Concerns about biased judges are often raised in family law. It may, for example, be a concern that a judge dealing with a financial remedy claim on divorce is biased in favour of husbands or wives, or that a judge dealing with a children case is biased against fathers or mothers.
General concerns about judicial bias in family cases have probably been raised as long as family courts have existed, and will probably continue to be raised for as long as they continue to exist. But what happens if the issue of possible bias is raised in a particular case?
Obviously, all judges must be impartial. This is true no matter what type of case the judge is dealing with, but perhaps is even more important in the field of family law, where judges take decisions that can have an enormous impact upon the lives of the parties involved.
But judges are just like anyone else in that they have their own opinions, formed from their own personal experiences. The secret, of course, is to ensure that those opinions do not lead to preconceptions about the outcome of a particular case.
Most of the time most judges are able to ensure that their opinions do not colour their judgments. But occasionally bias, or more commonly the perception of possible bias, does occur. As we will see in just a moment, there are steps that a party can take if they fear that the judge dealing with their case may be biased, and the courts take such matters very seriously, as it is obviously important to show that justice is fair.
Reported family cases concerning the issue of bias are relatively rare, but there have been two recently, and they do illustrate how courts approach the matter, and some of the issues involved.
Before we look at those cases we should first explain what can happen if a judge dealing with a case is found to be biased, or if the court is concerned that there may be a perception that the judge may be biased.
In such cases the judge can be ‘recused’, or can recuse themselves, from the case. ‘Recuse’ means excuse, or disqualify, them from taking any further role in the case.
Sometimes, as we will see, a judge may recuse themselves voluntarily. On other occasions a party in the case may ask them to recuse themselves. The judge will then decide whether they should do so, and if they decide not to then the party may seek to appeal against that decision.
The first case concerned care proceedings in relation to a 16 month old child, whose brother had sadly died as a result of a catastrophic head injury. The court fixed a hearing to establish whether he had died of inflicted injuries and, if so, to identify if possible the person who had caused the injuries which had led to his death. Because of the Covid-19 pandemic the hearing had to be dealt with partly remotely via computer link, and partly in court.
In the course of the hearing the judge became increasingly concerned that the child’s mother, who was in court, was trying to avoid questions, for example by pretending to be feeling unwell and to have a cough.
The judge decided to send the mother home, and the court rose accordingly. The judge retired to her room, to where her laptop, which she had been using for the remote hearing, was taken. Unfortunately, the remote link on the laptop remained open, and the judge was overheard having a private conversation on the telephone with her clerk. During the course of the conversation she expressed her frustration at what represented a further delay in the case, and made a number of disapproving comments about the mother, including that she was pretending to have a cough and was trying ‘every trick in the book’ in order to avoid answering difficult questions.
The mother asked the judge to recuse herself, but the judge declined to do so. The mother appealed to the Court of Appeal, which found that the judge’s comments had demonstrated a real possibility of bias. Accordingly, the mother’s appeal was allowed, and the case passed to a different judge.
In the other case a father was seeking to enforce a contact order. The mother alleged that the father had engaged in a pattern of abusive, violent and aggressive behaviour within his personal relationships, and that he had behaved in this way towards her and towards two subsequent partners. A hearing took place to investigate those allegations, and the District Judge found some of them proved.
A few months later the case was due to go back before the District Judge, but she recused herself, on the basis that there was a family connection between herself and the mother in the case – her son and the mother were members of the same local hockey club, the mother was a friend of the son on Facebook, and each followed the other on Instagram.
In the light of this the question arose as to whether the District Judge’s findings against the father should be set aside, because of apparent bias. The Court of Appeal held that they should not because the judge had not found out about the family connection until some while after she had made the findings.
It is actually very rare for a judge to be recused because of bias, or possible bias, but, as the first case shows, it can happen. If you feel that the judge dealing with your case may be biased, then you should raise the matter with an expert family lawyer, as soon as possible.