TH v RB

An appellate finding of fact cannot stand where cumulative weaknesses make it unsafe, including material inconsistencies, inadequate assessment of evidence and conclusions based on speculation rather than evidence. Setting aside such a finding does not necessarily determine that the underlying allegation is false. Where the allegation is exceptionally serious and materially relevant to issues concerning a child and the parties, a retrial may be necessary and proportionate.

The father appealed against a Recorder’s finding in private law family proceedings that he had administered a harmful dose of medication to the mother intending to kill her or cause her serious harm. The mother had suffered a potentially fatal paracetamol overdose, but the father had been acquitted in a criminal trial arising from the same events.

The appeal challenged the finding as unsupported by cogent evidence, inconsistent with other findings and founded on speculation. The central issue was whether the Recorder’s finding concerning the events of 10 November 2006 was safe.

1. Appeal allowed. The Recorder’s finding concerning the events of 10 November 2006 was set aside because the cumulative force of the criticisms made the finding unsafe.
2. The Recorder had rejected important parts of the mother’s evidence, including her account of an earlier overdose and her explanation for consuming the drink. He nevertheless accepted her account of the alleged poisoning without an adequate assessment of the father’s credibility.
3. The Recorder’s reasoning concerning the forensic evidence went beyond the evidence. In particular, the conclusion that the only explanation for paracetamol residue in the glass was that crushed tablets had been dissolved in it was speculative. The evidence did not establish how the paracetamol had entered the mother’s system or that the glass had contained the alleged milkshake.
4. The fact that the finding could not be sustained did not establish that it was wrong. The allegation was of the utmost seriousness and was highly relevant to the father’s contact with the child and potentially to disputes concerning matrimonial finance. A retrial was therefore necessary and proportionate.
5. The issue was remitted for retrial in the county court before His Honour Judge Peter Hunt QC, or a judge nominated by him. The Court of Appeal emphasised that its judgment was not intended to influence the eventual outcome or determine the precise scope of the rehearing.

• Court of Appeal (Civil Division): Appeal from the Recorder’s judgment dated 2 December 2007 allowed. The challenged finding was set aside and the issue was directed to be retried.