he has a gambling addiction”. The father agreed that he had left G alone on one or two occasions for a few minutes when he got food from nearby, which the judge considered a “lapse of judgment” on his part. However, she accepted that the period for which G was left was very short and that the father had reflected on it and it would not recur. The father had alleged that the mother had coached G to make up allegations about him and the judge recorded that that was a concern but did not find it proved. She rejected the father’s case that the mother had a serious alcohol problem and rejected his suggestion of failures in the mother’s care of G.

 [11] Each party was by now seeking a sole residence order in his or her favour. The judge stood the matter over for a final welfare hearing early in 2014, continuing the shared residence order in the interim. The case returned before her on 7 January 2014. The hearing was conducted on submissions only and an interim residence order in the father’s favour was made, together with a contact order in favour of the mother, including overnight contact. A CAFCASS report on residence and contact by an officer other than Mr Ryan was directed with a view to a review hearing in May 2014. Judge Pearl gave a brief judgment explaining her reasoning for making the sole residence order in favour of the father. It revolved, essentially, around two matters which she considered meant that the mother presented a risk to G. The first was the mother’s refusal to accept the findings of fact that had been made; the judge spoke of her “dysfunctional beliefs about the truth”. The second was the mother’s approach to proceedings which had been brought by her family in India about the dowry; the judge considered those proceedings to be “toxic” and wanted the mother to withdraw what she (the judge) described as her “untruthful statements” in those proceedings, which the mother said she could not do. The purpose of the sole residence order was to “send a clear message to the mother that the court does not consider that she is capable of taking part in a shared residence order at this time when she is so adamant in respect of pursuing untruthful allegations in the Indian proceedings”. She said the order was “a wake-up call to the mother”.

 [12] The mother filed appeals against the orders of 27 November 2013 and 7 January 2014 at the end of January 2014 and the first notable decision in the Court of Appeal was in November 2014. I will return to it shortly.

 [13] Meanwhile, however, the proceedings continued at first instance. A review hearing took place in front of Judge Pearl but, because of a hitch in relation to the CAFCASS report, not until late August 2014. At that point, G was spending equal amounts of time with each of her parents as directed by the court in January 2014. The CAFCASS officer had met G and the parents. She said in her report that G has a close relationship with both parents and that to reduce the time she spends with them would make her feel “unhappy”. She advised that it would be in G’s best interests for the current arrangement to continue and for the proceedings to come to an end. She did, however, advise that the mother needed to put “her personal difficulties to one side”, by which I take it that the officer meant her views about the decisions made in the fact finding hearing and her lack of confidence in the father’s ability to meet G’s needs. At the August hearing, the father sought to prevent the mother having overnight contact with G because he considered she was saying inappropriate things to G. For her part, the mother wanted to spend more time with G. The case was therefore adjourned for a hearing to determine what should happen about overnight stays. The sole residence order made on 7 January 2014 was rescinded and replaced with an interim order for G to live with the mother and father equally, the overnight stays with the mother continuing.

 [14] On 5 November 2014, Ryder LJ adjourned the mother’s applications for permission to appeal to an oral hearing, making provision for a copy of the digital recording of the fact finding hearing before Judge Pearl to be obtained. At the oral hearing, in March 2015, both parties were represented. Ryder LJ devoted a considerable amount of time to the case over two days and ultimately made the order which resulted in the matter being listed before us in the form I have described.

 [15] We have been provided with the complete transcript of the proceedings in October and November 2013 and of the hearing on 7 January 2014. A compilation of extracts from the transcripts has also been prepared and made available, together with an audio disk which enabled us to listen easily to the recording of those parts of the hearings. It was common ground that it was necessary to consider the entirety of the proceedings, rather than just the extracts, so I have also had reference to the transcript as a whole.

 [16] Both parties were represented by counsel before us. In neither case was counsel the same as before Judge Pearl. Before Judge Pearl, Ms Toch represented the mother and Mr Cameron the father. Before us, Mr Phillips represented the mother and Mr Turner QC represented the father. I am grateful for the assistance provided by both counsel and would particularly acknowledge the fact that Mr Turner (and his instructing solicitors) acted pro bono.

 [17] The grounds of appeal were seven in number but, for various reasons, the focus of the appeal was upon the fifth ground which was that the conduct of the case was “tainted by numerous instances of prejudice and bias on the part of the trial judge” or, as summarised by Ryder LJ, in his short judgment at the permission hearing: “[the judge’s conduct] was inappropriate; it was unfair; and has led to an overwhelming perception of unfairness both in the mother and her then counsel who is now a witness”.

