C (A Child): The judge who should have recused herself (and the perils of remote hearings)

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I don’t usually comment on public law cases, but this appeal is not really about the subject of the case, and it certainly contains lessons applicable to all family law cases, if not all court cases, of any type.

Mrs Justice Judd was dealing with a fact-finding hearing in care proceedings in relation to a 16 month old boy. The purpose of the hearing was to establish the facts surrounding the death of the boy’s sibling.

The hearing, which began on the 1st of July, was a ‘hybrid’ one, taking place partly in court, and partly remotely, via Zoom.

The mother gave evidence in court. On the second day of giving evidence she complained of being unwell, with back pain and blurred vision. On the third day she said she had developed a cough, and Mrs Justice Judd agreed to her being sent home, and concluding her evidence remotely.

That is where the perils of remote hearings, and the use of the technology they require, took a hand in the proceedings.

Lady Justice King, giving the judgment of the Court of Appeal, takes up the story:

“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 [mother] 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 [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. It should be made clear that the judge at no time expressed a view as to the circumstances surrounding the death of [the child].”

The mother applied for Mrs Justice Judd to recuse herself, but the application was refused. The mother appealed.

Unsurprisingly, the appeal was allowed. Lady Justice King again:

“We have considerable sympathy with the judge. We have, however, no hesitation in concluding that her comments did indeed fall on the wrong side of the line. The fact that the comments were intended to be private does not salvage the situation in circumstances where those comments were, unhappily, broadcast across the remote system and were made during the course of the Appellant's evidence. We agree with [counsel for the mother/Appellant] that unfiltered comments as an expression of frustration at a situation (here, further delay in an already delayed case) are different from negative and pejorative language about a party in the case, all the more so when made while that party is in the witness box at the time.

As [counsel for the Intervenor] submits, the level of upset and distress which was undoubtedly caused to the Appellant is not to the point. We emphasise that it is necessary only to go back to the objective test: "would a fair minded and informed observer, having considered the facts, conclude that there is a real possibility that the judge was biased". The case could not be more serious. The Appellant is accused of either causing the death of her toddler or of failing to protect him from the man who caused his death. The judge made highly critical remarks about the Appellant's honesty during the course of her evidence, remarks which we believe a person looking in from the outside could not do other than think would colour the judge's view of that witness and demonstrate a real possibility of bias.”

The full judgment can be found here.