Children Proceedings Highlights Judicial Conduct

23 Jun 2023 | Jonathan Jonas

Table of Contents

Jonathan Jonas, a senior children lawyer at Osbornes Law was involved in the interesting case of K and L (Children: Fairness of Hearing) [2023] EWCA Civ 686.

This case highlighted judicial conduct and fairness in proceedings.

In this case Jonathan represented the Respondent father who had campaigned throughout longstanding care proceedings, up to the final hearing 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, for which Jonathan instructed John Schmitt of Deka Chambers as sole counsel, final care orders were made sanctioning the removal of the children from their mother.

During this hearing, 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 agreed with this evidence.

This decision 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 in favour of the father’s position. Counsel for the mother also said that the judge had failed to produce an appropriately balanced judgment with full consideration of the welfare checklist.

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 allowing the appeal, 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.

A re-trial has been ordered to decide on whether it is in the best interest of the children to live with their mother or father.

Jonathan and John Schmitt continue to represent the father, both advocating in pursuit of the safety of the children in this complex case.

Click here to read the judgment.

Share this article


Speak to Jonathan Today

For a free initial conversation call 0207 485 8811

Email us Send us an email and we’ll get back to you

    • Jonathan really knows his stuff, gives sensible and difficult advice but isn't afraid to argue an interesting legal point or stick his neck out when needed.

      Chambers UK 2024

    • Jonathan's calm but self-assured approach permeates the case from the start.

      Chambers UK 2024

    • He is brilliant, with limitless energy and bucketfuls of compassion. He keeps his eye on the goal for the client."

      Chambers UK 2024

    • Jonathan will always find the space to discuss another strategy and is always willing to try new ones.

      Chambers UK 2024

    • Jonathan will put so much work and thought into the young person he's acting for and is always available

      Chambers UK 2024

    •  Jonathan is highly esteemed for his ability to advise on cases with very complex issues surrounding child welfare.

      Chambers UK 2024

    • "Jon guided and supported us through an incredibly difficult time in our lives. He is dedicated, kind and excellent at his job. In a time of confusion and stress, Jon was calm, dedicated and supportive. I would highly recommend him."

    • "My matters were dealt with by Mr Jonathan Jonas with sincerity and extreme sensitivity throughout my entire procedure. I felt that the attention Mr Jonas gave to my case was exceptional and am so relieved that he was available for me and my daughter."

      Public Law children (Complex Care Proceedings)

    • "We sought legal support in relation to an initial child protection situation and while other solicitors we had reached out to either provided a run down of legal material otherwise available online or commented that solicitor involvement would only be necessary if matters were escalated by the local authority, Jon went well beyond that and provided what we really needed and with reasonable costs, listening carefully to the situation and providing guidance on how best to approach the matter based on his significant experience. This was immensely helpful in a situation that was very stressful for us."

      Public Law children (s47 investigation/ Child Protection process)

    • "I wouldn’t hesitate to recommend Jon and team for the work they did in my relocation/child arrangements case. Jon’s approach is professional and diligent, but with a very human essence. He genuinely wants the best outcome for his client and the child(ren) involved. I’m truly grateful for the support he has given me throughout my litigation journey and the outcomes achieved for our case."

      Private Law children (Child arrangements/ Relocation)

    • "Jonathan was great. He lead me through a very difficult process and I felt I was in safe and sympathetic yet pragmatic hands throughout. I felt he took all my concerns on board, listened without judgment gave clear advice and direction, was hugely reassuring and delivered a meticulously responsive service whilst minimising costs to a sensible level which is sadly all too often not the case in emotive Children Act matters. I would recommend him (and have done) without hesitation."

      Private Law children (Child arrangements / Emotional abuse and substance misuse)

    News & InsightsVIEW ALL

    1. green house

      How Does Divorce Affect Our Mortgage?

      Can you keep a joint mortgage after divorce? From a mortgage lender’s perspective your divorce does not affect your...

      Read more
    2. child reading the bible

      What is Parallel Parenting?

      Parallel parenting  is a child arrangement where each parent has equal rights and responsibilities for their children, but they do...