 [18] The reference to counsel being a witness is a reference to the fact that Ms Toch filed two statements in support of the mother’s appeal setting out her own account of what had occurred during the hearings. Those statements have been available to us but, quite rightly, Mr Phillips took us directly to the transcripts and his argument very much concentrated upon those, attention being focussed by his helpful schedule of the passages upon which he relied as the foundation for the fourteen specific complaints cited under the general heading of the fifth appeal ground. This approach was in line with Mr Turner’s submission that, rather than producing witness statements from Ms Toch, the proper course would have been to let the transcripts speak for themselves, highlighting the impugned passages.

 [19] The first specific complaint was that the judge impolitely told counsel off for her late arrival at court on the first day of the fact finding hearing, 28 October 2013. It was submitted that Ms Toch had been subjected to unwarranted and unfair criticism about this and that this was of concern to the mother as it was obvious to her that the judge was annoyed with her counsel. Other specific instances were identified where it was said that the judge’s attitude towards Ms Toch was disparaging and bore the mark of hostility or unfairness. One example was in relation to the way in which the judge dealt with Ms Toch over the CAFCASS officer but attention was invited to the way in which the judge dealt with Ms Toch over other matters as well.

 [20] It is essential to consider the exchanges that preceded the commencement of the evidence in the case as a whole. The hearing got off to a difficult start on the morning of Monday, 28 October. There had been a powerful storm the previous night with damaging winds. Transport services were severely disrupted and Ms Toch had problems in getting into central London for the hearing. Ms Toch’s account in her statement is that, on the witness template, the morning had been scheduled for the judge to read. It has not been possible to find out whether that was anyone else’s understanding. Ms Toch’s account is that she was told by her clerks on the Monday morning that the judge wished to sit at 11.45 a.m. Because of her travel difficulties, Ms Toch did not arrive until 12.20 p.m. which made her late for this and meant that she had not been able to discuss matters directly with counsel for the father before the case started. The transcript of the proceedings opens at C3 with Ms Toch apologising to the judge for delaying the court. She explained about the limitations on transport from her home area that morning and the steps she had had to take to get to court.

 [21] Matters moved on but it can be seen from the transcript that Ms Toch’s lateness continued to trouble the judge for some time and that she returned to it later. I will deal with this at its appropriate place in my consideration of this stage of the hearing.

 [22] The first substantive issue that was dealt with was the father’s submission that there should be no fact finding hearing at all, which the judge rejected. Then, at C7, the judge expressed very critical views about the CAFCASS officer, Mr Ryan, who she considered had acted inappropriately following his meeting with the mother and G on 8 August 2013. The nature of her criticism of Mr Ryan can be seen from what she said to Mr Cameron at C7:

“I really find this really concerning, first of all that you are saying – I mean a very, very curious situation – that the CAFCASS officer, which I find quite extraordinary, having seen the mother and G, knowing that there were long outstanding proceedings and parties were legally represented, apparently without any reference to the court and without any reference to the father made a referral under section 47 for the Local Authority and also made a unilateral decision that contact should be supervised. It is quite extraordinary and I do not know whether you think the CAFCASS officer has taken himself off the case. I would like that to be clarified because it seems to me all the CAFCASS officer has said is that he does not want CAFCASS to be involved further until these matters of fact have been investigated. Well, let me make it absolutely clear that I do not conduct fact-finding hearings just because a CAFCASS officer has told me to conduct a fact-finding hearing and, indeed, that is not the way these courts deal with these matters.”

 [23] Attention at that point was focussed, as was appropriate, on which allegations were going to be investigated at the hearing. Mr Cameron submitted to the judge that the allegations about the father’s care of G had been dealt with by the section 47 report which recommended no action. At C8, the judge asked Ms Toch whether the mother accepted that there were no concerns on this front. Ms Toch tried to explain what the mother’s continuing concerns were but the judge was impatient, intervening to say:

“Yes or no? Answer the question please. I have read the section 47 report. Does your client accept what has just been submitted to me on behalf of the father, that that deal with those issues of the care given by the father to G during contact? Yes or no?”

