C (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lady Justice Nicola Davies,Lady Justice King |
| Judgment Date | 24 July 2020 |
| Neutral Citation | [2020] EWCA Civ 987 |
| Date | 24 July 2020 |
| Docket Number | Case No: B4/2020/1148 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 987
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mrs Justice Judd
ZC19C00482
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lady Justice King
and
Lady Justice Nicola Davies
Case No: B4/2020/1148
Alison Grief QC and Tara Vindis (instructed by Charles Paulin & Co) for the Appellant
Oliver Millington (instructed by a Local Authority) for the 1st Respondent
Samantha King QC and Kevin Gordon (instructed by Wainwright & Cummins LLP) for the 2nd Respondent
Jonathan Sampson QC (instructed by Reeds Solicitors) for the 4 th Respondent
Hearing date: 24th July 2020
Approved Judgment
Lady Justice King giving the judgment of the Court:
This is an appeal from an order made by Mrs Justice Judd on 21 July whereby she refused to accede to an application that she recuse herself from continuing to hear care proceedings in respect of a boy, E, now aged 16 months.
The care proceedings before the judge arose out of the death of A, the 18 month brother of E, the son of the Appellant and the 1 st Respondent. At a time of A's death the children were living with the Appellant and the Intervenor, the Appellant and 1 st Respondent having separated before the birth of A.
The cause of A's death was a catastrophic head injury accompanied by significant bruising. The hearing with which this court is concerned is the fact finding hearing listed before the judge 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.
The trial started on 1 July 2020. It was decided that the trial would be conducted by way of a so called ‘hybrid’ hearing. This is a form of trial which has been developed during the current Covid-19 pandemic to enable trials to take place safely. They represent a balance between avoiding delay for the child or children in care on the one hand, whilst on the other ensuring that the parties to the proceedings receive a fair trial by being able to give their evidence in person before the judge.
In this case, the hybrid hearing was conducted in the following way; from 1 July until 13 July when the numerous medical witnesses were giving evidence, the case was conducted wholly remotely by Zoom. On Tuesday 13 the time came for the Appellant to give evidence. At this stage, although certain parties and their legal representatives continued to attend remotely, the hybrid hearing provided for the Appellant (and in due course the Intervenor) to be physically present in court together with their legal team and, subject to appropriate social distancing, to give their evidence in person before the judge.
On Tuesday 13 and Wednesday 14 July, the Appellant gave evidence wearing a mask which she pushed down when she was speaking. On the Wednesday, cross-examination was not completed as the Appellant had said that she felt unwell with back pain and blurred vision. On Thursday 16 July, the Appellant told the court that she had developed a cough and was, for that reason wearing her mask fully. Whilst the Appellant did not ask to leave court, unsurprisingly, and completely appropriately, the judge with the agreement of counsel sent the Appellant home. As the appellant had given two days of evidence ‘live’ it was agreed that she could conclude her evidence remotely.
The court accordingly rose to allow arrangements to be made. An associate took the judge's closed laptop through to her room but, unbeknownst to the judge, the remote link to the court room remained open. The judge was therefore overheard having a private conversation on the telephone with her clerk about the Appellant by a number of people who still remained on the call.
During the course of that conversation, the judge's frustration at what represented a further delay in a case which was already substantially overrunning its three week time estimate, manifested itself in a number of pejorative comments made by her about the Appellant including that she was pretending to have a cough and was trying ‘every trick in the book’ in order to avoid answering difficult questions. It should be made clear that the judge at no time expressed a view as to the circumstances surrounding the death of A.
Once the judge was alerted to what had happened, the parties re-joined the hearing. The judge indicated that it would be understandable if an application was made for her to recuse herself from the case and that if arrangements for another judge to hear the case were required, then she would arrange for enquiries to be made as to the availability of a different judge to rehear the case.
The judge heard the Appellant's application that she recuse herself the following day. The Local Authority, father and Children's Guardian were each neutral. The Intervenor opposed the application. The judge refused the application and reserved her reasons over the weekend.
The judge, having given her reasons on Monday 20 July, refused permission to appeal her judgment and for a stay of the proceedings pending the making of an application for permission to appeal. The judge directed the Appellant to resume giving her evidence, which she did. The application to appeal came before this court the next day, Tuesday 21 July, when I granted permission to appeal and a stay of the trial pending the appeal hearing which was listed for today, Friday, 24 July. I am grateful to the parties who have, therefore, prepared for this appeal without complaint at very short notice.
What happened is an example of the hazards of such hearings. It would appear that the judge's laptop was taken into her room closed but with the call not having been exited. It is to the credit of those that overheard the judge's conversation with her clerk that they did everything they could both to draw the judge's attention to the situation and indeed to speak over and distort the conversation. It was a couple of minutes however before the usher's attention was gained who then immediately left the court and made the judge aware that she could be heard in court.
The Law
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