S (Children)

An appellate court will not disturb a trial judge’s fact-finding conclusions where they were open on the evidence, particularly where they rest on assessed credibility after a lengthy hearing. The fact that other conclusions were available does not establish error.

Credibility is for the judge, rather than an expert witness. A judgment’s failure expressly to analyse expert evidence does not itself show that the evidence was ignored or that the findings were unjustified.

Where counsel identifies an omission in a judgment, counsel should promptly invite a supplemental judgment. That is a distinct step from seeking permission to appeal.

The father and paternal grandparents sought contact with two children following the mother’s departure from the paternal family home. The father required substantial support from his parents, but the mother opposed their involvement because she alleged a history of domestic violence and humiliation.

His Honour Judge Bartfield conducted a fact-finding hearing in Bradford County Court. He accepted the mother’s evidence and made findings that the grandparents had participated in or encouraged violence against her, including an incident in which the father was found to have acted at the grandfather’s instruction.

The father and grandparents challenged two central findings. They submitted that the judge had failed to address the evidence of Professor Beail, a psychologist, and had insufficiently explained his conclusions. The central issue was whether those findings were open to the judge and whether the alleged omission concerning expert evidence justified appellate intervention.

1. Permission to appeal was granted, but both appeals were dismissed. Hedley J held that the trial judge’s findings were plainly open to him. The judge had heard extensive evidence over six days, assessed the mother’s and grandparents’ credibility, and made clear findings within the evidential material. It was not enough that other findings might also have been available.

2. The absence of express reference to Professor Beail’s evidence did not demonstrate that the judge had ignored or rejected it. The expert evidence did not materially undermine the judge’s credibility findings. In particular, the judge could infer from the evidence and the wider family context that the grandfather had instructed the father to assault the mother.

3. Wall LJ added that responsibility for credibility lay with the judge, not the expert. The expert material principally concerned the future introduction and mechanics of contact, rather than the credibility issues determined at the fact-finding hearing.

4. Wall LJ gave non-dispositive procedural guidance. Where counsel considers that a judgment has omitted a material issue, finding, or witness’s evidence, counsel should invite the judge to give a supplemental judgment at once. An application for permission to appeal is distinct from that request. The ordinary English v Emery Reimbold approach should be adapted in children cases, where returning a matter to the judge after an appeal may be impractical; the trial judge should instead be asked to address the point before an appeal is pursued.

5. Thorpe LJ also rejected the submission that the judge should have adopted a less forthright approach to credibility. A lengthy fact-finding hearing has reduced value if the judge fails to state clear conclusions on the reliability and truthfulness of the respondents’ evidence.

• Court of Appeal (Civil Division): Permission to appeal was granted and the father’s and grandparents’ appeals were dismissed: [2007] EWCA Civ 694.
• Bradford County Court: His Honour Judge Bartfield made fact-finding determinations following a hearing and gave a reasoned judgment on 2 May 2007. Those findings were upheld.