 [24] Immediately thereafter, the judge warned the mother through counsel that:

“if [the mother] pursues these very serious allegations and I find them not true, that will be an extremely serious matter and if I find that she has coached G to make those allegations or if she has spoken about those untruthful allegations in front of G, that would be extremely serious” (C9)

 [25] It is important to note that in the subsequent discussion about the ambit of the hearing, Mr Cameron was not immune from the judge’s critical attention. At C13 the judge took him to task because he said that there was no allegation that the father had harmed the child, in the following exchange:

“THE JUDGE: Do you not think that a child is harmed by the knowledge that her mother has been stabbed by the father?

 MR CAMERON: Yes, I do.

 THE JUDGE: Do you not think that would make her wary of him?

 MR CAMERON: I certainly do but I say –

 THE JUDGE: Do you not think that if she was to be told to go to contact by the mother with a man who is capable of attacking her mother with a knife that that is something that the child would grow up to reflect upon and think that was not a very safe way of her mother proceeding?

 MR CAMERON: Yes I would but, in the context which you have of clear evidence of thriving care in the father’s care, of contact notes which are exceptionally good and evidence that I will ask you to consider of how natural the relationship is –

 THE JUDGE: Are you going to appeal my decision to get on with this fact finding hearing?

 MR CAMERON: No, absolutely not.

 THE JUDGE: Thank you very much. Let us get on with it.”

 [26] At C20, the judge observed that a witness template was needed and Ms Toch said there was one. The judge’s response was disparaging, as is clear from listening to the recording of the hearing which reveals the tone of voice she used. She made it plain that she did not think the witness template provided was of any use, observing, “You think that is useful, do you? Let us do it together now, shall we?”. The question of the CAFCASS officer giving evidence was then considered. The judge appeared to think that Ms Toch wished to call the CAFCASS officer when in fact, as she tried to explain to the judge without much success, Ms Toch did not wish to question the officer herself but thought that the father required him to be called. The judge reverted to the criticism of the officer that she had set out earlier. She said (C21) that she considered that his decision to act as he did was “appalling” and (C22) referred to him having expressed views about credibility without knowing the full facts. She wished Ms Toch to concede that the CAFCASS officer had not acted appropriately and between C23 and C25, the following exchange between the judge and Ms Toch took place. I will quote it quite extensively because it gives the flavour of this early part of the hearing:

“THE JUDGE: Do you think it is fair that a CAFCASS officer should stop contact completely without even speaking to the father about a matter of fact? Do you think that is the way to proceed?

 MS TOCH: Well, of course, he did not. He raised this. He referred the matter to Social Services to investigate and the matter was referred to the court and the court stopped contact. It was not the CAFCASS officer.

 THE JUDGE: But he recommended that contact be supervised

 MS TOCH: He wrote a letter to the court to say that contact should be suspended pending the outcome.

 THE JUDGE: Do you think that is a fair way to proceed?

 MS TOCH: Well, it was referred to the court, so it is a matter for the court.

 THE JUDGE: Do you think –

 MS TOCH: It is a matter for the court.

 THE JUDGE: We are not going to get –

 MS TOCH: I am sorry.

 THE JUDGE: This is the second time we have had a conversation like this.

 MS TOCH: Yes.

 THE JUDGE: If I ask a question, try and answer it please.

 MS TOCH: The CAFCASS officer did not suspend contact and contact was ordered to be supervised by HHJ Everall –

 THE JUDGE: Do you think it is right –

 MS TOCH: - on submissions.

 THE JUDGE: Do you think this man’s evidence on a finding of fact is going to assist me?

 MS TOCH: I am not saying it will.

 THE JUDGE: Yes or no?

 MS TOCH: I am not asking for him. I am saying he is available. I understood the father wished to have him.

 THE JUDGE: Well, you have just asked the question [of the father’s counsel]. He said he does not want him to be cross-examined.

 MS TOCH: And I have heard that, so unless the court wishes him, I do not.

 THE JUDGE: Look –

 MS TOCH: I am not calling him. Am I clear?

 THE JUDGE: No, I know.

 MS TOCH: I am not calling him.

 THE JUDGE: Let us try and have an exchange, shall we?

 MS TOCH: Yes.

 THE JUDGE: All right. You have made me angry.

 MS TOCH: I am sorry.

 THE JUDGE: The second time. This morning I was asking questions. You simply were not answering the questions.

 MS TOCH: I am sorry.

 THE JUDGE: You must answer my questions.

 MS TOCH: I will, yes.

