W (Children: Reopening/Recusal)  EWCA Civ 1685
This case came to the Court of Appel on a mother’s application to appeal a decision to set aside findings of fact, concerning her allegation that the father perpetrated domestic abuse against her, because of appearance of judicial bias.
During the fact-finding exercise, conducted in April 2020, DJ Wylie made six of the findings sought, gave directions for further evidence and listed a final welfare hearing. Recorder Searle sought to relist it before DJ Wylie, following two adjournments owing to unavailability of CAFCASS, but discovered she had recused herself due to a “family connection” to a party. No further information was provided.
On the 17th July 2020 HHJ Dugan set aside the findings of DJ Wylie, concluding that there was an appearance of bias which “infringed” the “test of bias” . The parents were unaware of the details of the “family connection” cited by DJ Wylie in recusing herself.
On the 21st July 2020 the mother’s solicitor wrote to the court asking three questions which were answered by DJ Wylie on the 29th July 202 in a response sent to the court office:
- Please confirm what the “family connection” is that caused District Judge Wylie to recuse herself? Answer “The judge’s son and the mother were members of the same local hockey club. The mother is a friend of the son on Facebook and each follows the other on Instagram”.
- Was D J Wylie aware of this connection when sitting on the Finding of Fact hearing in February 2020?’ Answer“Absolutely not. DJ Wylie was unaware of the connection until June 2020.”
- If District Judge Wylie was aware of the connection, please confirm why it was not raised with the parties then? Answer “As above, DJ Wylie was not aware of the connection until very recently – had she been then she would have immediately raised it with the parties.”
Unfortunately these responses were not sent to the parties until the 7th November 2020. The mother had obtained permission to appeal on the 23rd October 2020 and the matter was listed to be heard by the Court of Appeal on the 3rd December 2020.
The mother sought an appeal on a number of grounds  including that
- HHJ Duggan was wrong to conclude there was any bias operating at the time of the decision;
- he had failed to give proper reasons for his decision; and,
- had used the wrong legal test.
Additionally, she argued the process prevented her from advancing an argument that there was no apparent bias as she was not given a proper explanation of why the District Judge recused herself.
Lord Justice Peter Jackson, giving the judgment of the court, held that HHJ Duggan’s “unexpected” decision to set aside the findings was “both wrong and unfair”  for several reasons:
- He was not in possession of the basic facts of the case and so could not make any judgment on “apparent bias’; [40(a)]
- He applied an incorrect and weaker test than “whether the reasonable observer would conclude that there was a real possibility that the judge was biased”, [40(b)]
- the Judge’s conclusion that the District Judge’s findings were infected by apparent bias is not supported by any sound reasoning more so in the light of District Judge Wylie’s answers to the questions posed of her. [40(c)].
For the full judgment, click here.