Re AZ (A Child) (Recusal)

This is the judgment of the Court to which all its members have contributed.

It concerns an appeal against the refusal by Keehan J of an application to recuse himself made during a hearing in long-running private law proceedings under the Children Act 1989 about a boy, A, now aged four. At an earlier hearing when Peter Jackson LJ granted permission to appeal, the appellant, A’s mother, made it clear that she was not inviting the Court to set aside the order made at the end of the hearing during which the recusal application was made. Rather, she sought an order that the judge would be recused from sitting on the next, and final, hearing in the proceedings, which were listed to start on 23 May 2022.

In view of the imminence of that hearing, having taken time to consider the merits, we informed the parties a few days after the hearing before us that we had decided to dismiss the appeal for reasons which would be given at a later date. This judgment sets out the reasons for our decision.

The following summary is taken substantially from earlier judgments in these proceedings, none of which have been the subject of an appeal.

A’s parents met and married in 2009. After the mother had sadly suffered a series of miscarriages, they decided to try to have a child via a surrogacy arrangement. In April 2017, they entered into an arrangement with a surrogacy agency in Ukraine. In June of that year, they signed a written surrogacy agreement with a woman in Ukraine to whom they had been introduced by the agency. Thereafter, the process of creating an embryo started with the father providing sperm which was inserted into an egg provided by the donor. On 5 August 2017, the embryo was implanted into the surrogate mother.

At about the same time, the mother, with the father’s knowledge and agreement, sent an email to the director of the agency asking if the father’s unused genetic material could be stored for five months while they awaited the progress of the course of treatment then underway.

Ultrasound examination of the surrogate confirmed that she was pregnant and the parents returned to this country. On 21 November 2017, without informing the father, she sent an email to the director of the Ukrainian surrogacy agency enquiring about the possibility of using the remaining embryos for a second surrogacy. The director replied proposing that the parents execute a power of attorney authorising the agency’s lawyer to sign the necessary papers.

On 7 December 2017, the mother and father executed a power of attorney authorising the surrogacy agency to sign documents on their behalf. It was the father’s case in these proceedings, accepted by the judge, that he was told by the mother that the purpose of the power of attorney was to assist with the registration of the expected child’s birth and obtaining a passport.

The surrogate gave birth to A in Ukraine in April 2018. The baby was handed over to the parents shortly after birth.

A few weeks later, the director of the surrogacy agency sent an email to the mother enclosing a copy of a second surrogacy agreement. The mother replied asking the director not to discuss the second agreement with the father, asserting that he found it difficult to discuss the matter because of concerns about miscarriages. On 24 April 2018, the second surrogacy document between the agency and the parents was signed. The judge subsequently found that the father’s signature had been forged.

On 7 July 2018, the parents flew back to this country with A. On 12 July they filed an application for a parental order under s.54 of the Human Fertilisation and Embryology Act 2008. By this stage, however, there were difficulties in the parties’ relationship. On 23 July, the mother left the family home with A and the following day transferred £60,000 from the parents’ joint account into her own account. A few weeks later, she and the child returned to the home and thereafter the parents attended couples counselling. Meanwhile, the parental order reporting officer carried out inquiries in accordance with the regulations and visited the family on several occasions. The mother did not inform the officer of the second surrogacy arrangement.

Meanwhile, another woman in Ukraine had been identified by the agency to act as the surrogate under the agreement. On 25 October 2018, a further surrogacy agreement was signed between the parents and the second surrogate. The agency’s lawyer signed the agreement on behalf of the parents using the power of attorney which they had signed December 2017. The director of the agency sent an email to the mother that the agreement had been signed and enclosing a scanned copy. The email was neither copied nor forwarded to the father. On 9 January 2019, an ultrasound scan confirmed that the second surrogate was pregnant and that she was carrying twins.

It was the father’s case accepted by the judge that it was not until 5 March 2019 that the mother informed him about the second surrogacy. On the same day, he telephoned the agency in Ukraine making enquiries about it. On the following day, the mother reported to the police that she had been assaulted by the father on 3 February 2019. She changed the locks of the family home to prevent the father gaining entry. On 15 March 2019, the mother made a without notice application for a non-molestation order against the father which was granted by a deputy district judge on 18 March. On 22 March 2019, the father applied for a child arrangements order in respect of A. No contact took place between the father and the child until a hearing in June 2019 when it was agreed that contact would start on a supervised basis. Meanwhile, in a further exchange of emails with the agency in Ukraine, the mother renewed her request to the director only to communicate with her and let her know if the father or someone on his behalf contacted the agency.

On 5 August 2019, the second surrogate in Ukraine gave birth to twins, a girl and a boy. For the next few months, the mother divided her time between caring for A in this country and travelling to the Ukraine to look after the twins. During this period, the father’s contact with A was extended by a court order and by the end of the year A was having regular overnight stays with his father.

The three court applications (the joint application for a parental order, the mother’s application for non-molestation and occupation orders, and the father’s application for a child arrangements order) were listed for a composite fact-finding and welfare hearing over five days in January 2020. At the conclusion of the hearing, only the evidence relating to the fact-finding element of the hearing had been completed. The judge therefore adjourned for written submissions on that element, after which a reserved judgment would be delivered to be followed by a further hearing to determine the welfare issues. On 6 April 2020, prior to the delivery of the reserved judgment, the mother brought the twins to this country from Ukraine. At that stage, A moved to live principally with his father, and had regular weekly contact with his mother.

On 17 April 2020, the judge handed down his first judgment in these proceedings. Having summarised the background, the law and the evidence, he started his analysis by recording his impression of the parents’ evidence (at paragraph 103):

He observed that the principal issue to be determined was whether the father knew about the second surrogacy agreement. The mother’s case that the father had known of and consented to it was supported to some extent by the evidence of the director of the Ukrainian surrogacy agency. The judge found that the mother had lied extensively in her evidence about the second agreement. He said (at paragraph 115(vii)):

The judge also considered the mother’s allegations of domestic abuse on which she relied in support of her application for an injunction. He rejected these allegations, concluding (at paragraph 120):

The welfare hearing started on 22 April 2020. In the course of his evidence, it was put to the father that he had brought flowers to the mother at her brother’s home on the day after the end of the fact-finding hearing in January, and stayed for several hours. The father accepted that he had visited but denied that he had brought flowers or stayed for several hours. Counsel acting for the mother (not, we record, Mr Uddin) then informed the judge that there were CCTV recordings of the father’s visit and that the mother wished to apply to re-open the findings of fact made in the judgment of 17 April. The hearing was then adjourned for the recordings to be produced and transcribed. After a series of further case management hearings, the judge considered the mother’s application to re-open at a hearing on 13 July. He dismissed the application, indicating that he would give his reasons in the judgment to be delivered following the adjourned welfare hearing, but gave the mother permission to seek further findings of coercive, controlling and financial abuse. Subsequently, the adjourned hearing took place over three days from 22 to 24 July after which judgment was reserved and handed down on 3 August.

In this second judgment, having summarised the background, developments since the first judgment, and the relevant legal principles, the judge considered first the application for a parental order. All parties – the parents, the guardian representing A, and the local authority who had intervened in the proceedings – agreed that the order should be made, and the judge, after carefully considering how the unusual facts should be accommodated within the statutory provisions, concluded that all the provisions were met and agreed to make the order. There is no suggestion of any criticism of his decision and it is unnecessary to consider this issue any further.

