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

“case law has established that an appellate challenge to the conduct of a judge during a trial may take two forms. The first is a broad challenge to the fairness of the trial which is a matter for judicial evaluation. The second is an assertion that the judge gave the appearance of bias.”

“It is necessary to consider the proceedings asa whole in engaging in the objective assessment of whether there was a real possibility that the tribunal was biased.”

“In a case such as this, in which interlocutory applications proliferate, it may well be that one side fares more successfully, perhaps much more successfully, than the other. There are a number of possible explanations for this, the most obvious being that the successful party has shown greater judgment, determination and knowledge of the rules than its opponent. Mr Ross-Munro accepted, as we understood, that no inference of apparent bias could be drawn from the fact that most, or all interlocutory applications had been decided against Dr Hashim. We agree. He also disclaimed any attack on the correctness of Chadwick J’s interlocutory decisions. This we find puzzling. It must, we think, be hard to show consistent unfairness in the absence of consistent error.”

“1. I am dealing now with an application by [the father] … that I recuse myself on the basis of the test in Porter & McGill. It is worthwhile referring to the case of Porter v McGill [2001] UKHL 67. That was a case in which the issue of bias was, once again, dealt with in court. An issue that had been before the courts on a number of occasions. The importance, of course, of the case was that it was before the most senior court in the United Kingdom, the House of Lords, as it then was. 2. At paragraph 102 of the transcript of that judgement, it says this: ‘…where the court considered the test for actual or perceived bias is namely whether the fair-minded and informed observer, having considered the facts, would conclude that there is real possibility that the judge was biased. If so, the judge must recuse themselves’. 3. I put no gloss upon that definition and that reasoning. That is the test that I need to apply in this. In his application to me, the father made plainly clear that the test is not bias, it is the appearance of bias as outlined in that test. The father made his application and raised a number of issues. Some of those were of case management issues, some related to the fact that I had found in my judgment of June of this year. 4. The reality is that all of those matters were before Mrs Justice Arbuthnot on the 22 August 2022 when she dealt with the appeal that the father sought to make against the decision that I had made in respect of the fact-finding hearing. The learned judge found that the appeal was totally without merit, said that there would be no further oral reconsider of the application for permission to appeal. The vast bulk of the allegations that the father makes were considered by the learned judge in respect of that appeal. Those case management decisions, fact-finding decisions, decisions on evidence and, in addition, specifically in respect of the allegation that I had found, at paragraph 72 of the judgment, that whilst on honeymoon in June 2019 the father had penetrated the vagina of the mother. 5. The judge said that, in respect of that, there was much evidence of sexual assaults which the judge was not wrong to find credible. When the matter came before me on the 9 September, having come back to court for a case management hearing, it was made plainly clear to me by a counsel on behalf of the mother that the finding that I had made at paragraph 72 was not a finding that she had sought. 6. She had not given evidence about actual penetration. I accepted what the mother told me, I accepted the submissions made on that occasion by the father that that judgment needed to be reviewed and refined. Even after the judgment had been upheld, during the course of the application for leave to appeal. I looked again at the evidence. I looked and found the paragraph that was in question. On that same day, 9 September, I acknowledged that I should vary the finding at paragraph 72 and subsequently, although delayed for reasons unknown to me, the order has gone out explaining the difference between the new paragraph 72 and the old paragraph 72. 7. I acknowledge this, that I fell into error and it was a serious error in respect of that matter. I have no other explanation other than acknowledging that I fell into error in a wide-ranging case with a number of findings. I had no difficulty in reviewing that once it was brought to my attention. I did so immediately, seeking to correct the unfairness that I had created by that particular finding. 8. I think when one looks at the issue overall, it does not impact on the remainder of the findings. I did not review any other part of the judgment, having looked at those submissions that the father [made]. It was an error, I acknowledged the error when it was brought to my attention on 9 September. As is usual with judgments, I corrected it and I corrected it even though the matter had been before the High Court. It was right to correct it. 9. My view is that the test for actual or perceived bias is whether a fair-minded and informed observer, having considered the facts, would conclude there is a real possibility that the judge was biased. My view is that there is no issue here in respect of the appearance of bias. There was an issue of an error which I acknowledged. On the first occasions it was pointed out to me, I have corrected the error. It is one area in a wide-ranging judgment that finds a number of facts ranging from sexual violence, domestic violence, coercive and controlling behaviour. 10. I think looked at by a fair-minded and informed observer having considered all of those facts, nobody would conclude that there was a real possibility that I was biased. 11. For those reasons, I refuse to recuse myself.”

