Despite the impression that may be gained from other posts I have written here, it is very unusual for findings of fact to be overturned on appeal. The reason for this is simple: the appeal court does not have the benefit of seeing all of the evidence (and hearing the witnesses), in the same way that the court that made the findings. How can the appeal court make different findings without seeing all of the evidence?
However, it is possible for a judge to be in error in reaching conclusions that are not supported by the evidence. That was the situation in the recent case A (Children), which concerned a mother’s appeal against findings of fact made against her.
The facts in the case were quite complex, so I will simplify them, and the main issues, for the sake of clarity.
The parents were both born in Pakistan. When they were married in 2001, the father had been living in the United Kingdom for some time and was a UK national. The mother came to England in 2002, once she had been granted a spousal visa. The visa, however, would lapse if she spent more than two years outside the UK.
The parents had four children who, by the time that the mother’s appeal was heard last November, were aged between 16 and 10.
In May 2012 the whole family travelled to Pakistan following the death of the maternal grandmother. They stayed there until February 2016, when the father returned to the UK with the children. In May 2016 the mother, still in Pakistan, commenced child arrangements proceedings in this country. The mother eventually obtained a visa enabling her to return to the UK in October 2017.
A crucial issue in the case was why the mother had not returned to the UK with the family. The mother claimed that the father had stranded her in Pakistan, by retaining her passport and preventing her from returning before her visa lapsed. The father denied that he had stranded the mother, and claimed that he had given the passport to the mother’s family.
Connected to this issue was the fact that the children were vehemently opposed to having contact with their mother, and were also abusive towards her, their abuse being “perhaps the worst” that the children’s Guardian had seen in decades of experience. The mother claimed that the father had alienated the children against her, in part by suggesting that she had abandoned them by remaining in Pakistan. So in very simple terms the question was: had the father stranded the mother as part of a plan to turn the children against her, or had the mother not actually been stranded, and just chose to remain in Pakistan?
At the first hearing Mr Justice Keehan found that the father had withheld the mother’s passport from her, but the mother had not been stranded, because she had been able to obtain a replacement passport without the assistance of the father, although she had not explained why she did not. The mother appealed against this finding, to the Court of Appeal.
Giving the leading judgment of the Court of Appeal Lord Justice Moylan noted that Mr Justice Keehan found that the mother was “an extremely unsatisfactory witness”, and that the father was “in the main, candid and honest in his evidence”. However, his conclusion that the mother was not stranded was not supported by his analysis. The fact that the mother had a ‘remedy’ (i.e. to obtain a new passport and visa) did not detract from the fact (as Keehan J found) that the father had withheld the mother’s passport from her. Lord Justice Moylan explained:
“Simply stated, the judge’s determination that the mother was not stranded is inconsistent with his finding that the father kept the mother’s passport. This was the key act which impeded her ability to return to this country and, in particular, to return prior to the expiry of her visa. The judge’s reasoning … that the mother might have been able to take steps herself to overcome the situation created by the father and had not explained why she had not, cannot, therefore, support his determination.”
Accordingly the appeal was allowed, and the case remitted back to the lower court for rehearing.
The full judgment can be read here.