      Read more
    3. man with child

      Co-Parenting with a Narcissist

      Can You Co-Parent With a Narcissist? Co-parenting involves two divorced or separated parents working together to raise their children. This...

      Read more
    4. 31.5.2024

      Can I move with my children?

      Am I allowed to relocate with the children within England and Wales? Relocating within England and Wales, even if this...

      Read more
    5. co-parenting

      What is Co-Parenting And Is It Right for...

      There is no single approach to parenting your children after a divorce or separation. How you and your ex decide...

      Read more
    6. Marriage rings

      Settlements In Short Marriages

      A Marriage is a Marriage — Even If It’s Short and Childless When deciding who gets what in a divorce,...

      Read more
    7. parents with their child

      Can a Mother Stop a Father from Seeing...

      My ex-partner is telling me that I cannot see our children. Is this allowed? There is a common misconception that...

      Read more
    8. money

      Impact Of Extended Family Wealth On Divorce

      Can the Wealth of Extended Family Affect Your Divorce Outcomes? While there is no fundamental legal difference between a high-net-worth...

      Read more
    9. Living together

      Living In a Property Owned By Your Partner

      I live in a property owned by my partner – what are my rights if we are not married? There is...

      Read more
    10. Passover

      Spending Passover With Your Child Abroad

      Who should the Children spend time with over Passover, and where? With Passover coming to an end, you might be...

      Read more
    11. osbornes hampstead

      NCDR Rules Guide Couples Away From Court

      What is Non-Court Dispute Resolution (NCDR)? NCDR is the current buzz word in the family law world, following recent rule...

      Read more
    12. kings cross station clock

      Les 8 principaux points à prendre en compte si vous ê...

      Si vous êtes un ressortissant français ayant des liens avec l’Angleterre et que vous envisagez de divorcer, les...

      Read more
    13. Perjury

      What Happens If You Lie in Family Court?

      Honesty is the backbone of the English court system.  Witnesses in court take an oath that they will tell the...

      Read more
    14. Hampstead Hill Gardens

      Financial Remedy Orders Explained

      It is common for disagreements to arise over the finances during a divorce, even if you are on good terms...

      Read more
    15. Final Order

      What is a Final Order?

      The introduction of no-fault divorces brought about a number of changes to the divorce process in England and Wales. One...

      Read more
    16. field of flowers

      What is Parental Alienation?

      Sometimes, a child may turn against one of their parents due to the other parent’s manipulation or influence. This...

      Read more
    17. two rings

      What is maintenance pending suit?

      Introduction to maintenance pending suits Divorce proceedings, especially long-drawn-out ones, can impose a financial burden on the financially weaker party....

      Read more
    18. divorced man with empty wallet

      My spouse is going bankrupt. Will it affect...

      Divorce and Bankruptcy In 2022, more than 1 in 10 businesses reported a moderate-to-severe risk of insolvency. More than one in five (22%) of...

      Read more
    19. separation agreement

      What is a Separation Agreement?

      Introduction to separation agreements A separation agreement is a document that can be prepared  when you want to stop living...

      Read more
    20. spousal maintenance

      What is Spousal Maintenance?

      Spousal Maintenance Spousal maintenance is a legal obligation to provide financial support to a former spouse after the marriage or...

      Read more
    21. most common reasons why couples get divorced

      The 6 Most Common Reasons Why Couples Get Divorced

      What are the most common reasons for divorce? Following the UK’s transition to a no-fault divorce system, couples no...

      Read more
    22. Coercive Control

      What is Coercive Control?

      Coercive Control Law Domestic abuse comes in many forms. When it involves a campaign of threats, intimidation and psychological manipulation,...

      Read more
    23. 17.11.2023

      Public Law Working Group Interim Report on Adoption...

      Time for change? A recent interim report has been published by the Public Law Working Group Adoption Sub-Group (‘the Group’)...

      Read more
    24. signing contract

      What is a Conditional Order?

      The introduction of no-fault divorces in England and Wales removed the need to assign blame for the breakdown of a...

      Read more