Recusal of a judge is when a judge will step aside from a case they are dealing with. The reason could be that it may no longer be appropriate for the judge to continue dealing with the matter. The term Recuse or recusal therefore means the removal or disqualification of a judge in a particular case. We will therefore consider the recusal of a judge in family court below.

A recusal of a judge will usually take place when there is a conflict of interest or where there is a bias. A Bias is where the Judge is deemed to be favouring one party over the other. A recusal of a judge in family court can take place in one of 2 ways. One instance of a recusal of a judge in family court is where the judge takes it upon themselves to recuse and decides to step down from hearing a case. This is done out of the judges own accord. The other way could be where a party to a case specifically applies to the court to remove the Judge from further hearings. This is known as an application for recusal.

One of the most common grounds for recusal of a judge in family court is that of a judge either being biased or a judge being perceived as being possibly biased. During cases involving child arrangements one party may perceive a judge to be biased based on their comments in court towards one party.

Other grounds for recusal could include instances where a judge possibly has an interest in the case. This does not have to be a direct interest, but it can come about as a result of the judge knowing someone who is interested in the matter. Other grounds for recusal also include the judge having knowledge of the parties involved in the family proceedings including facts, a judge making certain comments or conducting the case in a certain manner or even having communications with one party or their representatives without including the other party within the communications.

Judicial bias is the terms used to cover the issue where conduct of the judge is perceived to or does in fact compromise judicial impartiality. As we all know judges are required to be completely impartial in order to uphold the law and ensure that everyone’s right to a fair trial is protected.

Judicial bias which is one of the grounds for recusal and one of the most common grounds for recusal is categorised in 2 forms. One form is actual bias whereas the other form is perceived/apparent bias.

Actual bias covers situations where the judge has some interest in the case. This interest does not have to be just financial interest but could be an interest through a third party influence. This covers situations where a judge has some form of relations with one party, or whether a judge has acted for one of the parties or they have some form of connection with an organisation that might favour one specific party and therefore a judge has a vested interest in the specific case. Cases of actual judicial bias are very rare.

Perceived or apparent bias is the most common form of judicial bias. Parties may realise there is some form of bias during the course of the proceedings. This involves there being a suspicion that a judge is biased towards one party. This type of bias means there is no interest in the outcome of the case for the judge, however the judges behaviour, comments, actions or the way they deal with a hearing gives rise to suspicion that there is some form of bias, and they are not able to decide the case in an impartial way or in an independent manner.

An application for the recusal of a judge can be made by using the one of the grounds which is known as bias. Where one party feels a judge is biased against them they can request the judge to recuse themselves. This would mean if the Judge does stand down he will not take part in further hearing and the case in hand will then be placed before a different judge.

However within cases of recusal of a judge in family court a judge may deny the application and request to recuse themselves. In such instances the party who feels the judge is biased against them can appeal the decision. This is what was exactly done in the case of C (A Child [2020].

The case commenced on 1^st July 2020 where the judge decided the case would be dealt with by way of a hybrid hearing due to the impact of COVID-19. This meant some parts of the hearing were carried out remotely whilst some parties were required to attend the court in person to give evidence. This hybrid hearing required the mother in the case to physically attend the court subject to rules of social distancing to provide her evidence. During the first 2 days of her giving evidence the mother was wearing a mask which she lowered down when speaking. On the third day of the mothers evidence the mother told the court she had developed a cough and therefore was wearing her mask fully rather than lowering this when speaking.

Out of the judges own accord it was decided to send the mother home, and it was agreed for the mother to give evidence remotely. The judge and an associate went to the other room to make arrangements accordingly. However during the course of this, the remote link to the court room remained open which resulted in other parties overhearing the conversation on the telephone of the judge with their clerk. The judge made a number of comments whilst portraying frustration at the delay caused in the case. The judge also made comments about the mother pretending to have a cough and that she was trying every trick in the book to avoid difficult questions.

