A recent decision of the Court of Appeal (CoA) provides crucial guidance for family law practitioners and prospective clients engaged in Children Act 1989 proceedings, particularly those involving contested facts, appeals, and allegations of judicial bias.
Facts:
The respondent Mother has an elder child, T, by an earlier relationship with another man. The two parties in dispute were later involved in a relationship resulting in the conception of D. However, by the time the Mother had given birth to D, the relationship had broken down, and the appellant Father’s name was not put on the birth certificate.
In May 2023, D’s Father filed an application in the Family Court at Manchester, numbered MA23P00980, for a Child Arrangements Order (CAO) under Section 8 of the Children Act 1989 for contact with D, commencing in May 2023.
The Mother opposed this CAO, raising allegations of domestic abuse against the Father and subsequently applying for a non-molestation order (NMO). On 5 November 2024, District Judge (DJ) Hatton delivered his judgement, finding that the Mother had not proven her allegations to the standard required to establish domestic abuse or a risk to D’s welfare. He dismissed the Mother’s application for an NMO, concluding that contact should eventually progress to unsupervised arrangements. The Mother subsequently sought permission to appeal the findings.
In January 2025, the Mother sent a lengthy letter, accompanied by a 60-page document, to DJ Hatton requesting that he recuse himself, alleging apparent bias and misrepresentation of evidence in his judgement. Critically, this application was made without notice to the Father. On 6 February 2025, DJ Hatton made an order recusing himself and transferring the case, but he failed to provide any reasons for his decision. The Mother was eventually granted permission to appeal DJ Hatton’s judgement on two limited grounds by HH Judge Greensmith. However, at the oral appeal hearing on 21 July 2025, Judge Greensmith became aware of the unreasoned recusal. He ultimately decided that the District Judge’s unexplained self-recusal, made in the face of allegations of bias and without notice to the Father, constituted a serious procedural irregularity that rendered the entire fact-finding judgement unsafe, and he set it aside. The Father then appealed to the CoA against Judge Greensmith’s decision.
Decision:
The CoA allowed all three linked appeals, restoring the original fact-finding judgement made by DJ Hatton and overturning the original decision of the High Court. The Court found that the recusal orders made by DJ Hatton on 6 February 2025 were procedurally irregular and unjustified in law, as they did not allow the Father an opportunity to respond to the Mother’s application nor provide any reasons for the decision.
The ultimate reasoning was that the Father’s rights had been prejudiced by the procedural errors, and the entire edifice had been built upon the unjustified recusal (the setting aside of findings), which had to fall. The Court’s action rectified the procedural history, restoring the integrity of the fact-finding stage by restoring the original findings and remitting the case for a proper hearing on the limited merits of the appeal.
Implications:
This ruling reinforces the principle that carefully reasoned fact-finding judgements are stable and difficult to overturn. Findings are only unsafe if they are challenged successfully on their merits. The Mother’s extensive challenge, which amounted to disagreeing with the Judge’s evaluation of the evidence, was deemed legally insufficient for a bias claim.
Any application for judicial recusal must be made on notice to all parties. A judge is procedurally required to seek representations from the opposing party before deciding the matter. If a judge recuses themselves, practitioners must immediately apply for reasons for the decision. The CoA confirmed that this is a legal entitlement. The lack of reasons by DJ Hatton and Judge Greensmith’s subsequent error in not seeking them caused months of delay and expense. It should be noted that an unexplained recusal does not automatically render prior findings unsafe.
