H (A Child) (Recusal), Re

When recusal is sought because of a judge’s conduct of continuing proceedings, the court should ask whether a fair-minded and informed observer would conclude that there was a real possibility that the party would not receive a fair trial. The proceedings must be considered as a whole.

Unequal outcomes on case management applications do not themselves establish unfairness. Equality of arms requires a fair, fact-sensitive balance rather than identical treatment. Inadequate reasons for refusing recusal may undermine the decision, but do not establish apparent unfairness if examination of the challenged rulings shows that they were justified.

A judge who refuses recusal may ordinarily continue the hearing. The unsuccessful applicant may seek permission to appeal and, where necessary, a stay.

In long-running private law proceedings concerning a child, a circuit judge made findings of domestic and sexual abuse against the father. The judge later corrected an erroneous finding of rape. The father subsequently applied for the judge’s recusal, alleging apparent bias and unfairness arising from that error, several case management decisions, the reduction of interim contact and the proposed continuation of a vaccination application.

The circuit judge refused recusal. On appeal, Newton J held that the judge’s reasons were inadequate, allowed the father’s appeal and transferred the proceedings to another judge. The mother brought this second appeal.

The central issue was whether the proceedings, viewed as a whole, would lead a fair-minded and informed observer to conclude that there was a real possibility that the father would not receive a fair trial.

1. Appeal allowed. Newton J was correct that the circuit judge’s reasons for refusing recusal were inadequate. The judge had wrongly assumed that nearly all the father’s complaints had been determined in the earlier fact-finding appeal and had therefore failed to address several complaints about procedural rulings. That error undermined his reasoning but did not, without more, establish unfairness or apparent bias.

2. The correct inquiry was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the father would not receive a fair trial. Where the complaint concerns a judge’s treatment of a party throughout continuing proceedings, the court must examine the proceedings as a whole. It must investigate the challenged decisions rather than infer unfairness merely because one party obtained more favourable outcomes.

3. The father’s complaints were unfounded. The timetable for evidence was a proper exercise of case management directed towards preserving the fact-finding fixture while allowing the father the additional time he requested. Both parties had equivalent permission to update their allegations. Requiring a formal application before admitting further evidence was sensible and fair.

4. The refusal to disclose an irrelevant document concerning refuge safety was within the judge’s discretion. Under Part 21 and rule 21.3 of the Family Procedure Rules, the court is the ultimate arbiter of whether a document may be withheld. Disclosure obligations arise only where relevance is established.

5. The temporary variation of contact followed the Cafcass recommendation and was based on the child’s welfare. Listing recusal and vaccination at the same hearing, with recusal determined first, was an unobjectionable use of court resources. A judge who refuses recusal need not ordinarily adjourn the remainder of the hearing to permit an immediate appeal. The applicant may seek a stay of later orders.

6. The erroneous rape finding had been acknowledged and promptly corrected. Viewed alone or with the procedural history, it did not demonstrate unfairness or apparent bias. The order transferring the proceedings was set aside, and the case was directed to be listed promptly for case management before the original circuit judge.

1. Court of Appeal (Civil Division): Allowed the mother’s second appeal, set aside the transfer to another judge and directed a case management hearing before the original circuit judge: [2023] EWCA Civ 860.
2. High Court, Family Division: Newton J allowed the father’s appeal against the refusal of recusal and allocated the proceedings to a new judge. No neutral citation is stated.
3. County Court: HH Judge McPhee dismissed the father’s recusal application and proceeded to determine the vaccination application.