Summary of Judgment
Factual and Procedural Background
This judgment concerns three linked appeals arising from proceedings under the Children Act 1989 about arrangements for Child A (born January 2023). The parties are the child's parents: Mother (Respondent) and Father (Appellant). The Father issued an application for a child arrangements order seeking contact. The Mother opposed and raised allegations of domestic abuse and later applied for a non-molestation order. A fact-finding hearing took place over three days before District Judge Hatton in The City. Both parents were litigants in person at the hearing and Qualified Legal Representatives were appointed to conduct cross-examination. The district judge handed down a detailed fact-finding judgment dated 5 November 2024 in which he found a number of allegations either "not proven" or "not proven as a finding of abuse or welfare risk" and made interim case management directions, including an interim child arrangements order and directions for a Cafcass assessment.
Subsequently the Mother sought permission to appeal. An appellate judge (Judge Greensmith) initially dismissed permission on paper but later granted permission following an oral renewal and ordered a transcript. After the district judge made an unelaborated order recusing himself from the case, Judge Greensmith, on 21 July 2025, allowed the Mother's appeal and set aside the district judge's findings on the ground that the unexplained recusal produced a serious procedural irregularity rendering the decision unsafe. The Father sought permission to challenge the setting aside of his earlier findings and also challenged the district judge's recusal decision and the refusal by Judge Greensmith to require the district judge to give reasons for his recusal. Multiple related applications and appeals were made and transferred between courts. The appeals were consolidated and heard together before this Court.
Legal Issues Presented
- Whether Judge Greensmith was correct to set aside the district judge's fact-finding judgment on the basis of the district judge's unexplained recusal.
- Whether District Judge Hatton's decision to recuse himself on 6 February 2025 was lawful and properly made (including whether he should have given reasons and afforded the other party an opportunity to be heard).
- Whether it was appropriate for Judge Greensmith to decline to ask the district judge for reasons for his recusal and/or whether the father's later application for reasons was correctly dismissed and certified as totally without merit.
- Ancillary case management questions about remittal and the proper handling of remaining substantive grounds of appeal that had previously been granted permission for review.
Arguments of the Parties
Appellant Father's Arguments (as advanced by his counsel)
- The district judge's recusal order of 6 February 2025 was irregular because it was made without giving the Father an opportunity to be heard and without reasons; this procedure justified setting that order aside.
- The Mother's recusal application was an evidential attack on the district judge's evaluative exercise in the fact-finding hearing and did not disclose a real possibility of apparent bias under the legal test.
- Judge Greensmith erred by allowing the appeal on an entirely different basis (the recusal) without first obtaining reasons from the district judge, sharing any such material with the parties, and allowing appropriate procedural steps (such as allowing the Father to seek permission to appeal the recusal decision) before determining that the fact-finding judgment should be set aside.
- The Father contended the proper remedy was to set aside the recusal order (because it was procedurally defective) rather than to set aside the fact-finding judgment without procedural safeguards.
Respondent Mother's Arguments (in person)
- The Mother submitted that the district judge's recusal was properly made "upon considering the papers" and that there was no obligation to seek submissions from the Father before recusing; she argued the recusal reflected judicial propriety and was compatible with Article 6 ECHR and judicial independence.
- She contended that the substantive criticisms in her recusal material demonstrated misrepresentation of evidence, mischaracterisation, and a pattern of conduct amounting to a real possibility of bias; therefore the recusal supported setting aside the fact-finding judgment.
- The Mother argued that a recusal is a protective procedural act and not an appealable finding; once the judge recused himself, the integrity of the earlier proceedings was undermined and a full set aside of the judgment was appropriate.
