Recusal of a judge is when a judge will step aside from a case they are dealing with. The reason could be that it may no longer be appropriate for the judge to continue dealing with the matter. The term Recuse or recusal therefore means the removal or disqualification of a judge in a particular case. We will therefore consider the recusal of a judge in family court below.

Recusal rights serve as a crucial safeguard in family law proceedings, particularly in emotionally charged cases involving child custody, financial settlements, and domestic violence matters. When parents feel their case isn’t being heard fairly, understanding these rights can be the difference between an unjust outcome and proper legal resolution. Statistics show that perceived judicial bias is one of the most common concerns raised by parties in family court proceedings.

A recusal of a judge will usually take place when there is a conflict of interest or where there is a bias. A Bias is where the Judge is deemed to be favouring one party over the other. A recusal of a judge in family court can take place in one of 2 ways. One instance of a recusal of a judge in family court is where the judge takes it upon themselves to recuse and decides to step down from hearing a case. This is done out of the judges own accord. The other way could be where a party to a case specifically applies to the court to remove the Judge from further hearings. This is known as an application for recusal.

One of the most common grounds for recusal of a judge in family court is that of a judge either being biased or a judge being perceived as being possibly biased. During cases involving child arrangements one party may perceive a judge to be biased based on their comments in court towards one party.

Additional grounds for recusal of a judge in family court include financial interests in the case outcome, personal relationships with parties or their legal teams, prior professional dealings with the parties, or having presided over related matters that could influence judgment. Recusal may also be warranted when a judge has made prejudicial statements outside court about the case or parties involved.

Additional grounds for recusal of a judge in family court include financial interests in the case outcome, personal relationships with parties or their legal teams, prior professional dealings with the parties, or having presided over related matters that could influence judgment. Recusal may also be warranted when a judge has made prejudicial statements outside court about the case or parties involved.

 This does not have to be a direct interest, but it can come about as a result of the judge knowing someone who is interested in the matter. Other grounds for recusal also include the judge having knowledge of the parties involved in the family proceedings including facts, a judge making certain comments or conducting the case in a certain manner or even having communications with one party or their representatives without including the other party within the communications.

Judicial bias is the terms used to cover the issue where conduct of the judge is perceived to or does in fact compromise judicial impartiality. As we all know judges are required to be completely impartial in order to uphold the law and ensure that everyone’s right to a fair trial is protected.

Judicial bias which is one of the grounds for recusal and one of the most common grounds for recusal is categorised in 2 forms. One form is actual bias whereas the other form is perceived/apparent bias.

Actual bias covers situations where the judge has some interest in the case. This interest does not have to be just financial interest but could be an interest through a third party influence. This covers situations where a judge has some form of relations with one party, or whether a judge has acted for one of the parties or they have some form of connection with an organisation that might favour one specific party and therefore a judge has a vested interest in the specific case. Cases of actual judicial bias are very rare.

Perceived or apparent bias is the most common form of judicial bias. Parties may realise there is some form of bias during the course of the proceedings. This involves there being a suspicion that a judge is biased towards one party. This type of bias means there is no interest in the outcome of the case for the judge, however the judges behaviour, comments, actions or the way they deal with a hearing gives rise to suspicion that there is some form of bias, and they are not able to decide the case in an impartial way or in an independent manner.

An application for the recusal of a judge can be made by using the one of the grounds which is known as bias. Where one party feels a judge is biased against them they can request the judge to recuse themselves. This would mean if the Judge does stand down he will not take part in further hearing and the case in hand will then be placed before a different judge.

However within cases of recusal of a judge in family court a judge may deny the application and request to recuse themselves. In such instances the party who feels the judge is biased against them can appeal the decision. This is what was exactly done in the case of C (A Child [2020].

The case commenced on 1^st July 2020 where the judge decided the case would be dealt with by way of a hybrid hearing due to the impact of COVID-19. This meant some parts of the hearing were carried out remotely whilst some parties were required to attend the court in person to give evidence. This hybrid hearing required the mother in the case to physically attend the court subject to rules of social distancing to provide her evidence. During the first 2 days of her giving evidence the mother was wearing a mask which she lowered down when speaking. On the third day of the mothers evidence the mother told the court she had developed a cough and therefore was wearing her mask fully rather than lowering this when speaking.

Out of the judges own accord it was decided to send the mother home, and it was agreed for the mother to give evidence remotely. The judge and an associate went to the other room to make arrangements accordingly. However during the course of this, the remote link to the court room remained open which resulted in other parties overhearing the conversation on the telephone of the judge with their clerk. The judge made a number of comments whilst portraying frustration at the delay caused in the case. The judge also made comments about the mother pretending to have a cough and that she was trying every trick in the book to avoid difficult questions.

The judge was later made aware of her comments being heard due to the remote link remaining open and the judge was understandable that an application for recusal may follow. When hearing the application for recusal of the judge the judge refused to recuse herself despite the mothers application being made on the grounds of bias. The judge did not believe the comments made were out of line. The mother therefore appealed the judge’s decision. The question for the appeal judge was therefore whether the comments of the judge fell on the other side of the line and therefore gave rise to one of the grounds for recusal. This was the key point to consider especially as the judge made comments about the honesty of the mother and in turned questioned her credibility.

