Judges are not expected to sit placidly on the bench, silently listening to barristers' arguments. However, as a Court of Appeal ruling in a case of critical importance to the future of two children showed, there comes a point where excessive judicial interventions may render a hearing unfair.

The children, aged 13 and 10, had poor school attendance records and came from a home blighted by domestic violence and substance abuse. In care proceedings, the local authority proposed that they should remain in their mother's care under the aegis of a supervision order. Following a hearing, however, a judge preferred their father's proposal, which was backed by their court-appointed guardian towards the end of the hearing, that they should be removed into temporary foster care.

Upholding the mother's challenge to that outcome, the Court found that the judge's interventions during her evidence provided a clear example of judicial descent into the arena. By intervening on such a scale and in such a challenging manner, the judge ran the risk of hampering her own ability properly to evaluate and weigh the evidence so as to impair her judgment, thereby rendering the hearing unfair.

The degree of judicial intervention whilst the mother's barrister was making her final submissions also exceeded what was reasonable or fair. The judge's challenges to her arguments went far beyond testing her case. The Court was left with the strong impression that the mother's barrister was unable to advance all the points that she wished to make on the mother's behalf. She was certainly prevented from putting her case forward in the way she intended.

The Court observed that the need to avoid excessive judicial interruptions was particularly important in that the issues in the case were, on the face of it, finely balanced and the future care of two very troubled children was at stake. The case was remitted for rehearing by a different family judge. In the meantime, the children would remain in their mother's care under local authority supervision.