Mother’s failed appeal indicates difficulty of overturning findings of fact

Children|Family Law|March 20th 2019

Often in proceedings relating to arrangements for children following parental separation one party will make allegations against the other that are so serious that they could have a crucial bearing upon the outcome of the case. Obviously, the court must make findings in relation to those allegations, and it often does so at a ‘fact-finding’ hearing.

As we will see in a moment, it is very difficult to overturn the findings of the court, and it is therefore essential that each party put their case as well as possible at the fact-finding hearing. This makes me wonder just how parents manage when they don’t have the benefit of legal representation –  one can imagine many cases turning out quite differently than they would have done had representation been available (although I should point out that legal aid, and therefore legal representation, should be available if the allegations involve domestic abuse).

None of which is intended to be any sort of criticism of the mother or her legal team in the case M v F (Appeal : Fact Finding), which is the subject of this post – I mention the case merely, as the title of this post states, to indicate the difficulty that parties face if the court’s findings go against them.

Now there was a lot going on in M v F, in particular regarding the details of the allegations, and I don’t need to go into those details for the purpose of this post (and in any event, to do so would make this post unmanageably long). Instead, I will take the unusual (for me) course of concentrating on the applicable law, rather than on the facts or findings of the case itself.

Basically the case concerned cross-applications by the father for a child arrangements order, and by the mother for a non-molestation order. The mother made various allegations against the father, including that he had used serious violence against her, that he had used controlling and coercive and abusive behaviour, and that he had used force against the child. The father denied the allegations.

A fact-finding hearing took place. Essentially the court found most of the allegations unproved. In particular the court found that the father did not pose any direct risk of physical harm to the child, or any psychological risk to the mother. The mother applied for permission to appeal against the findings.

The mother’s application went before Mr Justice Williams in the High Court. He set out the law on appeals against findings of fact, including the following points:

  1. Permission to appeal may be given only where the court considers that the appeal would have a real prospect of success, or there is some other compelling reason why the appeal should be heard. (Incidentally, in the report it states that Mr Justice Williams used the word ‘and’, instead of ‘or’. If so, that is, with respect, incorrect.)
  2. In the absence of some other identifiable error, such as a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.
  3. Where a question of fact has been tried by a judge, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion.
  4. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

As will be seen, this sets a high bar for the appellant. In particular, the law recognises the advantage that the original judge had in hearing the evidence first-hand – the appellate court can only make its decision based upon the paper, or printed, evidence, including the transcript of the fact-finding hearing. And look at the words I have highlighted in paragraph 2 above. It doesn’t matter if the judge hearing the appeal may have made different findings: they should only interfere if the original findings cannot reasonably be explained or justified.

Back to the case itself, Mr Justice Williams did not consider that any of the mother’s grounds of appeal had a realistic prospect of success in demonstrating either that the original findings were wrong, or that they were unjust by reason of a procedural irregularity. Accordingly, he refused the mother permission to appeal.

You can read a full report of the judgment here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Comment(1)

  1. Stitchedup says:

    This article exemplifies wonderfully why findings of fact should not be called “findings of fact”. Calling a best guess a fact is arrogant in the extreme and the courts make a mockery of so called justice when in they’re own admission two judges can come to different “findings”. So how the courts have the audacity to call their findings a finding of fact??? they’re not even tested to the criminal standard of proof!!! Calling a finding determined on the basis of probability a fact is absurd and portrays a macabre side of the family courts. All that said, the courts are probably sick and tired of hearing “he’s an abuser!!!, I want a non a non-mol, he’s controlling “…. yawn… yawn.

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