 THE JUDGE: Are you going to ask me to rely on this CAFCASS officer’s finding or understanding of the truth as part of the evidence I rely upon to substantiate your client’s allegation of the stabbing? Yes or no?


 THE JUDGE: Thank you.

 MS TOCH: I am terribly sorry. I did not mean to be –

 THE JUDGE: I am so grateful to you.

 MS TOCH: Yes.

 THE JUDGE: No, you do mean to be because this is the second time you have done it and it does not work with me. You are not relying on his assessment of this child’s veracity. You are only relying on the fact that it was said. The father does not deny it was said and you are not going to come towards me at the end of the hearing and say, ‘Because the CAFCASS believed it, your honour, you must believe it.’


 THE JUDGE: All right. Do you think it was bad judgment for him to recommend that contact be suspended?

 MS TOCH: He –

 THE JUDGE: Yes or no?

 MS TOCH: It was correct judgment to have the matter investigated as it was.

 THE JUDGE: This is going to be a difficult hearing.

 MS TOCH: I am sorry. I do not think my opinion is important, with respect. He made the recommendation. It came before the court.

 THE JUDGE: Look, I do not want to stop a witness coming to court and then meet submissions from you –

 MS TOCH: I am not going to make those submissions, if I make that plain.

 THE JUDGE: Yes, good.

 MS TOCH: Yes.

 THE JUDGE: So that has taken ten minutes. No counsel this morning at all and ten minutes and I am not being unreasonable about this.”

 [27] The transcript does not convey the degree of pressure put by the judge on Ms Toch at this point in the proceedings. It reveals that the judge had not accepted Ms Toch’s clear statement at C21 that she did not want to cross examine the CAFCASS officer and was content for him not to be called, even though that had been reiterated by Ms Toch at C22. It also shows that the judge was pressing Ms Toch to accept a version of events in relation to the CAFCASS officer which did not accord with what had occurred, as Ms Toch was attempting to explain. The CAFCASS officer had not “stopped contact completely”; he wrote to the court respectfully suggesting that contact was suspended until the outcome of the investigation was known and requested the mother’s solicitors to place the matter before the court (see the chronology which I set out above). The court then took the decision as to what should happen, as Ms Toch said to the judge. However, even if the judge had been entirely accurate in what she was putting to Ms Toch about the CAFCASS officer, Ms Toch was right when she said to the judge that her own opinion was not important. She was there to represent her client. She could have addressed the judge’s criticisms of the officer by way of submissions if the point was material to the fact finding but that was all. What is not apparent from the transcript is the judge’s tone of voice. I need only say that listening to the recording did nothing to improve the impression gained from the written word.

 [28] The pressure on Ms Toch continued immediately after the passage that I have set out above with the judge returning to the subject of Ms Toch’s lateness as follows (C25):

“THE JUDGE: Everybody knew – let me be clear about this – there were going to be no trains this morning. It was very, very clear on the national media. Everybody knew. It was absolutely clear and I changed my travel plans accordingly, as did everybody else. Everybody knew and if I had been living in [counsel’s home town in Kent], I would have made plans to avoid this disaster this morning. Be utterly clear about that.

 MS TOCH: Yes. I can only apologise to the court. I did try. I really did try.

 THE JUDGE: Well, I hope you have apologised to your client.

 MS TOCH: I apologise to everybody in this court that has been inconvenienced.

 THE JUDGE: Everybody knew that there were going to be no trains this morning.

 MS TOCH: Yes.

 THE JUDGE: So why you sat in [counsel’s home town] last night waiting for there to be no trains, I do not know. It is ten to three and we have not even started –

 MS TOCH: I am so sorry but sometimes people cannot leave the night before and I could not.


 [29] It was unnecessary, in my view, for the judge to have returned to this question at this stage in the proceedings and, as I see it, the exchange compounded the pressure that had been put on Ms Toch by what had just occurred in relation to the CAFCASS officer. My experience is that counsel tend to manage to be on time for court against even formidable odds but sometimes it simply is not possible. The weather conditions on this weekend in October were extraordinary and disruptive of transport. As Ms Toch observed to the judge, sometimes it is not possible for counsel to set off the night before. There are various reasons for this, ranging from domestic commitments to an inability to obtain accommodation overnight or to pay for it from a brief fee which was not designed for that eventuality. Ms Toch told the judge of the steps that she had taken to get round the problems on the morning of the hearing, she got herself to court as soon as she could, and she apologised. It is understandable that the judge felt frustrated by the loss of time that could otherwise have been devoted to discussions between counsel or other arrangements outside court or to getting the hearing underway. It is clear that it was going to be a challenge to conclude the evidence and submissions within the allotted court time, even without delays of the kind that had occurred and that always poses difficulties for a judge. However, I accept the submission of Mr Phillips that she laboured the issue of Ms Toch’s lateness to the point of unwarranted, unfair criticism.