The judge then set out his reasons for dismissing the mother’s application to re-open the earlier findings. At this point, he considered the evidence about the father’s visit to the mother on the day after the fact-finding hearing. The CCTV evidence had demonstrated that, contrary to the father’s evidence at the hearing in April (given before disclosure of the existence of the CCTV images), he had visited the property for several hours and had brought flowers for the mother. The judge recorded that in a subsequent statement and at the hearing in July the father had accepted that he had lied about this. The judge continued (paragraph 71):

He then considered the additional allegations of abuse which he had permitted the mother to raise at the adjourned hearing, which included that he had required her to account for every penny spent and that he had made threats about her not being A’s biological mother. The judge rejected these allegations and also concluded that there was no cogent or reliable evidence to support an allegation by the mother that the father was a flight risk and might abduct A to Bangladesh. He noted (paragraph 96) that, although the mother asserted that she accepted his earlier findings, she still maintained, contrary to those findings, that the father had assaulted her in February 2019 and that he knew all about and consented to the second surrogacy. The mother’s application for a non-molestation order was dismissed.

With regard to the application for a child arrangements order, the judge accepted that the mother had the ability to meet A’s physical needs, but found that she was “completely unable to accept the harm she had caused A, not least by pursuing the second surrogacy” which had taken her away from A for prolonged periods while she was looking after the twins in Ukraine. On the basis of the totality of her evidence, the prospects of A being allowed to enjoy a relationship with his father if he lived with her were “very poor”. In contrast, the judge was

On 1 October 2020, the mother filed an application in the family court in Wolverhampton for child arrangements orders in respect of the twins. She claimed an exemption for the requirement to attend a Mediation Information and Assessment Meeting (MIAM) on the grounds of domestic violence. Her application made no reference to Keehan J’s findings regarding the conception of the twins or his rejection of her allegations of domestic abuse.

On 7 October 2020, the mother telephoned the police and made allegations of domestic abuse against the father. On 13 October, she gave a statement to the police in which she set out her allegations, including those which the judge had found to be untrue in the family proceedings. She said that she had “serious concerns” about the father’s treatment of A, adding:

Following the police visit to his home, the father applied to the family court for an order for police disclosure. At a further hearing before Keehan J on 11 November, an order for disclosure was made. The order included a recital that the mother had informed the court that “she did not make the referral to the police”. Subsequently, the police applied for disclosure of the judgments given in the family proceedings in April and August 2020. An order for disclosure of those judgments was made following a closed hearing on 11 January 2021 attended only by the police. At a further hearing on 27 January, a further order for disclosure by the police was made and the mother was directed to file a statement explaining the circumstances of her report to the police.

The final hearing was listed for two days on 24 and 25 March 2021. At that time, of course, the country was in the middle of the Covid-19 pandemic. In the event, the hearing did not proceed. The mother was unable to attend as she was undergoing chemotherapy. Her application to adjourn was initially refused but ultimately granted at the start of the hearing on 25 March. The judge’s approach to her application to adjourn is one of the instances now relied on as evidence of apparent bias. At the hearing on 25 March, the judge admonished the mother’s counsel in terms that feature in the second instance relied on in support of this appeal. We shall therefore consider these matters in more detail below. Following further submissions, the hearing was adjourned to dates in August 2021. The judge made further case management directions, including requiring the mother to file updating medical evidence about her current state of health and treatment by 23 July.

In the following weeks, there were further email exchanges between the mother and the police in which she encouraged them to pursue their investigation. The emails are extensively quoted in the third substantive judgment delivered on 15 November 2021. In one email, the mother wrote:

Meanwhile, Dr Pettle had carried out her assessment as directed, looking in particular at whether, and if so how, A should learn about, and be introduced to, the twins, and how their relationship should be developed. Her recommendations, as explained in detail in her report and later in her oral evidence, as summarised subsequently in the third judgment, were that:

Plainly the continuing difficulties between the parents posed a significant obstacle to the implementation of this plan. Dr Pettle addressed this problem in her report (in a passage which was later quoted in the third judgment and, we infer, was of particular importance to the judge’s exploration of the issues at the hearing in August 2021):

The mother did not comply with the direction to file updating medical evidence about her current state of health and treatment by 23 July. Instead, her solicitors sent an email to the judge’s clerk asking that their client be permitted to attend the hearing remotely. The judge responded via his clerk that,

The hearing at the centre of this appeal took place over five days from 18 to 20, 26 and 27 August 2021. The full hearing has been transcribed and we shall consider those parts of the transcript relevant to this appeal in detail below. In summary, the hearing proceeded as follows. At the start of the first day, Mr Uddin did not make an application to withdraw as anticipated in the email exchange the day before. Instead, he asked the judge to put back the hearing until 2pm so that he could take further instructions from his client, who was attending remotely. The judge agreed. When the hearing started that afternoon, Dr Pettle gave evidence and was examined by all counsel. At the end of the afternoon, Mr Uddin made a further application for his client to give evidence remotely. By that point, a report had been received from the mother’s treating consultant concerning her attendance at court, apparently following a request from the solicitor for the child. After hearing submissions, the judge ruled in these terms:

On the next day, the father gave evidence, in person. On the third day, the mother started her evidence, remotely. At the start of her evidence, Mr Uddin informed the court that his client wanted breaks every 20 minutes during her evidence. The judge replied that “we will do 40 minutes and see how we go.” It seems from the transcript that there were two breaks during the morning and none in the afternoon. The mother’s evidence had not concluded at the end of the third day, and the hearing was adjourned for six days, resuming on 26 August. On that date, the mother continued her evidence, with two breaks in the morning session, and concluded her evidence shortly after the short adjournment, after which the children’s guardian was examined in chief and cross-examined on behalf of the father. On the next day, the guardian returned to the witness box. A few minutes into the morning session there was an exchange between the judge and Mr Uddin in the course of which the judge again admonished counsel for his conduct. This incident is another matter on which the mother relies in this appeal and we shall consider it detail below.

After the guardian had completed her evidence, counsel on behalf of the police, who had attended at the judge’s request, entered the court. The judge asked a number of questions to establish when the police investigation would be complete and a charging decision taken. Counsel was unable to answer those questions. He informed the judge that the police were awaiting further information from the mother. The judge asked: “Six months have passed since that request was made. How much longer are the [X] Police Force proposing to give the mother before they send the papers to the CPS?” After a further exchange, the judge observed that “At the moment it strikes me as utterly indefensible that absolutely nothing has happened on this case for five months.” He directed that a senior officer should provide a statement answering the questions he had posed, and warned that he was likely to be highly critical of the police force in his judgment.

After counsel for the police withdrew, Mr Uddin applied to the judge to recuse himself. That application was refused. After further housekeeping matters, the hearing was adjourned with an order made (1) refusing the mother’s application to recuse, (2) directing the parties to file written submissions by 13 September and (3) granting the father permission to disclose certain documents to the GMC, the Medical Defence Union, the CPS and the police, including the first and second judgments in the proceedings.

On 2 September, the senior police officer responsible for the investigation sent a statement to the court saying that he had instructed the investigating officer to give the mother a further 28 days to provide outstanding evidence, failing which the file would in any event be sent to the CPS, and that it was anticipated that a charging decision would be taken within 28 days of receipt of the file.

On 3 September, the mother filed a notice of appeal against the judge’s refusal to recuse himself. In the notice, the mother stated that she was not legally represented, and the grounds of appeal consisted of a narrative statement written in the first person apparently by the mother. Her complaint was summarised by a passage highlighted in bold typeface:

On 26 September, a skeleton argument was filed in support drafted by Mr Uddin in which he raised additional grounds of appeal. A response was filed on behalf of the father inviting this Court to refuse permission to appeal. A response was also filed on behalf of the guardian in neutral terms but making some observations about the judge’s conduct of the proceedings. On 28 September, the mother filed an amended appeal notice seeking to rely on supplemental grounds. On the following day, the Civil Appeals Office granted the mother permission to amend.

On 27 October, the judge’s clerk sent the draft judgment to the parties’ lawyers for typographical correction. On 3 November, Mr Uddin had sent an email to the judge’s clerk in which he said that he understood that a transcript of the hearing was available. Mr Uddin continued:

The judgment was handed down on 15 November 2021 (although it was wrongly dated 25 October 2021). There is no appeal against the findings or decisions made by the judge, but since it provides the context in which the allegation of bias falls to be considered it is necessary to set out his reasoning in some detail.

