A (A Child), Re (No 2)

Findings of fact must rest on evidence and proper inferences, not suspicion or speculation. A fact-finding judge may nevertheless record a continuing suspicion where an allegation fails for want of proof, provided that no later welfare decision treats the suspicion as fact.

An appellate court should give substantial weight to the trial judge’s unique advantage in assessing witnesses and the whole evidential atmosphere. It should not overturn findings merely by reanalysing a transcript or demanding fuller reasons. Intervention is required, however, where a finding lacks an evidential foundation or has been reached unfairly. Cultural, social and religious realities must be considered without stereotyping the family or imposing Euro-centric assumptions.

The father appealed against findings made by Roderic Wood J after a lengthy wardship fact-finding hearing concerning A. The High Court’s main and supplemental judgments were reported at [2010] EWHC 2175 (Fam) and [2010] EWHC 2216 (Fam).

The findings concerned, among other matters, sexual and physical abuse, the mother’s care of A, an injury to A, and alleged threats to the mother. Both parents had been found unreliable on significant aspects of their evidence. The appeal raised challenges to the evidential basis, reasoning and fairness of particular findings, and to the proper scope of appellate intervention in a complex fact-finding case.

1. Appeal 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. Permission was granted and the appeals allowed on grounds 3 and 6, and on ground 4 to a limited extent.
2. A fact-finding judge must base findings on evidence and proper inferences, rather than suspicion or speculation. The court may record an unresolved suspicion in its reasons, including to distinguish an allegation found not to have occurred from one that was simply not proved. At the later welfare stage, however, the court must act on proved facts, not on unproved allegations or residual doubts. The judge below had not erred merely by recording such matters.
3. The judge had properly considered the family’s own cultural context while avoiding both stereotyping and Euro-centric assumptions. Cultural realities may inform assessment of the evidence, but cannot substitute for an evidential basis for a finding.
4. The appellate court’s role was limited by the trial judge’s considerable advantage in assessing credibility, demeanour, relationships and the overall evidential atmosphere. That advantage extended beyond individual findings of primary fact. The court would not replace the judge’s evaluation through a narrow textual analysis of reasons.
5. The finding that the father had sought to exploit the mother’s mental health to obtain greater benefits was set aside because there was no evidential basis for the asserted attempt. The finding that the paternal grandfather had made, and would carry out, threats to kill the mother was also set aside. The remaining evidence was flimsy and partly hearsay, and the decisive allegation had not been fairly put to him.
6. The finding concerning A’s burn remained, but was varied to record the unchallenged account that the injury occurred when A rolled against a heater while the mother was smacking him. The court declined to add a finding of recklessness. A false denial of responsibility did not itself establish the precise event, state of mind or motive.
7. The serious findings of sexual and physical abuse, abandonment in Iran, and the mother’s essential truthfulness about her relationship with another man were upheld. They were open to the judge on the evidence and his assessment of the mother’s oral evidence.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 12, the court allowed the father’s appeal in part and otherwise dismissed or refused permission on the remaining grounds.
• High Court of Justice, Family Division: Roderic Wood J made the challenged fact-finding determinations in the main judgment, [2010] EWHC 2175 (Fam), and clarified aspects of them in a supplemental judgment, [2010] EWHC 2216 (Fam).