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(Court of Appeal; Thorpe, Smith and Patten LJJ; 23 September 2010)
The guardian raised the possibility that the children were exposed to domestic violence and supported the mother's version of events rather than taking a neutral stance. The recorder rejected the evidence of the father and found domestic violence, describing the guardian's submissions as key. Subsequently the guardian's counsel discovered that the guardian had instructed the recorder in a different case which was still ongoing. An application was made for the recorder to recuse herself. The recorder did so, but refused to set aside her the earlier findings.
The father's appeal was allowed. Whatever the reasons the recorder had for recusing herself, it must be based on the possibility that an objective bystander might question her impartiality. Logically taint must exist in respect of past conduct. Judges should err on the side of caution and reveal anything that might provoke an application to recuse. The judge had not given full details of the relationship or properly applied the informed bystander test. Each case will be fact dependent, but the currency of the relationship and the fact that the guardian had not taken a neutral stance on the fact find were relevant.
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