W (Children: Reopening/recusal)

Findings of fact in family proceedings may be reopened only where genuine new information provides solid grounds for believing that they require revisiting. The court must balance finality against sound welfare decisions and ask whether a rehearing might produce a different result.

Apparent bias arises only where the fair-minded and informed observer would conclude that there was a real possibility of bias. The relevant facts must first be established and disclosed so that the parties can respond. A connection unknown to the judge when judgment was given cannot have influenced the decision and will ordinarily dispel apparent bias. Setting findings aside for apparent bias is an appellate act and requires a fair procedure.

The mother appealed against HHJ Duggan’s order setting aside findings of domestic abuse made by District Judge Wylie in private law proceedings concerning two children. The District Judge had later withdrawn from the case after discovering that her son and the mother belonged to the same hockey club and were connected on social media. The District Judge had not known of that connection when making the findings.

At a hearing listed to determine the father’s application to reopen three findings concerning a former partner, the Judge raised apparent bias of his own motion. Without knowing or disclosing the material facts, he set aside all six findings. The father’s reopening application was not separately determined.

The central issues were whether the findings were affected by apparent bias, whether the procedure was fair, and whether the father had produced sufficient new information to justify reopening the findings.

1. Appeal allowed unanimously. The order setting aside the District Judge’s findings could not stand. The findings were restored, the father’s application to reopen them was dismissed, and the proceedings were remitted for the welfare decision to be made by another Circuit Judge.

2. The correct test for apparent bias is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was biased. The Judge applied a weaker and incorrect formulation by asking whether an observer would merely be concerned that justice had not been seen to be done.

3. The facts must be established before apparent bias is determined. Once the District Judge chose to withdraw on that basis, she should have ensured that the parties were formally notified of her reason. The Judge could not fairly determine apparent bias while referring only to an unexplained family connection. Neither party had a meaningful opportunity to address the proposal to set aside the findings.

4. The community and social-media connection was a matter that a judge aware of it should disclose. It would not ordinarily lead an informed observer to conclude that the case could not be tried fairly. Any possible appearance of bias affecting the earlier findings was dispelled because the District Judge did not discover the connection until months after giving judgment.

5. A decision to set aside findings for apparent bias could be made only in an appellate capacity. Although the unusual circumstances did not prevent the Judge from raising the issue despite the absence of an appeal, he failed to address the procedural steps needed to exercise appellate jurisdiction.

6. Reopening findings is exceptional. It requires genuine new information and solid grounds for believing that the findings need revisiting. The court must balance finality against sound welfare decisions and consider resources, delay, truth, the significance of the findings, the quality of the new evidence, and whether a rehearing might reach a different result.

7. The father’s material was an attempt to relitigate regularly made and unappealed findings. One statement was already before the trial court, another could have been obtained for trial, and the suggested effect of medication was speculative. There was no significant new information, no solid ground for revisiting the findings, and no reason to expect a different result.

1. Court of Appeal (Civil Division): Allowed the mother’s appeal, restored the District Judge’s findings, dismissed the father’s reopening application, and remitted the proceedings for a welfare decision by another Circuit Judge: [2020] EWCA Civ 1685.
2. Family Division: Knowles J granted the mother permission to appeal and transferred the appeal to the Court of Appeal under rule 30.13 of the Family Procedure Rules 2010.
3. Family Court at Leyland: HHJ Duggan set aside all findings made by District Judge Wylie on the ground of apparent bias, without determining the father’s separate reopening application.