It is common for clients to allege bias in the Family Court, in particular when this comes to Children Act proceedings and the roles between parents. Of course, the guidance governing bias does not leave an open gateway for this to be pursued simply if there is a disagreement with a decision. This would likely open every case to a further application. However, there are circumstances when you may have grounds to ask a Judge or Magistrates to step down from your case. It is vital that you seek legal advice before considering the proportionality and necessity of this request.
The law permits that a Judge can be removed if there is real bias or a real possibility of bias. The threshold is high and there is never guaranteed success when making such an application.
The entire basis of recusal (having a Judge excused out of proceedings, potentially involuntarily) revolves around a principle established in Porter v Magill. The Court asks whether a 'fair minded' but informed observer would think there is a real possibility that the Judge might be biased. Essentially, would somebody with no 'skin in the game' or self interest, but who understands the Court's role and aim of the proceedings, observe and conclude that the Judge has pre-emptively leaned one way or the other, over and above what their role is required to do? Judges are of course required to make judgments in cases, which can often favour one party if their evidence is more credible, but the principle relates to bias from the individual and not necessarily a conclusion arising from the evidence before the Court.
To ensure that recusals are dealt with appropriately and only when required, personal belief that a Judge is unfair is not enough. This is why legal advice is important, as practitioners can consider any comments made or directions given when looking at the law, to advise whether there is sufficient concern. The test is objective only, and the principle is based on the public having confidence in the Court serving justice (hence the inclusion of a fair minded and neutral third party as the guiding example).
There are two types of bias that can be considered. First and foremost, actual bias means a Judge is genuinely prejudiced for one reason or another, due to their own held beliefs or misconceptions. This is fortunately exceptionally rare when looking at primary prejudices, such as sex or race. Actual bias is more likely to exist if a Judge has a personal relationship with one of the parties, a financial or otherwise clear interest in the outcome, or previously acted as a solicitor or Counsel in the same dispute or for one of the parties. Apparent bias is marginally more common. If any of this information comes to light, the Judge is expected to raise this (and if this is not recognised by them, the parties or representatives should raise). The Judge should then consider based on the facts of the issue, whether they undoubtedly must recuse themselves or whether they will hear if both parties want to proceed. For example, if a Judge represented one of the parties decades prior, with no recollection of the case at the time, and with the consent of the previous client, the case can continue. Regardless, they must step aside if the situation would look unfair to an outside observer and must ensure that there is full consent to continue, and whether there would be any impact on the outcome.
There is also a distinction between 'losing' a case and bias. Standard appeals processes can apply (with separate and high criteria) but Locabail (UK) Ltd v Bayfield Properties Ltd set out when parties do not have a claim for bias. If you have 'lost' a Hearing you sought to win, were criticised for litigation conduct or the nature of your case, or felt that the Judge preferred the other's evidence from quite early on, this is not necessarily bias. This alone is not a ground for recusal and will be rejected. Judges are expected to ask difficult questions where necessary (and this can show as more questions for one party depending on the effectiveness of representation). They are often asked to make decisions that will disappoint one party either way. The Court are careful to ensure that this is managed, so that every case that arrives as hotly contested is not bound to incur more Court time with applications to recuse.
If you genuinely believe there may be bias, and have received legal advice that indicates there is a good case for this, there is a set procedure. The first step is to write to the Court and ask that a letter be shown to the Judge who sat. The letter should be polite, and calmly explain the facts and invite the Judge to consider stepping down voluntarily. This occurred in El‑Farargy v El‑Farargy, which makes clear that an informal request should be made before a formal application ideally. The time-sensitivity issue (dealt with below) can mean that seeking advice becomes even more urgent with this encouraged pre-action step.
The Judge will usually consider the request themselves first. This is normal and is not indicative of the Judge seeking to prevent any application. The Judge will be able to step down if they see fit, or they can refuse the request but transfer the case anyway, or they can refuse and continue with the case. If the Judge refuses, this does not stop the application. You can raise the issue formally at the next Hearing and the Judge must give reasons for their decision. All Court Hearings are recorded and neutral transcripts can be received for any of the Hearings previously or occurring for evidence.
Timing is vital for recusal applications. A request must be made as soon as you become aware of the issue, so ideally just after or within a very short period after the Hearing. If you opt to wait until after several Hearings, the Court will be in more difficulty when working out how much they would need to undo and whether the case has progressed as expected in any event. This is especially problematic in Children cases.
The Court will expect objective evidence from you, which should include (if possible) that the Judge previously acted for an interested party, has a personal relationship with someone involved, or has an interest connected to the case. If this is not the case and this appears to be pre-conceived bias against a party they do not know, you should consider applying for the Court transcript to point to the decisions and comments made (any comments in Court are recorded) to demonstrate how this would appear biased to a neutral observer. This can include issues such as making determinations before hearing the parties fully, making erratic decisions in terms of directions, lacking evidential basis with case law or guidance when coming to conclusions, or repeatedly implying that they will be making certain decisions before evidence is heard.
The above should be taken with legal advice, it can be difficult to differentiate real bias from a decision against you as an involved party. In D (A Child) (Recusal), the Court confirmed that Judges are allowed to continue with a case even after making strong negative findings about a party. This is to prevent cases being managed haphazardly simply because a Judge has to make difficult decisions to move a case forward. However, again we come back to the idea of a neutral observer and whether the course of conduct is significant enough to raise concern.
As you may expect, the Court have to be careful about removing a Judge simply because one party feels they won't succeed with that Judge, and in the hopes a new Judge will progress the case differently. This has been coined as 'Judge shopping' and will not succeed. It is important not to make this application for the sake of doing so. This can be costly, has the consequence of delaying proceedings, and can reflect badly upon you if you fail without just cause.
To summarise, the law does have guidance to allow Judges to be removed where fairness might reasonably be questioned but this is absolutely not a remedy to satisfy somebody who wanted a different result. Given the number of cases before the Court and amount of emotional outcomes, the threshold is intentionally high. Most applications fail because they are based on disagreement with a decision, which is inevitable in the majority of Family Court cases. There must be genuine evidence of bias. The best way to consider what an independent observer would see, is to seek the advice of an experienced Family Law practitioner or Counsel. They should be able to review the attendance note or obtain the transcript if you acted alone, and to advise on how this would weigh up against the Court criteria.
Hannah Newberry
Hannah Newberry is AJFL’s Co-Director and Solicitor, qualifying in 2022 after training with the practice. Known for her calm and supportive approach, Hannah advises on all aspects of Family Law, including children and financial disputes, divorce and injunctions, draft agreements and unmarried couples.
Hannah has been recognised as a Rising Star finalist in the Cardiff and District Law Society awards. Hannah sits as Former Chair and Law Society Officer of Cardiff JLD, Professional Development Officer of Cardiff and District Law Society, and serves as a Board Member of the National Board for Wales (Law Society Wales).