“1. The judge admitted that he fell into serious error and created unfairness when he made a finding of rape that had no basis in the evidence. Similar errors have objectively been raised with him but he has repeatedly refused to review his judgement of 08.06.22. The appearance of bias is further compounded by the judge’s inability to offer any explanation as to how these errors occurred. 2. The judge created the appearance of bias by conducting hearings in contravention to FPR 1.1 and Article 6 of The Human Rights Act. The judge afforded the other party significant opportunities that were not afforded to me. The judge restricted and prohibited me from filing evidence and statements at numerous hearings but allowed the other party to file unlimited evidence without restriction. This did not place us on an equal footing and left me at a substantial disadvantage and unable to fairly present my case. 3. The judge created the appearance of bias when he failed to acknowledge serious allegations that present a significant risk of harm to any child and parent. The appearance of bias is further raised by the judge removing any trace of my case and evidence from these proceedings without any determination or explanation. 4. The judge made comments that created the appearance of bias and unfairness. 5. The manner in which the judge disposed of my application further raises the appearance of bias. The judge failed to adequately explain his reasons for refusing to recuse himself and failed to address the relevant circumstances raised within my application.”

“[T]he appellant, reiterates the points made below. He is not represented but he marshalled his arguments articulately, politely and with some force, plainly identifying and applying the legal principles: 1. His first ground is that there was a serious error, and consequent unfairness, in the judge’s inability to explain why it was that he had changed his finding. On its own, I think there the submission that there is no basis for that, it seems to me a judge is entitled to make corrections, but the appellant argues in a slightly different way because he says having regard to the overall perspective of what had happened, that it was unfair he was not afforded the right to challenge the substitution as indeed were other issues, and it goes back to his earlier submissions in relation to that. Of course, the father is resistant to accepting the findings, as one would anticipate. 2. His second ground relies on the way in which the evidence was received, and in the case of the father that no evidence was provided for, especially since he was not legally represented. He draws support from that in the way the mother was able to file evidence, and indeed more evidence, outside of the scope of the order of District Judge Moses of October 2021 but he had not been given the same latitude. And in addition, also because of the presentation of his case: he was told, for example, by the judge – I have seen it – to lodge a separate C2, whereas the mother was effectively permitted to produce evidence. And there is also support, as I have already indicated, he submits in relation to the “withheld” documents – which may or may not be relevant, it does not really matter – which the judge looked at, decided were not privileged but nonetheless were withheld from the father’s gaze. He has no way of telling, the father has no way of telling whether they are relevant or not, given he has not seen them. The father says there should be open justice. 3. The third ground concerns a failure of the court to acknowledge the significant risk to the child. In the context of this appeal, I do not think there is anything in that. 4. The fourth ground concerns judicial comments. He relies as a foundation again on what occurred at the hearing on 13 January 2022 and the different approach taken, that is as to latitude – and in addition he prays in aid the significant reduction in contact on 9 September 2022 without apparently, he says, being able to adequately put his case or give an explanation. 5. Fifthly – and perhaps rather pertinently as far as this appeal is concerned – that he, the judge, misdirected himself, that he did not apply himself as to the hypothetical fair-minded and informed observer, that is to say a third party looking in. And more pertinently, he submits, failed (as he already had done, it is submitted on 9 September) to give adequate reasons, or any reasons, or address any of the aspects raised in argument. He submits that in the judgment given in relation to recusal, the only issue which the judge sought to address was the unsound finding of the rape. It will be of note that Morgan J when granting permission to appeal was concerned that it appeared to be the only ground relied on by the judge, I agree. In relation to everything else he says that there is no discussion, no reasoning therefore sufficient to satisfy a fair-minded observer because it simply is not there, there is not any reasoning. He of course draws support from the remarks, unfortunate remarks, that were made at the end of the 16 November hearing. The appellant sought to develop those points in this appeal at some length, but also to some effect during argument.”