Having identified the issues and summarised the relevant legal principles, the judge set out the history in some detail (paragraphs 19 to 95). He then turned to the application to recuse. We shall return to this part of the judgment when considering the merits of this appeal. At paragraphs 103 to 109, he set out Dr Pettle’s evidence, citing extensively from her report including the passages quoted above.

Between paragraphs 110 and 116 he summarised the father’s evidence. He recorded that the father did not accept Dr Pettle’s recommendations about introducing A to the twins in the near future. He said that the father’s view was that “he would know from A when his son felt ready and comfortable to meet with the twins”. The father was opposed to a family assistance order recommended by both Dr Pettle and the guardian. The father had said that part of his problem was that he still loved the mother. The judge observed that this had been apparent on each occasion that the father had given evidence. It was nevertheless the father’s position that, because of the mother’s false narrative, his lack of trust in her and her repeated applications that he thought contact should be restricted to six visits a year and that there should be an order restricting the mother’s exercise of parental responsibility.

Between paragraphs 117 and 130 the judge considered the mother’s evidence. He recorded that she had made allegations to the police that he found false either in earlier judgments or in this judgment, adding that she could not give a satisfactory explanation as to why she had reported the allegations other than to say that she had not lied to the police. At paragraph 122, he recorded:

The judge recorded that the mother’s primary case was that, once A had been introduced to the twins, he should move to live with her. She said that she accepted the report and recommendations of Dr Pettle and the guardian and would comply with everything the professionals suggested. At paragraphs 129 to 130 the judge said:

The judge then turned to the guardian’s evidence, recording her recommendation for monthly contact between A and his mother, for A to be told about the twins in an agreed narrative and then having a meeting, and for this process to be under the umbrella of a family assistance order. She did not agree with the father’s proposal for an order restricting the mother’s parental responsibility. At paragraphs 133 to 134, the judge made the following critical comment about one aspect of the guardian’s evidence:

The judge then set out his overall analysis. He acknowledged the father’s devotion to A, accepting his wish to promote the boy’s welfare, but added (paragraph 138):

At paragraph 145, the judge made the following observation which is of direct relevance to this appeal:

The judge accepted that the mother plainly loved all three children and that her physical care of them was “beyond question”. He went on, however, (at paragraph 147),

The judge then set out his further findings of fact:

In the following section of the judgment, headed “X Police”, the judge summarised the police investigation, including the information he had received following the hearing. He continued:

Finally, the judge set out his analysis and conclusions. On the basis of his findings, the judge made a child arrangements order for A to continue to live with his father. He concluded, however, that it was not possible to make a final order about the mother’s contact. He ordered that it should continue to be by video during her chemotherapy but would then revert to face-to-face contact. He was, however, unable to define that contact, observing (at paragraph 183):

Subsequently the case was listed for a five day hearing starting on 23 May 2022. At the appeal hearing before this Court, we were told that following the police investigation the CPS have decided not to bring any charges against the father. The mother is exercising her victim’s right of review, and has asked the CPS to review their decision not to prosecute.

On 10 March 2022, Peter Jackson LJ directed that the mother’s application for permission to appeal against the recusal decision be listed for an oral hearing. At the conclusion of that hearing on 1 April, he granted permission to appeal on the basis of a re-drafted ground of appeal appended to his order. That ground was that the judge had showed bias against the mother as demonstrated in nine “instances” (set out and considered below). Peter Jackson LJ directed that a copy of the order be sent to the judge so that arrangements could be made for another judge to conduct the hearing on 23 May should the appeal be successful.

As Hildyard J observed in M&P Enterprises (London) Ltd v Norfolk Square (Northern Section) Ltd [2018] EWHC 2665 (Ch) at paragraph 16:

The application for recusal in this case and the subsequent appeal to this Court have been argued only on the basis of apparent bias. In identifying further guidance from the case law, we therefore mainly focus on those authorities relating to that category of case. Unsurprisingly, however, there is a degree of overlap between general unfairness and apparent bias and some of the dicta in cases concerning the former are plainly relevant to cases involving the latter.

The following points are of particular relevance to this appeal.

The redrafted ground of appeal is in the following terms:

The recusal application made by counsel on 27 August focused on the matters now set out in instances (3), (5) and (8). After hearing the application, the judge immediately delivered a judgment dismissing it. That ex tempore judgment was subsequently incorporated into the third substantive judgment handed down on 15 November 2021. We now set out in full the passage in the third judgment dealing with the recusal issue:

At the start of the hearing, Ms Shiva Ancliffe QC, who came in to lead Mr Uddin for the purposes of this appeal, indicated that she would not be pursuing instance (1), because the transcript of the hearing on 19 August 2019 had not been produced, nor instance (6), because the transcript of the hearing in August 2021 demonstrated that, following discussion and a judicial ruling, there had in fact been breaks in the mother’s oral evidence.

The remaining instances seem to us naturally to fall in to two groups, which have a rather different character. Accordingly, we will deal separately with those which turn on the judge’s interventions in the evidence, or in one instance his attitude to an application, in a way which is said to show apparent bias against the mother – namely (2), (4), (5), (7), and (9) – and those which relate to his criticisms of the mother’s counsel, Mr Uddin – (3) and (8).

Instance (2) is “the judge casting doubt on the Appellant’s medical diagnosis in early 2021.” It is argued that the judge’s response to the mother’s application to adjourn the hearing in March 2021 for medical reasons was such as to give rise to an appearance of bias.

At a directions hearing on 16 March, during discussions about the form of the hearing, the mother informed the court that she would be unable to attend a hearing in court because she was shielding for medical reasons. The judge directed her to file an application to vacate the hearing with a statement supported by medical evidence (redacted to protect confidentiality) as to the diagnosis and treatment. The mother duly filed an application with a statement disclosing that she was suffering from fibromatosis, a non-malignant condition for which, she asserted, she would be undergoing chemotherapy starting that week.

At a further hearing on 19 March, the judge refused to vacate the hearing but agreed that it should be conducted entirely remotely. In a short judgment, he observed that, in the light of the background, he was very suspicious that she would be starting chemotherapy that week, adding that the mother had known about the diagnosis for several months but not raised it as a reason for an adjournment until he indicated that she would be required to attend the hearing. He added (according to an agreed note produced for this appeal):

The mother did not attend the hearing on 25 March. Further evidence was filed on her behalf confirming that she had indeed started treatment, and that she had had a severe reaction to the treatment. Prior to the hearing her counsel, Mr Uddin, filed a position statement in which he asserted that the mother felt that the court would use any application for an adjournment against her and that it was apparent that the court had a “prima facie disregard for the mother’s position”. At the start of the hearing, the judge strongly criticised counsel for what was said in the position statement: this is the subject of instance (3), with which we deal later.

In the event, the judge agreed to adjourn the hearing and after exploring options decided that it should be listed in August 2021. It is clear from the transcript of the hearing that, in selecting those dates, the judge took into account the mother’s position, observing:

On behalf of the mother, it is accepted that the judge was entitled to seek further information before deciding whether to grant the adjournment, but it is submitted that the manner in which he dealt with the issue gave rise to an appearance of bias. It was argued that the judge unfairly cast doubt on the mother’s diagnosis. On behalf of the father, Mr Wilson points out that the judge acceded to the application to adjourn, fixed the adjourned hearing for a date that accommodated the mother’s anticipated medical treatment and ultimately agreed that she could attend the August hearing. In his written submissions to this Court, Mr Bowe for the guardian submitted that the suggestion that the judge cast doubt on the diagnosis is pitching the situation too high and that in the circumstances it had been appropriate for the judge to make relevant enquiries under his wide case management powers.