- She also submitted that she had copied the Father into the recusal email and so the Father had notice of the recusal request.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 |
Illustration of the need for justice not only to be done but to be seen to be done. |
Referred to by the Mother in support of the proposition that appearances of fairness are critical; the court noted the citation formed part of the Mother's recusal material but did not treat it as determinative. |
| Porter v Magill [2001] UKHL 67; [2002] 2 AC 357 |
Test for apparent bias: whether a fair-minded and informed observer would conclude there was a real possibility of bias. |
The court repeatedly applied the Porter test as the governing standard for assessing the Mother's recusal allegations and determined, on the evidence and transcripts, that the fair-minded observer would not conclude there was a real possibility of bias. |
| Re K and G (Care Proceedings: Fact-Finding) [2025] EWCA Civ 910 |
Judicial freedom to frame fact-finding judgments not strictly confined to formats presented by parties. |
Quoted by Judge Greensmith during the 21 July hearing; the decision was used to support the proposition that judges have latitude in structuring fact-find judgments. |
| Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 |
Two-stage approach to apparent bias: ascertain all relevant circumstances and then ask what an informed fair-minded observer would conclude (citing Porter). |
Reiterated by the court as part of the framework for assessing the recusal/application of the Porter test. |
| Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556 |
Reminds that the litigant's view is not the same as that of the fair-minded observer; litigants are not dispassionate. |
Adopted by the court to caution against equating the Mother's subjective perception with the objective test for apparent bias. |
| Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004; [2000] QB 451 |
Commentary that adverse comments or adverse findings alone do not automatically found a sustainable bias objection; also that one should not cross-examine or seek disclosure from the judge. |
The court relied on Locabail to emphasize that adverse findings against a party do not, without more, establish apparent bias and to explain limits on seeking disclosure from judges, while noting the concomitant practice that a judge should give reasons when recusing. |
| Re L-B (Children) [2010] EWCA Civ 1118 |
Incumbent on a judge to explain in sufficient detail the scale and content of any relevant professional or other relationship challenged in a recusal application. |
Adopted to support the proposition that a judge should give sufficient information (albeit not more than strictly necessary) about reasons for recusal to allow the parties to apply the informed bystander test. |
| Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 515; [2014] 1 WLR 1943 |
Appellate approach to recusal decisions: multi-factorial decisions are usually given deference, but on disqualification for apparent bias the appellate court can assume the vantage point of the informed fair-minded observer and conduct its own assessment. |
Applied to explain that appellate review of a recusal decision is permissible and that appellate courts must make their own assessment of whether apparent bias exists. |
| Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1542; [2003] 1 WLR 577 |
Practice note regarding appellate deference in multi-factorial judicial decisions. |
Referred to as part of the authorities explaining appellate review of discretionary decisions and the limits of deference. |
| AWG Group Ltd v Morrison [2006] EWCA Civ 6; [2006] 1 WLR 1163 |
Commentary on the appellate court's role when considering disqualification for apparent bias. |
Cited in support of the proposition that appellate courts can assess recusal decisions from the vantage of the fair-minded observer. |
| Otkritie International Investment Management Ltd v Urumov [2014] EWCA Civ 1315 |
Approach to appeals against recusal/refusal to recuse. |
Referenced to indicate that the same appellate approach applies whether the issue is refusal to recuse or an order of recusal. |
| Re W (Children: Reopening/Recusal) [2020] EWCA Civ 1685 |
Guidance on appropriate procedure when a judge seeks to set aside findings because of recusal; emphasises need for systematic approach and fairness to parties. |
The court relied on Re W as a key comparative authority explaining that where a recusal has unusual consequences, a systematic approach is required; the judgment was used to distinguish proper procedure from the course actually taken by Judge Greensmith in 2025. |
Court's Reasoning and Analysis
The Court's analysis proceeded in stages.
First, the Court identified a clear procedural irregularity in District Judge Hatton's conduct on 6 February 2025: he recused himself by order without giving reasons and without allowing the other party an opportunity to be heard. The Court observed that a failure to give reasons and to allow the affected party to respond is itself a procedural irregularity that, standing alone, can justify setting aside an order of recusal.
