L & B (Children), Re

Factual and Procedural Background

In March 2009, the London Borough of Lambeth initiated public law proceedings concerning three children from a family characterized by a turbulent parental relationship. Interim Care Orders were issued for two children and an Interim Supervision Order for the third in September 2009. A guardian, Ms Cocker-Thompson, was appointed and prepared an interim report in August noting exposure of the children to domestic violence. A hearing initially intended as a disposal fixture in October was adapted to investigate the domestic violence issue.

The hearing took place over four days from 19 to 23 October, during which Recorder Sadd found the father guilty of persistent domestic violence against his wife and, to some extent, two of the children. The guardian did not maintain neutrality but instructed counsel to support the mother’s evidence, which the Recorder accepted as key to her judgment.

A subsequent hearing scheduled for May 2010 was adjourned for unrelated reasons. However, concerns arose when it was revealed that Recorder Sadd had ongoing instructions from the guardian in another public law case at the time of the October trial. An application for the Recorder’s recusal was made. On 18 May, the Recorder recused herself from determining the children's future but refused to set aside her previous findings on domestic violence.

Permission to appeal this refusal was granted by Black LJ on 2 July, recognizing the appeal as plainly arguable. The family responsibility had since transferred from Lambeth to Camden, which submitted a note explaining limited involvement. The appeal was then thoroughly prepared and heard.

Legal Issues Presented

1. Whether the Recorder’s ongoing professional relationship with the guardian in another case gave rise to an appearance of bias requiring recusal from the October fact-finding hearing.
2. Whether the Recorder was correct in refusing to set aside her findings on domestic violence despite her subsequent recusal from the case’s disposal phase.
3. The application of the informed objective observer test to the circumstances of judicial recusal where a judge has continuing professional involvement with a party or participant in related proceedings.

Arguments of the Parties

Appellant's Arguments

• The Recorder’s recusal from the future hearing on grounds of potential bias logically extends to her prior fact-finding judgment, which should be set aside.
• The guardian is not a party but an expert; however, the continuing professional relationship between the Recorder and the guardian in another case creates a risk of perceived bias.
• The rationale for recusal includes the commercial relationship, trust between lawyer and client, and ongoing professional duties, which apply here given the guardian-solicitor relationship advancing the child’s welfare.

Respondents' Arguments

• The guardian is not an ordinary litigant, and the relationship between a judge and a guardian’s solicitor is distinct from typical litigant relationships.
• The House of Lords, particularly in Helow, emphasized the informed bystander test, which accounts for the realities of public law practice, where judicial practitioners often maintain public law practices outside judicial sittings.
• The cited case of Re G and B (Children: Fact-finding hearing) does not address recusal but concerns listing questions after appeals, thus is not applicable.
• The guardian’s statutory and expert role varies by case, and neutrality is usual in fact-finding hearings; however, here the guardian supported the mother’s case fully, which is a relevant factor.
• Concerns about delay have been mitigated by procedural steps allowing a fresh hearing before a different judge.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the circumstances surrounding the Recorder’s ongoing professional involvement with the guardian in another case at the time of the October fact-finding hearing. It emphasized that the informed bystander test requires consideration of the knowledge an objective observer would have, including the common practice of judicial practitioners maintaining legal practices.

However, the court found that the Recorder failed to disclose adequately the extent and nature of her professional relationship with the guardian, which is critical to applying the informed bystander test properly. The Recorder’s brief acknowledgment of “professional involvement” without detailed explanation was insufficient.

The court noted that the guardian’s role in this case was not neutral but actively supportive of the mother’s evidence, which heightened the importance of impartiality and the appearance thereof. The Recorder’s failure to recuse herself at the fact-finding stage, given the continuing relationship, undermined confidence in the impartiality of her findings.

Furthermore, while the Recorder recused herself from future hearings, she declined to set aside her prior findings, a decision the court found inconsistent. The court suggested that the question of setting aside the findings might have been better addressed by another judge but ultimately concluded that the appeal should be allowed.

Additional judicial comments stressed the necessity for judges to explain the nature and extent of any professional relationships that might give rise to bias concerns, as parties cannot otherwise properly assess the application of the informed bystander test.

Holding and Implications

The court’s final decision was to allow the appeal and grant the application for recusal and setting aside of the Recorder’s findings from the October fact-finding hearing.

The direct effect of this ruling is that the previous findings of fact concerning domestic violence made by the Recorder must be set aside, and the matter will be reheard by a different judge starting afresh. The court did not establish a broad general rule regarding guardians and solicitors but emphasized that recusal decisions are fact-specific, particularly hinging on the currency and nature of any professional relationships.

No new precedent was established beyond the application of existing principles on judicial recusal and the informed bystander test to the unique facts of this case.