Care proceedings and recusal

Gary Fawcett considers two recent care cases he has dealt with recently where ‘recusal’ has cropped up.

The first case in which recusal came up was at an IRH [Issues Resolution Hearing] when a circuit judge gave ‘a very strong indication’ as they called it, and, after the matter failed to settle, recused themselves from presiding at the final hearing.

The second was in the FDAC [Family Drug and Alcohol]. At the first hearing in July the judge welcomed both parents to the FDAC process. Mother [M] was produced from prison, Father attended voluntarily.

The next day the judge asked by email, if M could attend the non lawyer reviews by video link from prison, to be emailed back by the local authority that they weren’t offering her FDAC. M, F and the Guardian had assumed both M and F were in FDAC. [1]

A month and a half after M’s release from prison (circa mid September 2024) she had made personal progress, so the LA made an application for her to admitted to FDAC, with only the Guardian opposing (generally on delay grounds).

The judge, perhaps out of an abundance of caution, sought views/arguments as to whether he should recuse himself from hearing the application for M to join FDAC. He had erroneously welcomed M into FDAC, the perception being that he had already opined she should be in FDAC.

In financial remedy proceedings, a judge who gives an indication at an FDR (IRH equivalent-ish) cannot deal with the final hearing [2].

The basic principle of recusal is that a court or tribunal hearing a case must be impartial and that justice ‘should not only be done, but should manifestly and undoubtedly be seen to be done’ (R v Sussex Justices, ex p McCarthy [1924] 1 KB 256, at page 259).

The grounds for recusal in this short article can be summarised as follows:-

• actual bias - prejudice towards or against one of the parties to litigation. [3]
• interest or presumed bias - a direct pecuniary or proprietary interest in the outcome of a case. [4]
• apparent bias - would the fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that the tribunal was biased’ - Porter v Magill [2002] 2 AC 357.

A judge may recuse themselves by their own motion of course.

Other NB’s:

• The prejudice to the administration of justice and delays that would arise from a successful recusal application are not relevant factors.
• A recusal application should not be allowed simply because the judge considers it preferable not to hear the case.
• In Pinochet (No 2), the House of Lords extended the ambit of the principle to cover ‘a non-pecuniary interest to achieve a particular result’ eg belonging to a particular group. However, it is thought, this principle does not extend to preventing a judge who suffers from a particular medical condition or disability hearing a case involving that condition or disability.

In the FDAC case above, the judge easily held he need not recuse himself.

There may be a distinction that in financial remedy cases all the necessary information is available at the FDR, and would change little at the final hearing, whereas at an IRH, there may be scope for improvements to be made by the parents between the IRH and final hearing (often two months plus?).

In the case of Ansar v Lloyds TSB Bank plc [2006] EWCA Civ 1462, Waller LJ adopted a list of ten points (originally set out by Burton J in the first appeal in that case), including (para [14]) that:

• the mere fact that a judge, earlier in the same case … had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not, without something more, found a sustainable objection, and
• in any case where there is real ground for doubt, that doubt should be resolved in favour of recusal.

So is the above sufficient authority for judges at IRH giving an indication without recusing themselves from the final hearing?

Is an indication an extension of PD 12A (treating the IRH as a final hearing) and flexible powers?

I'll leave you to ponder!

Gary Fawcett is a barrister at No 18 Chambers.

[1] I make no criticism of the LA. FDAC could not sit in its usual court (8 I think) as there was no physical link to the cells, and we were told one court then another, which did have a link and had to be hurriedly vacated by 10.30 for the normal criminal sitting to commence

[2] See FDR 9.17 (2) The judge hearing the FDR appointment must have no further involvement with the application, other than to conduct any further FDR appointment or to make a consent order or a further directions order.

[3] For an example of a real possibility of bias see Re C (A child) [2020] EWCA Civ 987 - during a remote hearing, M often coughed when asked a question. During a short adjournment microphones were erroneously left on and the trial judge made comment on this, as an avoidance strategy.  Judge continued to hear the case, CAp decided she should have recused herself.

[4] Eg R v Bow Street Metropolitan Stipendiary Magistrate and others, ex p Pinochet (No 2) [2000] 1 AC 119