H (A Child) (Recusal)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Peter Jackson,Lord Justice Lewison |
| Judgment Date | 24 July 2023 |
| Neutral Citation | [2023] EWCA Civ 860 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000693 |
[2023] EWCA Civ 860
Lord Justice Lewison
Lord Justice Peter Jackson
and
Lord Justice Baker
Case No: CA-2023-000693
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Hon. Mr Justice Newton
WD20P01372
Royal Courts of Justice
Strand, London, WC2A 2LL
Grant Armstrong and Thaiza Khan (instructed by Ian Walker Family Law Solicitors) for the Appellant
Jacqueline Renton, Mani Singh Basi and Nadia Campbell Brunton (pro bono via Advocate) for the Respondent
Hearing dates: 27 June 2023
Approved Judgment
This judgment was handed down by the judges remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 on 24 July 2023.
This is a second appeal brought in private law family proceedings concerning a boy, hereafter called H. The appeal is brought by H's mother against the decision of a High Court 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.
These are long-running proceedings in which there have been a considerable number of applications and orders. The following summary only refers to those aspects of the proceedings relevant to this appeal. The mother was legally represented at all the hearings referred to below. The father sometimes was represented, at other times appeared in person.
The father is a British citizen, the mother a citizen from a country in South America. They met in the mother's country in January 2016, started a relationship and moved to the UK in August 2018. In 2019, they were married, and they moved into a home of their own. In September 2019, H was born.
By this stage there were already problems in the relationship. The mother alleges that she was the victim of domestic abuse. On 9 October 2020, the father was arrested on suspicion of theft and assault against the mother. Following this, the mother left the matrimonial home with H and found refuge accommodation.
On 14 October 2020, the father applied for a child arrangements order, a prohibited steps order and a specific issue order. The latter two applications were withdrawn after the mother agreed undertakings. On 21 January 2021, the mother was granted an ex parte non-molestation order under the Family Law Act 1996. On 10 February, the father filed an application for contact and on 16 February, the proceedings were consolidated and directions given for a fact-finding hearing. At a further hearing on 4 March, however, the Family Law Act proceedings were compromised with neither party seeking findings and the non-molestation order was discharged with undertakings given by the father on the basis of no admissions. An order was made for interim supervised contact between H and the father and a report from Cafcass pursuant to s.7 of the Children Act 1989.
That evening, the mother and H moved to refuge accommodation in an unknown location. They later moved to other refuge accommodation. On 17 March, the father filed a C2 application seeking a further order for interim contact, disclosure of the mother's location, a prohibited steps order preventing the mother changing the child's address and from seeking citizenship for the child from her home country. At a further hearing on 26 March, another order was made for interim contact, progressing to overnight staying contact.
On 2 June 2021, the mother filed a C2 application seeking transfer of the proceedings to a court in the West Country, a fact-finding hearing and a variation in the contact order so as to remove overnight stays. On 7 June, the father filed a C2 application seeking immediate disclosure of the child's location, dismissal of the mother's application of 2 June, the appointment of a guardian under FPR rule 16.4, an increase in interim contact and a child arrangements order for “residency” of the child to be transferred to the father. At a hearing on 2 July, the district judge made an order for interim contact once a week alternating between one three-hour visit in the West Country and one overnight visit at the father's home in London. The mother's application for the suspension of overnight contact was dismissed. The lengthy order included a number of recitals, including that the court “did not currently consider it appropriate to reconsider the earlier decision in respect of a fact-finding hearing” but that “in the event [that] the mother seeks to make new allegations of domestic violence and/or abuse that have occurred since 4 March 2021 … the court will consider whether such allegations necessitate determination by way of a fact-finding hearing at the forthcoming dispute resolution hearing”. By a further recital, the court recorded that the transfer of the proceedings requested by the mother was not appropriate or necessary at that time “due to the temporary nature of her current refuge accommodation”. The judge made a number of case management directions, including ordering the mother to file a statement (including any fresh allegations) by 13 July and the father to file a statement in response one week later on 20 July.