“An additional point has arisen which is the intertwining by the Judge of the decision to recuse himself and the decision to permit the vaccination. There are shades here of what occurred on 9 September, where the father said that if the judge took a particular course, he ought to be afforded the courtesy of being able to seek some legal advice, because the issues were serious ones.”

“34. This case is not without some difficulty. As the court made clear to the appellant at the outset, it is through the lens of a fair-minded and informed observer that this court looks at the issues on the facts, all of them, as they were known to the court, and only on that basis does the court to [sic] consider whether there is a real possibility that the tribunal had the appearance of bias – and, I add, since it feeds into it, any significant unfairness or procedural irregularity. And so, with that prism it could be that a series, for example, of case management decisions made which were not themselves the subject of appeal might nonetheless, taken together with the content of those hearings and other events could be sufficient to satisfy the test, the appearance of bias test. 35. It seems to me that some distinction may need to be used in relation to the way in which the matter has been dealt with. The judgment of Arbuthnot J as has been relied on here has been a distraction since the judge sought comfort and reassurance from the strong judgment, but missed, it seems to me, the nuanced points that were made in relation to the submissions overall. 36. The current serious points made by the appellant need to be considered in the way in which they are dealt with in the judgment of 23 November. That judgment not only concentrates on, but in fact only deals with, the substitution of the rape finding to that of sexual assault. It simply does not mention, let alone consider, the several other grounds raised by the appellant. So, it is quite impossible to know whether or not they were considered or how; and as the appellant himself submits in relation to the transcript, it is evident that in his submissions that he made which cover several pages, the allegation, the rape or the sexual assault allegation, just cover a few lines. 37. Even allowing for the exigencies of a busy court list – the judge was clearly busy on both occasions – and dealing with a number of cases and the pressure of those cases and I bear in mind that it was raised, as it were, in the middle of a hearing without notice. But the hearing was in fact adjourned so that it was on notice, and the judge explained that he had gone to some lengths to re-read the papers and as to what had occurred apparently at the previous occasion. 38. So, even relying on the Piglowska line of cases, I consider that it is incumbent upon the judge in any judgment, in these circumstances to give an adequate explanation as to why he is rejecting the submissions made by the appellant. And, put bluntly, there is here no explanation. The bald statement of conclusion, as it is described by the judge – “in my view there is no issue here in respect of bias” – does not address the points made. 39. The appellant also relies on the change of finding, a finding which was wrong in law and which is troubling; but I can only examine it in the context of the recusal application, that is to say from the worrying and uncomfortable foundation that it seems to me of why it occurred but more pertinently how it was substituted in circumstances where anyone could understand an anxiety on behalf of the appellant. Whether that would give rise to the suggestion of an appearance of bias on its own, I rather doubt, but having regard to the other points made by the appellant which are many and quite sophisticated, the appellant additionally relies on the fact that the judge gives no explanation as to how such a serious omission was made; and it has a symmetry with the current position, the judgment of 23 November – the judge gives no reasons. 40. The judgment does not address at all the points made in the second or fourth grounds of appeal. As I have said, there is nothing in the third. And the appellant, who nails his colours to the mast, says that [the] judge has not given any adequate reasons; indeed, no reasons at all. And so, I ask rhetorically –applying the test, the Porter v Magill test, how can that test be satisfied if there is no reason, there are no adequate reasons, set out in the judgment? 41. That leaves aside the remarks made to counsel on 16 November, foreshadowing the judgments (that is reliance on the judgment of Arbuthnot J). I am additionally troubled, as was foreshadowed by Morgan J, about the intertwining of the two issues, the failure to separate them. As I say it is normal practice in matters of this significance, particularly where these things are raised, even in a busy county court list with robust case management, to at least permit what seems to me to be a fair course to be taken. It was raised by the father and not dealt with by the court. Had it done so it might have had a different outcome, but self-evidently it only reinforces the appellant’s anxiety of the appearance of bias. 42. So, taking all those points together, the absence of any discussion let alone reasoning in the judgment of 23 November; the factual background starting with the error of law and how it was dealt with; the supporting background (in relation to evidence filing) where the mother does appear on more than one occasion, in fact several, to have been given more latitude than the father, who on the whole but not always, has been acting in person; and additionally, notwithstanding that the appellant had raised the issue about moving straight on, and which the application was not permitted, he had not been permitted to file any evidence. 43. So, taking all those things together: 1) there is no reasoning; 2) it seems to me there is a procedural irregularity; and 3) having regard to the background, that is to say the way in which and the basis upon which the appellant puts his appeal, applying the test in Porter v Magill, without hesitation I say that a person could not conclude that there was not a real possibility of bias, and accordingly, without hesitation I allow the appeal.”

