To Judge or not to Judge – when should a judge be recused from hearing a family law matter? 

It goes without saying that Family Court proceedings, whether concerned with decisions relating to children in the private or public law sphere or with matrimonial finances and divorce, are often fraught with all manner of sensitive and difficult questions.  

At the centre of the disputes that come before the Family Court is the judge (or justices if the case is being heard by Magistrates) who has a significant responsibility to make often life-altering decisions for the parties and the children at the centre of the dispute, as the case may be. The tribunal has a wide discretion as to how it chooses to case manage proceedings pursuant to the Family Procedure Rules 2010 (“FPR 2010”), Part 4. Largely, the tribunal has a broad discretion as to how to also dispose of the substantive applications that frequently come before the Family Court for determination.   

Tribunals are, by the very nature of the role they hold in proceedings, expected to be entirely impartial to the subject matter of the proceedings and the parties who come before them. However, it is not an infrequent question raised by litigants who are displeased with the way that a tribunal is handling their case for them to ask whether a different judge (or justices) can be assigned to hear their case (my reference to “case” is intended to encompass both single hearings and the entirety of the proceedings). What most lay people do not recognise is that this is essentially a question about whether a particular tribunal should recuse themselves from considering the proceedings further.  

At the heart of a judge’s (or justices’) responsibilities are to ensure that the parties’ and children’s rights to a fair trial, enshrined in Article 6 of the European Convention of Human Rights (“ECHR”), are respected. As it was rightfully elucidated in R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256: “not only must justice be done, but it must also be seen to be done.”  

The recent case of Re D (A Child) (Recusal) [2025] EWCA Civ 1570, brings this question again into sharp focus, and it is worth considering judicial recusal afresh in light of that decision of the Court of Appeal. This authority reflects the hearing in three linked appeals made in the context of Children Act 1989 (“CA 1989”) applications, brought under section 8. Eventually, after much case management and decision-making in relation to findings of fact, there was a request by one party for the judge to recuse himself from the proceedings. This appeal was unique in the sense that it not only dealt with a second appeal – having already been appealed once to a circuit judge – but also for having to consider not only the question of judicial recusal, but what steps should be taken by an appeal judge when a judge at first instance has recused themselves. 

What is the test for a judge (or justices) to be satisfied that they must recuse themselves? 

The test in determining a recusal application is set out in Porter v Magill [2002] 2 AC 357 at [103] as follows:  

“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, or a real danger, the two being the same, that the tribunal was biased.”  

In (Re AZ (a child) (recusal) [2022] EWCA Civ 911), the court identified: 

“The well-established two stage process was summarised by Leggatt LJ in Bubbles & Wine Ltd v Lusha [2018] EWCA Civ 468 at [17] in these terms:  

“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: see Porter v Magill [2001] UKHL 67; [2002] 2 AC 357, paras 102-103.””   

When considering the ‘fair-minded observer’, it has been determined that the litigant themselves cannot be considered to be the ‘fair-minded observer’. This ‘fair-minded observer’ is not expected to be a lawyer per se, but will be treated as having knowledge of the judicial oath.  

Cases involving recusal more often than not involve an allegation that the judge (or justice(s)) is biased. ‘Bias’ is sub-divided into cases of ‘actual bias’ and ‘apparent bias’.  

‘Actual bias’ is a fairly obvious concept to grapple with and is usually clearly identified by reference to the set of circumstances existing at the date of the application.

‘Apparent bias’ is trickier to establish than its counterpart. When assessing whether there has been ‘apparent bias’, the court must apply the following objective test – whether a fair-minded and informed observer, having considered the facts, would have concluded there was a real possibility of bias (Magill v Porter ibid).  

Further, in Re AZ ibid at [56(6)], the court explained the definition of ‘bias’ for these purposes:  

“Bias means a prejudice against one party or its case for reasons unconnected with the merits of the case: Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117, per Scott Baker LJ at paragraph 28; Secretary of State for the Home Department v AF (No2) [2008] EWCA Civ 117, [2008] 1 WLR 2528, per Sir Anthony Clarke MR at paragraph 53; Bubbles and Wine, supra, per Leggatt LJ at paragraph 17.”

Other case law considering the concept of judicial recusal 

Each case of apparent bias is determined on its own facts, however there are some examples of cases which have led to substantiated concerns about judicial bias which are likely to be of some universal assistance when answering the question of whether, objectively, there is, or could be, judicial bias. Those examples include: (i) where a judge is personally acquainted with a party (Mackay v Mackay [2015] EWHC 2860 (Fam)); (ii) where a judge is personally acquainted with a witness whose evidence is controversial (AWG Group v Morrison [2006] EWCA Civ 6); or, (iii) where a close family member of the judge has some involvement in the case, even if as a campaigner about issues related to the case (R v Bow Street Magistrates, ex parte Pinochet [2000] 1 AC 119).   

