D (A Child) (Recusal): Court of Appeal sets aside irregular recusal and clarifies procedural requirements

The Court of Appeal has provided important guidance on the proper procedure for recusal applications in family proceedings, allowing an appeal against a district judge's decision to recuse himself and setting aside subsequent orders that had overturned fact-finding judgements.

In D (A Child) (Recusal) [2025] EWCA Civ 1570, the parents of a young child were engaged in private law proceedings under the Children Act 1989. Following a three-day fact-finding hearing in October 2024, District Judge Hatton handed down a detailed judgement in November addressing allegations of domestic abuse raised by the mother against the father. The judge found the majority of allegations not proven or not established as welfare concerns, whilst making qualified findings on others relating to the father's lack of parenting experience.

The irregular recusal

In January 2025, the mother sent a 60-page document to the district judge requesting recusal on grounds of apparent bias. The document extensively criticised the judgement and asserted that various findings demonstrated bias. Without seeking representations from the father or giving reasons, District Judge Hatton made orders on 6 February 2025 recusing himself and transferring the proceedings to another court.

When the mother's appeal against the fact-finding judgement came before HHJ Greensmith in July 2025, the recusal emerged during proceedings. Despite having read the hearing transcript and noting he could see "no evidence of any obvious bias", Judge Greensmith allowed the appeal solely on the basis that the unexplained recusal constituted a serious procedural irregularity, setting aside all findings.

Court of Appeal decision

Lord Justice Baker, delivering the leading judgement with which Lord Justices Cobb and Miles agreed, identified fundamental procedural flaws. The district judge had acted irregularly by failing to seek representations from the father and providing no reasons for his decision. Applying the established test from Porter v Magill [2002] 2 AC 357, the Court found no merit in the mother's assertion of bias. Her grounds constituted substantive challenges to evidential findings rather than establishing apparent bias.

Significantly, the Court concluded that the district judge's order had merely transferred future conduct of the case, with nothing suggesting he intended his recusal to invalidate his findings. Had he accepted the bias allegations, he would have been bound to list a hearing, obtain the father's response, and if necessary explain why findings should be set aside.

Procedural requirements clarified

The Court emphasised that judges facing recusal applications must provide sufficient information to enable fair adjudication, consistent with Article 6 ECHR. When Judge Greensmith encountered the recusal issue during the appeal, fairness required him to establish the district judge's reasons and allow both parties to respond before determining the appeal on that alternative basis. Drawing on Re W (Children: Reopening/Recusal) [2020] EWCA Civ 1685, the Court held that this process denied the father a fair opportunity to address the proposal that findings be set aside.

Outcome and remittal

The Court allowed the father's appeal, set aside the recusal orders, and remitted the mother's outstanding grounds of appeal to be heard by HHJ Singleton KC, the Designated Family Judge for Manchester. Lord Justice Baker concluded by addressing the mother's reliance on artificial intelligence in preparing submissions, noting the duty owed by all parties to ensure cited authorities are genuine and support propositions advanced.

The judgement provides essential guidance on procedural fairness in recusal applications, confirming that unexplained withdrawal from a case cannot alone justify setting aside substantive findings made in accordance with proper judicial process.

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