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Drawing the Line: case management and allegations of judicial bias in the family courts

Jennifer Youngs and Vondez Phipps, pupil barristers at 42 Bedford Row, summarise the circumstances in which judicial conduct at a case management hearing might form the basis of an application for recusal, and provide guidance to practitioners as to the manner in which such an application might be made.

Jennifer Youngs and Vondez Phipps, pupil barristers at 42 Bedford Row

The role of a judge in family proceedings extends far beyond making isolated factual determinations. By virtue of their case management obligations, when a judge does come to make a decision, he or she will have had substantial exposure to both the parties involved and evidence relied upon. It is not, therefore, unlikely that the judge will have expressed or indicated a view as to the issue to be determined.

This article aims to provide a summary of the circumstances in which such conduct might form the basis of an application for recusal, and to provide guidance to practitioners as to the manner in which such an application might be made.

THE LAW

Case management in the FPR

The obligation of active case management with which we are concerned, set out in FPR r 1.4, includes the following:

"(b) identifying at an early stage -

(i) the issues; and
(ii) who should be a party to the proceedings;

(c) deciding promptly –

(i) which issues need full investigation and hearing and which do not; and
(ii) the procedure to be followed in the case;

(d) deciding the order in which issues are to be resolved;

(e) controlling the use of expert evidence . . ."

These are broad powers which, even if deployed appropriately, may lead one party to believe that a judge is purposefully conducting proceedings in a manner adverse to their interests.

The test for bias

At the heart of any application for recusal will be an allegation of bias. The test for bias is common to many areas of law and set out in the case of Porter v Magill [2002] 2 AC 357:

"whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased (at 494)."

This test has been applied on appeal in family proceedings of various types. Whilst this article will focus on the conduct of judges in case management, allegations of bias in the family context have not related solely to this issue (for example, Re A (Children) [2010] EWCA Civ 1490 where the part-time judge hearing the case was instructed in an ongoing, though unrelated, case by the guardian, in the judge's practice as a barrister).

Case law in the family context

Re Q
In Re Q (Children) [2014] EWCA Civ 918 a fact finding hearing considered allegations of domestic abuse made by the mother against the father.  None of those allegations was made out, the judge instead finding that the mother and maternal grandmother had told "wicked lies" (para 10). It was from this fact finding that the mother issued a notice of appeal, based in large part on the judge's comments at a prior case management hearing.  

Facts
At that CMH the police officer investigating the allegations had been called to give evidence. At the conclusion of this evidence, the judge made several observations. They included a suggestion that these were "not really allegations at all, but just thoughts in the mother's head" (para 23) and that they had in fact been "a pack of lies, it would seem" (para 28).  It appears that the judge was motivated, at least in part, by a desire to conserve court time and resources noting "it seems to me unjustified and disproportionate at the moment for there to be 5 days of court time made available in July…because…on the basis of what I have read in those police papers… I very much doubt that threshold would be made out" (para 31).

However, despite the findings sought by the local authority relating solely to domestic abuse, the judge went on to say, in light of what he considered to be false allegations of sexual abuse, that he had come very close to removing the children from their mother, that they needed to be protected from her (para 32) and that she must not be alone with them (para 30). It was on the basis of this "emotionally destructive atmosphere" that he later found threshold to be met at the fact finding (para 12).

Appeal
On the mother's appeal, the local authority and the guardian agreed that a re-hearing of the fact finding in front of a different tribunal was required (paras 38 and 39).

The father opposed the appeal. He submitted that the local authority and guardian had been in the position of the fair-minded and informed observer at the CMH (para 40). Since they had not alleged bias, there was no real possibility that such bias was present.

The balancing exercise
It is clear, in our view, that the judge's comments were motivated by a desire to actively manage the case and to make efficient use of the court's time.  However, as set out by McFarlane LJ when granting the mother's appeal:

"there is a real and important difference between the judge at a preliminary hearing inviting a party to consider their position on a particular point, which is permissible and to be encouraged, and the judge summarily deciding the point then and there without a fair and balanced hearing, which is not permissible" (para 48).