 [30] Taking the whole of the exchange about the CAFCASS officer and the lateness together, I also accept the submission that the mother would have felt that the judge was annoyed with her counsel and that this annoyance influenced the judge’s approach to her case and impeded the presentation of it by counsel on her behalf.

 [31] It was shortly after the CAFCASS/lateness exchange that the mother began to give evidence. Complaint was made of the judge’s approach to her during her cross-examination which it was argued was hostile and distressing to the mother. Managing a trial can be a challenging, even for an experienced judge, and it is sometimes necessary to react without much time for refined consideration. Generous allowance always has to be made for this and also for the fact that, even with counsel’s help, it is very difficult to tell from a transcript, or even from listening to a recording, precisely what was going on at all stages during the hearing. Furthermore, different judges have different styles and counsel and litigants can usually be expected to cope with the talkative, the uncommunicative, the robust, and even the irritated judge, provided the judge’s behaviour does not stray outside acceptable limits.

 [32] In this case, I see the judge’s handling of the mother’s cross-examination as being within normal tolerances. True it is that the judge asked the mother on occasions to stop interrupting her, but that was not unjustified as the mother did tend to interrupt questions put to her and talk over people. Nor, in my view, would it be right to criticise the judge for speaking to the witness about being on oath or for requiring her to stand up, which was likely to have been done in an effort to control the process and possibly also in order to hear better. I note also that when the mother was upset following some questioning by Mr Cameron (C104/5), the judge asked if she had hankies and offered her a short break.

 [33] Complaint is made of the judge’s treatment of Ms Toch’s cross-examination of the father. It is argued that Judge Pearl was disparaging and hostile in relation to this and also excessively interventionist. In order to evaluate this, I have looked at how the judge handled the cross-examination of both counsel. Both the cross-examination of the mother and that of the father commenced on one day and concluded on the following one. It will therefore be convenient to divide my consideration of each cross-examination into two parts.

 [34] Mr Cameron’s cross-examination of the mother began on the first day of the hearing and starts at C44 of the transcript. Between there and C76 (so for 32 pages) when the hearing finished for the day, there are two passages where the judge intervened significantly (C50 to C53 and C65 to C68) and four interventions which are of no more than a page of transcript in length. Otherwise, the judge’s interventions were minimal.

 [35] The transcript of Ms Toch’s first day of cross-examination of the father commences at the foot of C166, the end of that day being at C210 (44 pages). During it, the judge made two prolonged interventions (C180 to C185 and C197 to C201). She also intervened significantly four more times (from C208 to C210, and to a lesser extent at C168 to C169, C172 to C173 and C192 to C193). Had this pattern continued, there may have been no problem. However, it was what happened when Ms Toch resumed her cross-examination the following day that attracted criticism from Mr Phillips on behalf of the mother.

 [36] Mr Phillips’ summary in his Schedule of the position with regard to the second day of Ms Toch’s cross-examination was that between C221 and C279 (which was essentially the end of it), it was difficult to find a single page where there had not been interventions by the judge. The fairness of a hearing cannot be assessed scientifically or mathematically but, seeking for some way in which to look at matters as a whole and to pin down impressions, I counted the entries against the names of the judge, Ms Toch and the witness in the first thirty or so pages of transcript of the resumed cross-examination, starting at the foot of C216 which was the nominal start of it. By the middle of C247, the judge had spoken 250 times, Ms Toch had spoken 227 times and the witness had spoken 140 times, only 64 of them in response to a question from Ms Toch. Between C251 and C258, there was quite a concentrated period of cross-examination, during which the judge spoke only 18 times. However, it was then a further nineteen pages before Ms Toch was able to cross-examine continuously again, although during those nineteen pages there was considerable questioning of the father by the judge, for example for three full pages between C259 and C261. Ms Toch resumed continuous questioning at the foot of C277 but at the foot of C279 Mr Cameron intervened to remind the court that a witness was waiting outside court and that was effectively the end of the cross-examination.

