Birmingham City Council v RL & Ors

Apparent bias is assessed by identifying the circumstances bearing on the allegation and asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Judicial questioning of a guardian or advocate about the evidential basis for a child-protection allegation does not, without more, establish apparent bias. A guardian has discretion to decide whether further questions or facts should be sought before child-protection procedures are invoked. Parties must refer proposed changes to listed court business to the court and must not seek privately to influence the allocation or conduct of proceedings.

The case concerned care proceedings relating to three children. The Children’s Guardian applied for Judge Owen to recuse himself, relying on questions he had put to the guardian’s solicitor about the detail of a child’s alleged disclosure and the decision to initiate child-protection procedures.

The Guardian contended that the exchange created a perception that the judge would be biased against the Guardian or would not accept future evidence from the children. The judge also considered the delay and circumstances in which the application was made, including private correspondence seeking a change of judge and arrangements made to alter listed court business without reference to the court.

1. Application dismissed. The judge held that the recusal application had no proper basis.
2. The applicable question was whether the relevant circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased. The court must first ascertain the circumstances bearing on the suggestion of bias and then apply that objective test.
3. The judge’s questions about the limited detail in the Guardian’s report, the nature of the alleged abuse, and whether further information had been sought were legitimate questions directed to the welfare of the children. Even if the questions had been perceived as critical, they could not reasonably support an inference of bias.
4. The judge stated that, although there is a limit to the information that should be sought from a child, the Guardian has a discretion as to what questions to ask and whether the information disclosed has sufficient substance to justify invoking child-protection procedures, reporting to the police, and consequential steps such as arrest, interview and bail.
5. Any misunderstanding about the Guardian’s role could have been addressed by submissions during the proceedings. It did not establish a real possibility that the judge would act unfairly or to the children’s detriment.
6. The delay in making the application and the surrounding conduct were also criticised. Private communications seeking to have the case transferred to another judge were an improper attempt to influence the proper administration of justice. Parties were likewise required to refer proposed variations to court directions and listed business to the court for approval.

First-instance decision. No prior appellate decision is stated in the judgment.