The appeal judge allowed the mothers appeal when considering the objective test of bias. The test is whether a fair minded and informed observer having considered the facts conclude that there is a real possibility the judge was biased. The appeal judge therefore agreed with the mother that the judge by making critical remarks about the mothers honesty during the course of her evidence would cloud the judges view of the witness and demonstrate a real possibility of bias.

Identifying potential bias early in proceedings can be crucial for protecting your rights. Common warning signs include: consistently interrupting one party while allowing the other to speak freely, dismissing evidence without proper consideration, making disparaging comments about a party’s character or lifestyle, showing visible frustration with one side’s arguments, or failing to maintain appropriate courtroom decorum when addressing specific parties.

If you notice these patterns, documenting each incident with dates, times, and witness details becomes essential for any potential recusal application. Our experienced family law team can help you assess whether observed conduct meets the threshold for grounds for recusal.

The procedure for the recusal of a judge was provided in the case of El-Farargy v El Farargy and ors [2007]. In this case the procedure which should be adopted was suggested by Ward LJ as:

• Making an informal approach to the judge by way of a letter in which the complaint is made and inviting recusal.
• Whilst judges must heed the exhortation in local bail not to yield to a tenuous or frivolous objections, one can with honour totally deny the complaint but still pass the case to a colleague. This means that even though the Judge does not believe they have done anything to warrant a recusal they can still pass the matter to a colleague to consider this complaint against them.
• If a judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, hard though it is to sit in judgment of one’s colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour.

The case itself concerned the judge making bad jokes which although were not at all intended to be racist were perceived as being racist and therefore formed one of the grounds for recusal. It was held that the line had been crossed and the comments made by the judge would appear to show there was a real possibility that the Judge would carry this into their judgement.

A successful recusal application requires comprehensive documentation and strategic preparation. Essential elements include detailed written records of concerning incidents, witness statements from court attendees, transcripts of problematic comments (where available), and expert legal assessment of whether the conduct meets established bias thresholds. Timeline documentation proves particularly crucial, as delays in raising bias concerns can weaken your application. Our family law specialists guide clients through this complex process, ensuring all necessary evidence is properly compiled and presented to maximise the likelihood of successful recusal.

Quite often where one party has not received the outcome they were hoping for they may believe the judge was biased which has affected the outcome of their case. This is usually after a final hearing. If a case has concluded then it could be quite normal for one party to feel they have been hard done.

If this party genuinely feels there has been bias then they can look to appeal the decision of the final hearing and submit an application using bias as a ground for recusal.

In some instances the recusal of a judge can take place at the very start or part way through the proceedings. This is usually where the judge is conducting the proceedings in a certain manner or where comments have been made which are likely to be perceived as being biased or favouring one side and therefore give rise to one of the grounds for recusal.

It is recommended for any application for the recusal of a judge in family court to be made as quickly as possible once you have reasons to believe there are grounds to do so. This is further confirmed by the Civil Procedure Rules 1.3 Practice Direction 23A which states “Every application should be made as soon as it becomes apparent that it is necessary and desirable to make it”. It is therefore clear that if you notice any bias whether it is by certain comments being made, your evidence or arguments being ignored or you feeling the judge is only hearing the other side you should promptly consider an application for the recusal of a judge in family court.

Furthermore if there is apparent bias as one of the grounds for recusal then this must be raised as soon as it becomes known. Delaying this or using it later for an appeal can go against the party who is alleging to have been subject to the bias.

Given the stressful and difficult times families face in cases concerning custody of their children or financial settlements, parties may feel there is bias against them if the proceedings are not in their favour. However it must be noted that it can be difficult to portray bias from a judge which means that recusal of a judge is not very common. If you are a party to family proceedings and feel you are negatively impacted due to conduct of judges either by way of perceived bias, their conduct or comments then contact our family law specialists who can assist you in assessing whether there are merits to make an application for recusal of a judge.

Parties are urged to initially make an informal complaint via a letter to the judge setting out their complaint and reasons for believing there are grounds for recusal. Should this be refused by a judge then you would need to make a formal application to the court. If this is required during the course of your proceedings then it is likely this may be heard by the same Judge whose actions or conduct is in question.

When making your application you could request for a different judge to hear your application. If however due to judicial resources your matter is still heard by the judge in question, and they do not make a decision for their recusal then you can appeal their  decision.

At Kabir Family Law our family specialists have years of experience in dealing with complex matters. Should you require assistance with your application for recusal of a judge in family court or want to discuss the merits of such an application then do not hesitate to contact us. We will be happy to discuss this in detail with you in order to ensure you are able to satisfy one of the grounds for recusal.

What does recusal of a judge mean in family court?

Recusal of a judge means the judge steps aside from a case they are dealing with because it’s no longer appropriate for them to continue. This removal or disqualification typically occurs due to bias or conflict of interest that could compromise fair proceedings in family law matters involving child custody or financial settlements.

What are the main grounds for recusal of a judge?

