Published on 6 May 2024
SECOND SECTION
Application no. 4986/24
A and B
against Malta
lodged on 17 February 2024
communicated on 15 April 2024
SUBJECT MATTER OF THE CASE
The application concerns the impartiality of a judge in childcare proceedings and the procedure relating to the withdrawal of a judge.
The first applicant (A) is the father of the second applicant (B) of whom he has care and custody, the mother having access rights (in the absence of her partner). During the proceedings, having considered certain decisions concerning the access arrangements as being unfavourable and showing bias, the first applicant, via his lawyer, asked the judge to abstain from the proceedings due to a conflict of interest – his lawyer requested the court to hear his motives and evidence in camera. Fearing that that challenge might delay a decision on the merits of an urgent pending request concerning access arrangements, two weeks later he withdrew the challenge.
His concerns about the partiality of the judge having persisted, five weeks later, he again asked the judge to withdraw on the basis that the opposing party’s lawyer was also the judge’s private lawyer. He, thus, considered that there had been a conflict of interest, so much so that the same judge had abstained from hearing another case on the same ground.
In line with Article 738 (1) of the Code of Organisation and Civil Procedure (‘COCP’) the same judge rejected the challenge having considered that it had not been submitted in limine litis and that the decisions leading to the request had not indicated any bias, be it under the objective or subjective impartiality test.
No appeal lay against such a decision and proceedings continued before the same judge.
The applicants instituted proceedings before the constitutional jurisdictions complaining about the lack of protection afforded to the second applicant, and the failure of the judge to inform the parties of her situation with the opposing party’s lawyer and/or abstain from the case of her own motion which they considered amounted to a breach of Articles 8, 6 and 13 of the Convention. They further complained that Article 738 (1) of the COCP which provided that a judge decides on his own recusal was in breach of Article 6 of the Convention.
The first instance constitutional jurisdiction (‘FHCC’) rejected all the claims. It considered that the ground relied on by the applicants to challenge the judge was not one of the abstention grounds provided for in the law. Moreover, the judge’s professional relationship with her lawyer had come to an end six months before the impugned proceedings. As to Article 8, it noted that it would not have been in the child’s best interest to cut ties with his mother. As to the complaint concerning Article 738 of the COCP, it could not be said that the judge had been deciding her own cause, as she was not a party to the proceedings. Citing domestic jurisprudence, it considered that a judge deciding on his own recusal request had to act impartially, in line with his oath and function, otherwise he could be liable to consequences.
On appeal, by a judgment of 25 October 2023, the Constitutional Court confirmed the first-instance judgment. It recalled that, under Article 8, the State had a positive obligation to safeguard family life with both parents and the family court was better suited to examine the access arrangements. As to Article 6, no evidence had been submitted showing that once the professional relationship between the judge and the opposing party’s lawyer had ended, there had remained any reasons (such as gratitude) to put in doubt the judge’s impartiality. Moreover, the applicants’ lawyer was aware of this situation earlier, yet he had not told his client. Furthermore, in a small country it would be impractical for a judge to withdraw in such cases. As to the complaint concerning Article 738 of the COCP, it considered that its examination was an academic exercise which was not necessary in the present case.
The applicants bring the same complaints under Articles 6 and 8 of the Convention before this Court.
QUESTIONS TO THE PARTIES
1. Was the family court which dealt with the decisions concerning the access arrangements impartial as required by Article 6 § 1 of the Convention (see for general principles Micallef v. Malta [GC], no. 17056/06, §§ 93-99, ECHR 2009 and Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 287, 4 December 2018)?
2. Having regard to the facts pertaining to the present case and the procedure under Article 738 (1) of the Code of Organisation and Civil Procedure by which the family court decided the partiality challenge lodged against it, was that court impartial as required by Article 6 § 1 of the Convention (see A.K. v. Liechtenstein, no. 38191/12, §§ 74-84, 9 July 2015, A.K. v. Liechtenstein (no. 2), no. 10722/13, §§ 66-67, 18 February 2016, and Mikhail Mironov v. Russia, no. 58138/09, §§ 37-40, 6 October 2020)?
3. Bearing in mind the decisions of the family court, has there been a violation of the applicants’ right to respect for their private and family life, contrary to Article 8 of the Convention?