Instances (4), (5), (7) and (9) concern the judge’s interventions during the evidence. Central to the mother’s appeal is the assertion that these interventions lacked balance and were unfair. Ms Ancliffe summarised the point succinctly in this way. The judge’s interventions in the father’s evidence were helpful to the father’s argument. In contrast, his interventions in the mother’s evidence were designed to challenge her case. Similarly, his interventions during the guardian’s evidence were either helpful to the father or undermining of the mother. Ms Ancliffe submitted that a fair-minded and informed observer would conclude from these interventions that there was a real possibility that the judge was biased.

We shall consider this argument by first considering instances (4) and (5) which concern the interventions during the mother’s evidence, and then comparing them with instances (7) and (9), which address issues arising out of the evidence of the father and guardian.

Instance (4) is “pressuring the Appellant for reporting the allegations of abuse to the police.”

At several points during the mother’s oral evidence, the judge questioned her about her complaint to the police. It was her counsel who first asked her to explain why she had made a report against the father notwithstanding the findings in the family proceedings. After he had asked a series of questions, the judge then intervened and the following exchange took place:

A little later, the judge asked whether it was the mother’s evidence that she did not know she had the right to withdraw her complaint. Mr Uddin objected, stating that in criminal proceedings the police do not require the victim’s consent to prosecute. The judge did not proceed with that point. Further on in her evidence, the mother disclosed for the first time that she had made a complaint to the GMC. The judge asked where there was any reference to this complaint in the eighteen statements that the mother had filed in the family proceedings. After further questions from counsel, the mother referred, in a series of lengthy answers, to further allegations against the father which she said had emerged from old medical records which had been disclosed to her during the police investigation. The judge then asked why these allegations had not been mentioned in any of the mother’s statements. After a break and further evidence, he repeated this question and, after the mother’s response, stated: “I have written in my notebook that, once again, you have withheld material evidence from this court.” This led to the following exchange with Mr Uddin:

The issue of the mother’s complaint to the police arose again in the course of Mr Wilson’s cross-examination. The judge intervened on several occasions. It is unnecessary to set out every intervention. At one point, the following exchange took place:

The mother’s evidence was adjourned part-heard and resumed the following Thursday. Mr Wilson resumed his cross-examination which continued without any intervention by the judge for a further hour and a quarter. After a break the mother was then cross-examined by Mr Bowe on behalf of the guardian. After some time, Mr Bowe asked questions about what A was to be told about the twins. At this point, the judge intervened for the first time that day, asking whether the narrative to be given to A should be as found in his judgments or as she had asserted in her statement prepared for the CPS. After a series of questions, the mother said that she wanted the judge to look at the further documents she had provided and reconsider his findings, but that, if the judge did not change his position she would have to accept his judgment and move forward with that.

At the end of counsel’s questions, the mother asked the judge if he could “spare twenty minutes” to go through further documents she had produced that morning. The judge agreed, and at the start of the afternoon session the mother duly went through the documents, giving further evidence about information contained in them. The judge asked a number of questions as the mother was going through the documents.

In the original grounds of appeal drafted by the mother, she asserted that the judge repeatedly interrupted her evidence to the extent that she felt intimidated and bullied; that he tried to interfere with the criminal investigation by telling her to withdraw her statement from the police; and that he had wrongly accused her of misleading the court by not sharing information about the criminal investigation when her understanding was that the family court and criminal investigation were separate matters. In submissions to this Court, Ms Ancliffe accepted that the judge had been entitled to focus on the issue of whether the mother accepted the findings. The mother’s answers, however, had been to the effect that she had gone to the police because she had been advised to do so by a domestic abuse counsellor. The judge had therefore been wrong to accuse her of not answering the question and his interruptions had been excessive and so as to give an appearance of bias.

On behalf of the father, Mr Wilson submitted two of the central welfare issues at the hearing were the mother’s ability (i) to support A’s placement with his father and (ii) to assist in providing A with a consistent, honest narrative about his life story in general and his relationship with his half-siblings in particular. The judge had therefore been entitled to question the mother about the contradiction between the assurances made by and on behalf of the mother that she accepted the findings and the manner in which she had initiated and pursued the police investigation. He had been justified in repeating the question because the mother’s answers were evasive. He was equally justified in asking whether she was aware she could withdraw the police complaint because of the further contradiction between her evidence that the investigation was out of her control and her emails to the police which showed that she had been actively trying to influence the investigation. During the mother’s evidence, the judge allowed her to adduce further documents. At the conclusion of her evidence, the judge permitted her to address him for twenty minutes. Mr Wilson submitted that overall the judge’s interventions occupied only a small proportion of the mother’s evidence and were both relevant and proportionate.

In his skeleton argument prepared for this appeal, however, Mr Bowe informed us that, taking the circumstances in the round, the guardian considered that the judge disproportionately intervened in the mother’s evidence. He submitted that this went further than the judge simply being ‘robust’ and crossed a line into apparent bias undermining the overriding objective. Mr Bowe informed us that the guardian considered that the judge’s approach to testing this part of the evidence would cause the fair-minded observer to believe that he had adopted a negative or hostile position against the mother. He added that the guardian considered that the mother’s perception, as a lay person, that the judge’s style amounted to pressure when coupled with his overt warning to counsel for the police, could well be interpreted as an attempt to influence the outcome of an independent police investigation.

Instance (5) is “the making of and not making of notes during the evidence.” The transcript shows that on four occasions during the evidence the judge made a comment about recording the evidence in his notebook. The first occurred during the cross-examination of the father. When Mr Wilson objected that Mr Uddin was mischaracterising the father’s evidence, the judge said “well my pen is resting on my notebook at the moment”. The obvious implication of his comment was that he was not making a note because the line of questioning was not assisting him. The remaining three occasions all occurred in the mother’s evidence. The second occurred in the passage quoted in paragraph 73 above when the judge said “I am going to record that you have not given a satisfactory answer to my question.” The third occurred in the passage quoted in paragraph 74 above when the judge said “I have written in my notebook that, once again, you have withheld material evidence from this court.” This led to the exchange between the judge and counsel quoted above. The fourth occurred during the passage in Mr Wilson’s cross-examination quoted at 75 above when the judge warned the mother “I will make a note in a minute that you are avoiding answering the question”.

In his skeleton argument for this appeal, Mr Uddin stated that it was observed that during the parents’ evidence the judge rarely wrote down any notes and submitted that the judge’s comments about making a note when the mother had not answered a question or withheld evidence were a further indication of apparent bias. In oral submissions Ms Ancliffe argued that there had been selective recording of evidence adverse to the mother’s case.

In response, Mr Wilson submitted that on each of the four occasions the judge’s comment had been warranted, either expressing a view about the utility of the questions being posed, or alerting the witness to his view that she was not answering the question and/or giving her an opportunity to provide a further explanation. When challenged by counsel, the judge explained that he had made the comment “in fairness to everybody, so that, if the mother wants to comment further, she can do so.” In the event, the judge obtained a transcript of the hearing and therefore had a full record of the evidence before completing his judgment. In his written submissions, Mr Bowe acknowledged that though the mother may not have liked the judge’s technique, it is not uncommon for a judge to advise a witness how they will record their evidence in order to provide an opportunity to reflect on the answer.

Instance (7) is “treating the father differently.” Instance (9) is “misinterpreting and giving a different narrative to the evidence given by the father and the guardian at the hearing in August 2021.” They overlap and can conveniently be considered together.