The dispute resolution hearing listed in August 2021 had to be adjourned because the Cafcass report had been delayed as a result of problems with an interpreter. The mother failed to file her statement as ordered and following a further application by the father an order was made without a hearing that she do so by 6 September. On 27 August, the Cafcass officer filed her report recommending inter alia that there should be a fact-finding hearing and that in the interim the father's alternate weekend staying contact be extended from one night to two.
At the dispute resolution hearing on 25 October 2021, the parties agreed that there should be a fact-finding hearing on their cross-allegations. The district judge reallocated the proceedings to a circuit judge and gave directions for the hearing, including an order for the mother to file an updated Scott schedule and supporting statement “by no later than 7 weeks prior to the fact-finding hearing” and for the father to file a response to the mother's schedule and his own amended schedule with supporting statement “by no later than 5 weeks prior to the fact-finding hearing”. In each case, the updated or amended schedules were described in the order as being additional “to that already prepared within the previous Family Law Act 1996 proceeding”. Further case management directions were given, including extensive orders for disclosure by the mother of H's nursery and GP records and of risk and welfare assessments undertaken by each of the refuges at which she had resided with H. In the interim, following the Cafcass officer's recommendation, the district judge extended contact to include a second night on alternate weekends. The fact-finding hearing was subsequently listed for three days starting 23 March 2022.
On 11 January 2022, the mother, who had not yet filed her amended Scott schedule and supporting statement, filed a C2 application seeking an extension of time for disclosure of the extensive documentation ordered in October and further disclosure from the police. That application was heard remotely on 13 January 2022 by HH Judge McPhee to whom the case had been re-allocated. At that hearing, the father represented himself. A transcript of that hearing has been obtained because the judge's decisions at that hearing formed part of the later complaints of apparent bias considered below. At this point, I merely record that the judge made a series of orders including (1) orders extending the time for disclosure; (2) an order that, in the event that the mother claimed privilege for any document, she should give reasons; (3) an order for the mother to serve a supplemental Scott schedule and supporting statement by 16 February 2022, and (4) an order for father to respond and to serve his schedule and supporting statement by 9 March.
On 22 March, the day before the fact-finding fixture, the mother applied to adjourn the hearing on the grounds that H had contracted Covid-19 and that she was therefore unable to travel to court. That application was granted and a further case management hearing took place on 24 March at which both parties were represented, the father by direct access counsel. The judge's decisions at that hearing also formed part of the later complaints of apparent bias and therefore a transcript of that hearing has also been obtained. It will be necessary to look at what happened in more detail below. At this point, I record that the judge made another extensive case management order in which inter alia he (1) re-listed the hearing for three days starting 6 June 2022, (2) gave the father permission to file a further Scott schedule and witness statement “revising and condensing the content of the allegations in his existing statement” by 4pm on 31 March 2022, and (3) ordered that the existing case management order as to interim contact remain in force. The order also included a number of recitals of which the following two are relevant to this appeal. First, addressing a challenge by the father to a decision by the mother to withhold a document from disclosure, the order recorded:
“The court reviewed the email withheld from the father …. The court determined that it reflects a safety and security concern, and does not bear any further than that, but the court will continue to keep the matter under review.”
Secondly, the order recorded:
“The court reminded the parties that at the fact-finding hearing the court cannot be expected to deal with every allegation pled, and the parties should adopt a focused and forensic approach to the allegations placed before the court.”
The fact-finding hearing took place...
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R (Upon the application of Lehram Capital Investments Ltd) v Southwark Crown Court
...or apparent bias’. I have already dismissed the suggestion of actual (real) bias. The law on apparent bias was recently summarised in H (A Child) (Recusal) [2023] EWCA Civ 860 (the principles are well-settled and not controversial): “24. In Re AZ (A Child) (Recusal) [2022] EWCA Civ 911, [......