Judge refuses recusal after personal lawyer acts for one of the parties

One of the parties’ lawyers, Stephen Thake, was the judge’s personal lawyer in a separate case concerning her marital separation

Judge Jacqueline Padovani Grima
Judge Jacqueline Padovani Grima

A family court judge has refused to recuse herself from a parental custody case where one of the parties is being defended by the judge’s personal lawyer.

The recusal request came after Madam Justice Jacqueline Padovani Grima was assigned a family case regarding the care and custody of a minor.

One of the parties’ lawyers is Stephen Thake. It transpired during the case that Thake was the judge’s personal lawyer in a separate case concerning her marital separation.

In a previous civil case unconnected with this family court case, which Padovani Grima was also presiding over, Thake had also been lawyer to one of the parties. In that case, the judge herself, without being asked to do so, had requested that she be removed from the case and was later substituted.

In view of this, an application for the recusal of Madam Justice Padovani Grima was filed in the acts of the family case.

As the law stands, applications for recusal are decided upon by the same judges who are being asked to recuse themselves. In this case, Padovani Grima refused to recuse herself and a Constitutional Case was filed.
The judge was asked by one of the parties to suspend the proceedings before her until the Constitutional Case is decided, but she refused.

The Constitutional Court was asked on three occasions to issue an interim measure, that would order Madam Justice Padovani Grima to stop hearing the family case until the Constitutional Court determines the case for her recusal.

But the Constitutional Court refused these three requests and the judge is still hearing evidence in the family case.

Foreign jurisdictions had changed their legislative framework after realising the consequences of an unjust refusal by a judge of a recusal request, forcing such requests to be heard by another judge, argued the father’s lawyers.

As the law stands in Malta, it is the presiding judge whose recusal is requested, who decides on whether or not to recuse.

The lawyers argued that this is in breach of one of the most basic legal tenets – nemo judex in causa sua – which holds that nobody should be a judge in their own case.