A ( Children), Re

A professional relationship between a guardian and a solicitor who sits as a recorder does not automatically require recusal. Apparent bias is assessed case by case through the informed bystander test. The court must consider the currency and substance of the professional relationship, the guardian’s role in the proceedings, and whether the guardian acted neutrally or partisanship was evident. A judge faced with a recusal application should disclose sufficient information about the challenged relationship to permit that assessment. Where the relationship is current and the guardian has taken a partisan role in a fact-finding hearing, the judge may be required to withdraw from both the future proceedings and the earlier adjudication. The appeal was allowed and the earlier findings were set aside.

Public law proceedings concerned three children. After a fact-finding hearing, the Recorder found that the father had persistently perpetrated domestic violence against the mother and, to some extent, two of the children. The children’s guardian had supported the mother’s evidence and submissions, while the Recorder had a continuing professional relationship with the guardian in another case.

When the issue later emerged, the Recorder recused herself from deciding the children’s future but refused to set aside her earlier findings. Permission to appeal was granted by Black LJ. The central issue was whether the circumstances requiring prospective recusal also required the earlier fact-finding judgment to be set aside and the issues reheard.

Appeal allowed. Thorpe LJ delivered the leading judgment. Smith LJ and Patten LJ agreed.

1. Apparent bias must be assessed by applying the informed bystander or informed observer test. The observer is taken to know the relevant background and facts. The Recorder’s personal conviction that her professional relationship had not affected her judgment did not answer the objective question of whether there was a proper reason for concern. The court relied on the approach identified in Helow v SSHD [2008] 1 WLR 2416.
2. A judge faced with an application to recuse must explain sufficiently the scale and content of the professional or other relationship in issue. The parties cannot cross-examine the judge about that relationship, and the judge may be the only source of the relevant information. Without adequate disclosure, the informed observer test cannot properly be applied.
3. Smith LJ stressed that there is no automatic rule requiring a recorder to recuse whenever a guardian has instructed the recorder as a solicitor in another public law case. Recusal is fact-sensitive. The currency of the relationship and the guardian’s partisan role were material. The result might have differed if the relationship had ended or if the guardian had remained neutral.
4. On the facts, the Recorder should not have been involved at all. Her reasons did not address the informed observer test or provide adequate information about the relationship. Given the current professional association and the guardian’s active support of the mother, the earlier fact-finding judgment could not stand and the findings had to be set aside. The history was to be investigated afresh before another judge.
5. Patten LJ added that disclosure by the judge was particularly important because the judge was likely to be the only source of information needed to assess the relationship. Thorpe LJ also observed that judges should generally err on the side of caution by revealing circumstances that might provoke a recusal application.

Re G and B (Fact-finding Hearing) [2009] 1 FLR 1145 was distinguished. It concerned the identity of the judge to hear a remitted or continuing case after a successful appeal, not the circumstances requiring recusal for apparent bias.

• Court of Appeal (Civil Division): In [2010] EWCA Civ 1490, the appeal was allowed. The Recorder’s earlier domestic-violence findings were set aside.
• Principal Registry of the Family Division: On 18 May 2010, Miss Recorder Sadd recused herself from determining the children’s future but refused the father’s application to set aside her earlier findings.
• Permission to appeal: Black LJ granted permission on paper on 2 July 2010.