Recusal Applications in Family Proceedings

what is a recusal application?

Recusal refers to the removal of a judge from a case due to a perceived bias or conflict of interest, making it inappropriate for them to reside over it. Recusal can be initiated by the judge voluntarily or through a recusal application made by a party.

If you’re currently going through a divorce and would like to remove a judge from further hearings of your case, we can help. Click below for a free initial consultation with one of our expert divorce solicitors. 

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Grounds for recusal

It is important that judges are impartial to ensure fairness in court proceedings. As such, the grounds for recusal concern a judge’s ability to act impartially and preside over proceedings fairly, namely:

• Conflict of interest - e.g. if the judge has a close relationship with one of the parties involved or a financial stake in the outcome of the case. 
• Actual bias - where the judge is affected by prejudice towards or against one of the parties. Cases of a judge being recused due to actual bias are rare.
• Apparent bias - where a ‘fair-minded and informed observer’ would conclude that there was a ‘real possibility’ of bias.

How to make a recusal application

The procedure for the recusal of a judge by a party to the case, which was provided by Ward LJ in the case of El-Farargy v El-Farargy [2007] EWCA Civ 1149, sets out that: 

• First, an informal approach must be made by way of a letter in which the complaint is made and inviting recusal. 

• Second, the judge is able to deny the complaint but still pass the case to a colleague. 

• If the judge does not feel able to do so, then it may be possible to have another judge take the decision since ‘it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour’.