D (A Child) (Recusal) [2025] EWCA Civ 1570 – Recusal, Apparent Bias and the Integrity of Prior Findings

1. Introduction

The Court of Appeal’s decision in D (A Child) (Recusal) [2025] EWCA Civ 1570 addresses a highly unusual situation in private law children proceedings under the Children Act 1989. It provides important guidance on:

When and how a judge may properly recuse themselves on grounds of apparent bias;
Whether a post-judgment recusal taints earlier findings of fact;
The duties of both first-instance and appellate courts when a recusal has occurred without reasons;
The proper procedural route for challenging such a recusal; and
The responsibilities of litigants (particularly litigants in person) when using artificial intelligence to generate legal submissions.

The case arises out of private law proceedings about a very young child, D, born in January 2023. The father applied for a child arrangements order to spend time with D. The mother opposed contact and advanced a wide range of allegations, including rape, harassment, inappropriate conduct around her older child T, and an alleged unhealthy focus on images of young boys. A three‑day fact-finding hearing took place before District Judge Hatton (“DJ Hatton”), who largely rejected the mother’s allegations as not proven or not amounting to a welfare risk.

Dissatisfied, the mother (acting in person) sought to appeal and, crucially, applied for the district judge to recuse himself, alleging apparent bias. She submitted a 60‑page “grounds for recusal” document, heavily assisted by artificial intelligence and containing a mixture of valid case-law and entirely fictitious or misapplied authorities.

Without hearing the father and without giving any reasons, DJ Hatton then “recused himself from the case” and transferred it to the Family Court at St Helens. Later, on the mother’s appeal against his findings, His Honour Judge Greensmith (“HHJ Greensmith”) treated the recusal as a serious procedural irregularity that rendered the fact‑finding judgment unsafe, and he set aside all the findings without examining the substantive appeal grounds for which permission had been granted.

The father brought three linked appeals to the Court of Appeal:

An appeal against HHJ Greensmith’s decision to set aside the fact‑finding judgment because of the recusal;
An appeal against DJ Hatton’s recusal decision itself; and
An appeal against HHJ Greensmith’s refusal to require reasons for the recusal and his marking that application as “totally without merit”.

The Court of Appeal (Baker, Cobb and Miles LJJ) allowed the first two appeals and partially allowed the third, setting down an important clarification of the law on recusal, apparent bias and the durability of prior findings.

2. Summary of the Judgment

At a high level, the Court of Appeal held:

The recusal orders made by DJ Hatton were procedurally irregular and unjustified on the facts. He recused himself without (a) giving reasons and (b) giving the father any opportunity to be heard. That justified setting aside the recusal orders themselves.
A judge’s post‑judgment recusal does not, without more, invalidate earlier findings. Recusal primarily concerns the judge’s involvement in future hearings. There was nothing to suggest that DJ Hatton accepted that his judgment was tainted by bias, nor any objective basis for such a conclusion.
The mother’s extensive “grounds for recusal” did not meet the legal test for apparent bias. They were, in substance, an attack on the judge’s evaluative findings of fact and assessment of evidence, not evidence of bias.
HHJ Greensmith erred in law and in procedure by:
- Setting aside the fact‑finding judgment solely because of the unexplained recusal;
- Failing to seek reasons from the district judge; and
- Failing to give the parties a proper opportunity to address the new basis on which he proposed to allow the appeal.
The mother’s substantive appeal against the fact‑finding judgment remains live, but only on the two grounds for which permission had previously been granted. Those grounds (and potentially her application to reconsider the limitation of her appeal grounds) are remitted to HHJ Singleton KC for determination.
The father’s appeal against the refusal to seek reasons from the district judge became academic once the recusal orders were set aside, but the Court of Appeal did set aside the “totally without merit” certification.
Use of AI‑generated legal materials carries responsibilities. Litigants and lawyers must ensure that authorities cited exist and genuinely support the propositions advanced. Artificial intelligence is not an authoritative legal source and can generate fictitious (“hallucinated”) cases.

3. Detailed Background and Procedural History

3.1 The underlying Children Act proceedings

The mother had an older child, T, from a previous relationship. After the relationship between the parties broke down, the father issued an application in May 2023 in the Manchester Family Court for a child arrangements order to have contact with D. The mother opposed and alleged domestic abuse; in October 2023 she also applied for a non‑molestation order.

