A Local Authority v AZ & Ors

Judges managing family proceedings may express robust preliminary views, narrow issues and encourage agreement. Those functions do not, without more, establish apparent bias or pre-determination. The court must nevertheless distinguish permissible case management from summary adjudication before a fair hearing of the evidence. Recusal is required only where the judge cannot objectively determine the issues, or where a fair-minded and informed observer would conclude that there is a real possibility that the judge is biased. The assessment must consider the proceedings as a whole, including the benefits of judicial continuity and the judge’s conduct at earlier hearings.

The local authority applied for Mrs Justice Lieven to recuse herself from the final hearing of care proceedings. The application followed robust comments made at an interim resolution hearing after the judge had conducted a fact-finding hearing and made serious findings against the father. The local authority and Children’s Guardian argued that the comments showed that the judge had pre-determined the welfare outcome and would not give their cases a fair hearing. The parents opposed recusal. The issue was whether the judge’s case-management comments created a real possibility of apparent bias or demonstrated pre-determination.

1. Application refused. Mrs Justice Lieven concluded that she could determine the issues objectively at the final hearing. The question was therefore whether a fair-minded and informed observer, considering the proceedings as a whole, would conclude that there was a real possibility that she was biased.
2. The assessment of apparent bias required consideration of all relevant circumstances. The judge applied the principles in Porter v Magill [2001] UKHL 67, Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, Helow v Secretary of State for the Home Department [2008] UKHL 62, Locabail (UK) Ltd v Bayfield Properties Ltd and Another [1999] EWCA Civ 3004, Serafin v Malkiewicz [2020] UKSC 23 and the authorities considered in Bates v Post Office Limited (no 4) (Recusal) [2019] EWHC 871.
3. In family proceedings, active case management necessarily permits a judge to form preliminary views, identify the real issues, challenge professional assessments and encourage the parties to reach agreement. Judicial continuity between fact-finding, interim resolution and final hearings has significant practical benefits.
4. The essential boundary, identified in Re Q (children) (fact finding hearing: apparent judicial bias) [2014] EWCA Civ 918, is that a judge may invite parties to reconsider their position but must not summarily determine live issues, particularly credibility or disputed evidence, before a fair and balanced hearing.
5. The comments at the interim resolution hearing did not cross that boundary. The judge had made no determination, expressly stated that she was not pre-determining issues, and ordered a final hearing at which the local authority and Guardian could present evidence. The recusal application was accordingly refused.