On the other hand, there are cases in which claims of judicial bias have been made, but the court, despite there being some form of linkage between the judge and factors which might raise suspicion of bias, has taken the view that bias is unfounded. For example, where there is a claim that a judge is personally acquainted with a legal representative in the case (Welch v Welch [2015] EWHC 2622 (Fam)) and where there is a ‘happenstance community tie’ (W (Children: Reopening/Recusal) [2020] EWCA Civ 1685).   

It is also usually unlikely to be enough for a tribunal to recuse themselves on the basis that the judge had commented adversely in a judicial manner on a party or a witness earlier in the same hearing at which the application is made or at a previous hearing (Locabail v Bayfield Properties [1999] EWCA Civ 3004).  

That said, dependent on the facts of the case, it has been demonstrated that recusal might be appropriate where a judge has shown overt hostility or rudeness to a witness or party (Serafin v Malkiewicz [2020] UKSC 23) or has given ‘an appearance to the fair-minded and informed observer that there was a real possibility that the judge would carry into his judgment the scorn and contempt the words convey’ (El Faragy v El Faragy & Ors [2007] EWCA Civ 1149).  

There are other examples which indicate that it may be difficult to successfully mount a recusal application in the following scenarios: (1) where a judge has shown irritation or hostility towards an advocate and/or set of Chambers; (2) simply on the basis that a party feels that the judge’s decision is unfair; and, (3) where a judge merely expresses his thinking about a case or the evidence in a case, including by making robust statements, although there is a limit to this and the judge must not give the impression they have a closed mind. 

What steps should be taken by judge asked to recuse themselves and an appeal judge when a judge at first instance has recused themselves 

Once a recusal application has been made, the first instance judge will likely consider it as a matter of urgency. However, the first instance judge is expected to give reasons for the recusal decision, particularly where they agree to recuse themselves on the grounds of apparent bias.  

As Re D (A Child) (Recusal) [2025] EWCA Civ 1570 now confirms, it is:  

1. Irregular for a judge to recuse themselves without having received representations from the parties – or at least the respondent to the application – both in writing, and orally at a hearing if the application is opposed.
2. Important for a judge to give reasons where they have decided to recuse themselves.
3. On an appeal, if it appears to the appeal judge that the reasons for the first instance judge recusing themselves are absent or unclear, clarification should be sought about the reasons; the parties should be informed of those enquiries and the information received as a result; and, the parties should be given an opportunity to make submissions in response to the information arising out of those enquiries. 

Procedure for Making a Recusal Application 

Straightforwardly, the application must be made to the Judge who is the subject of the recusal application. 

Conclusion 

Overall, it would appear very difficult to successfully bring an application for a judge (or justice(s)) to recuse themselves, although it is not an impossibility. Careful consideration should be given to the specific facts of the case when assessing whether or not the test for recusal is likely to be surpassed. The system of judicial recusal is a useful cross-check against the parties Article 6 rights to a fair trial, in seeking to ensure that those involved in making important decisions in the family litigation process are also appropriately kept appraised of the fundamental requirement for them to be impartial. 

Author: Gareth Hutton

Gareth can be instructed by emailing his clerks at clerks@northampton-chambers.co.uk or by telephone at 01604 636271.

Disclaimer: 

This publication is intended to be a general summary of the relevant law and/ or guidance at the time of writing. It should not replace legal advice tailored to your specific circumstances. No liability is accepted for any omission or error wherein.  

References:  

1. R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256. 
2. Re D (A Child) (Recusal) [2025] EWCA Civ 1570. 
3. Porter v Magill [2002] 2 AC 357. 
4. Re AZ (a child) (recusal) [2022] EWCA Civ 911. 
5. Mackay v Mackay [2015] EWHC 2860 (Fam). 
6. AWG Group v Morrison [2006] EWCA Civ 6. 
7. R v Bow Street Magistrates, ex parte Pinochet [2000] 1 AC 119. 
8. Welch v Welch [2015] EWHC 2622 (Fam). 
9. W (Children: Reopening/Recusal) [2020] EWCA Civ 1685. 
10. Locabail v Bayfield Properties [1999] EWCA Civ 3004. 
11. Serafin v Malkiewicz [2020] UKSC 23. 
12. El Faragy v El Faragy & Ors [2007] EWCA Civ 1149. 
13. District Judge Francis Cassidy, Gill Honeyman, Andrew Pack, Lucy Reed KC and His Honour Judge Christopher Simmonds, 2024, Dictionary of Public Children Law, Class Legal.