A three-day fact‑finding hearing took place in October 2024 before DJ Hatton. Both parents were litigants in person but had Qualified Legal Representatives (QLRs) to conduct cross‑examination. Participation directions were made for the vulnerable mother (including screens).

In his written judgment of 5 November 2024, the district judge:

Found that the mother had not proved domestic abuse or that the father posed a risk to D’s welfare (para 35);
Rejected serious allegations including:
- Rape;
- Harassment and stalking;
- Inappropriate touching of T as a welfare concern;
- An unhealthy infatuation with young boys or images of them;
Accepted some limited criticisms of the father’s WhatsApp communications and experience with children, recommending a parenting course and better communication practices;
Concluded that there was no basis for a non‑molestation order and that there was no compelling reason to deny the father parental responsibility (though he postponed making that order pending Cafcass advice); and
Envisaged progression to unsupervised contact in due course, subject to Cafcass advice.

Case-management directions were given towards a dispute resolution hearing on 24 February 2025, and interim indirect contact was ordered.

3.2 The mother’s appeal and recusal application

On 8 November 2024, the mother filed a 25‑page notice seeking permission to appeal, challenging virtually every aspect of the judgment. Permission was refused on paper by HHJ Greensmith on 6 January 2025; the mother exercised her right to an oral renewal.

On 15 January 2025, the mother wrote to DJ Hatton requesting that he recuse himself, attaching a 60‑page document entitled “Grounds for Recusal”. That document:

Repeated her criticisms of the judgment at exhaustive length;
Repeatedly asserted that “your judgment demonstrates bias”;
Alleged misrepresentation of her evidence, mischaracterisation of facts, and failure to give weight to her safeguarding concerns;
Cited R v Sussex Justices, ex p McCarthy and Porter v Magill for the test of apparent bias; and
Contained a mixture of accurate case citations, misused authorities, and wholly fictitious cases, generated in part by artificial intelligence.

Critically, her allegations of “bias” were tied almost entirely to the content of the judge’s judgment – i.e. his evaluation of the evidence and his conclusions – rather than to any extraneous factor or improper conduct.

3.3 The district judge’s recusal orders

On 6 February 2025, in two linked cases (the substantive Children Act proceedings and a new enforcement application), DJ Hatton made substantially identical orders which provided:

“District Judge Hatton recuses himself from the case and the matter is no longer reserved to him.”
Transfer of the case to the Family Court at St Helens, where the mother and child now lived; and
Vacation of the 24 February 2025 hearing, to be relisted at St Helens.

There were no recorded reasons, and the father had no opportunity to respond to the recusal application. The order simply recited that it was made “upon considering the mother’s request for recusal” and “upon consideration of the court file”.

Notably, the order assumed that the case would proceed in St Helens to the relisted hearing on the basis of the existing findings. Nothing indicated that the judge intended to disturb his fact-finding judgment.

3.4 The mother’s appeal and HHJ Greensmith’s decisions

On 14 February 2025, HHJ Greensmith granted the mother permission to appeal in part and ordered a full transcript of the fact-finding hearing. On 31 March 2025, after considering that transcript, he limited the appeal to two discrete findings:

Inappropriate conduct towards T (referred to as “Samuel”) on 12 occasions; and
The judge’s failure to treat the posting of children’s images as a welfare concern.

This order again gave the mother the right to seek reconsideration at an oral hearing. She later sent an email seeking such reconsideration, but it had not been disclosed to or copied to the father at the time.

On 21 July 2025, the substantive appeal came before HHJ Greensmith. Early in the hearing, the mother raised the fact of the recusal; the judge discovered the recusal orders on the file but no reasons or explanatory note. Without adjourning to seek clarification from the district judge, and without hearing full submissions on the limited grounds of appeal, he concluded that:

The decision to recuse in the face of allegations of bias, without reasons, amounted to a serious procedural irregularity;
Accordingly, the entire fact-finding judgment was unsafe;
All findings should be set aside; and
A fresh course of case management should be pursued, with directions for new statements and a final hearing.

He did not substantively determine the two grounds for which permission had been granted; his decision to allow the appeal rested solely on the recusal.