Re Q fell within the latter category. A view was formed at the CMH of the mother's evidence, without hearing from the mother and in part on the basis of a police file of which only the judge had had sight (para 52). The rules are plain: 

"the 'court resolves or narrows issues by hearing evidence' and [at an IRH] 'identifies the evidence to be heard on the issues which remain to be resolved at the final hearing'"(para 46).

There is a "thin line in some cases, between case management…and premature adjudication", and the family judge should be given the benefit of the doubt, given that their role in these circumstances is "not at all easy" (para 54).  Indeed, McFarlane LJ identified instances where the judge in Re Q displayed awareness of this line (for example, "… it seems to me that the local authority could be, I am using that word advisedly, could be in some difficulty" (para 49)).

However, it is not the judge's view of what is proper with which we are concerned, but rather whether the fair-minded and informed observer would conclude that there was a real possibility that the judge was biased.  In this case the matter fell "well over the line" and indicated at least the real possibility that the trial judge had formed a concluded view prior to the commencement of the fact finding (para 54).   

The fair-minded and informed observer in family proceedings
The Court of Appeal did not accept the father's submission that the lack of objection from the local authority or the guardian was determinative. It would seem, therefore, that the fair-minded and informed observer in family proceedings remains hypothetical. However, objections raised by parties present can support any allegation of bias made (para 55, and see below).

Re K
Similar considerations arose in K (A Child) (Return Order: Failure to Comply: Committal: Appeal) [2014] EWCA Civ 905, where the Porter test was again applied. Here, the respondent father had repeatedly failed to comply with orders made in wardship proceedings, and the judge conducting those proceedings also dealt with the resulting committal issue.

At the commencement of the committal hearing the father made an application for recusal (para 4) based upon comments made by the judge in the substantive proceedings. This was refused in the same judgment that found him guilty of contempt.

Kitchin LJ's decision on the father's appeal again turned on a balance to be struck between emphasising the importance of compliance with court orders (see also McFarlane LJ: "the judge may be justified in presenting a very robust demeanour", para 77), and maintaining the appearance of impartiality (para 56). He also emphasised that, even if comments were made with the child's welfare in mind, this was irrelevant to the issue of bias (para 56), in the same way that the court in Re Q identified it did not matter that the judge was endeavouring to merely manage the case.

The specific observations made by the trial judge in Re K were that the father had 'one last opportunity to secure M's return to the United Kingdom' and to "remain at liberty", that he was "likely to be imprisoned" and that it was "likely the period of imprisonment would be lengthy". The judge's view was that breach of the order by the father was 'plain', and that he had taken no action to ensure the return of the child to the UK (para 55).

It seemed to Kitchin LJ that a fair-minded observer would have concluded that "the judge had made up her mind, or at least was strongly disposed to find, that the father was in clear breach of the orders", 'that those breaches were deliberate and that the father should be given a substantial custodial sentence' (para 57). As such, the father's appeal was allowed.

Notably, Kitchin LJ suggested that it would "often" be the better course, and "certainly the safer one", for a separate judge to hear committal proceedings (para 57), appearing to posit a general rule. McFarlane LJ formulated the consideration slightly differently, suggesting that the appropriateness of the same judge hearing the committal proceedings would be determined by how "robust" they were in emphasising the consequences of breach (para 78).  It is submitted that this latter approach is more in keeping with the focus on perception in Porter.

Correcting perceptions?
Interestingly, after having reached this conclusion, Kitchin LJ addressed the manner in which the trial judge had dealt with the father's application. The judgment on that application essentially set out that the court had merely found against the father, as it was entitled, and that there was no appearance of bias. This, the Court of Appeal held, had failed to address the father's concerns.

It was suggested that "exposition or reasoning" could have been sufficient to satisfy a fair-minded observer that, despite the comments and observations made earlier, the judge had not "already decided that the father was in deliberate breach and should be sentenced to a substantial period of imprisonment" (para 59). This raises interconnected possibilities: that an appeal against bias might be founded on failure to set out reasoning behind previous case management decisions and their relevance going forward, and that what might prima facie appear to be bias may be remedied by properly addressing perceptions which could be held by a fair-minded observer.