“Father: In principle, [I am definitely?] in agreement [inaudible]. I do agree that we need to retain the listing for the hearing. Judge: Yes. Father: The time that I will be able to prepare my case and go through the disclosures is quite limited. To be dealing with that myself, around work commitments, it is simply not enough time to respond to the mother’s allegation statement and go through all the disclosures. Judge: Okay. Father: My issue is that the mother has had three months until now – Judge: Yes. Father: -with those disclosures, and to allow for four months… And effectively I have two weeks to prepare my whole case, and go through disclosures, is simply not right. Judge: Okay, so tell me how long you think you need. Father: I want to retain the fact-finding hearing, so I need at least three weeks. Judge: Yes, okay. Father: Ideally, four weeks. Judge: You can certainly- Father: [inaudible] Judge: You can certainly have three weeks. I can extend your response to 9 March, because I still think that gives parties time to provide a consolidated schedule to me by 16 March which is plenty of time for 23 March. Father: Right, and in terms of the mother filing her Scott schedule and statement- Judge: Yes. Father: -what date will that be? Judge: I am content that that is 16 February, because that allows you three weeks to respond. Father: Okay. Judge: I think, realistically, the delay in this disclosure has caused the difficulty, but I think that is fair to both sides.”

“Father: Can I just raise the point again, Your Honour, about the mother having three months already to deal with disclosures and prepare her case. Judge: Yes. Father: [So we’re supposed to have three weeks?] I will have at least seven disclosures to go through, a statement of [inaudible] care, and my own Scott schedule to file in three weeks. And the mother will have three weeks to go through two disclosures, plus [prepare her?] Scott schedules and statements. Judge: What do you want me to do about that? Father: I am struggling- Judge: What do you want me to do about that? Father: Sorry, your Honour, the feedback is terrible. Judge: What would you like me to do about that? Father: I am struggling to understand [where the judgment is fair?] of the mother having four months to prepare and us having three weeks. Judge: Do you remember I asked you how long you needed … and you told me three weeks? Father: I would need at least three weeks, yes. Judge: Yes. Father: I mean, if it was four weeks, that would be more ideal- Judge: I think, you see- Father: -but we can’t- Judge: -that you will have more time than three weeks, because if you get the outstanding police disclosure by 27 January, you can start to look at that yourself from 27 January, can you not? Father: Yes of course. Judge: Okay. I am happy with the timetable. I understand that there will be pressure upon you; I understand that you are a litigant in person. I equally understand that all of us want to keep the hearing dates that are available. I can tell you now, if this comes out of the diary, it will not go back in until the summer.”