 [37] I compared the second day of Ms Toch’s cross-examination of the father with the second day of Mr Cameron’s cross-examination of the mother. The judge intervened frequently during Mr Cameron’s questioning as well and also questioned the mother herself at some length during it (see notably C83 to C85). However, spread between the resumed start at C79 and the end at C141, at least twenty-three pages can be found during which Mr Cameron asked his questions pretty much free from interruption.

 [38] As I have said, the fairness of a hearing cannot be assessed mathematically or scientifically. Nor is it dependent on a comparison between the way in which the judge has treated the two sides. If one party has been treated in such a way as to disable him or her from advancing his or her case properly, the hearing is not rendered fair by the fact that the other party has been treated equally unfairly. For what it is worth, however, a comparison of the quantum of intervention by the judge on the second day of each counsel’s cross-examination of the other party shows, I think, that Mr Cameron was rather less hampered than Ms Toch.

 [39] It is necessary to look not only at the quantum of the judge’s interventions but also at their nature. As Mr Turner submitted on behalf of the father, a litigant does not have an unrestricted right to present a case in such a way as he or she or his or her lawyers may choose. A judge sometimes has no choice but to intervene during the evidence because of the nature of the questioning or in order to manage the use of court time (as the father would submit was necessary here). Furthermore, the interventions can sometimes be a help to counsel in his or her questioning rather than a hindrance.

 [40] Ms Toch commenced her cross-examination of the father at C166 by asking questions directed at his gambling. On the mother’s case, this was relevant in two ways. First, the mother asserted that the father was addicted to gambling and secondly, she said that the stress of making losses led the father to be violent towards her. Domestic violence was officially on the agenda for the fact finding hearing and so was gambling, as can be seen, for example, from the foot of C11 where the judge observed, “If the father is an uncontrollable gambler, that is obviously going to make a difference to the way in which he cares for a young child”, going on to say that she needed to understand the risk in this respect.

 [41] In the opening pages of Ms Toch’s cross-examination, she explored the nature of the father’s job (which he had described as spread betting), what he had been earning, the size of his debts (which he agreed were in the order of £500,000), and his private betting activity. The first of the judge’s prolonged interventions came at C180 and resulted from a muddle over some emails that Ms Toch was putting to the father on the subject of gambling. Without being taken to the material in question, it is difficult to say whether the judge was justified in being critical of the way in which Ms Toch approached the matter initially. The judge went on to ask her own questions of the witness about the emails.

 [42] By C194, Ms Toch’s cross-examination had turned to the issue of who was the primary carer for G and, shortly thereafter, also incorporated questioning going to the father’s allegations about the mother drinking, about which he was seeking a finding of fact. The judge’s second prolonged intervention came in the course of this at C197 when she said to Ms Toch, “Are you going to ask him about these serious allegations that are being made?” and slightly later, “I am just wondering when we are going to start on the case that your client is making.” The judge then explored with counsel for some time, in the presence of the witness, what the underlying material was to support the mother’s case about gambling and domestic violence, wondering aloud to counsel “whether we are using the time efficiently” (C201). This passage ended with the father putting up his hand to contribute to the discussion and doing so at the foot of C201.

 [43] When Ms Toch resumed her cross-examination of the father the following day (C216), it is apparent that she was intending to deal with the question of domestic violence. I have already referred to the number of contributions made by the judge, Ms Toch and the father respectively during this period but I now return to look more closely at the nature of some of these, albeit that I will not go through every matter of complaint. It is perhaps relevant that the day began with the judge criticising both counsel over Mr Cameron having spoken to his client whilst he was in the course of giving his evidence. The criticism was first directed to Mr Cameron, whom the judge said she felt like reporting, but then widened to include Ms Toch as well because she was thought to have agreed to what Mr Cameron had done. The judge said that she would decide in due course what action she was going to take about this (C215).

 [44] Between C216 and C251, Ms Toch asked the witness no more than about fifty-five questions, some of them no more than noises of acknowledgment (such as “All right” and “Yes”) or repetition of questions. By way of comparison, the judge herself asked about twenty-six questions of the father at the conclusion of his evidence (C281 to C284). The judge perceived that Ms Toch was not questioning the father fairly or efficiently. She said at C231 that she had picked Ms Toch up “over and over again” for asking unfair questions which were not supported by the evidence and telling her to be more careful, then picking her up again on C233, and on C244 indicating that she would not “allow this barrage of unfair questions”. After Mr Cameron had risen to indicate that a witness was waiting outside (C279), the judge told Ms Toch (C280) that she was criticising her for “being inefficient with your questioning and not getting through it”. The reader of the transcript cannot help but observe that progress would probably have been considerably quicker without the judge’s own interventions and that Ms Toch had not really had the opportunity to develop a barrage of questions, fair or unfair.

