I suspect that, as the numbers of litigants in person steadily increase, claims that family law judges are biased are also likely to rise substantially.
Saying that is not to criticise litigants in person – I just think that it is naturally more likely that a party will genuinely believe that the judge dealing with their case is biased against them if that party does not have the ‘protection’ and guidance of a legal representative. Certainly, my experience of alleged judicial bias is that almost every allegation I have encountered has come from a litigant in person.
I also suspect that the vast majority of allegations of judicial bias are without foundation, at least in the area of family law. Family law disputes can be so emotive, especially where children are involved, that it is all too easy for a party, particularly an unrepresented party, to blame judicial decisions that go against them on a biased judge. Indeed, there are many who believe that all judges (or even all lawyers) are intrinsically biased. For example some of those in the fathers’ rights community believe that all judges are biased in favour of mothers – an erroneous argument that I have come across on many occasions over the years.
What, then, is involved in claiming judicial bias? Well, bias can be actual, or just apparent. If the judge is actually biased against one of the parties then the solution is simple: the judge should not try the case. If, on the other hand, there is an appearance of bias, it is not quite so straightforward. The basic rule regarding apparent bias was laid down by Lord Hope of Craighead in the House of Lords case Porter v Magill in 2001. Essentially, the question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased.
There are, I suppose, two types of bias. Firstly, there is bias that results from something that happened or existed before the case took place. Examples of this might be that the judge was related to one of the parties, that they had previously acted as a lawyer for one of the parties or that they had connections with some organisation that might favour one of the parties. This type of bias is, I think, less likely in family cases.
And then there is bias that arises during the course of the proceedings. This is the situation where, because of decisions made or things said earlier in the case, the judge appears to have pre-judged an issue. I think this kind of bias, particularly in the form of apparent bias, may be more common in family law cases, where judges typically have to make rulings on a number of points. Where earlier rulings have gone against a party, it is all too easy for that party to assume that the judge has formed a biased opinion against them and that therefore future rulings will also go against them, irrespective of the merits of the case.
An example of the latter kind of bias occurred in the recent case Re K. The case related to the return of a child to this country from Singapore, where he was being cared for by the paternal grandparents. The judge ordered the father to return the child. Further, if the paternal grandparents refused to cooperate, the judge expected the father to make an application to the Singaporean court to ensure that the child was returned, failing which, she said, he would be likely to be imprisoned for a lengthy term. The father did not comply and a committal hearing took place, at which the judge sentenced him to eighteen months imprisonment for breaching her orders.
The father had asked the judge to recuse herself from the committal hearing on the grounds of actual or apparent bias against him, in the light of her earlier comment about him being imprisoned for a lengthy term. The judge had refused to recuse herself, but when the father appealed the Court of Appeal ruled in his favour on the basis that there was an appearance of bias or pre-judgment. Lord Justice Kitchen stated that the judge’s reasons for not recusing herself were insufficient to satisfy a fair-minded observer that, despite the comment she had earlier made, she had not already decided that the father was in deliberate breach of her orders and should be sentenced to a substantial period of imprisonment.
Re K is, however, the exception rather than the rule when it comes to judicial bias. The vast majority of allegations are without foundation and, certainly, I would advise any litigant to consider matters very carefully (preferably taking legal advice) before making any allegations.
Photo by John Halbrook via Flickr under a Creative Commons licence