On 31 July 2025, he dismissed:

The father’s application to obtain reasons from the district judge; and
The mother’s renewed application to remove the father’s chosen counsel,

marking both applications as “totally without merit” and warning that further such applications might lead to a civil restraint order.

3.5 The three appeals to the Court of Appeal

Three separate sets of appeal proceedings, commenced in different courts, were ultimately consolidated in the Court of Appeal:

Appeal against the order of 21 July 2025 (the “second appeal”): the father argued that HHJ Greensmith:
- Misunderstood the role of the appellate court in relation to findings of fact and recusal;
- Wrongly treated the unexplained recusal as sufficient to set aside the fact-finding judgment; and
- Should have instead investigated and, if appropriate, set aside the recusal.
Appeal against the recusal order of 6 February 2025: the father contended that:
- There was no objective basis for apparent bias;
- The mother’s complaints were simply disagreement with the judge’s evaluation of the evidence;
- The judge erred in recusing himself without reasons and without hearing the father.
Appeal against the order of 31 July 2025: the father challenged both the refusal to seek reasons from the district judge and the “totally without merit” certification.

The mother, still acting in person, opposed all three appeals in a lengthy skeleton argument which again contained a mixture of accurate and inaccurate legal citations, some apparently generated by AI.

4. Precedents Cited and Their Role in the Judgment

4.1 The test for apparent bias – Porter v Magill and Bubbles & Wine

The governing test for apparent bias derives from Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 and was succinctly restated by Leggatt LJ in Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 at [17]:

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased.”

Baker LJ explicitly adopts this two‑stage approach (at [62]) as the framework for analysing whether the circumstances surrounding the fact-finding hearing and subsequent recusal might give rise to apparent bias.

4.2 The perspective of the “fair-minded and informed observer” – Harb v Prince Abdul Aziz

In Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556, the Court of Appeal emphasised (at [69]) that the litigant is not the fair-minded and informed observer:

“The opinion of the notional informed and fair-minded observer is not to be confused with the opinion of the litigant… The litigant is not the fair-minded observer. He lacks the objectivity which is the hallmark of the fair-minded observer.”

This case was relied on to counter the mother’s repeated assertion that her perception of misrepresentation and unfairness in the judgment amounted to apparent bias. The Court of Appeal underscores that the test is objective; hurt or disappointed litigants frequently perceive unfairness where none exists.

4.3 Prior adverse findings are not, without more, bias – Locabail

In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, the Court of Appeal stated (at [25]):

“The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection.”

This directly addresses the heart of the mother’s recusal application: she effectively argued that because the judge had rejected her evidence and criticised aspects of it, he must be biased. Locabail makes clear this is legally unsustainable. Evaluating credibility and making adverse findings is the very function of a trial judge; it does not, in itself, suggest bias.

4.4 Judges’ duty to explain grounds for recusal – Re L‑B (Children)

In Re L‑B (Children) [2010] EWCA Civ 1118, Patten LJ stated (at [22]) that where a judge faces a recusal application based on some professional or other relationship:

“it is in my judgment incumbent on him to explain in sufficient detail the scale and content of the professional or other relationship which is challenged on the application.”

Although Re L‑B was concerned with a specific external relationship, Baker LJ extends the underlying principle: where a judge’s impartiality is challenged, the judge must provide enough information to allow the parties, and any appellate court, to apply the Porter v Magill test in an informed way. That duty plainly encompasses giving at least brief reasons for deciding to recuse.

4.5 Scope of appellate review of recusal – Resolution Chemicals and Otkritie

In Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 515, [2014] 1 WLR 1943, Sir Terence Etherton C explained (at [41]–[42]):

Decisions on recusal for apparent bias are multi-factorial, but an appellate court is well placed to adopt the vantage point of the fair-minded and informed observer and must itself assess whether there is a real possibility of bias.
Consistent with Article 6(1) ECHR and common law principles, on a recusal application the judge should provide the parties with sufficient relevant information to enable fair adjudication, without going beyond what is strictly necessary.

Although Resolution Chemicals involved refusal to recuse, its logic applies equally to cases where the judge has granted recusal: the appellate court is not bound by the trial judge’s characterisation and must apply the objective test itself. This point is explicitly endorsed by reference to Otkritie International Investment Management Ltd v Urumov [2014] EWCA Civ 1315 (at [68]).