It is argued that, in contrast to the manner which he adopted towards the mother during her evidence – a manner which her counsel characterised as intimidating and bullying – the judge’s approach to the father was conciliatory and sympathetic. Particular attention is drawn to one point in the evidence when Mr Uddin was asking questions about when A should be introduced to the twins. It is suggested on behalf of the mother that the tenor of the father’s answers was that he would allow A to decide when to meet them, but the judge intervened, saying

On behalf of the father, it was submitted that the judge permitted each parent to give evidence, and to cross-examine the other, over a lengthy period of time. Mr Wilson conceded that the judge intervened more frequently in the mother’s evidence than during the father’s, but submitted that that was not objectionable given the welfare issues to be decided, the findings made against the mother in the earlier judgments, and the content of her evidence. With regard to the specific intervention in the father’s evidence about which complaint was made, Mr Wilson submitted that the judge’s summary of the father’s evidence was accurate. He also pointed out that, during this exchange, the judge expressed a preliminary view contrary to the father’s case, suggesting that his fears about the impact on A of a premature introduction of the twins were unfounded.

In oral submissions, Ms Ancliffe drew attention to several points in the guardian’s evidence when the judge intervened in a way which, it was submitted, gave rise to an appearance of bias. It should be noted that the guardian gave evidence for a lengthy period, mostly without any interruption by the judge.

In her evidence in chief, the guardian described the mother as being “very child-centred”. The judge challenged her about this, asking to what extent it was child-focussed to organise a second surrogacy without the father’s knowledge and consent. The guardian conceded that this had not been child-centred. She expressed the view that the mother would be able to “follow a narrative that’s in A’s best interests”. Later in answer to Mr Wilson, she said:

When Mr Uddin questioned the guardian, he returned to this issue and the following exchange took place:

Later in Mr Uddin’s cross-examination, when the guardian was being asked about how the mother’s contact could be extended, the judge intervened again:

Ms Ancliffe accepted that the judge was entitled to interrupt and challenge the guardian if he had concerns about her evidence but the manner in which he did so and the vigour with which he pursued the point gave rise to an appearance of bias. Mr Wilson submitted that these interventions were unobjectionable, given that the question whether the mother accepted the findings was of critical importance to the welfare issues in the case. He observed that the guardian’s counsel did not object to any of the judge’s interventions.

Before turning to consider whether, individually or cumulatively, the instances relied on by the mother give rise to apparent bias, we identify a number of important points which the fair-minded and informed observer would take into account.

First, by the date of the hearing in August 2021 these proceedings had been going on for a very long time. The child arrangements application had been made in March 2019, nearly two and a half years earlier. For a case to continue for that length of time is wholly outside the norm for private children’s proceedings. The issues of with whom A should live, how and when he should spend time with the other parent, and whether he should have contact with his half-siblings were still outstanding. The judge was understandably and rightly concerned to avoid further delay which could, as the statute warns, prejudice the child’s welfare. He was plainly trying to manage the case in accordance with the statutory principles and the overriding objective.

Secondly, by August 2021 the judge was very familiar with the case and all its complex and unusual features. He had conducted two substantive hearings, plus a number of case management hearings, and delivered two lengthy judgments. It was unsurprising that he had formed some views about a number of the issues. It was equally unsurprising that he indicated what those views were. In doing so, he was acting in what Sir Thomas Bingham described as “the English tradition” which “sanctions and even encourages a measure of disclosure by the judge of his current thinking” (see paragraph 56(8) above). It does not follow from the fact that the judge disclosed his current thinking that his mind was closed.

Thirdly, in his two earlier judgments the judge had made a number of serious findings against the mother. In particular he had found that she had fabricated allegations of domestic abuse against the father and that she had through deception arranged for his genetic material to be used in the second surrogacy. There had been no appeal against these findings. The mother’s dishonest and manipulative conduct was therefore part of the established factual matrix of the case. As Lord Hoffmann observed in Re B (Children) [2008] UKHL 35, [2009] AC 1 at paragraph 2:

It was inevitable that the judge would have his earlier findings in mind at all points when making case management decisions and considering the ongoing substantive issues. His findings were reinforced by the clear-sighted and authoritative analysis and recommendations expressed in Dr Pettle’s report which we have cited above. In those circumstances, it would have been wrong and contrary to the interests of the child if he had not taken those findings into account in his conduct of the proceedings. Insofar as the judge’s criticisms of the mother during the hearing in August 2021 arose out of his previous findings, they were not evidence of bias. As this Court has said on a number of occasions (see paragraph 56(6) above), bias means a prejudice against one party or its case for reasons unconnected with the merits of the case.

Fourth, the obligation to deal with a case fairly and to ensure that the parties are on an equal footing does not mean that a judge is obliged to treat the parties in precisely the same way. By this stage, the principal aim of the proceedings was to resolve the dispute about A’s living arrangements and determine whether and if so when and how A should be introduced to the twins. Dr Pettle had made a series of recommendations about the way forward but had also identified aspects of the attitudes of both parents which made it more difficult to achieve a resolution. She advised that the “only way to achieve a more positive outcome for A is for his parents to change their behaviours”. It was evident that, so far as the mother was concerned, it was necessary to focus on the apparent contradiction between her assertion that she accepted the judge’s earlier findings and her efforts to bring about the father’s prosecution. Given his earlier findings, it is unsurprising that the judge challenged the mother about this apparent contradiction in direct terms. So far as the father was concerned, the focus was on what Dr Pettle described as his “entrenched” position of wishing to have nothing to do with the twins and wanting A to know nothing about them until he was much older. It is plain from the transcripts that the judge, whilst understanding the father’s feelings about the mother’s behaviour, was very doubtful about the wisdom of the father’s position on these issues. He chose to tackle the father about this in a less directly challenging way than the approach he adopted when speaking to the mother. A judge is entitled to adopt different approaches when probing and testing the evidence of witnesses. The fact that the judge on this occasion took a more directly challenging approach to the mother’s position than he took when probing the father’s views would not by itself lead a fair-minded and informed observer to conclude that there was a real possibility of bias.

Fifth, in considering the proceedings as a whole to determine whether there was a real possibility that the court was biased, the fair-minded and informed observer would look at the judgment delivered at the end of the hearing under scrutiny and at the extent to which it was supported by the evidence. We recognise that, as Black LJ observed in Re G, supra, at paragraph 52,

With those general observations in mind, we turn to the individual instances relied on which we consider, first individually and, then, cumulatively.

We do not agree that the judge’s treatment of the application for an adjournment in March 2021, taken by itself, gives rise to an appearance of bias. In his position statement for the hearing on 25 March 2021 (which we consider in connection with another issue below), Mr Uddin cited the dicta of Gloster LJ in Teinaz v London Borough of Wandsworth [2002] EWCA Civ 1040, [2002] IRLR 721, including the following passage at paragraph 22:

In considering whether the judge’s approach to this issue suggested a real possibility of bias, a fair-minded and informed observer, aware of the mother’s assertion about her health and treatment but knowing about the history of the proceedings, would take into account (1) the findings which the judge had already made in his two earlier judgments about the mother’s dishonest and manipulative behaviour; (2) the emerging evidence about her report to the police; (3) the fact that she had not disclosed her condition for eight months prior to 16 March; (4) the judge’s finding that the medical evidence initially supplied was insufficiently clear, and (5) his concern about the impact of further delay on the child’s welfare. It was not unreasonable for the judge to take the view that he needed to be satisfied about the genuineness of the mother’s assertions about her condition and treatment. In the circumstances of this case, given his earlier findings, it is unsurprising that the judge was initially suspicious about a last-minute adjournment application based on the mother’s late disclosure of a medical condition. When he was eventually satisfied about the genuineness of the mother’s assertions about her condition and treatment, he duly adjourned the case for several months, making sure that the next hearing would be listed if possible to accommodate the mother’s treatment and giving directions about the filing of further medical evidence in July (with which, we note, the mother initially failed to comply).

In oral submissions, when Whipple LJ pointed out that all the judge was really saying was that he wasn’t satisfied about the medical evidence, Ms Ancliffe replied that he did not need to say it in that way. Having read the transcript and notes with which we have been provided, we do not agree that there was anything about the judge’s approach to this issue in March 2021, or in the way he expressed himself during the hearing on 25 March, which would lead the fair-minded and informed observer to consider that there was a real possibility that he was biased.

