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Family law

What if the judge is biased against me?

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Walker Family Law
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What if the judge is biased against me?court of law

It is obviously important not only that a judge is not biased, but that they are not perceived to be possibly biased.

If a party considers that the judge dealing with their case is biased against them then they may ask the judge to ‘recuse’ themselves, i.e. to excuse themselves from the case, so that the case is then dealt with by a different judge.

And what if, as is obviously likely to happen, the judge refuses to recuse themselves? Well, then the party can appeal against that decision.

And that is exactly what happened in the recent Court of Appeal case C (A Child).


Pejorative comments

The case concerned care proceedings relating to a 16 month old boy. Sadly, the boy’s brother had died as a result of a catastrophic head injury, and the court needed to ascertain whether he had died of inflicted injuries and, if so, to identify if possible the person who had caused the injuries. A ‘fact-finding’ hearing was fixed for this purpose.

The hearing began on the 1st of July. Because of Covid-19 it was a ‘hybrid’ one, taking place partly in court, and partly remotely, via the internet.

The child’s mother gave her evidence in court. On the second day of giving evidence she complained of being unwell with back pain and blurred vision, and on the third day she said she had developed a cough. The judge agreed to her being sent home, and concluding her evidence remotely.

The hearing was therefore adjourned, and the judge went to her room. An associate took her closed laptop to the room, but unfortunately the remote link remained open. The judge was overheard having a telephone conversation with her clerk, during which she made pejorative comments about the mother, suggesting that the mother was pretending to be ill, in an attempt to avoid answering difficult questions.

The mother asked the judge to recuse herself on the basis of bias, but the judge refused. The mother appealed the refusal, to the Court of Appeal.

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A real possibility of bias

The Court of Appeal held that a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased. The judge had made highly critical remarks about the mother’s honesty during the course of her evidence, remarks which the Court of Appeal believed a person looking in from the outside could not do other than think would colour the judge’s view of the mother, and demonstrate a real possibility of bias.

Accordingly, the mother’s appeal was allowed, and the case was remitted for rehearing, before a different judge.

You can read the full judgment of the Court of Appeal here.


A word of warningsolicitors meeting room

It is not uncommon for a party to family proceedings to feel that the judge dealing with their case is biased against them. However, it is actually very rare for judicial bias to be proved, and hence for judges to be recused from cases they are hearing.

We would therefore strongly recommend that you seek expert legal advice before asking a judge to recuse themselves. We can provide such advice – for details about how to contact us, see here.