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Court of Appeal finds judge should have recused herself in child care fact-finding hearing

The Court of Appeal has ruled that a judge should have recused herself from child care proceedings after she was inadvertently heard making pejorative comments about the mother.

Mrs Justice Judd had said that the mother was pretending to have a cough and was trying “every trick in the book” in order to avoid answering difficult questions.

The care proceedings before the judge arose out of the death of A, the son of the appellant. The cause of A’s death was a catastrophic head injury accompanied by significant bruising.

The hearing before Mrs Justice Judd was a fact finding hearing which was intended to establish whether A had died of inflicted injuries and, if so, to identify if possible the person who had caused the injuries to A which had led to his death.

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The trial started on 1 July 2020 and was being conducted by a ‘hybrid’ hearing. The various medical witnesses gave evidence wholly remotely by Zoom.

The mother had then been giving evidence physically in court, wearing a mask which she pushed down when she was speaking. On the second day she said she felt unwell with back pain and blurred vision. On the third day she told the court that she had developed a cough.

The judge with the agreement of counsel sent the appellant home. It was agreed that the mother could conclude her evidence remotely.

The court accordingly rose to allow arrangements to be made. An associate took the judge’s close laptop through to her room but, unbeknownst to the judge, the remote link to the court room remained open. It was then that the judge’s private conversation with her clerk, including the pejorative comments, was overheard.

On 20 July Mrs Justice Judd gave her reasons for refusing to accede to an application that she recuse herself from continuing to hear the proceedings.

The mother appealed and the trial was stayed until the appeal hearing last Friday (24 July).

In C (A Child) [2020] EWCA Civ 987 Lady Justice King, who heard the appeal with Lord Justice Bean and Lady Justice Nicola Davies, said what happened was an example of the hazards of hybrid hearings.

The Court of Appeal judge said: “There is no suggestion that at any time prior to these comments the judge had demonstrated any bias or that she had conducted this difficult hearing with less than scrupulous fairness.

“Nevertheless, in our judgment the judge's initial instinctive reaction which had been to anticipate the recusal application and to offer to find a fresh judge was the right one.

“What happened is undoubtedly a consequence of the tremendous pressure under which family judges at all levels find themselves at present. All over the country judges are trying, against powerful odds, to 'keep the show on the road' during the pandemic for the sake of the children involved. They are faced daily, as are the court staff and practitioners, with all the difficulties, technological and otherwise, presented by remote hearings generally and hybrid hearings in particular.”

Lady Justice King continued: “The judge's judgment shows how greatly she regrets what happened and it is clear that this hardworking judge genuinely believed that the process of a fair trial had not been undermined and, as had been reflected in her exemplary conduct over the previous three weeks, that she could conclude the trial with her expressed views of the Appellant forming only a limited part of what was inevitably an evolving picture.

“We find that a particularly troubling aspect is whether the fair-minded observer might consider that the judge had formed an unfair view of the Appellant on the basis of something that could have been but which was never put to her; namely, that she was inventing a cough in order to avoid having to answer difficult questions.”

She added that the Court of Appeal had considerable sympathy with Mrs Justice Judd, but they had no hesitation in concluding that her comments “did indeed fall on the wrong side of the line”.

Lady Justice King said: “The fact that the comments were intended to be private does not salvage the situation in circumstances where those comments were, unhappily, broadcast across the remote system and were made during the course of the Appellant's evidence.

“We agree with Ms Grief [counsel for the appellant mother] that unfiltered comments as an expression of frustration at a situation (here, further delay in an already delayed case) are different from negative and pejorative language about a party in the case, all the more so when made while that party is in the witness box at the time.”

Lady Justice King said that the level of upset and distress which was undoubtedly caused to the Appellant was not to the point.

“We emphasise that it is necessary only to go back to the objective test: ‘would a fair minded and informed observer, having considered the facts, conclude that there is a real possibility that the judge was biased’. The case could not be more serious. The Appellant is accused of either causing the death of her toddler or of failing to protect him from the man who caused his death. The judge made highly critical remarks about the Appellant's honesty during the course of her evidence, remarks which we believe a person looking in from the outside could not do other than think would colour the judge's view of that witness and demonstrate a real possibility of bias.”

The Court of Appeal judge said: “The judge found it to be a difficult and finely balanced decision but in our judgment here there was, in the words of Ansar, ‘real ground for doubt’ and therefore that doubt should have been resolved in favour of recusal.”

The appeal was therefore allowed and the case remitted to the Family Division, for the Acting President of the Family Division to give directions for the future conduct of the proceedings before a fresh judge of the Division.

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