The primary grounds for recusal include judicial bias (actual or perceived), conflict of interest, personal relationships with parties, financial interests in the outcome, inappropriate comments about parties, and prior knowledge of case facts that could influence judgment. Understanding these grounds is crucial when dealing with child arrangements or complex family matters.

How do I apply for recusal of a judge in family court?

Applications for recusal should begin with an informal approach via letter to the judge outlining your complaint. If refused, you can make a formal application to the court. Practice Direction 23A, paragraph 2.5 requires that “Every application should be made as soon as it appears necessary or desirable to make it.”

What is the difference between actual bias and apparent bias?

Actual bias involves direct interest in the case outcome, such as financial connections or personal relationships. Apparent bias, more common in family cases, occurs when judicial behaviour creates reasonable suspicion of partiality without proven underlying interest. Both forms can affect shared custody arrangements and other family proceedings.

Can I get a different judge if mine seems biased against me?

Yes, if you can demonstrate legitimate grounds for recusal such as bias or conflict of interest, you can apply to have the judge removed from your case. Successful applications result in your matter being heard by a different judge. Our family lawyers can assess whether your situation meets the threshold for recusal.

How quickly must I apply for judge recusal?

You should make the recusal application as soon as possible! Delaying recusal applications can significantly weaken your case and may be viewed unfavourably by courts, so prompt action is essential when bias concerns arise.

What evidence do I need for a recusal application?

Essential evidence includes documented inappropriate comments, witness statements, records of unequal treatment, patterns of behaviour suggesting bias, and any conflicts of interest.  

What happens if a judge refuses to recuse themselves?

If a judge denies your recusal application, you have the right to appeal this decision. Appeal courts will independently assess whether grounds for recusal exist using objective tests for bias established in case law such as El-Farargy v El-Farargy [2007], which provides procedural guidance for recusal applications.

Is recusal of a judge common in family cases?

Recusal applications are relatively uncommon as the threshold for proving bias is substantial. However, when legitimate grounds exist and proper procedures are followed, courts do grant recusal to maintain justice and fairness. This is particularly important in sensitive cases involving discharging care orders or complex custody disputes.

Can inappropriate judicial comments lead to recusal?

Yes, inappropriate comments about parties’ honesty, character, or case merits can form grounds for recusal if they demonstrate potential bias. The key test is whether comments would make a fair-minded and informed observer conclude there’s real possibility of bias, as established in Porter v Magill [2001]. This test was applied in C (A Child) [2020], where the Court of Appeal found that judicial comments about a mother’s honesty during proceedings met this threshold.

What is the objective test for judicial bias?

The objective test asks whether a fair-minded and informed observer, having considered the facts, would conclude there’s a real possibility the judge was biased. This standard protects both judicial independence and parties’ rights to fair hearings, ensuring proper justice in family law proceedings.

Can I request a specific judge for my family case?

While you cannot typically choose your judge, you can apply for recusal if legitimate concerns exist about the assigned judge’s ability to remain impartial. Courts prioritise fair proceedings over convenience, particularly in emotionally charged cases involving child welfare or domestic arrangements.

How much does applying for judge recusal cost?

Costs vary depending on complexity and whether formal applications are required under Civil Procedure Rules Part 23. Initial informal approaches may only involve legal consultation fees, while formal court applications incur additional court fees and legal costs.  

What should I document if I suspect judicial bias?

Document exact comments made, dates and times of incidents, witnesses present, unequal treatment patterns, and any behaviour suggesting predetermined conclusions. Contemporaneous notes strengthen potential recusal applications significantly and provide crucial evidence for formal proceedings.

Can past relationships between judge and parties cause recusal?

Previous professional or personal relationships between judges and parties can constitute grounds for recusal depending on their nature and extent. Even indirect connections through third parties may create conflicts requiring recusal to maintain judicial impartiality in family proceedings.

What happens to my case after successful judge recusal?

Following successful recusal, your case transfers to a different judge who reviews the file and continues proceedings appropriately. While this may cause some delay, it ensures fair treatment going forward and maintains confidence in the judicial process.

Can I appeal a family court decision based on judicial bias?

Yes, judicial bias can form grounds for appealing family court decisions. However, bias concerns should ideally be raised during proceedings rather than after judgment, as courts prefer contemporaneous objections to post-decision challenges.

How do family law solicitors help with recusal applications?

Experienced family law solicitors assess whether conduct meets recusal thresholds, prepare comprehensive applications with supporting evidence, guide clients through Civil Procedure Rules procedures, and provide strategic advice on timing and approach for maximum success.

What court rules govern judge recusal procedures?

Judge recusal follows Civil Procedure Rules Part 23 and Practice Direction 23A requiring prompt applications. Case law from El-Farargy v El-Farargy provides procedural guidance for making effective recusal applications.

When should I contact a family law specialist about recusal?

Contact specialists immediately if you notice patterns of bias, inappropriate comments, unequal treatment, or conflicts of interest. Early professional assessment helps determine whether grounds exist and ensures proper procedures are followed from the outset. Call us today for a free initial consultation or let us call you back.