Fact-finding hearings in private children’s law proceedings

This is a very recent Court of Appeal Judgment in which there was a successful appeal of a fact-finding judgment in private law proceedings:

A (Children) Re [2019] EWCA Civ 74

This particular case involves transnational marriage abandonment, an issue that the court appears to be grappling with more and more frequently. This a case, which is of particular note, and I suspect, will become a case often referred to, because the issue of transnational marriage abandonment was central to the case. The Court of Appeal sets out a useful guide to the law in relation to this issue, and also found that it was such a fundamental/central issue in the case that once it had been established that the Judge had got that finding wrong (that she had not been abandoned), they did not need to go on to consider the Mother’s other grounds of appeal.

This is a short summary of the case and the full law report can be found through the following link:

This case concerned an appeal of findings of fact made by the Mother during the course of private law proceedings.

Both parents were originally from Pakistan, though the father had moved to the UK and become a British national before the parties’ marriage in 2001.

The mother joined him in the UK and was granted indefinite leave to remain in 2003. There were four children of the marriage, who at the time of the proceedings were between the ages of 10 and 16. In the period from May 2012- February 2016, the parties lived in Pakistan where they separated and reconciled a number of times. During the periods of separation, the children generally lived with the father and/or the paternal family, and the mother spent time in a refuge. In February 2016, the father returned to the UK with the children, leaving the mother in Pakistan.

As part of her case, the mother made a number of allegations against the father, namely: (i) that the father had kept her passport when they arrived in Pakistan in 2012 and refused to return it, thus ensuring that she could not easily return to the UK; (ii) that the father (and potentially the paternal grandparents) had caused her and the children to be separated for significant periods of time by evicting her from the paternal home in Pakistan and by refusing to allow her and the children to have contact; (iii) that the father had perpetrated domestic violence against her; and (iv) that the father had alienated the children from her. Conversely, the father maintained that there had been periods when the mother had abandoned the children in 2012. He later alleged that the mother had mistreated the children, which accounted for their ill feelings towards her.

The first instance judge rejected the mother’s allegations that she had been a victim of domestic violence at the hands of the father, including that he had stranded her in Pakistan, though he did find that the father had not done all he could to ensure her return to the UK. He also found that the mother had mistreated the children on occasion by use of physical chastisement and emotional harm. He did not make any findings about whether the father had evicted the mother from the family home or whether she had “abandoned” the children, though found that the abandonment had been directly or indirectly communicated to the children. Finally, he found that the father had not actively alienated the children against the mother and refused to make a finding that the children had been wrongfully removed from the mother in Pakistan.

The mother applied for permission to appeal the findings on a number of bases, including: that the judge had failed to give adequate reasons; that the findings made by the judge were inconsistent and contradictory; that the judge had misunderstood aspects of the evidence; that the judge’s approach to analysing the evidence was flawed; and that the judge’s principal findings were plainly wrong. In contrast, it was argued on behalf of the father that there was very little independent evidence and that the judgment was based largely on the judge’s assessment of the oral evidence given during the course of the hearing; that the judge had carefully examined and evaluated the evidence; and that the first instance judge was best placed to assess the reliability of the evidence. Whilst the Guardian was initially neutral in respect the mother’s appeal, by the close of the proceedings, she supported it.

Having set out the law in respect of “transnational marriage abandonment” the Court of Appeal went on to consider the first instance judgment. It held that the judge’s conclusion that the mother was not stranded was not supported by his analysis and in particular, his finding that the father kept the mother’s passport. Having established that, it did not go on to consider the mother’s other grounds of appeal. The court reflected on whether the judge’s judgment, and in particular his other findings, on balance, could stand, and held that they could not; the issue of stranding was a fundamental issue and significantly interconnected/overlapped with the determination of the other key factual issues. As such, the court allowed the appeal and the judgment was set aside, to be reheard by a judge nominated by the President of the Family Division.