Law Report: Judge's view about parent did not amount to bias: Re M (minors) - Court of Appeal (Lord Justice Woolf and Lord Justice Butler-Sloss), 4 September 1992

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In family proceedings concerning the care of children, a judge is often required to express firm views either in favour of or against a particular parent. The fact that the judge has formed a particular view about one party does not make the judge an inappropriate tribunal for hearing subsequent applications. Further, it was desirable for reasons of continuity that the same judge should hear subsequent proceedings where that was practical.

The Court of Appeal dismissed the father's appeal from the refusal of Judge Hammerton, sitting at Brighton County Court on 6 August 1992, to transfer the hearing of the proceedings to a judge other than Judge Norrie. The father and mother were in the process of divorce. In 1990, the father was granted interim care of three children, with extensive access to the mother. In June 1991, after a full hearing before Judge Norrie, care and control of the children was given to the mother, with extensive access to the father. The proceedings continued to be under the control of Judge Norrie.

In June 1992, applications by the father and the mother were to have been transferred to Maidstone Combined Court Centre, where they could be heard promptly and where Judge Norrie did not sit. However, due to administrative difficulties, that did not happen. The father's application to Judge Hammerton that the proceedings should not be heard by Judge Norrie but by some other judge was refused.

The father appealed on the ground that the matter could not be fairly heard before Judge Norrie because of comments contained in her judgment in June 1991 suggestive of a moral prejudice in favour of the mother and against the father.

Judge Norrie had referred to the father's allegation, denied by the mother, that the mother had had lesbian relationships with friends in the women's movement in which the mother was involved.

Judge Norrie said: 'What is of concern, however, on that issue is the father's violent disapproval of homosexuality and is just one example of the father's dogmatic views and the fact that this issue was an example of a subject about which the couple held diametrically opposed views and about which neither was prepared to compromise.'

Andrew Hockton (DM Fletcher & Co, Purley) for the father; Alison Ball (Waughs, East Grinstead) for the mother; Susan Shackleford (Official Solicitor) for the Official Solicitor.

LORD JUSTICE WOOLF said that Judge Norrie's judgment in June 1991 was never the subject of an appeal because there would have been no prospect of an appeal succeeding. Judge Norrie's judgment as a whole had been considered by the court and she had expressed her decision with care and clarity.

It was submitted, on the basis of the passage from Judge Norrie's judgment, that the father could reasonably form a suspicion that the judge was biased against him in the sense that she was, inappropriately, taking the view that his attitude towards homosexuality was wrong. It must be noted that Judge Norrie was not saying that the father was showing merely disapproval of homosexuality but that he was displaying violent disapproval of homosexuality. Judge Norrie was doing no more than saying that that was one example of the father's dogmatic views.

It was quite impossible, on the basis of that passage, or the judgment as a whole, to find any basis on which a person in the father's position could reasonably take the view that Judge Norrie was displaying an inappropriate attitude or making comments suggestive of a moral prejudice in favour of the mother against the father.

It was essential that the judge should give a clear and full account of her assessments of the parties. If one party to a marriage displayed unreasonably dogmatic attitudes, that could be a matter of relevance as to their being an appropriate carer of the children. Judge Norrie was therefore required to express her views about this matter in relation to the father's violent disapproval of homosexuality.

The fact that, in the course of a hearing dealing with family matters, a judge was required to express firm views either in favour of or against a particular parent did not disqualify that judge thereafter from considering subsequent applications relating to the same parties.

Then it was important that there should be continuity. In family proceedings, there would regularly be an initial contested hearing as to the merits, the outcome of which, where there was no appeal, would thereafter be relevant as forming the basis for subsequent decisions on later applications made in the same proceedings.

It was important that the judge, who had had the opportunity of forming a view after a lengthy hearing, as occurred here, should deal with the subsequent applications, where that was practical.

In subsequent proceedings, the parties would know that the judge had formed a particular view about one or other of them which would most certainly be adverse. But that did not make the judge an inappropriate tribunal for hearing applications because, in any event, the views of that judge would be accepted by a judge in later proceedings, unless there were good reasons for not accepting them.

In order to establish that a judge was biased against a litigant, one could not rely on the conclusions that a judge had appropriately and properly formed as a result of a previous hearing in the same family proceedings. The judge's findings and conclusions as to the earlier proceedings, far from disqualifying him, made it more desirable that he should hear the subsequent proceedings. The appeal would be dismissed.