A (A Child), Re (No 2)

Findings of fact in family proceedings must rest on evidence and proper inferences. Suspicion and relative plausibility alone cannot establish an allegation. A witness’s lies or exaggerations do not necessarily prevent acceptance of the essential account. Each issue requires its own assessment.

A fact-finding judgment may record unresolved suspicions to explain the judge’s reasoning. Subsequent welfare decisions must nevertheless proceed on established facts. Cultural context must be assessed through the evidence, with sensitivity and without stereotyping.

Appellate courts must respect the trial judge’s advantages in assessing witnesses and evaluating evidence. Those advantages do not preserve findings lacking an evidential foundation or reached through procedural unfairness. Proper reasons remain necessary, although a judge need not give reasons for every reason.

A young boy was a ward of court and lived with his father and paternal grandmother under court orders. His parents, both Kurdish and first cousins, disputed serious allegations concerning their marriage and wider families. The mother alleged sexual assaults, domestic violence, child abduction and threats of violence associated with family honour.

Roderic Wood J conducted a twenty-day fact-finding hearing before the intended final welfare hearing. His main judgment, [2010] EWHC 2175 (Fam), and supplemental judgment, [2010] EWHC 2216 (Fam), contained adverse findings against both parents. He accepted the mother’s core allegations against the father while rejecting substantial parts of her evidence.

The father sought permission to appeal against ten findings. Permission on Ground 10 was refused on paper and was not renewed. The Court of Appeal heard Grounds 1–9 on a rolled-up basis. It announced its decision in a preliminary judgment, [2010] EWCA Civ 1413, and subsequently gave these reasons. The principal questions concerned the evidential foundations, procedural fairness and reasoning supporting the challenged findings, and the limits of appellate intervention.

1. The appeal was allowed in part. Permission was refused on Grounds 5 and 7. Permission was granted, but the appeals were dismissed, on Grounds 1, 2, 8 and 9. Grounds 3 and 6 succeeded. Ground 4 succeeded only to the extent of qualifying the finding about the child’s burn. Aikens and Richards LJJ agreed with Munby LJ’s reasons.

2. Findings required evidence, including properly drawn inferences, and proof on the balance of probabilities. The judge had correctly directed himself under In re B (Children) and R v Lucas (Ruth). Lies on one issue did not determine credibility on another. A lying denial of responsibility also did not establish the precise event, perpetrator or state of mind. Despite extensive unreliability and exaggeration, a witness’s essential account could remain convincing.

3. A judge could record suspicion concerning matters left unproved when explaining the reasoning. It could be relevant to distinguish a finding that an event did not occur from a failure to prove that it occurred. The binary approach in In re B (Children) remained applicable. At the welfare stage, the court had to act on facts rather than suspicion. Recording uncertainty did not authorise reliance on an unproved allegation.

4. The judge had properly assessed the families’ cultural practices through their evidence. The approach recognised cultural context without stereotyping or imposing Western assumptions. The guidance in Re K: A Local Authority v N and others was reaffirmed. The child’s interests remained paramount under section 1 of the Children Act 1989.

5. The trial judge’s immersion in the evidence conferred substantial advantages extending beyond witness demeanour to the evaluation of facts and family relationships. The appellate principles discussed in Piglowska v Piglowski required caution. A judgment required proper reasons, but narrow textual criticism could not justify substituting an appellate assessment. The findings of sexual and physical assaults, abandonment and essential truthfulness concerning the mother’s later relationship were adequately supported and explained.

6. The finding that the father had attempted to exploit the mother’s mental illness to obtain greater benefits lacked evidence and was set aside. The finding that the paternal grandfather had threatened to kill the mother and would carry out those threats also could not stand. Relevant witnesses refuting hearsay allegations had not been heard after the judge indicated that those allegations would not be investigated. A separate alleged telephone threat had never been put to the paternal grandfather. The finding rested partly on a mistaken understanding of his denials. Findings against other individuals were unaffected.

7. The finding that the child’s burn resulted from inattentive care remained, qualified by the unchallenged account that he rolled against a heater while the mother was smacking him. There was insufficient basis for an appellate finding of recklessness. Challenges concerning findings not actually made, or peripheral assessments of relatives without material relevance, justified no further consideration.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 12 , the court unanimously gave reasons for the disposition announced in [2010] EWCA Civ 1413 on 14 December 2010. Findings challenged under Grounds 3 and 6 were set aside. The finding under Ground 4 was qualified. Appeals on Grounds 1, 2, 8 and 9 were dismissed, and permission on Grounds 5 and 7 was refused.
• Court of Appeal permission stage: Black LJ refused permission on Ground 10 on 3 November 2010 and directed an oral hearing on Grounds 1–9, with appeals to follow if permission was granted. Ground 10 was not renewed.
• High Court, Family Division: Following a preliminary fact-finding hearing in wardship proceedings, Roderic Wood J delivered the main judgment, [2010] EWHC 2175 (Fam) , on 19 August 2010 and the supplemental judgment, [2010] EWHC 2216 (Fam), on 28 August 2010. A final welfare hearing was fixed for 14 January 2011.