Second, the Court addressed the substantive question whether there was a real possibility of bias under the Porter v Magill test. That analysis required considering (a) what the district judge did when making findings in the fact-finding hearing, (b) what the recusal order said and implied, and (c) whether the judge's conduct or the content of the judgment, as assessed against the transcript, would lead a fair-minded and informed observer to conclude there was a real possibility of bias.
The Court considered the district judge's judgment and the transcript (the latter having been read by Judge Greensmith earlier). It noted features of the district judge's judgment: detailed engagement with evidence, specific findings about credibility, and case management directions anticipating further work by Agency A and a dispute resolution hearing. The Court reasoned that the district judge's recusal order, on its face, appeared to be intended to remove the case from his reserved handling as to future conduct (i.e., transferring future steps to another court) rather than to signal that his earlier findings should be treated as tainted and set aside.
The Court applied the authorities on apparent bias, including Locabail, Re L-B, Resolution Chemicals and Re W. It concluded that adverse findings or critical comments in a judgment do not, without more, establish apparent bias. The Court also emphasised that a judge who recuses should, as a matter of fairness and to enable parties to apply the informed bystander test, give sufficient reasons (but nothing beyond what is strictly necessary) for the recusal.
Having reviewed the judgment and the transcript (as observed by Judge Greensmith), the Court concluded there was nothing in the judgment or transcript to support the Mother's assertion of apparent bias. The Court therefore concluded that the Father's appeal against the district judge's recusal decision should succeed: the recusal orders were procedurally defective and should be set aside.
The Court further analysed Judge Greensmith's decision to allow the Mother's appeal against the district judge's findings solely on the basis of the district judge's unexplained recusal. It held that Judge Greensmith's course—allowing the appeal on that basis without seeking the district judge's reasons, without informing the parties of any such reasons, and without giving the parties an opportunity to respond—was procedurally unfair. The Court agreed that, while an appellate judge can raise issues of his or her own motion, fairness required that appropriate procedural steps be taken before determining an appeal on such a new basis.
Accordingly, the Court found two separate defects: (1) the district judge's recusal was irregular and unsupported by reasons or opportunity to be heard, and (2) Judge Greensmith's determination to set aside the fact-finding judgment on the basis of the recusal without following fair procedures was flawed. The combined analysis led the Court to set aside the recusal orders and to allow the Father's appeal against Judge Greensmith's decision to set aside the district judge's findings on that basis.
Finally, the Court recognised that the two substantive grounds of appeal for which permission had already been granted (limited by the order of 31 March 2025) remained outstanding. The Court found it appropriate, in fairness to the Mother, to remit those grounds to the designated Family Judge for rehearing rather than to address them itself.
Holding and Implications
Holding:
- The appeal against the district judge's decision to recuse himself is ALLOWED
- The appeal against Judge Greensmith's order of 21 July 2025 is ALLOWED
- There is no order on the appeal against the order of 31 July 2025 except that the certificate that the Father's application was totally without merit is SET ASIDE.
Implications:
- Direct effect: The district judge's recusal is treated as procedurally defective and is set aside; the fact-finding judgment is not reinstated by this Court but the substantive grounds of appeal that had been permitted remain to be determined by the designated Family Judge on rehearing.
- Procedure: The judgment emphasises that (a) a judge who recuses himself should provide reasons (sufficient for the parties to apply the informed bystander test) and that (b) appellate courts must respect procedural fairness when intervening on recusal-related issues, including making reasonable inquiries and affording parties an opportunity to respond before determining appeals on new bases arising during hearings.
- Precedential note: The decision clarifies enforcement of existing authorities on apparent bias and recusal procedure in the family context and underlines that unexplained recusal orders can be set aside where procedurally deficient; it also warns against resolving appeals on novel grounds without giving the parties a fair opportunity to address those grounds.
This summary is prepared from the provided opinion and anonymises personal identifiers. It does not add or infer facts beyond those expressly contained in the source judgment.