4.6 Handling recusal in family proceedings – Re W (Children: Reopening/Recusal)

Re W (Children: Reopening/Recusal) [2020] EWCA Civ 1685 is particularly close factually. There, a district judge had made findings in care proceedings and later wished to recuse herself for personal reasons. A circuit judge, troubled by this and without a proper appellate framework, set aside all her findings on the basis that “a reasonable observer might question the probity of the findings”.

Peter Jackson LJ (as he then was) held that this was wrong. He emphasised that:

The circuit judge needed to approach the matter “systematically”;
Setting aside findings on apparent bias is an appellate decision, requiring proper process;
The reasons for recusal must be identified so the parties can respond; and
The process used in that case was unfair to both parties.

Baker LJ explicitly compares the present case to Re W (at [69] and [80]) and follows its reasoning. Again, a judge (here HHJ Greensmith) was understandably uncomfortable about a later recusal by the judge who had made findings. But again, the error was to leap from the fact of recusal to wholesale setting aside of findings without:

Establishing why the judge had recused; or
Using an appropriate appellate process to decide whether apparent bias existed.

Re W therefore provides the immediate doctrinal template: recusal does not automatically discredit prior findings; it must be analysed via the Porter v Magill test, on an evidentially informed basis, within the correct appellate framework.

5. The Court’s Legal Reasoning

5.1 The defective recusal decision

At [70], Baker LJ describes the course adopted by DJ Hatton as “irregular”. The central defects were:

The district judge did not give the father any opportunity to respond to the mother’s serious allegation of bias;
He did not list the recusal application for a hearing; and
He gave no reasons whatsoever for recusing himself.

These omissions amount to a serious procedural irregularity in their own right and would justify setting aside the recusal orders even without more ([70]).

The Court of Appeal, however, went further. Applying the Porter v Magill framework, it asked:

What are all the circumstances relevant to the allegation of bias?
Would a fair-minded and informed observer conclude there was a real possibility of bias?

The relevant circumstances included:

The fact-finding judgment itself, including the judge’s measured praise and criticism of both parties, and his detailed reasoning;
The content of the mother’s 60‑page recusal document which, as Baker LJ points out (at [74]), was largely a challenge to the judge’s evidential assessment rather than evidence of extraneous bias;
The absence of any evidence in the transcript of the hearing (as noted by HHJ Greensmith at [40], and reiterated at [75]) of “obvious bias”;
The wording of the recusal orders which:
- Simply state that the judge “recuses himself”; and
- Anticipate the dispute resolution hearing going ahead in St Helens on the basis of the existing findings ([72]).

From these features, the Court of Appeal drew a crucial inference: nothing in the orders suggests that the district judge accepted that his prior findings were tainted by bias. Had he accepted that:

He would have invited the father’s response;
He would have listed the recusal application for a hearing; and
If persuaded, he would have set aside his own findings and explained why ([73]).

He did none of those things. Instead, he simply lifted the reservation to himself and transferred future hearings. His intention, as the Court of Appeal reads the orders, was plainly that St Helens should proceed on the basis of his existing findings.

Given that context, and in the absence of any evidence of bias in the judgment or transcript, Baker LJ concludes (at [74]) that the mother’s assertion of bias had “no merit”. Her criticisms were simply challenges to the judge’s analysis, not material that could satisfy the Porter v Magill test.

Accordingly, the Court allowed the father’s appeal against the recusal orders and set them aside ([76], [84(1)]), on three grounds:

There was no objective basis for apparent bias;
The procedure adopted was unfair and irregular (no hearing, no reasons); and
The orders had the effect of causing later judicial misunderstanding and delay in the case.

5.2 The error of setting aside the findings on the basis of recusal alone

The Court then turned to HHJ Greensmith’s order of 21 July 2025. Baker LJ recognises the judge’s “very unsatisfactory position” and his legitimate concern about delay ([77]). Nonetheless, the course adopted was legally flawed.