Re G
An allegation of overt intervention by the trial judge was combined with that of unwarranted and unfair criticism towards counsel for the mother in Re G [2015] EWCA Civ 834. Requests were made of mother's counsel for admissions on the care provided by the father during contact (para 23), and continued pressure was placed on her to make adverse comment about the CAFCASS officer (paras 26-28). The judge also returned, over the course of the hearing, to the issue of counsel's late attendance on the first day, through which further pressure was brought to bear (para 29). It was submitted that the degree of intervention into cross-examination of the father was inappropriate, and far exceeded that in relation to the mother (para 37).

Fairness, an alternative test?
In this case the Court of Appeal's analysis was based upon whether the hearing had been "fair" to the mother, and whether she believed the judge's conduct would affect the manner in which she decided the matter, or her counsel's ability to present her case (para 30 and 49).

It held that the level of intervention by the judge had had the effect of prejudicing the exploration of the evidence, and thus the hearing had not been fair (para 52), the treatment of her counsel being one way in which the mother was denied a fair chance to put her case (para 53).

In contrast to the observations made by Kitchin LJ in Re K the "careful and cogently written judgment" produced in this case 'was incapable, and would be incapable' of redeeming any hearing with this level of intervention (para 52).

Although the Porter test was not utilised by the court in this instance, it would likely have been made out on the facts. A fair-minded and informed observer would also have observed the extent of the criticism and intervention, and concluded there was a real possibility of bias. The same factors were weighed by the court in Re G as in Re Q and Re K, in deciding which side of the "line of fairness" the case fell; a balancing exercise being performed between the need for judges to "ensure that the court's limited time is used to the best possible effect", and giving the parties "a fair chance to put [their case]" (para 53).

A general rule?  
Is it possible, therefore, to predict on which side of the "thin line" a case will fall? It seems from the cases above that much will turn on whether a court's view is properly based upon evidence, seen and tested by all parties to proceedings. Where observations are made after weighing evidence, and careful reasoning is given, even where this occurred at an interim hearing, this will likely be found a proper exercise of robust and active case management.

Ultimately this issue remains fact-sensitive, and much will turn on the manner in which the proceedings, and the judge's conduct, as a whole would be perceived by a hypothetical, independent individual. The case law ("benefit of the doubt" in Re Q, and "generous allowance" in Re G) demonstrates that such an observer will come with an awareness of differences in judicial style and case management.

With regards to the test on which to base an application, or appeal if that application fails, we remain of the view that Porter should be employed in most cases, only the likelihood of bias needing to be apparent to the fair-minded and informed observer. However, the observations made in Re K as to the perception of the parties themselves may be of assistance in proving actual unfairness such as to ground an appeal.

THE APPLICATION FOR RECUSAL

How then, if practitioners have concerns about the impartiality of a judge, should the issue of recusal be addressed?

1. Make a cautious intervention before any indication of recusal

The starting point should always be cautious intervention, at the time of the conduct complained of.

This intervention should not appear to criticise the judge, nor should it indicate an intention to seek recusal if none is present at this stage. Given the narrow line which separates active case management from premature adjudication, the purpose of such an intervention should be to draw to the court's attention some good reason(s) why a different approach to case management might be suitable.

This kind of intervention was noted, with approval, in Re Q, where counsel for the local authority said as follows:

"At the moment, the evidence is incomplete. I entirely understand the court's desire to actively case manage this case, which is clearly a difficult case to manage. However, the evidence is incomplete. All of the parties agree that one of the most important aspects which is required is the psychiatric evidence of Mother, and whilst I can understand that the court is concerned at the current state of the case, I would respectfully submit that understanding of the case will improve significantly after that report has been prepared" (para 26).

Whilst an intervention of this sort is not a precondition of an application for recusal, it could be effective in avoiding the need for a recusal application altogether by putting a judge on notice that they are coming dangerously close to the metaphorical "thin line".

Further, in any subsequent appeal against a refusal to recuse, due regard will be given to this indication. In Re Q, McFarlane LJ found that the local authority's intervention 'would seem to confirm, rather than to question' the conclusion that the judge in that case did more than merely deploy robust case management (para 55).  

However, this course may not be adequate in every case. For example, a judge's indication or intervention may be so serious that continued case management by that judge would be inappropriate (for example "wicked lies", as in Re Q). Nevertheless, intervention at an early stage when questionable judicial comments are beginning to indicate bias would be advisable.