“there is also support, as I have already indicated, he submits in relation to the “withheld” documents – which may or may not be relevant, it does not really matter – which the judge looked at, decided were not privileged but nonetheless were withheld from the father’s gaze. He has no way of telling, the father has no way of telling whether they are relevant or not, given he has not seen them. The father says there should be open justice.”

“I am additionally troubled, as was foreshadowed by Morgan J [when granting permission to appeal], about the intertwining of the two issues, the failure to separate them. As I say it is normal practice in matters of this significance, particularly where these things are raised, even in a busy county court list with robust case management, to at least permit what seems to me to be a fair course to be taken. It was raised by the father and not dealt with by the court. Had it done so it might have had a different outcome, but self-evidently it only reinforces the appellant’s anxiety of the appearance of bias.”

“In my view it was correct in the circumstances for the judge to give her decision with reasons to follow later, so that the trial could proceed without further delay and to minimise the risk that it might have to run over, so adding to the cost. The test is not one of how the individual litigant might feel subjectively, but an objective one of how the notional fair-minded and informed observer would view matters. Such an observer would not think that this way of proceeding displayed any disposition of unfairness towards the appellant. It only gave rise to the appearance of a judge willing to make a sensible case management decision in accordance with the overriding objective set out in CPR Part 1.”

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

“The House unanimously endorsed this proposal. In the result there is now no difference between the common law test of bias and the requirements under article 6 of the Convention of an independent and impartial tribunal, the latter being the operative requirement in the present context.”

“Bias means a prejudice against one party or its case for reasons unconnected with the legal or factual merits of the case …”

“… in so far as the judge evinced prejudice against the claimant, it was the product of his almost immediate conclusion that the claim was hopeless and that the hearing of it represented a disgraceful waste of judicial resources.”

“But, when one considers the barrage of hostility towards the claimant's case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal's conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair. Instead of making allowance for the claimant's appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented. It was ridiculous for the defendants to submit to us that, when placed in context, the judge's interventions were “wholly justifiable”.”

“32. The requirements inherent in the concept of “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 (art. 6-2, art. 6-3) applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law…, the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases. 33. Nevertheless, certain principles concerning the notion of a “fair hearing” in cases concerning civil rights and obligations emerge from the Court’s case-law. Most significantly for the present case, it is clear that the requirement of "equality of arms", in the sense of a "fair balance" between the parties, applies in principle to such cases as well as to criminal cases (see the Feldbrugge v the Netherlands judgment of 26 May 1986, Series A no. 99, p. 17, para. 44). The Court agrees with the Commission that as regards litigation involving opposing private interests, “equality of arms” implies that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent. It is left to the national authorities to ensure in each individual case that the requirements of a “fair hearing” are met.”

“The principle that there must be an equality of arms on both sides is clearly established in the jurisprudence of the Strasbourg Court: see Dombo Beheer BV v The Netherlands (1993) 18 EHRR 213, 229, para 33. What this principle requires is that there must be a fair balance between the parties. In civil cases the accused must be afforded an opportunity to present his case under conditions which do not place him at a substantial disadvantage as compared with his opponent: De Haes and Gijsels v Belgium (1997) 25 EHRR 1, 56-57, para 53.”

“It would, therefore, be more in keeping with the ideas behind the overriding objective to interpret CPR 1.1(2)(a) as requiring fairness in the exercise of judicial case management powers and ensuring that they are not as a matter of practical reality exercised to the detriment of one party. On this view, ensuring that the parties are treated on an equal footing would mean, for instance, that the court must not give directions that impose on one party an unwarranted procedural disadvantage compared with another party. This does not mean that the court must mechanically ensure that each party is treated the same; for example, if one party is allowed to call only one expert witness, CPR 1.1(2)(a) does not automatically dictate that the other party must not be allowed more than one expert. Equality in this context is fact-sensitive and depends on the circumstances of the particular case.”

“I conclude that the mother has disproportionately been given allowances that were not afforded to me.”