High Court judge warns against appealing ‘findings of fact’

Family Law|April 25th 2014

A High Court judge has warned against the merits of appealing ‘findings of fact’ rulings.

In a recently published case, Lord Justice Kitchin said such appeals were unlikely to reverse the findings of the initial judges:

“[A]ppellate 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”.

He continued:

“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 reasons for this approach include the expertise of trial judges in determining what facts are relevant to the issues to be decided and what those facts are if they are disputed”.

“[I]n making his decision the trial judge will have regard to the whole of the evidence presented to him whereas an appellate court can only consider aspects of that evidence … and 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 a individual case.”

Lord Justice Kitchin was ruling on Goyal v Goyal, which involved an application for permission to appeal against a finding of fact by HH Judge Everall.

In Judge Everall’s original ruling, the husband’s marriage was found to be valid despite the man’s claim that his wife married someone else three days before his wedding.

The couple in question set a short wedding three days before the main one in order for them to get a marriage license. This would in turn allow them to acquire a visa for travel from their home in India.

The husband claimed he could not get to the earlier, short wedding in time and that another man took his place, making his marriage invalid.

Judge Everall found the husband’s evidence “unconvincing and implausible”.

Lord Justice Kitchin agreed with the original decision and dismissed the application, satisfied the appeal would not be successful.

Author: Stowe Family Law

Comments(17)

  1. Paul says:

    Yes, but in the more common situation where a finding is made against an innocent father that he has abused a child or assaulted his ex- when he hadn’t, then what do you expect a man to do? Roll over?
    When it comes to your reputation I say fight to the bitter end. I’ve been involved in a non-family county court trial where a judge has ignored evidence to make preposterous, irrational findings. Of course these findings ought to be challenged despite the evident dislike of more senior judges to overturn such nonsense. Judges should pull their fingers out and do their jobs properly, not make it up as they go along – which they often do.

    • Marilyn Stowe says:

      Dear Paul
      I agree with you. Judges make mistakes. I think the important point in this Judgement is the caveat “unless compelled to do so”
      Regards
      Marilyn

    • Dave says:

      Hi Paul

      I am in a similar predicament and I would really like to speak to you. I see no light at the end of the tunnel. Would it be possible to get in touch.

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  4. Jerry Lonsdale says:

    I have found it very concerning regarding FoF’s whereby the Facts are found on a balance of probability, the consequences of such could have life long lasting effects, FOF’s if not found in the best possible way with the use of evidence then the problems become worse down the line in the proceedings, a Judge would be pursuaded with the FOF’s, without the chance of appealing a Judge who has reached the wrong conclusions then surely there cannot be a fair trial

    • Stitchedup says:

      FoF on the balance of probability is an oxy-moron just like non-mols being presented as “evidence” of Domestic abuse/violence to justify legal aid. Anything decided on the “balance of probability” can not and should not be described as “fact” or “evidence”. To compound this problem we have judges taking the easy option to cover their backsides and pandering to feminist political correctness, so calling it a “balance of probability” decision is stretching the truth to say the least!!

      • Stitchedup says:

        And yes, the implications can be devastating and life changing, very often leading to the total decimation of the family, no hope of an amicable separation or divorce let alone reconciliation…. all incredibly damaging to any children involved.

  5. alex jones says:

    This question is in regards to finding of fact and I would like some advice or input please.
    what if a finding of fact is made based on the evidence presented at the time even though I now have evidencial proof that the evidence used was manipulated.
    in easier to understand terms. a finding of fact was made based on information used, the information was given as the outcome of a social services investigation where as it was actually the information from an anonomous referral.
    can an appeal be lodged given that the finding of fact was made on false information. the correct information is now available which states there were no concerns by the local authority social workers.
    I really hope that my comment is understandable as it is and was a very complex case. thanks

  6. SL says:

    It is a shame that I am not allowed to copy and paste sections of a judgement for my GD FF. Where the judge so eloquently demonstrated she has no clue about the tripe she is writing. Her medical comments should have been proof read by a Doctor BEFORE the judgement was given. The medical evidence she was given was so tainted by the LA refusal to entertain further medical investigations so that their case could stick the case she was overseeing was ‘criminally’ presented.
    I was witness to most of the injuries done during medical procedures and initially I would have considered iatrogenic in nature, my version of events were not allowed to be presented for various reasons. The experts considered all the injuries to be non accidental and caused by the parents when in fact they were caused by Drs and nurses and never challenged by the parents legal teams. Even when I explained to them how the injuries happened. To hear that this appalling fact finding fiasco will never be explored is a travesty of justice. The Whole of the family court system should be transparent and open to challenge. Even the later criminal case was tainted by laziness on the part of the Police and both defendants own legal teams.