Key points in the appellate critique:

The hearing was listed to determine the appeal on two specific grounds for which permission had been granted on 31 March 2025. Those grounds were not addressed at all ([78]).
The judge decided the appeal on a wholly different basis – the unexplained recusal – without:
- Seeking reasons from the district judge; or
- Giving the parties a proper opportunity to address that new basis.
There was nothing improper or unconstitutional in seeking reasons from the recused judge. The mother’s argument that he was “functus officio” and that requesting reasons would infringe judicial independence or Article 6 ECHR was rejected ([78]). Citing Re L‑B and Resolution Chemicals, Baker LJ holds that it is incumbent on the judge to explain the reasons for recusal sufficiently to enable proper application of the apparent bias test.
Contrary to the mother’s suggestion, HHJ Greensmith’s judgment makes plain that he allowed the appeal solely on the basis of the recusal decision and “not on any consideration of the two grounds of appeal” ([79]).
As in Re W (2020), the judge was entitled to raise the issue of recusal but was required to do so systematically, ensuring procedural fairness by:
- Discovering the reasons for recusal;
- Informing the parties; and
- Allowing them a meaningful opportunity to argue for or against setting aside the findings.

In the absence of such a systematic approach, the process was unfair to both parties ([80]). The father, in particular, had no fair opportunity to defend the integrity of the fact‑finding judgment against a new, unheralded theory that it was rendered unsafe by recusal.

On this basis, the appeal against the order of 21 July 2025 was allowed ([81], [84(2)]). The fact-finding judgment itself was not reinstated as immune from challenge; instead, the mother’s limited, pre‑existing appeal grounds remain to be determined by a different judge (HHJ Singleton KC).

5.3 What should have happened – the Court of Appeal’s implied procedural blueprint

Although not set out as a formal protocol, the reasoning of the Court effectively sketches the correct procedural approach where:

A judge has made fact‑findings in a children case; and
That judge later recuses themselves from further involvement, particularly in response to allegations of bias.

The steps, distilled from the judgment, are:

The recusal application at first instance:
- The party raising bias must set out the alleged circumstances supporting apparent bias;
- The judge should:
  - Give the other party a clear opportunity to respond;
  - List the recusal issue for a short hearing where necessary; and
  - Give at least brief reasons, on the record, for granting or refusing recusal.
If recusal is granted after fact-finding:
- The order should make clear whether:
  - It relates only to future conduct of the case (“no longer reserved to this judge”); or
  - The judge considers prior proceedings and findings to be unsafe (in which case specific orders explaining and addressing that consequence should be made).
On any subsequent appeal or review, the appellate judge should:
- Seek clarification or reasons from the recused judge where they are not apparent on the face of the order (this is not barred by functus officio or independence);
- Provide the parties with those reasons;
- Allow submissions on:
  - Whether apparent bias is established; and
  - What consequence, if any, that has for existing findings.
- Recognise that setting aside findings on apparent bias is an appellate act and must be done in that capacity, not casually or by implication.

Had this path been followed in D (A Child), the considerable procedural complexity and delay might have been avoided.

5.4 The unresolved substantive appeal

The Court of Appeal was careful not to trespass into the merits of the mother’s remaining appeal grounds. Those are confined (subject to any reconsideration application) to:

The judge’s treatment of the allegations of inappropriate conduct towards T; and
His approach to the father’s use of children’s images on social media and whether that should have been treated as a welfare concern.

Those issues are remitted to the Designated Family Judge for Manchester, HHJ Singleton KC, to be determined afresh on the basis of the existing transcript and any further directions she gives ([81], [84(2)]).

5.5 The AI issue and the duty to verify authorities

In a final, forward-looking part of the judgment ([83]), Baker LJ addresses the mother’s erroneous citations, some of which referred to cases that do not exist at all. He expressly:

Absolves the mother of any intention to mislead the court;
Recognises the difficulties faced by litigants in person in formulating legal arguments; and
Acknowledges that it is “entirely understandable” that such litigants might use artificial intelligence for assistance.

However, he emphasises that:

AI is not an authoritative or infallible legal resource;
There is a “growing number of reports” of AI “hallucinations” generating:
- Cases cited for propositions for which they are not authority; and
- Cases which do not exist at all.
Such errors risk misleading both the other side and the court and cause unnecessary time and cost in checking and correcting them;
All parties – represented and unrepresented – owe a duty to the court to ensure that cases cited are genuine and do indeed support the proposition advanced.

This is an important, modern statement of professional (and quasi‑professional) obligation in the age of AI‑assisted litigation.

