Facts
The parties are the married, separated parents of two children (born 2007 and 2010). The wife gave birth to twins in 2018. The husband (appellant) was involved in several family law proceedings before the District Court of St. Gallen, all presided over by family judge [B.] : a protective marriage measures proceeding (concluded at first and second instance in 2017/2018), a proceeding to amend protective marriage measures, a divorce proceeding (action filed by the wife on 17 September 2018, struck from the register on 29 April 2019 following withdrawal of the action) and provisional measures for the duration of the divorce proceedings. The District Court decided the combined measures proceedings on 7 February 2019; the husband appealed. On 18 January 2019 the official guardian of the twins filed an action to contest the presumption of paternity.
By submission of 13 February 2019, the husband requested in his own name and on behalf of the two children that the family judge be recused immediately in all proceedings concerning them. The District Court (President) did not enter into the request insofar as it was made on behalf of the children and insofar as recusal was sought in the measures proceedings; otherwise it dismissed the request. The Cantonal Court of St. Gallen (single judge in family law) struck the divorce proceeding from the register as moot on 28 June 2019, did not enter into requests going beyond the subject matter of the dispute, and dismissed the appeal for the remainder. The decision was served on 10 July 2019.
On 9 August 2019 the husband lodged an electronic appeal with the Federal Supreme Court, in his own name and on behalf of the children, requesting annulment of the cantonal decision and approval of the recusal request. He provided the submission with a qualified electronic signature and sent it to the correct service address, but as a simple e-mail rather than through the IncaMail delivery platform, although he had affixed the notation 'PER INCAMAIL'. Further submissions of 31 December 2019, 8 January 2020 and 8 July 2020 (including a recusal request against cantonal judge [H.] ) were disregarded as untimely. The investigating judge did not enter into the provisional recusal request against the cantonal judge on 14 July 2020 for lack of jurisdiction. No responses were requested.
The subject matter of the dispute was whether the family judge must recuse herself for bias, in particular in the contestation proceedings concerning the presumption of paternity (VV.2019.12 and VV.2019.13) and in the other family law proceedings.
Considerations
Admissibility and form: The civil law appeal is directed against a decision of a last cantonal instance on a recusal request (Art. 75 and Art. 92 FSCA); it concerns a civil matter that is not pecuniary (Art. 72 para. 1 FSCA). The standing of the children and the father's power of representation are doubtful and are therefore provisionally assumed for the purposes of the admissibility question. However, the electronic appeal was not filed through the recognised delivery platform but as a simple e-mail. The Federal Supreme Court does not enter into such submissions (Art. 42 para. 4 FSCA in conjunction with FSCEJR). An obvious error that would have required a grace period (Art. 42 para. 5 FSCA) did not exist, since the appellant himself affixed the notation 'PER INCAMAIL'. There was no duty to point out the formal defect, since the time limit under Art. 46 para. 2 FSCA had already expired or could no longer be corrected at the time of receipt. Whether the time limit for the individual main proceedings should be calculated differently was left open by the court, since the appeal was in any event unfounded.
Principle of allegation and statement of facts: The Federal Supreme Court applies the law of its own motion but examines alleged violations of constitutional rights only insofar as they are clearly and specifically raised (Art. 106 para. 2 FSCA). It is bound by the facts established (Art. 105 para. 1 FSCA). Most fundamental rights complaints (Cst., ECHR, UN Covenant II, CRC) were not substantiated and remained unaddressed; likewise the complaint concerning the postal dispatch, since its relevance to the decision was not demonstrated. Later submissions were disregarded as untimely.
Party status and procedural complaints: The children [D.] and [E.] were not affected in the contestation proceedings (which concerned the twins), so they lacked a legal interest in protection (Art. 59 para. 2 let. a CPC). For the divorce proceeding there was no sole power of representation for the father, since parental authority is exercised jointly and a recusal request is neither an everyday nor an urgent matter (Art. 301 para. 1bis no. 1 CC). The requests not entered into concerned case management and the substantive examination of claims, which are not to be reviewed in recusal proceedings. The appearance of bias was examined only for the contestation proceedings; for the divorce proceeding, which had been struck from the register, there was no legal interest in a subsequent assessment. Hearing the other parties was not required, since the appellant cannot invoke the right to be heard of third parties.
Recusal under Art. 47 para. 1 let. a and f CPC and Art. 30 para. 1 Cst.: A judge is biased if objectively justified circumstances give rise to the appearance of bias; the subjective perception of a party is not decisive, and actual bias is not required. The judge's political activity (legal advice for a party, election campaign support for the legal representative of the stepdaughter) does not in itself constitute a ground for recusal and shows no concrete connection to the case. The restriction of the maintenance claim…