 [45] I am not satisfied that the judge’s interventions were all unjustified. Complaint is made about her intervention concerning Ms Toch’s questions with regard to the dowry proceedings in India (C242) for example, but, in my view, wrongly. Scrutinising the transcript, I think I can see why the judge was critical of what Ms Toch had put. Ms Toch commenced the questioning about the dowry by putting to the father that the Indian proceedings were because the mother’s parents “had lent you money and you had not repaid them”. In the circumstances, it is understandable that the judge intervened to ask why the claim had been by way of dowry proceedings if it was a debt claim; her subsequent questions were directed to this issue.

 [46] An example of an intervention by the judge which disrupted the flow of the cross-examination unnecessarily, however, was in relation to the record made by the mother’s general practitioner of an injury to her leg (C229). Ms Toch asked the father to turn to a page in the bundle. The judge asked what the document was and Ms Toch identified it as “the doctor’s report of the stabbing injury”. The judge challenged Ms Toch’s use of the word “report” and said, “We are lawyers. Let us be accurate.”. I will not express a concluded opinion as to whether there was justification for the exchange that followed in relation to the version of the report which counsel was using because it is difficult to tell on the material we have. It looks as if there were two versions of the document in the bundle (one complete, one incomplete), with the page to which Ms Toch wanted to take the witness featuring in both, and that she had happened to refer him to the page in the incomplete version. If that is right, the judge’s criticism of Ms Toch looks misplaced. Anyway, once it was all sorted out and counsel returned to her cross-examination, the judge again picked her up, this time on her reference to the doctor having made a “diagnosis of domestic violence” (as he had) and did not wait for Ms Toch’s question which would have made it clear that no intervention was required. The judge’s challenge to Ms Toch over the use of the phrase “self-inflicted” which followed immediately after this would probably also have been better avoided. Counsel do not always put the case in cross-examination as the judge would wish but they do have to be allowed the freedom to develop their line of questioning unless intervention really is necessary.

 [47] Standing back again from the detail, it seems to me that the judge’s interventions on the second day of Ms Toch’s cross-examination of the father differed in character from the sort of intervention, sometimes quite frequent but nonetheless part of the normal course of a trial, in which the judge simply seeks clarification of a page number or an aspect of questioning or, having an eye on the clock, seeks to move matters along. My assessment is that on this second day the judge’s interventions were such that they largely prevented Ms Toch’s cross-examination from getting off the ground or at least significantly hampered its progress and also took up a disproportionate amount of the limited time available to Ms Toch. They may also have undermined Ms Toch with the witness, diluting her questioning not only by interrupting its flow but also by leading the father to anticipate that it may be declared by the judge to be without proper foundation or badly put. This was a case in which, as the judge herself observed, the credibility of the parties was particularly material. Cross-examination was therefore of central importance in enabling the judge to make reliable findings of fact on their respective allegations. The judge’s interventions were such that I am unable to be sure that the father’s evidence was tested as was required.

 [48] I should say that I have taken into account that Mr Cameron was certainly not entirely free from interventions of the time management variety or from criticism as to the nature of his questioning. At the end of the first day of his cross-examination (C75), the judge said to him that she wanted to “keep to the time”. At C89 on the second day, she observed that she really did not see how some questions he was asking about drinking were helping her at all. She intervened at C97 and over the following three pages or so with regard to the way the questioning was going. At C113, she picked Mr Cameron up for inaccuracy in what he put to the witness and for not asking a fair question. At C119, she picked Mr Cameron up again on what he was putting to the witness, commenting that she thought he was using hyperbole and “getting stuck too much into the case”. There were also times when she intervened to check on the value or direction of his cross-examination, for example at the top of C121. Overall, however, it seems to me that Mr Cameron did have a greater chance to develop his questioning than did Ms Toch and, in any event, even if that were not so, the fact that the judge intervened excessively in the questioning of both counsel would not make the process fair or provide reassurance that the findings that resulted were reliable.