In the amended ground of appeal appended to the order granting permission to appeal, instance (2) was expressed as “casting doubt on the Appellant’s medical diagnosis in early 2021”. In his skeleton argument for this appeal, drafted before Ms Ancliffe was instructed, Mr Uddin also submitted that the judge had “continued in the same vein” at the start of the hearing in August 2021, “doubting the appellant’s medical condition and taking an unreasonable stance against the appellant”. Ms Ancliffe did not pursue this argument at the appeal hearing but for the record we see nothing wrong with the judge’s approach to this issue prior to or during the hearing in August 2021. The mother failed to comply with the direction to file updating medical evidence by 23 July 2021. Instead there was a flurry of emails which we have summarised above. It was only during the first day of the hearing on 17 August that a report from her treating clinician was produced. At that point, despite his clear views that it would be better for both parties to attend court in person to give evidence, the judge took the “pragmatic approach” and agreed to the mother giving evidence remotely. As the transcript shows, thereafter he allowed the mother reasonable breaks during her oral evidence. Contrary to Mr Uddin’s submission, the judge’s stance towards the mother’s medical condition in August 2021 was entirely reasonable.

The judge’s interventions during the evidence on which the mother relies in support of this appeal have to be considered in the context of the whole hearing. There were lengthy periods in the evidence when the judge said nothing at all. He made no attempt to curtail the questioning of any of the witnesses and as a result the hearing substantially exceeded the time estimate. Many judges might have adopted a stricter approach, particularly in the current circumstances with substantial backlogs and delays in the family justice system. The judge did not prevent the mother introducing undisclosed documents during her evidence, and he allowed her to address the court for nearly twenty minutes at the end of her evidence when she went through the documents she had produced. Many, perhaps most, judges would have refused to admit the documents or to allow the witness to address the court in that way. All these features of the hearing would be taken into account by a fair-minded and informed observer when considering whether there was a real possibility of bias.

It is clear from the transcript that the judge adopted a different approach to the mother’s evidence from that adopted during the father’s. As we noted above, that by itself is unobjectionable. Treating the parties fairly does not necessarily involve responding to their evidence in precisely the same way. We have looked carefully to see whether the difference in approach was greater than justified so as to give rise to an appearance of bias. The judge’s interventions during the father’s evidence were less frequent and his challenges to the father were expressed in moderate terms. In contrast, his interventions during the mother’s evidence were more frequent and his challenges were direct and at times robust. Given the history of the mother’s dishonest and manipulative conduct before and during the proceedings, the judge was understandably concerned that she was seeking to direct or influence the police investigation so as to circumvent his findings. The mother’s assertions that she accepted his findings, that she only made the complaint to the police after her domestic abuse counsellor had arranged the appointment, and that the police investigation did not affect the family court was inconsistent with other evidence about her dealings with the police. Her assertions to the effect that the police investigation was out of her control were disingenuous. The documents disclosed by the police against her wishes showed that she positively and repeatedly encouraged them to pursue the investigation. In a series of emails to the police, she said that she was not happy with the outcome of the family proceedings, that her concerns about A being maltreated by the father had been ignored by the family court, and that the judge had not listened to her case fairly, had not considered the evidence and had been “biased throughout”. Given those contradictions, her evasive answers in evidence, and the importance of establishing whether she genuinely accepted the findings, the judge’s more direct and challenging approach during her evidence was, in our judgment, acceptable. We reject the submission that he was unfairly pressurising the appellant for reporting the allegations of abuse to the police or that he was interfering in the criminal investigation.

There is no substance in the complaint about the judge’s taking of notes or his references to his notebook during the hearing. It is entirely a matter for a judge to decide what notes to take of the evidence. Neither counsel nor anyone else in court is in any position to assess what a judge is writing down. It is not unknown for a judge to indicate to counsel that his line of questioning is not helpful by putting down his pen. This is an example of the disclosure of judicial thinking which, as Sir Thomas Bingham MR observed, is sanctioned in the English tradition. Criticising a witness’s answer, and recording the criticism in his notebook, is a legitimate expression of scepticism which, to use Sir Thomas’s words, “is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be”. In this case, the judge’s references to the notebook during the mother’s evidence were made in the course of appropriate challenges about her reasons for reporting allegations to the police which he had found to be fabricated.

We do not accept the submission that the judge’s interventions in the course of the father’s evidence were designed to shore up his account. In particular, we reject the argument that his interventions during Mr Uddin’s cross-examination about when A should be introduced to the twins had the effect of putting the evidence more favourably than the witness’s answers warranted. Having read the full transcript, we are satisfied that the judge’s interpretation of the father’s evidence was correct. Although the father at one point said that A “would take his own decision”, having looked at the whole of this section of the transcript we are satisfied that his evidence overall was as summarised by the judge. The judicial interventions were measured and unobjectionable and there is nothing about them which suggests any apparent bias.

In our view, there was nothing wrong or improper in the judge’s interventions during the guardian’s evidence or anything about those interventions which might lead a fair-minded and informed observer to conclude that there was a real risk of bias. On the contrary, the judge was rightly concerned about a fallacy in the premiss in the questions put by Mr Uddin which was, to some extent, reflected in the guardian’s answers. The premiss was that, irrespective of the court’s findings against her, the mother had a feeling that she was a victim of abuse, that she was entitled to act on that feeling, and that it was, in counsel’s words, wrong for the court to “weaponise” that feeling and use it against her in the proceedings. The premiss was untenable and, insofar as it formed part of the guardian’s analysis, it was important in the child’s interests that it be identified and challenged.

The court had found at the earlier hearing that the acts of abuse alleged by the mother did not happen and that she had fabricated them. The argument on behalf of the mother that she had a feeling she was the victim of abuse was therefore baseless. Counsel’s assertion that “it would be wrong for this court or anyone to weaponise that feeling” was a scurrilous statement to which many judges (although not, we observe, this judge) would have raised immediate objection. In the circumstances, the judge was entirely justified in intervening to challenge the guardian’s responses to this line of questioning. Her professional opinion was a very important part of the evidence on which the judge was being asked to make decisions about A’s future. If a judge is concerned about the rationale behind a guardian’s opinion, he is justified in raising his concerns. Like all professional witnesses, a guardian must expect her opinions to be challenged, sometimes robustly. In oral submissions, Ms Ancliffe conceded that the judge was entitled to take this course but submitted that there was an excessive vigour in his intervention. The intervention was certainly robust but in our view not excessively so. Consequently, we reject the suggestion that any of the judge’s interventions during the guardian’s evidence gave rise to an appearance of bias.

We have considered these instances both individually and collectively. We are satisfied that they would not lead a fair-minded and informed observer to conclude that there was a real risk that the judge was biased against the mother. There is no doubt that the judge was very critical of the mother’s conduct and that he expressed that criticism in forthright terms during her evidence and at other points in the hearing. But looking at the proceedings as a whole, those criticisms have to be seen in the context of his findings in his earlier judgments about her dishonest and manipulative behaviour. As noted above, bias means a prejudice against one party or its case for reasons unconnected with the merits of the case. Here the judge’s criticisms of the mother during her evidence were plainly based on the merits of the case, which included the serious, unappealed findings which he had made against her. His justification in pressing her hard about the apparent contradiction in her words and actions was that A needed to have an agreed narrative, based on the judge’s findings, so that he could have a clear idea about his identity and be prepared for the introduction of the twins.

In reaching that conclusion, we take into account the guardian’s opinion about the matter, as expressed in Mr Bowe’s skeleton argument to this court. The guardian was, of course present during the hearing and we have no doubt that she is both fair-minded and informed. But she is not an independent observer. In one important respect, her evidence about the mother’s actions was rightly criticised by the judge. Her views about the merits of this appeal are to be taken into account but they are not decisive.