6. Impact and Significance

6.1 Clarifying the effect of recusal on prior findings

Perhaps the most significant practical holding is that a judge’s recusal does not automatically taint or invalidate their earlier findings. The impact of a recusal turns on:

The reasons for recusal; and
Whether those reasons, objectively assessed, establish apparent bias in relation to earlier proceedings.

This is particularly important in family cases, where fact-finding judgments about abuse and risk form the evidential bedrock for long-term arrangements about children. To treat any later recusal as automatically undermining those findings would:

Invite tactical recusal applications as a way of reopening unwelcome findings;
Create instability and uncertainty in outcomes; and
Generate damaging delay, contrary to the child’s welfare.

By insisting on a structured Porter v Magill analysis and requiring reasons for recusal, the Court of Appeal shores up the integrity and finality of fact-finding judgments while still preserving the right to challenge a genuinely tainted process.

6.2 Duties of trial judges when faced with recusal applications

The judgment sends a strong procedural signal to first‑instance judges:

Recusal decisions must be reasoned, even if briefly;
Parties affected – including the other side – must have an opportunity to be heard on the issue;
Unilateral, ex parte recusal in response to detailed allegations of bias is a procedural irregularity;
Where recusal is based on something external (e.g. a relationship, prior involvement, or new information), the nature of that circumstance must be disclosed sufficiently to enable an objective assessment.

This will help avoid the “procedural muddle and confusion” later highlighted by Hayden J when granting permission to appeal.

6.3 Duties of appellate judges encountering recusal

The decision also instructs appellate judges who discover that the trial judge has recused themselves post‑judgment:

They may (indeed, should) investigate the reasons for recusal;
Such investigation is:
- Not barred by functus officio; and
- Compatible with Article 6 and judicial independence, provided it is confined to information necessary for fair adjudication;
They should not treat the mere fact of recusal as sufficient evidence of apparent bias or as an automatic ground to set aside findings;
Any proposed reliance on recusal as a basis for appeal must be clearly flagged to the parties, with an opportunity for submissions.

This guidance, building on Re W (2020), should promote consistent handling of similar situations across the family justice system.

6.4 Limiting misuse of “bias” as a label for disagreement with findings

The case reinforces a clear boundary between:

Disagreement with a judge’s evaluation of the evidence (which is a matter for appeal on the merits); and
Procedural or substantive circumstances that might show a real possibility of bias (which is a matter for recusal and/or appeal on apparent bias).

The mother’s grounds for recusal were essentially a re-argument of the evidence dressed in the language of bias. By rejecting this as insufficient, the Court of Appeal:

Protects judges from routine accusations of bias whenever they disbelieve a party; and
Preserves the seriousness of genuine bias allegations, which must be founded on more than dissatisfaction with the result.

6.5 Child welfare and delay

The Court is plainly conscious that D has “been involved in court proceedings for most of his life” and that contact has been absent for a “very significant period” ([42]). Yet it prioritises rectifying procedural unfairness and clarifying the status of the findings. The judgment signals that:

While avoiding delay is vital in children cases,
It cannot justify abandoning proper legal process in relation to bias and appeals.

The remedy chosen – setting aside the recusal, restoring the fact‑finding judgment to the point where it can be reviewed on the limited grounds already identified, and remitting to the Designated Family Judge – aims to strike a balance between procedural fairness and avoiding further fragmentation of the case.

6.6 Professional responsibility in the age of AI

The explicit remarks on AI use in [83] are likely to be cited widely. Key impacts include:

For litigants in person: courts recognise that AI can be a helpful tool but will not excuse reliance on fictitious or misapplied authority. Self‑represented parties must do their best to cross‑check any AI‑generated case citations.
For lawyers: the duty to verify authorities and not mislead the court remains fundamental. Relying uncritically on AI outputs may itself risk professional disciplinary consequences where it leads to misleading citation.
For judges: there is implicit recognition that courts may increasingly encounter AI‑generated materials and must be alert to the possibility of hallucinated authorities.

This is one of the clearest appellate-level statements in England and Wales on responsible AI use in litigation.

7. Complex Concepts Explained

7.1 Recusal

“Recusal” means a judge stepping down from hearing (or continuing to hear) a case because:

There is an actual conflict of interest; or
There is a real possibility that a fair-minded and informed observer would think the judge might be biased (apparent bias).

Recusal can occur:

At the start of proceedings; or
Partway through; or
After judgment, to avoid further involvement (for example, where new issues arise).

