www.judiciary.uk/wp-content/uploads/2020/07/C-A-Child-B4-2020-1138-FINAL-Bailli.pdf
This is an appeal from an order made by Mrs Justice Judd on 21 July
whereby she refused to accede to an application that she recuse herself from continuing to hear care proceedings in respect of a boy, E, now aged 16 months. The care proceedings before the judge arose out of the death of A, the 18 month brother of E....
On Thursday 16 July, the Appellant told the court that she had developed a cough and was, for that reason wearing her mask fully. Whilst the Appellant did not ask to leave court, unsurprisingly, and completely appropriately, the judge with the agreement of counsel sent the Appellant home. As the appellant had given two days of evidence ‘live’ it was agreed that she could conclude her evidence remotely.
The court accordingly rose to allow arrangements to be made. An associate took the judge’s closed laptop through to her room but, unbeknownst to the judge, the remote link to the court room remained open. The judge was therefore overheard having a private conversation on the telephone with her clerk about the Appellant by a number of people who still remained on the call.
During the course of that conversation, the judge’s frustration at what
represented a further delay in a case which was already substantially
overrunning its three week time estimate, manifested itself in a number of pejorative comments made by her about the Appellant including that she was pretending to have a cough and was trying ‘every trick in the book’ in order to avoid answering difficult questions. It should be made clear that the judge at no time expressed a view as to the circumstances surrounding the death of A.
What happened is an example of the hazards of such hearings. It would appear that the judge’s laptop was taken into her room closed but with the call not having been exited. It is to the credit of those that overheard the judge’s conversation with her clerk that they did everything they could both to draw the judge’s attention to the situation and indeed to speak over and distort the conversation. It was a couple of minutes however before the usher’s attention was gained who then immediately left the court and made the judge aware that she could be heard in court.
The judge concluded at para. 28 that whilst she greatly regretted what had happened and understood the hurt her comments must have caused to the Appellant, the fair minded and informed observer, having considered the facts would conclude that there was no real possibility of bias on her part.
We have considerable sympathy with the judge. We have, however, no
hesitation in concluding that her comments did indeed fall on the wrong side of the line. The fact that the comments were intended to be private does not salvage the situation in circumstances where those comments were, unhappily, broadcast across the remote system and were made during the course of the Appellant’s evidence.