We start by setting out the facts of the incidents on which the mother relies and the parties’ submissions on them. Both, as will be seen, arise out of criticisms made by the judge of the conduct of Mr Uddin and in particular of his reference to the possibility of having to report him to the Bar Standards Board (“the BSB”).

Instance (3) is “bullying, admonishing and threatening to report the appellant’s counsel to the Bar Standards Board on 25 March 2021.”

As stated above, prior to the hearing on 25 March, Mr Uddin on behalf of the mother prepared a position statement addressing the application for an adjournment. It is unnecessary to set out this document in full. In the course of summarising the circumstances in which his client’s medical condition had come to the court’s attention, counsel included the following observations:

“The application for an adjournment is made by the respondent mother with some trepidation. The mother feels that this court will use against her any application for an adjournment.”

“It is apparent that the court due to issues at previous hearings has a distrust of the mother and to put it bluntly prima facie disregard for the mother’s position.”

“It is one thing for the court to deny the mother to vary an interim contact order but another to disregard her application for an adjournment.”

“ …she had ignored her own health conditions to avoid a delay in these proceedings and her weariness of this court due to her previous experience before this court.”

“The subsequent treatment of the mother by the court after her cancer disclosure has solidified mother’s weariness of this court.”

“It is true the mother has raised questions about the conduct of the court at previous hearings, but it would be unfair and unjust for the court to use this against the mother which the mother feels the court is doing.”

The transcript of the hearing shows that almost immediately after the start of the hearing, the following exchange took place:

Following this exchange, the judge, having heard submissions from the other parties, granted the adjournment and, as already noted, re-listed the hearing in August, rather than the dates preferred by other parties, partly to ensure that Mr Uddin could continue to represent the mother, for whom there had previously been a change of representation on at least two occasions, and partly in the hope that the mother’s medical treatment would be completed so that she could participate at the hearing.

In his skeleton argument drafted before Ms Ancliffe was instructed, Mr Uddin submitted that if a fair-minded and informed observer read the position statement they would regard the judge’s comment about the BSB as bullying and that this conduct in itself demonstrated an appearance of bias. On behalf of the father, Mr Wilson did not argue that the judge’s reference to the BSB had been either justified or proportionate. He suggested, however, that the fair-minded and informed observer (1) would be aware that, against the background of his findings of dishonesty against the mother, the judge had required proper evidence about her medical condition; (2) would therefore be surprised at the tone of the position statement filed on her behalf; (3) would note that the comment about the BSB did not prevent the mother’s case from being fully argued at the hearing; and (4) would also note that, despite admonishing counsel for his remarks in the position statement, the judge acceded to the mother’s request for an adjournment.

This instance is described as “bullying and threatening the Appellant’s counsel with the Bar Standards Board on the 27th August 2021”. As all parties recognised, this was the most troubling incident during this difficult hearing. In argument before us, Ms Ancliffe placed particular weight on it in support of the appeal.

The background to this incident is a passage in the evidence given by the children’s guardian at the end of the previous day’s hearing. During questions from Mr Wilson on behalf of the father in which he was challenging the need for a family assistance order, the guardian had described the relationship between the mother and A as “so special and so close” and continued:

On the following morning, shortly after Mr Uddin started his examination of the guardian, the following exchange took place:

The guardian’s evidence continued. A little later in the morning, following a short adjournment for unconnected reasons, Mr Uddin addressed the judge in these terms:

It was submitted on behalf of the mother that this incident would lead a fair-minded and informed observer to consider that there was a real possibility of bias for several reasons. First, the judge’s initial intervention was wrong and unfair. Counsel’s recollection of the guardian’s evidence the previous evening was correct: she had referred to trauma. Secondly, the judge lost his temper with counsel and addressed him in a way that amounted to bullying. Thirdly, counsel was clearly unsettled by the way in which the judge addressed him and asked for an adjournment, which the judge refused. Fourthly, the judge’s renewed threat to report him to the BSB was unjustified and wrong. Finally, the effect of the intervention was that the guardian wrongly said that counsel had misquoted her. The judge’s intervention therefore materially undermined the evidence.

In response, Mr Wilson acknowledged that the judge’s comments during this exchange may be the most troubling. He pointed out that counsel’s summary of the guardian’s evidence the previous day was not precisely accurate. He did not seek to defend the judge’s reference to the BSB. He added, however, that, following this exchange, Mr Uddin had continued to cross-examine the guardian for an extended period recorded over a further 21 pages of transcript, during which there were further respectful and productive exchanges between judge and counsel. This was one incident over a five-day hearing and, in evaluating the question of apparent bias, a fair-minded and informed observer would have regard not just to this moment but to the whole hearing in the context of the overall proceedings.

In his written submissions to this Court, Mr Bowe informed us that, having carefully considered the transcript, the guardian could see that counsel’s question did not strictly reflect the evidence that she had given the day before in that she had not said that A had suffered trauma “when he was moved away” from the mother to the father but rather that A must have suffered trauma having lost the mother and his extended family. He added, however, that the guardian’s perception was that the judge unexpectedly shouted at counsel when telling him not to talk like that, causing counsel to request a five-minute break and that the style of the intervention, taken in combination with the previous admonition and reference to the BSB on 25 March, resulted in what Mr Bowe called a somewhat freezing effect on counsel. He also noted that the effect of the intervention was to cause the guardian to doubt her previous evidence and potentially deprive counsel of the opportunity to explore the issue of “trauma” more fully on the mother’s behalf. For those reasons, it was his submission that a fair-minded observer would consider that instances (3) and (8) together do amount to apparent bias.

In this part of the case we are concerned with alleged bullying of counsel by a judge. Where it occurs, judicial bullying is wholly unacceptable. It brings the litigation process into disrepute and affects public confidence in the administration of justice. However, it inevitably remains the case that situations of conflict between bar and bench will sometimes arise. In that connection we make the following points.

First, counsel are sometimes obliged to object to, or be critical of, something said or done by the judge in the course of a hearing.  Judges should, and almost always do, appreciate that this is a fundamental part of the advocate’s role and should entertain the objection with respect, even if they regard it as ill-founded.  However, respect goes both ways.  It is important that any such objection or criticism is expressed, however firmly, in a professional way.  Most judges nowadays conduct hearings in a less formal manner than may have been usual in earlier generations, but that is not a licence to disregard the particular position of authority which they necessarily enjoy.

Second, trials are a very intense environment.  Even the best counsel may in the pressure of the moment express themselves in ways which they did not really intend or say things which they would not have said if they had had time for reflection – whether in the context of an exchange with the judge of the kind discussed above or more generally. Judges should, and almost always do, recognise this.  Many such lapses can simply be overlooked or corrected with a light touch.

Third, there will nevertheless be occasions when counsel’s conduct requires explicit correction or admonishment. In such a case the judge should try to ensure that any rebuke is proportionate and delivered in measured terms, without showing personal resentment or anger. Even a merited rebuke may be unsettling for counsel; and it may also, even if unjustifiably, have an impact on the confidence of their client in the fairness of the hearing. That said, some such impact may be unavoidable, in which case it has to be accepted as a consequence of counsel’s behaviour.

Fourth, a statement by the judge that they are considering referring counsel to the BSB is a particularly strong form of admonition and is accordingly particularly liable to have an adverse impact of the kind referred to above. For that reason, we believe that it will rarely be appropriate for a judge to raise the possibility of referring counsel to the BSB in the middle of a hearing. In the great majority of cases, the better course will be to wait until the end of the hearing, which will avoid raising the temperature more than is necessary and will also mean that the judge can evaluate counsel’s conduct in the overall context of the hearing. In the rare case where an allegation of professional misconduct does have to be raised in the course of a hearing, the situation will require sensitive handling and the judge will be well advised to take time to consider carefully when and how to raise the matter.

