C (A Child)

Recusal is required where a fair-minded and informed observer, having considered the facts, would conclude that there is a real possibility of judicial bias. The fact that critical comments were intended to be private does not prevent recusal if they are inadvertently disclosed. Particular weight may be given to pejorative comments about a party’s honesty made while that party is giving evidence, especially where they concern an allegation that was never put to the witness. The court must apply the objective test. The distress caused to the party is not itself determinative. A judge’s earlier adverse comments or findings do not ordinarily justify recusal without something more, but genuine doubt must be resolved in favour of recusal.

The appeal arose from care proceedings concerning a 16-month-old child after the death of his 18-month-old brother from a catastrophic head injury. During a hybrid fact-finding hearing, the judge was inadvertently overheard making strongly critical comments about the appellant, including that she was pretending to have a cough and was trying to avoid difficult questions.

The appellant applied for the judge to recuse herself. Mrs Justice Judd refused the application and refused permission to appeal. The Court of Appeal granted permission and stayed the fact-finding hearing. The central issue was whether the judge’s overheard comments created a real possibility of bias under the objective test.

1. Appeal allowed. The order refusing recusal was set aside, and the case was remitted to the Family Division for directions for the proceedings to continue before a fresh judge.
2. The applicable test for actual or perceived bias was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased. If so, recusal was required. The Court of Appeal also referred to the guidance in Ansar v Lloyds TSB Bank plc, including that an earlier adverse comment about a party or witness would not, without more, ordinarily establish a sustainable objection, but that real ground for doubt should be resolved in favour of recusal.
3. The judge’s comments were not merely unfiltered expressions of frustration about delay. They were negative and pejorative comments about the appellant’s honesty, made while she was in the witness box, and included an adverse view about conduct that had never been put to her. A fair-minded and informed observer could regard those comments as colouring the judge’s assessment of the witness and as demonstrating a real possibility of bias.
4. The intended privacy of the conversation did not cure the problem because the comments were broadcast through the remote hearing system during the appellant’s evidence. The seriousness of the allegations in the care proceedings reinforced the significance of the comments. The level of upset and distress caused to the appellant was not the issue; the objective test governed the decision.
5. Although the Court had considerable sympathy with the judge and recognised the pressures of family judging during the pandemic, those circumstances did not displace the conclusion that the comments fell on the wrong side of the line.

• Court of Appeal (Civil Division): [2020] EWCA Civ 987. Appeal allowed against the refusal of recusal; the proceedings were remitted to the Family Division for directions before a fresh judge.
• High Court of Justice, Family Division: Mrs Justice Judd refused the application for recusal on 20 July 2020 and refused permission to appeal. The judgment records the proceedings under case number ZC19C00482.