Appealing Findings of Fact in private children proceedings

Private Law (Child Arrangements Programme (CAP))

12 December 2018

A recent appeal decision Re A and R (Children) [2018] EWHC 2771 (Fam) acts as a useful reminder of the question of appeals arising from fact finding hearings but also raises other issues routinely encountered in private law cases.

The case concerned two boys aged 7 and 6 in respect of whom bitterly contested s8 Children Act proceedings had raged for a period sufficient to give rise to a 52-page chronology! The Recorder before whom the fact-finding hearing eventually came found certain allegations against both parents proved but whilst permission to appeal was granted by Baker J ultimately the appeal was dismissed.

The law concerning appeals was considered at paragraphs 42-44 when Baker J reminded himself that the hearing was a review rather than a rehearing and that “A Court can only allow an appeal where the decision of the Judge in the first instance was wrong or unjust because of some procedural or other irregularity”. The oft-cited passage of the judgment of Lewison LJ in Fage UK Ltd & Anor v Chobani UK ltd & Anor [2014] EWCA Civ 5 paras 114 to 115 is set out within the judgment as follows:

[114] “Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. [The Lord Justice then identified a number of cases and continues.] The reasons for this approach are many. They include:

  1. i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
  2. ii) The trial is not a dress rehearsal. It is the first and last night of the show

iii)     Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.

  1. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping
  2. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence)
  3. vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done

[115] “It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted.”

Baker J then includes certain passages from Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33(one of the cases cited by Lewison LJ in para 114) where Lord Wilson noted (at paragraph 40):

“An error in the balancing exercise justified intervention only if it gives rise to a conclusion that the judge’s determination was outside the generous ambit of reasonable disagreement or wrong within the meaning of the various expressions to which he had referred.”

And Baroness Hale of Richmond observed (at paragraph 200) of that case: “The Court of Appeal has jurisdiction to hear appeals on questions of fact as well as law. It can and sometimes does test the judge’s factual findings against the contemporaneous documentation and inherent probabilities. But where findings depend upon the reliability and credibility of the witnesses, it will generally defer to the trial judge who has had the great advantage of seeing and hearing the witnesses give their evidence. The question is whether the findings made were open to him on the evidence. As Lord Hoffmann explained in Biogen Inc v Medeva plc [1997] RPC 1, the need for appellate caution is ‘based upon much more solid grounds than professional courtesy’. Specific findings of fact are ‘inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualifications and nuance…’”

Baker J notes that “These comments apply to appeals heard in this court following the changes in the rules introduced in October 2016. On the other hand, I also bear in mind the observation in Sherrington v Sherrington [2005] EWCA Civ 326 at para 33:   ‘That, however, does not mean that an appeal on fact can never succeed. If this court is convinced that the judge was plainly wrong, then it is its duty to interfere’.”

Other issues raised:

At paragraph 57 Baker J states “An experienced circuit judge – a designated family judge for a major court centre – observed to me recently that fact-finding hearings in private law children cases are often the most difficult forensic exercise required of a judge in the family court. I agree”.

Baker J then highlights (at paragraph 59) the problems that can be associated with a lack of judicial continuity and (at paragraph 60) the potential ramifications of the earlier case management decision that each side would only be entitled to seek limited findings.

Remarking on the lack of judicial continuity in the instant case Baker J comments that “…judicial continuity is an important principle in all family cases but not infrequently private law cases are given lower priority than those involving applications under Part IV of the Children Act. Given the acute shortage of judges at present, and the high demand of public law family cases, this is perhaps not surprising, but it can cause particular difficulties in private law cases.”…

When addressing the common practice designed to restrict the scope of fact-finding hearings to only a few allegations he reminds practitioners of his observation, found at paragraph 27 in Re LG (Re-opening Fact-finding) [2017] EWHC 2626 (Fam), that this can give rise to difficulties:

“In taking this course, however, parties and the court must be careful to ensure that significant issues are not overlooked. Sometimes a pattern of harassment and other forms of domestic abuse is only discernible by conducting a broader examination of the allegations.”

Baker J concluded by remarking to the parties that the findings made by the Recorder demonstrated that they had each at times behaved badly to the other and that the history of the litigation showed them in a poor light. He stated “the boys will be affected forever by the fact that their parents are now separated. The way in which they conduct themselves hereafter will determine the extent to which the boys’ lives are blighted.”

For those practitioners who deal with private law cases on a regular basis Baker J’s concluding remarks directed at the parents will certainly resonate but it is right to recognise that judicial continuity and early case management decisions often play a large part in the ability of the court process to provide positive outcomes for children. Those same practitioners will be all too aware of the current prevalence of the difficulties in the court system that lead to the problems that this judgment highlights.


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