T-B-N (Children), Re

An appellate court will rarely interfere with a trial judge’s findings of primary fact. Intervention is confined to findings unsupported by evidence, based on a misunderstanding of the evidence, or not reasonably open to the judge. A judgment must be read as a whole and in context. It need give sufficient reasons to explain the outcome and permit appellate review, but need not rehearse every item of evidence or submission. In complex child fact-finding proceedings, credibility, inconsistencies and retractions must be assessed against the whole evidential picture and the trial judge’s unique experience of the evidence as it unfolds.

In care proceedings concerning J, Pauffley J found that the appellant had sexually abused his sons, W and S. The findings formed part of a wider assessment of the risk he posed to children and of whether J’s mother could protect J.

The appellant challenged the sexual-abuse findings. He relied on inconsistencies and retractions in W’s and S’s accounts, the possibility that W had influenced S, S’s fabricated intruder allegations, and alleged deficiencies in the judge’s reasoning. The appeal therefore concerned whether those matters showed that the findings were unsupported or reached through an inadequate analysis.

Disposition

Permission to appeal was granted, but the appeal was dismissed.

1. The court applied the strict restraint governing appeals against primary findings of fact. Under [2013] UKSC 33, an appellate court does not retry the facts. It will interfere only in the exceptional case where the finding lacked evidential support, rested on a misunderstanding of the evidence, or was not reasonably open to the trial judge.

2. Pauffley J’s judgment had to be read as a whole, with the detailed case summary and chronology to which it referred. A trial judge need not set out every factual contention or item of evidence. The reasons were sufficient to explain why the allegations, rather than the retractions, were accepted and to permit appellate scrutiny. The approach in [2016] EWCA Civ 546 supported that conclusion. The appellant had also not asked the judge to address alleged omissions or deficiencies before appealing.

3. The judge had critically assessed the possibility that W and S had fabricated their allegations. She was entitled to regard their troubled histories, inconsistent accounts and continuing attachment to the appellant in their proper context. She was also entitled to conclude that the brothers’ telephone conversation did not support a finding that they had constructed false allegations together.

4. S’s intruder allegations were elaborate fabrications and required careful consideration. They did not, however, compel the conclusion that his sexual-abuse allegations were false. The trial judge had recognised S’s capacity to invent detailed accounts and was entitled, on the evidence as a whole, to accept his original allegations and reject his retractions.

None of the grounds showed that the findings were unsustainable. The findings of sexual abuse therefore stood.

• Court of Appeal (Civil Division): Permission was granted and the appeal was dismissed in [2016] EWCA Civ 1098. The court upheld Pauffley J’s findings of sexual abuse.

• High Court, Family Division: Pauffley J made findings of fact in care proceedings in a judgment dated 17 March 2016. She found that the appellant had sexually abused W and S.