Recusal generally affects the future conduct of a case. It does not, by itself, nullify earlier rulings. Only if the reasons for recusal also show that earlier proceedings were tainted by bias will prior decisions be at risk, and then only via an appropriate appeal or review.

7.2 Apparent bias and the fair‑minded and informed observer

“Apparent bias” is about how things look objectively, not about whether the judge is actually biased. The test is:

Would a fair-minded and informed observer, knowing all the relevant facts, think there is a real possibility the judge is biased?

Key points:

The observer is not the litigant; they are calm, objective, and legally informed.
Mere adverse findings against a party do not show bias.
There must be some additional factor (e.g. undisclosed relationship, extraneous comments, conduct outside the proper adjudicative role) that undermines confidence in impartiality.

7.3 Serious procedural irregularity

Under FPR r 30.12(3)(b), an appellate court may allow an appeal where the decision below was “unjust because of a serious procedural or other irregularity”. Examples include:

Failing to give a party a proper opportunity to be heard;
Refusing to admit or consider relevant evidence without justification;
A judge recusing themselves without reasons or without hearing the affected parties.

In D (A Child), both:

The district judge’s recusal without hearing the father or giving reasons; and
The appellate judge’s setting aside of findings without investigating the reasons for recusal

were treated as serious procedural irregularities.

7.4 Functus officio

“Functus officio” means that once a court has delivered its final decision on an issue, it has exhausted its jurisdiction over that matter. The mother argued that once he recused himself, the district judge was functus officio and could not be asked to give reasons.

The Court of Appeal rejected this. Asking a judge to explain the reasons for an earlier procedural decision (such as recusal) is not:

Reopening the merits of that decision; nor
Inconsistent with judicial independence.

It is a necessary and proper step to enable higher courts to assess whether the legal tests for recusal and apparent bias were correctly applied.

7.5 Civil restraint orders and “totally without merit” findings

A civil restraint order (CRO) is an order that restricts a person from issuing further claims or applications without permission, where they have shown a pattern of totally without merit, vexatious or abusive litigation.

Labelling an application as “totally without merit” is significant because:

It may be a building block towards a CRO; and
It affects any right to seek oral reconsideration of a refusal of permission to appeal.

Here, the Court of Appeal set aside the “totally without merit” label placed on the father’s application to obtain reasons for the recusal, implicitly recognising that the application had a legitimate foundation.

7.6 AI “hallucinations” in legal argument

In the AI context, a “hallucination” is when the system confidently generates information that is false – for example:

A case name and citation that do not exist;
An invented quote purportedly from a real case; or
A genuine case cited as authority for a proposition it does not support.

In D (A Child), the mother’s written argument contained both:

Fictitious cases; and
Genuine cases (like Re B [2008] UKHL 35 and Re W [2010] UKSC 12) relied on for propositions completely outside their actual ratio.

The Court’s message is that anyone using AI to help draft legal documents must:

Independently verify that any case exists (for example by checking an official reporter or a reputable legal database); and
Read at least the headnote or judgment to ensure it genuinely supports the use being made of it.

8. Conclusion

D (A Child) (Recusal) is a significant addition to the jurisprudence on judicial impartiality and recusal, especially in the sensitive context of family proceedings. The Court of Appeal:

Reaffirms the centrality of the Porter v Magill test for apparent bias;
Clarifies that a judge’s recusal, particularly after judgment, does not automatically undermine prior findings and must not be treated as such in the absence of clear reasons demonstrating apparent bias;
Insists that recusal decisions must be procedurally fair – with reasons given and both parties heard;
Guides appellate courts to investigate the reasons for recusal and to approach the issue systematically, as an appellate act, rather than jumping from recusal to wholesale setting aside of findings;
Protects the integrity and stability of fact-finding judgments in children cases, thus serving the overarching objective of promoting children’s welfare by avoiding unnecessary delay and re‑litigation; and
Issues a timely reminder about responsible use of artificial intelligence in legal argument and the enduring duty to ensure that authorities cited to the court are genuine and relevant.

The decision balances the need for robust safeguards against judicial bias with the equally vital need for finality and procedural order in family litigation. It will serve as an authoritative reference point in future disputes about recusal, apparent bias and the consequences such decisions have (and, crucially, do not have) for existing judicial findings.