 [49] In reaching the conclusion, as I have done, that the mother’s complaints that the hearing was unfair are made out, I have been influenced not only by the extent of the judge’s intervention in the cross-examination of the father but also by the very unhappy start to the hearing. It is not difficult to accept that the mother’s confidence in her counsel’s ability to put forward her case to the judge would have been undermined by the judge’s approach to Ms Toch as set out above. It is also, perhaps, of note (although it cannot affect the fairness of the fact finding hearing) that matters were not easy at the hearing on 7 January 2014 either. By way of example, Ms Toch said to the judge, in relation to the mother’s evidence about the dowry question, “Your honour subsequently looked at these matters and made a finding.”. The judge responded:

“THE JUDGE: Looked at them?

 S TOCH: Your honour has….Yes.

 THE JUDGE: Just glanced?

 MS TOCH: No, your honour.

 THE JUDGE: I have analysed them. I have spent hours on this case…..I have gone through every line of the evidence. I have not just looked at it, Ms Toch. I take that as a straight insult."

 [50] By way of further example, it can be seen from the end of the transcript of 7 January 2014 that matters concluded much as they had begun. In a discussion about what the arrangements should be for contact during the school holidays following the hearing, Ms Toch said that the mother “does not think every three days is the right thing in a holiday period because that is just to-ing and fro-ing” and the judge replied, “I do not care what she thinks to be honest.”.

 [51] In contrast, I need to make plain that I am not critical of the judge over her treatment of what occurred in the course of the evidence of Mr M who was called on behalf of the father just before lunch on the third day of the hearing. He gave evidence about a telephone call when, in his presence, the father spoke to G and the mother on speakerphone. The mother had apparently taped that call and, having questioned Mr M about the call, Ms Toch put that fact to him without having alerted anyone first to the existence of the tape. The judge took the view that this was designed as an ambush to unsettle the witness and I am not persuaded that this was inappropriate, although the situation was not entirely straightforward. Mr M’s statement had only reached Ms Toch’s solicitors on the Friday before the hearing and Ms Toch on the first day of the hearing, and the mother had only told Ms Toch of the existence of the tape, which was not in English, at a quarter to ten that morning. At the very least, Ms Toch should, I think, have mentioned the existence of the tape before Mr M gave evidence.

 [52] Mr Turner relied upon the existence of the judge’s reasoned judgment which evaluated critically the evidence that she had heard and arrived at findings which were not a wholesale acceptance of either party’s case, submitting that it was not indicative of a problem in the judge’s approach. The difficulty with that submission, however, is that the careful and cogently written judgment cannot redeem a hearing in which the judge had intervened to the extent, as I have concluded was the case here, of prejudicing the exploration of the evidence.

 [53] Before I come to what I would see as the consequences of my conclusions, there are a number of things that need to be said. The first is that I am very much aware of the pressures that there are on the family justice system and upon the hard-pressed and very hard-working judges in the Family Court who must ensure that the court’s limited time is used to the best possible effect. This inevitably means that family judges have to manage hearings before them robustly and this requires intervention at times. The hand of fate, in this case in the form of the disruption caused by the storm, can sometimes make the judge’s task almost impossible. The second is that I am deeply conscious of the fact that the one person from whom this court has not heard is the judge, who would no doubt have had much that she could valuably have contributed to the evaluation of the process. I have done my best to make allowances for this and I have thought long and hard about which side of the line of fairness the hearing in this case fell. The third is that the case is not about Ms Toch and whether she was treated fairly, although she has been mentioned frequently in this judgment. It is about whether the mother was given a fair chance to put her case and Ms Toch was simply one means by which she sought to do so, hence the need to look at the exchanges between the judge and Ms Toch.

 [54] In my view, it would be a necessary result of my conclusions that the findings of fact made by the judge would have to be set aside. I would return the matter to the Family Court for there to be a directions hearing, in front of a judge other than Judge Pearl, to examine whether it is now necessary for new findings of fact to be made. It may not be, because the situation for this family has moved on considerably since the events with which we have been concerned. For this same reason, it is not necessary for me to go into the points taken against the orders made by Judge Pearl other than her findings of fact. They have all been overtaken by later orders or other developments.

 [55] I would therefore allow the appeal to the extent that Judge Pearl’s findings of fact are set aside and the matter is remitted to the Family Court for further directions.


 [56] I agree.


 [57] I also agree.