Finally, since judges are human, and (as Black LJ observed in Re G, supra) hearings can be challenging for them as well as for counsel, they will sometimes lapse from these high standards, and incidents will occur which the judge should have handled better.  But such lapses do not necessarily amount to bullying; still less does it necessarily follow that in such a case the hearing will have been unfair or that the judge should recuse themselves from any further involvement. On the contrary, it is fundamental to the culture and training of a professional judge that they will decide each case according to its objective merits.  If judge and counsel rub each other up the wrong way, whether or not it is the fault of either or both, that can be, and almost always is, put to one side in the decision-making process.  Likewise, the professional training and experience of counsel should enable them to deal with criticism from the bench, even if they may believe it to be unjustified.

We should add that although the mother’s reference to bullying requires us to consider the judge’s conduct, the dispositive question on this application is not whether he was guilty of misconduct in relation to either instance but whether his conduct would give rise to a reasonable apprehension that he was biased against the mother, because of her counsel’s behaviour.

In his third judgment handed down on 15 November 2021 the judge said that parts of the position statement filed for the hearing on 25 March 2021 were “rude and impertinent”: the phrase he used at the hearing itself was “impudent and impertinent”. We might not have used those precise terms, but we agree that the passages that we have quoted from the position statement are objectionable. Although, as we have acknowledged above, there are occasions where it is counsel’s duty to accuse a judge of unfairness, in the context of the adjournment application the accusation was not only unfounded but gratuitous. It did not advance the substance of the application to say that the mother feared that it would be unfairly “disregarded” because of the judge’s previous findings, still less that she feared that he would use it against her. Those assertions did no more than vent the mother’s personal feelings about the judge’s findings (which findings were unappealed). We recognise that this may not have been an easy position statement for Mr Uddin to draft but if his response to the judge that it was drafted “on [the mother’s] instructions” meant that he thought he was obliged to make offensive imputations of this kind merely because his client wanted him to do so, that was a serious misunderstanding of his duty.

It was in our view appropriate for the judge to admonish counsel about the tone of the position statement. He also acted appropriately by doing so succinctly, and in a way that drew a line before he moved on to the substance of the application. We have to say, however, that we do not think that his rebuke was well expressed. Although it is never easy to assess how things are said from a written transcript, the words used by the judge convey the impression that he felt personally affronted: that was not appropriate. As for his mention of the BSB, it is fair to say that the judge did not say that Mr Uddin’s conduct merited a report (and we do not believe that it did) but only that he would report him if he did the same again. But it was, for the reasons set out above, inadvisable for him to mention a possible reference to the BSB in the course of the hearing.

Although we believe that the incident could have been handled better, we consider it to have been a limited incident, best characterised as an over-reaction to what was in our view a gratuitously offensive position statement.

As we have seen, the parties before us were agreed that instance (8) was the most serious of the instances on which the mother relied. It is important to start by analysing exactly what went wrong.

The starting point is the judge’s querying of whether in his question to the guardian Mr Uddin had accurately summarised an earlier answer she had given. The question began:

Because of the way things developed, the judge did not specify exactly what it was in Mr Uddin’s formulation that he believed was wrong. When Mr Uddin eventually put the question again the guardian said that she did not believe that she had used the word “trauma”. As the transcript shows, she was wrong about that, and to that extent Mr Uddin’s question accurately reflected her evidence. But it is not clear to us that that was the judge’s point. Mr Uddin’s formulation was in fact inaccurate in a different way, because it suggested that the guardian had attributed the trauma to A being moved “to the care of [the father]” whereas she had referred only to it being caused by the loss of his mother and extended family. The difference is only slight, and it is fair to say that Mr Uddin had not finished his question when the judge intervened and he may well have been going on to refer to that aspect too (as he did when he eventually put the question again); but even if so his introduction of a reference to the father arguably carried the implication that the guardian had said there was something about the father’s care that caused trauma. It may well have been this perceived inaccuracy that the judge was objecting to. In any event, at this stage there was no more than a possible misunderstanding of a kind which sometimes occurs in the course of cross-examination, and no-one is to be criticised.

Mr Uddin responded to the judge’s intervention by saying:

Thus far the criticism is entirely of Mr Uddin. But it is clear that his disrespectful response (or responses) caused the judge momentarily to lose his temper. Even without the tape, it is plain that his response (“Do not talk to me like that”) was angry – and that is confirmed by the guardian’s recollection recorded at paragraph 121 – and his replies in the course of the following exchange, culminating in the observation that Mr Uddin was coming close to being reported to the BSB, show that he did not immediately recover his poise. That exchange in its turn clearly unsettled Mr Uddin and caused him too to become heated – “I deserve respect”, “can I have it affirmed that you will not talk to me in that way?”, “I will not be spoken to in that way by anybody”. Although the judge tried to close the incident down and return to the evidence, Mr Uddin would not at first do as the judge asked. He requested a break, which the judge refused. Although Mr Uddin resumed his questions to the witness, he obviously remained troubled, hence his “personal statement” a few minutes later.

This was clearly a regrettable incident. It was started by Mr Uddin’s disrespectful response or responses, for which the judge was fully entitled to admonish him. However, the way that the judge did so raised the temperature and clearly unsettled Mr Uddin. With the benefit of hindsight, we believe that he should have taken up the suggestion of a short break for “cooling-off”. Instead, he warned Mr Uddin that he was getting close to being reported to the BSB. We have already observed that it is generally inadvisable to warn of the possibility of a reference to the BSB in the course of the hearing, and that was particularly so here when feelings were running high.

Miss Ancliffe submitted that the judge’s intervention had led the guardian to wrongly disavow her earlier reference to A having suffered trauma by having been moved from her mother’s care. That may be the case, even though the judge himself did not focus on that word, but it is in truth impossible now to know. Ultimately, it does not matter. We are not concerned as such with the effect of the judge’s intervention but whether the incident to which it led gives rise to a reasonable suspicion of bias on his part. However, we should say that we do not consider that the guardian’s revisiting of the issue had a material impact on the outcome. She was a professional witness well able to express her considered opinion and her subsequent answer, set out at the end of paragraph 117 above, described in more precise terms how A had been affected by the move from the mother.

It will be seen that we have some criticisms of the judge’s response in relation to both these instances, and in particular instance (8). However, the question on this appeal is whether what he said on those occasions would lead a fair-minded and informed observer to consider that there was a real possibility that he was biased against the mother. We do not believe that it would. In neither case was his conduct gratuitous: on the contrary, he was reacting, albeit inappropriately, to disrespectful conduct on the part of Mr Uddin. These were two short-lived and isolated episodes in separate hearings, the second of which lasted several days. They are just the kind of incident which may arise in the course of highly-charged proceedings but which, as we have said above, a professional judge will put to one side when assessing the merits of the case. As noted at paragraph 47 above, in his eventual judgment the judge said that the exchanges between him and Mr Uddin had had no effect on his decision-making. Of course that statement itself cannot be conclusive, but it is consistent with what the fair-minded and informed observer would expect of a professionally trained judge and there is nothing to suggest that it was not the case here. There is no complaint of any other inappropriate interchange between the judge and Mr Uddin. We refer also to paragraph 95 above. The mother and her legal representative were given a fair opportunity to put her case, and the mother was allowed to adduce extra evidence. At the conclusion of the hearing, the judge handed down a judgment in which he rejected a number of the proposals put forward by the father. All the evidence is that the judge reached his conclusions following the August 2021 hearing in a fair and balanced way, and there is no reason to suppose that he would not do so in the remaining stages of the case.

Having been critical of some of Mr Uddin’s comments, we should record our impression that, despite the evident professional difficulties he was facing, he represented his client tenaciously and effectively.

In relation to both groups of instances, we have concluded that they would not lead the fair-minded and informed observer to conclude that there was a real possibility that the judge was biased against the mother. For the avoidance of doubt, that remains our view if all seven instances are considered cumulatively. It is for those reasons that we concluded that there was no basis on which the judge should have recused himself and that this appeal should be dismissed.