  7. StuG says:

    We presented a case out of time to the Court of Appeal after obtaining sworn evidence from a lawyer; Police reports; and evidence that the applicant mother’s solicitors were directed prior to a fact – finding hearing to obtain the evidence they evidence they relied on. They didn’t do it and the father had 13 out of 13 findings of fact made due to his absence of evidence – not the presence of evidence from the other side. So the mother’s character was set in question prior to the Appeal. The mother was allowed to rely on an assemblage of papers she called a diary that the new evidence proved to be retrospectively concocted. She had the ‘diary’ in the witness box and was allowed to read from it rather than quote from memory. The appeal was refused on the grounds that the trial judge had the advantage of witness demeanor and that a false report she made in a foreign Police station, asking them not to investigate until she had flown out of their jurisdiction later that day, ‘counted for the mother.’

    Findings of fact have become little more than a means of placing an official seal on fantasy. The legal advice is to attack the process by which they are made. It does not work.

  8. C says:

    Hi all

    im havjng the same problem as paul. I had a “finding of fact” against me as i was accused of hurting my son but there was no medical evidence and my partner tried to take back the accusation the next day ( all while i was treated like crap in a police cell ). The system is corrupt and there is no way an innocent person can win. Me and my partner were made to seperate otherwise run the risk of having our son adopted despjte the LA saying how great a mum she is. Now we are told that because of this heavily flawed “fact finding” its possible we may never be allowed to be a family ever again until my son is 18 !!!! Wtf is this nonsense !!! It is evil, cruel and criminal to destroy a happy family on the basis of probability !!!! If anyone has any advice please get in touch. Im also trying to get the contact information for lkrd munby as i want my case reviewed and a re-trial as apparently it is actually impossible to appeal a “finding of fact”

    • stitchedup says:

      It appears our family court judges have now been elevated to status of prophets/messiahs. I wonder how long it will be before one declares they have discovered the true god and solved the age old problem of how the universe was created and declares this as fact.

  9. Sim says:

    An allegation of rape against me was not found and an allegation of me being attacked physically was not able to be decided on definitively so both facts were not found. My abuser denied raping me ever happening and said I had never mentioned it before. Also said that I had been the attacker during the physical assault and generally painted me as a promiscuos person. Although two very serious child abuse facts were found, psychologically I also needed the rape one found because I dont feel like I can move on from it knowing this person has got away with it. I came home and cried my soul out. I cannot sleep or eat. I feel so low. I later managed to access a faulty mobile handset I have where I had sent messages far predating the hearing by two years. In the text messages were messages that show where I told my abuser they had raped me. In addition were messages where the abuser had spoken about the violent assault and apologised accepting fault for the incident. I am broken. I cannot believe that I have had such bad luck and cannot do anything to change it. I don’t know how I can survive knowing this. I go to weekly counselling but I dont know that that will ne enough to help me accept this. Does anyone have any advice please?

  10. Sim says:

    Sorry I meant an allegation of rape I made against my abuser not against me. Apologies.

  11. Shakeel says:

    It is so stupid and one sided, man have no chance his guilty the min he walks into the court room.
    The judges life in a coco land and the Solictors are making a lot of money from these cases.
    No one else is allowed into these courts so the courts have free hand and can do anything because there’s no one to question them.

  12. norma67 says:

    I am in a situation I had judgment made against me said I lied about a few flings on a ur word against mine I lost a granddaughter a week a go on the after mif of this even thou it was another county that put her in my care for 15 month full time an 6 month part time before that . I now stand to loss my 11 year old autistic son because of this can I appeal an if so how please HELP

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