D (A Child) (Recusal)

In family proceedings, an unexplained self-recusal does not establish apparent bias or invalidate earlier fact-finding. The recusing judge should seek the other party’s representations and give brief reasons sufficient to identify the relevant circumstances. A recusal order ordinarily governs future conduct unless its terms show that earlier findings are being set aside. An appellate judge who raises recusal during an appeal must obtain the reasons, inform the parties and allow meaningful submissions before relying on it to overturn findings. Apparent bias is assessed by considering all relevant circumstances and asking whether a fair-minded and informed observer would see a real possibility of bias. Complaints that a judge misunderstood or rejected evidence generally concern the merits, not recusal. All parties must verify that cited cases exist and support the propositions advanced.

The appeals arose from private-law children proceedings concerning a boy born in January 2023. Following a three-day fact-finding hearing, District Judge Hatton made findings on the mother’s allegations, dismissed her application for a non-molestation order and gave case-management directions concerning the father’s application for contact.

The mother later sought the district judge’s recusal, alleging apparent bias and procedural unfairness. On 6 February 2025 the judge recused himself without hearing from the father or giving reasons. On 21 July 2025 HH Judge Greensmith allowed the mother’s appeal and set aside the fact-finding judgment solely because of the unexplained recusal. He later dismissed the father’s application for reasons and certified it as totally without merit. The central issues were the effect of the recusal, the proper appellate procedure and whether the findings should stand.

Disposition and recusal

1. The three appeals were resolved in the father’s favour. The orders by which District Judge Hatton recused himself were set aside. HH Judge Greensmith’s order allowing the appeal against the fact-finding judgment was also set aside. The outstanding appeal grounds were remitted to HHJ Singleton KC. There was no order on the appeal concerning reasons for recusal, save that the certificate that the application was totally without merit was set aside.

2. The district judge’s procedure was irregular. He neither sought the father’s representations nor gave reasons for recusing himself. That procedural defect alone was sufficient to set aside the recusal orders. A judge faced with an apparent-bias application should provide relevant information and brief reasons sufficient to explain the challenged circumstances, while avoiding unnecessary disclosure or cross-examination: Re L-B (Children) [2010] EWCA Civ 1118; Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 515. That obligation is compatible with Article 6(1) of the Convention.

3. There was no evidential basis for apparent bias. The mother’s grounds substantially challenged the judge’s assessment and characterisation of the evidence. The apparent-bias test requires all relevant circumstances to be identified, followed by an assessment whether a fair-minded and informed observer would conclude that there was a real possibility of bias: Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468; Porter v Magill [2001] UKHL 67. The observer is not the litigant: Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556. Earlier adverse comments or findings that evidence was unreliable do not, without more, establish apparent bias: Locabail.

4. The recusal orders concerned the future conduct of the proceedings. They did not indicate that the district judge intended his earlier findings to be set aside. If he had accepted that his findings were tainted, fairness would have required a response from the father, a hearing and reasons for setting them aside.

5. HHJ Greensmith acted unfairly in determining the appeal on a new recusal basis without first obtaining the district judge’s reasons and giving the parties a meaningful opportunity to respond. The approach required on an appeal involving recusal was explained in Re W (Children: Reopening/Recusal) [2020] EWCA Civ 1685. The two substantive grounds for which permission to appeal had been granted remained undecided and were remitted without expressing any view on their merits.

For completeness, the Court observed that artificial intelligence may assist legal preparation but is neither authoritative nor infallible. Represented and unrepresented parties alike owe a duty to ensure that cited cases are genuine and support the propositions advanced.

1. Court of Appeal (Civil Division): Allowed the appeal against District Judge Hatton’s recusal orders and the appeal against HHJ Greensmith’s order of 21 July 2025. Remitted the outstanding merits appeal to HHJ Singleton KC. Made no order on the appeal concerning reasons, except that the totally-without-merit certificate was set aside.

2. Family Court at Manchester: On 31 July 2025 HHJ Greensmith dismissed the father’s application for reasons for the recusal and certified it as totally without merit.

3. Family Court at Manchester: On 21 July 2025 HHJ Greensmith allowed the mother’s appeal against the fact-finding decision solely because District Judge Hatton had recused himself without giving reasons, and set aside the judgment.

4. Family Court at Manchester: On 6 February 2025 District Judge Hatton recused himself and transferred the future proceedings to the Family Court at St Helens.

5. Family Court at Manchester: On 5 November 2024 District Judge Hatton determined the fact-finding issues, dismissed the mother’s non-molestation application and made further case-management and interim child-arrangements directions.