2.    Broach the recusal request informally

The single authority on this point is the Court of Appeal decision in El-Farargy v El Farargy and Others [2007] EWCA Civ 1149, a case in which a judge's inappropriate comments and 'thoroughly bad jokes' about a Saudi sheikh during the course of a pre-trial review in ancillary relief proceedings were found to be indicative of bias.  

As a postscript to the judgment given by Ward LJ, the court provided some guidance on the procedure for making recusal applications in family proceedings. Recognising that, in many cases, the judge to whom this application is made is likely to be the subject of the application itself, Ward LJ urged that the first step should be an informal approach setting out the details of the complaint and inviting the judge to recuse herself. Indeed, it may, in fact, be the better course to first raise the issue with the judge whose conduct forms the basis of the application (para 35, Re Q).

The Court of Appeal's view is that, whilst judges must not yield to frivolous objections, they can 'with honour' deny completely the complaint yet release the case to another judge. Ward LJ's first procedural step therefore seems designed to provide the judge with the opportunity to transfer the case to another judge, without requiring her to rule on the merits of an application, or to acknowledge any error on her part.

Circumstances amenable to this approach include cases in which the decision to request a recusal is taken between two hearings. The lone example of an 'informal approach' cited by Ward LJ is by way of a letter. In El-Farargy the appellant applied, by way of a summons, for an order that the judge recuse himself. In such circumstances, an initial informal approach may have been better received, and in any event, is strongly urged by the Court of Appeal.

As set out above, this informal approach puts the judge on notice of the possibility of a recusal application, and utilising a letter, for example, avoids unnecessarily ventilating the matter in open court. By the same token, reference made in a position statement, or a note passed to the judge by way of their clerk, may also suffice. In all these circumstances, it will of course be important to ensure that all parties have sight of any letter or note to be sent.   

3.    Make an oral application

The court is cognisant that Ward LJ's informal approach may not be appropriate in every case, that an intervention may be ineffective and that an informal approach may not result in recusal. In these circumstances, a formal application must be made, and it appears from the case law that a simple oral application will suffice. The lack of strict procedural requirements is in keeping with the manner in which these concerns can arise, with little or no warning. 

An application should:

a) identify the actions of the judge complained of;

b)   demonstrate why a fair-minded and informed observer, having considered those actions in the context of the case as a whole, would conclude that there was a real possibility that the tribunal was biased; and

c)   request that the judge recuse herself from that hearing or from the proceedings altogether.

In Re K, a simple oral application following these three steps was sufficient for the judge to consider the application for recusal (although this application was not ultimately successful at first instance).

A party may request that this formal recusal application be heard and decided by another judge (El-Farargy). Indeed, Ward LJ, noted that it is 'invidious' for a judge to sit in judgment on her own conduct, although this came with the proviso that in many cases there will be no other option (para 32).

4.    Appeal

If, as a result of the recusal application, a judge refuses to remove herself from the case, an appeal is available from that decision (and from any decision made after that refusal). This appeal may be on the substantive issue of bias, but may also relate to the manner in which the application was disposed of.

As set out above, in Re K, the trial judge's "entirely conclusory" judgment did not address the concerns raised by the applicant father, and this itself contributed to the appearance of bias and the success of the father's appeal. Although not concerned with case management, the Court of Appeal in Re A (Children), addressed the issue of judgments in recusal for bias applications as follows:

"The parties are not in the position of being able to cross-examine the judge about it and he is likely to be the only source of the relevant information. Without this it becomes difficult, if not impossible, properly to apply the informed observer test" (para 19).

As such, the judgment itself may provide a ground of appeal against refusal.

CONCLUSION

As has been evidenced by both the case law, and the practical means by which applications should be made, this is an area of law where matters will be delicate and fact-sensitive. Judges are afforded a wide margin of discretion, and the legal test to be applied (as set out in Porter v Magill) is one which necessitates engagement with the hypothetical. However, over the course of this article we hope to have made clear what that test is, the factors which will go to meeting it, and to have provided practitioners with clear guidance on how to proceed when an application is required.

22/6/17