Re H (A Child)(Recusal) 2023 EWCA Civ 860 – Walker Family Law acted for the Appellant mother in a successful appeal to the Court of Appeal in this case.

The Court of Appeal handed down judgement on 24 July 2023 in the matter of Re H (A Child) (Recusal),an appeal heard on the application led by Solicitor Lucy Roberts instructing counsel Grant Armstrong and Thaiza Khan of 6 Pump Court Chambers.

The decision concerns an application for a Judge to recuse himself from the case and highlights that when applying the test for unfairness as in Porter v McGill, the fair-minded observer is an impartial observer who is abreast to the circumstances in their entirety.

This matter has been in private proceedings before the Family Court since 2020. In 2022 there was a fact-finding hearing concerning allegations of domestic abuse, and the Judge gave a judgment in which he made findings of controlling and coercive behaviour from the father towards the mother, and of sexual abuse including sexual assault and rape. After the judgment, both parties brought to the Judge’s attention a factual error in the judgment, whereby the Judge had found one incident of rape on a specific occasion which had not been alleged by the mother. This finding within the judgment was duly amended, however the Judge declined the father’s invitation to review the entirety of the judgment in light of this error. The father sought to appeal the findings to the High Court but permission was refused. At a later hearing before the trial Judge, the father made an oral application for the judge to recuse himself on the basis of an appearance of bias. The Judge declined to recuse himself. The father was granted permission to appeal this decision in the High Court in 2023 on the grounds that 1) the trial Judge admitted that he fell into serious error and created unfairness when he made a finding of rape which had no basis in the evidence and 2) that the Judge created the appearance of bias. In his Judgment Newton J upheld the father’s grounds considering that the trial Judge, His Honour Judge McPhee had failed to properly apply the test in Porter v McGill and should have recused himself on the basis of apparent bias.

On the mother’s application to the Court of Appeal, Moylan LJ considered that mother’s counsel having taken the court through the ‘impugned procedural decisions in some detail. When seen in their proper context, it is plain that Judge McPhee was justified in making each of them’ [para 77]. While the trial Judge should have given more thorough reasons in his judgment refusing the father’s application for the Judge to recuse himself – there was no appearance of bias, the father was not unfairly treated within the proceedings, and Judge McPhee was right to refuse to recuse himself.

The full judgment can be viewed here: https://www.bailii.org/ew/cases/EWCA/Civ/2023/860.html

NB see other articles:

H (A Child : Recusal) [2023] EWCA Civ 860 – Family Law Week

H (A Child : Recusal) [2023] EWCA Civ 860

The Court of Appeal considered an application for the Judge to recuse himself on the basis of apparent bias, made in a private law dispute concerning a young child, H.

Reported: 24th July 2023

Background

The mother made various allegations of violence, including sexual abuse, against the father. The father made cross-allegations. Following the fact-finding hearing, HHJ McPhee made findings against the father of rape, sexual assault, and coercive and controlling behaviour. Following submissions on behalf the mother that the Judge had misunderstood her pleaded case, the finding of rape was amended to a finding of sexual assault on the relevant date.

A further report from Cafcass was obtained, and the matter came back before HHJ McPhee to consider welfare.

At a hearing on 16 November 2022, the father made an oral application (without notice to either the court or the mother) for the Judge to recuse himself. The Judge adjourned the application to 23 November 2022, on which date he heard submissions from both parties and dismissed the application.

The father filed a notice of appeal against HHJ McPhee’s decision not to recuse himself. Permission to appeal was granted on the papers, and the substantive appeal allowed by Newton J, who allocated the case to a new judge. The mother appealed the decision of Newton J to the Court of Appeal, resulting in the present judgment.

Decision

Baker, Lewison and Peter Jackson LJJ unanimously allowed the appeal against Newton J’s decision. The test for apparent bias applied by the court 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”. The narrower test from Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 was not applied.

In setting out the law, Baker LJ noted:

  • “it is necessary to consider the whole of the proceedings to determine whether the judge’s approach to the aggrieved party has been unfair” [para 26], and
  • “when considering a submission that a judge has been unfair in his case management decisions over the course of the proceedings, the fact that one party has been more successful than the other is by itself plainly of no relevance” [para 28].

The Court of Appeal found that HHJ McPhee had given inadequate reasons for his refusal to recuse himself, and had otherwise failed to properly engage with a number of the father’s arguments. Despite this, the Court of Appeal concluded that, upon closer examination, none of the arguments raised by the father were meritorious, and so Newton J was wrong to find that HHJ McPhee should have recused himself.

Case Summary by Savannah Laurent, Barrister, Field Court Chambers.

For full case, please see BAILII.

Family Law Week judgment summary: H (A Child : Recusal) [2023] EWCA Civ 860 – Field Court Chambers.

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