L & B (Children), Re

The informed bystander test governs judicial recusal for apparent bias. The judge’s belief that a professional relationship did not affect the decision is not determinative. The observer is assumed to know the relevant background and facts.

A current professional relationship between a part-time judge and a children’s guardian may require recusal and the setting aside of earlier findings where the guardian actively supported one party. The result remains fact-specific and does not establish an automatic rule. A judge considering recusal should disclose the scale and content of the relevant relationship so that the test can be applied properly.

During public law proceedings concerning three children, a Recorder found that the father had committed persistent domestic violence. The children’s guardian had actively supported the mother at the fact-finding hearing. It later emerged that the Recorder, in her private practice as a solicitor, had current instructions from the same guardian in another public law case.

The Recorder recused herself from deciding the children’s future but refused the father’s application to set aside her earlier findings. The father appealed. The central issue was whether the circumstances which justified prospective recusal also required the findings already made to be set aside.

1. Appeal allowed. The Recorder’s findings of fact were set aside. The court was unanimous that, in the circumstances, the Recorder should not have conducted the fact-finding hearing.
2. Thorpe LJ held that the applicable question concerned apparent impartiality as assessed through the informed bystander test. The Recorder’s conviction that her professional involvement with the guardian had not affected her judgment addressed actual influence rather than the proper objective question. Her reasons did not adequately apply the test identified in Helow v Home Secretary [2008] 1 WLR 2416.
3. The result depended on the combined circumstances. The Recorder’s professional relationship with the guardian was current. At the fact-finding hearing, the guardian had entered the arena and supported the mother’s evidence and submissions fully. Those matters meant that the earlier findings could not stand.
4. Smith LJ emphasised that the court established no general rule requiring a solicitor sitting judicially to recuse whenever a guardian who had instructed that solicitor in another case was appointed. Recusal is usually case-specific. A historic and concluded relationship might have produced a different result. The earlier findings might also have remained undisturbed had the guardian adopted a wholly neutral position during fact-finding.
5. Re G and B (Children: Fact-finding hearing) [2009] 1 FLR 1145 did not govern the issue. That decision concerned whether a case should return to the original judge following a successful appeal, whereas the present case concerned circumstances requiring recusal.
6. Patten LJ held that a judge facing a recusal application based on an apparent conflict must explain the scale and content of the challenged relationship in sufficient detail. The judge is likely to be the only source of that information, and the parties cannot cross-examine the judge about it. Without adequate disclosure, the informed bystander test may be impossible to apply properly. The Recorder had supplied neither the necessary detail nor adequate reasons for rejecting the apparent-bias argument.

1. Court of Appeal (Civil Division): The father’s appeal was allowed unanimously. The Recorder’s findings of fact were set aside: [2010] EWCA Civ 1118.
2. Principal Registry, Family Division: Recorder Sadd recused herself from the future disposal hearing but refused to set aside her earlier findings that the father had committed domestic violence.
3. Permission to appeal: Black LJ granted permission on paper, holding that the proposed appeal was plainly arguable.