English child care judge found to have potential bias after leaving remote link open

One of the appeal judges in the present case said that it was “to the credit of those that overheard the judge” that they attempted to “speak over and distort the conversation” she was having with her clerk.

Proceedings were conducted by way of a “hybrid” hearing in which the case was conducted both remotely via Zoom conference and in court. The original judge, Mrs Justice Judd, refused to accede to an application to recuse herself from the case, a decision which was appealed by the child’s mother.

The appeal was heard by Lord Justice Bean, Lady Justice King, and Lady Justice Davies.

Pretending to have a cough

The care proceedings originally arose after E’s brother, A, had died of a catastrophic head injury. At the time of A’s death E was living with his mother, the appellant, and her partner. The first respondent, the child’s father, and the appellant had previously separated. The purpose of the hearing was to establish whether A had died of inflicted injuries and, if so, to identify if possible who had caused them.

From 1 July to 13 July 2020, various medical witnesses gave evidence remotely by Zoom. The appellant was physically present in court on 13 and 14 July, along with her legal team, to give evidence before the judge subject to appropriate social distancing measures.

The appellant gave evidence wearing a mask which she pushed down when she was speaking. Cross-examination was not completed on the 13th as the appellant had said that she felt unwell with back pain and blurred vision. On 16 July the appellant told the court that she had developed a cough, and it was agreed that she could finish giving 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 courtroom 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 this call, the judge was heard making a number of pejorative comments about the appellant, including that she was only pretending to have a cough and was trying “every trick in the book” to avoid having to answer difficult questions. The judge did not express a view on the circumstances of A’s death.

The appellant made an application for the judge to recuse herself from the case, which she refused to do. An appeal of this decision was made, with proceedings stayed until its resolution.

The appellant submitted that the comments gave rise to a real possibility of bias, which was compounded by the fact that she was not given an opportunity to address the comments on the genuineness of her cough. The effect of the judge’s comments was that she had concluded that the Appellant was actively misleading the court in an effort to avoid answering difficult questions.

Considerable sympathy

Giving the judgment of the court, Lady Justice King noted the case was an example of the hazards of remote proceedings, and added: “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.”

She continued: “What happened is undoubtedly a consequence of the tremendous pressure under which family judges at all levels find themselves at present. All over the country judges are trying, against powerful odds, to ‘keep the show on the road’ during the pandemic for the sake of the children involved. They are faced daily, as are the court staff and practitioners, with all the difficulties, technological and otherwise, presented by remote hearings generally and hybrid hearings in particular.”

On whether the judge’s comments were indicative of bias, she said: “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.” 

She continued: “We agree with [the 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.”

On whether a reasonable person would have reached that conclusion, she said: “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.” 

For those reasons, the case was remitted to the Family Division for the Acting President to give directions for the future conduct of the proceedings before a fresh judge.