Recusal in private law disputes; is the concept of ‘bias’ too narrow?

Family Associate Solicitor Sophia Poliviou summarises how the court treats recusal applications and looks at a recent decision on this subject.

H (A Child: Recusal) 2023 EWCA CIV 860

This was a second appeal brought in private family law proceedings concerning H, a boy. H’s mother brought the appeal against the decision of a HC Judge to allow an appeal by the father against the refusal by the Circuit Judge allocated to the case to recuse himself from the proceedings.

In this long running litigation, there had been a considerable number of procedural orders; the final welfare hearing had not yet taken place. The thrust of the father’s complaint was that HHJ McPhee had given a number of case management decisions which imposed on him an unfair disadvantage compared with the mother’s position. These included differential time limits for the service of documents, holding documents that had been provided to him by the mother, refusing to allow him to submit further evidence, removing some of his evidence from the court bundle and not considering the father’s allegations.

HHJ McPhee in declining to recuse himself did not engage with the father’s complaints.

LJ Newton allowed the father’s appeal and transferred the proceedings to another Judge.

The mother appealed this decision (2nd appeal) and argued that Newton J had failed to properly apply the test in Porter v Magil v Weeks (2001) (whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias) to the circumstances of the case and was wrong in law in finding that there had been an appearance of bias created by the circuit Judge in a number of case management decisions. It was submitted that there was nothing in the decision, taken individually or collectively, which had been unfair to the father or had given rise to an appearance of bias.

Held – the mother’s appeal was heard by LJ Baker, LJ Lewison and LJ Jackson. The appeal was allowed, setting aside Newton J’s order and directing that the proceedings be listed as soon as possible before HHJ McPhee for a case management hearing.

When seen in their proper context, it was plain that HHJ McPhee had been justified in making each of the procedural decisions and there was no reason for recusal. Had Newton J engaged in detail with the various case management decisions, he would have seen that the father’s complains were unfounded. No unfairness, whether real or perceived, would have been created by dismissing F’s appeal.

The message from the Court of Appeal on this second appeal is clear: in recusal applications, the concept of bias is too narrow to suit all cases and unfairness must be considered more widely. The context in this case was real or perceived fairness in the procedural steps for the final trial. Bias cannot be the sole test for recusal. It is necessary to consider the whole of the proceedings to determine whether a Judge’s approach to the aggrieved party has been biased or more generally unfair.

In this case, consideration of the procedural decisions in detail and as a whole, could not support a finding of unfairness to the father.