Re AZ (A Child) (Recusal)

Apparent bias is assessed by asking whether all relevant circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. The proceedings must be considered as a whole and in their full context.

Firm case management, robust questioning, disclosure of provisional views and criticism founded on established facts do not without more establish bias. Fair treatment does not require identical treatment of parties or witnesses. Judicial conflict with counsel may be relevant, but an isolated and short-lived lapse does not necessarily establish apparent bias. A judge should rarely raise a possible professional-conduct referral during a hearing.

The mother appealed against Keehan J’s refusal to recuse himself from long-running private children proceedings concerning A. She did not seek to set aside the substantive order made after the hearing. She sought the judge’s recusal from the forthcoming final hearing.

The alleged bias arose from the judge’s handling of the mother’s medical evidence, his interventions while witnesses gave evidence, his references to his notes, differences in his treatment of the parents, and two confrontations with her counsel. On those occasions the judge warned counsel that further conduct might be reported to the Bar Standards Board.

The central issue was whether the incidents, individually or cumulatively and viewed in the context of the proceedings as a whole, would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased against the mother.

1. Appeal dismissed. The seven instances pursued by the mother, whether considered separately or cumulatively, would not lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased. There was therefore no basis for requiring his recusal: [2022] EWCA Civ 911, paras 107, 139 and 141.

2. The assessment required close attention to the whole context. The proceedings had been exceptionally prolonged, the judge was familiar with their complex history, and serious unappealed findings of dishonest and manipulative conduct formed part of the established factual matrix. Criticism based on those findings concerned the merits and was not prejudice for an extraneous reason. The child’s welfare and the need to avoid delay justified firm, active case management and direct investigation of the parents’ positions.

3. Fairness and equality of footing did not require the judge to question both parents in precisely the same manner. A judge may adapt the method of probing evidence to the witness and the issues. The more direct challenges to the mother were justified by contradictions between her asserted acceptance of the court’s findings and her efforts to promote a police investigation based on allegations found to be false. The judge’s questioning, note-taking comments, treatment of the medical evidence and interventions during the father’s and guardian’s evidence did not establish apparent bias.

4. Judicial bullying is unacceptable. Counsel must nevertheless express objections professionally, and a judge may admonish disrespectful conduct. Any rebuke should be proportionate, measured and free from personal anger. Because mentioning a possible referral to the Bar Standards Board is a particularly strong admonition, it will rarely be appropriate during a hearing. Ordinarily the judge should wait until its conclusion and assess counsel’s conduct in context.

5. The judge had overreacted to objectionable passages in counsel’s position statement and had momentarily lost his temper during the later confrontation. The references to the Bar Standards Board were inadvisable, and a short cooling-off adjournment should have been allowed. Those incidents were nevertheless brief reactions to disrespectful conduct. They did not show a reasonable possibility that the judge would decide against the mother because of her counsel’s behaviour. The hearing remained fair and balanced, and the judge rejected several proposals advanced by the father.

1. Court of Appeal (Civil Division): Permission to appeal was granted by Peter Jackson LJ on a redrafted ground alleging apparent bias. The court dismissed the appeal against the refusal to recuse: [2022] EWCA Civ 911.

2. High Court, Family Division: During ongoing private children proceedings, Keehan J refused the mother’s application that he recuse himself. The ex tempore recusal ruling was incorporated into his third substantive judgment, handed down on 15 November 2021. No neutral citation for that decision is stated.