The judge was later made aware of her comments being heard due to the remote link remaining open and the judge was understandable that an application for recusal may follow. When hearing the application for recusal of the judge the judge refused to recuse herself despite the mothers application being made on the grounds of bias. The judge did not believe the comments made were out of line. The mother therefore appealed the judge’s decision. The question for the appeal judge was therefore whether the comments of the judge fell on the other side of the line and therefore gave rise to one of the grounds for recusal. This was the key point to consider especially as the judge made comments about the honesty of the mother and in turned questioned her credibility.

The appeal judge allowed the mothers appeal when considering the objective test of bias. The test is whether a fair minded and informed observer having considered the facts conclude that there is a real possibility the judge was biased. The appeal judge therefore agreed with the mother that the judge by making critical remarks about the mothers honesty during the course of her evidence would cloud the judges view of the witness and demonstrate a real possibility of bias.

The procedure for the recusal of a judge was provided in the case of El-Farargy v El Farargy and ors [2007]. In this case the procedure which should be adopted was suggested by Ward LJ as:

1. Making an informal approach to the judge by way of a letter in which the complaint is made and inviting recusal.
2. Whilst judges must heed the exhortation in local bail not to yield to a tenuous or frivolous objections, one can with honour totally deny the complaint but still pass the case to a colleague. This means that even though the Judge does not believe they have done anything to warrant a recusal they can still pass the matter to a colleague to consider this complaint against them.
3. If a judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, hard though it is to sit in judgment of one’s colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour.

The case itself concerned the judge making bad jokes which although were not at all intended to be racist were perceived as being racist and therefore formed one of the grounds for recusal. It was held that the line had been crossed and the comments made by the judge would appear to show there was a real possibility that the Judge would carry this into their judgement.

Quite often where one party has not received the outcome they were hoping for they may believe the judge was biased which has affected the outcome of their case. This is usually after a final hearing. If a case has concluded then it could be quite normal for one party to feel they have been hard done.

If this party genuinely feels there has been bias then they can look to appeal the decision of the final hearing and submit an application using bias as a ground for recusal.

In some instances the recusal of a judge can take place at the very start or part way through the proceedings. This is usually where the judge is conducting the proceedings in a certain manner or where comments have been made which are likely to be perceived as being biased or favouring one side and therefore give rise to one of the grounds for recusal.

It is recommended for any application for the recusal of a judge in family court to be made as quickly as possible once you have reasons to believe there are grounds to do so. This is further confirmed by the Civil Procedure Rules 1.3 Practice Direction 23A which states “Every application should be made as soon as it becomes apparent that it is necessary and desirable to make it”. It is therefore clear that if you notice any bias whether it is by certain comments being made, your evidence or arguments being ignored or you feeling the judge is only hearing the other side you should promptly consider an application for the recusal of a judge in family court.

Furthermore if there is apparent bias as one of the grounds for recusal then this must be raised as soon as it becomes known. Delaying this or using it later for an appeal can go against the party who is alleging to have been subject to the bias.

Given the stressful and difficult times families face in cases concerning custody of their children or financial settlements, parties may feel there is bias against them if the proceedings are not in their favour. However it must be noted that it can be difficult to portray bias from a judge which means that recusal of a judge is not very common. If you are a party to family proceedings and feel you are negatively impacted due to conduct of judges either by way of perceived bias, their conduct or comments then contact our family law specialists who can assist you in assessing whether there are merits to make an application for recusal of a judge.

Parties are urged to initially make an informal complaint via a letter to the judge setting out their complaint and reasons for believing there are grounds for recusal. Should this be refused by a judge then you would need to make a formal application to the court. If this is required during the course of your proceedings then it is likely this may be heard by the same Judge whose actions or conduct is in question.

When making your application you could request for a different judge to hear your application. If however due to judicial resources your matter is still heard by the judge in question, and they do not make a decision for their recusal then you can appeal their  decision.

At Kabir Family Law our family specialists have years of experience in dealing with complex matters. Should you require assistance with your application for recusal of a judge in family court or want to discuss the merits of such an application then do not hesitate to contact us. We will be happy to discuss this in detail with you in order to ensure you are able to satisfy one of the grounds for recusal.