C (Children : Fact-Finding)

In care proceedings, findings of fact once made are definitive in all normal circumstances. The court should revisit them only as a distinct exercise where there are solid grounds for believing that reconsideration is required. A later psychological report containing non-specific observations, which was not commissioned to assess credibility and was prepared without the benefit of findings, may fall well short of that threshold. An appeal will not succeed merely because a judge made superfluous, speculative or inappropriate observations, where those matters do not undermine the overall findings or affect the outcome. The assessment remains one of the trial judge, who is entitled to evaluate witnesses, the evidence-gathering process and the evidence as a whole.

Reading Borough Council appealed from a fact-finding decision by HHJ Oliver in care proceedings concerning three children. After a 19-day hearing, the judge made significant threshold findings about the parents’ ability to protect and supervise the children, but rejected more serious allegations, including alleged sexual intercourse between the father and K.

The local authority challenged the treatment of K’s evidence, the assessment of the parents’ credibility, the judge’s reliance on experience, and the refusal to reopen findings after receiving a psychological report from the Anna Freud Centre. The central issues were whether the judge had properly assessed the evidence and whether the later report required the fact-finding conclusions to be revisited.

1. Appeal dismissed. The fact-finding judge had made significant threshold findings, but was not required to accept the local authority’s more extensive allegations. The Court of Appeal found no material error in the assessment of the evidence.
2. The judge was entitled to attach little weight to K’s accounts because the investigation involved repeated leading questions, unrecorded meetings and other serious departures from good practice in obtaining evidence from a vulnerable young person. He was also entitled to take the absence of physical findings in the medical examination into account, although the evidence did not establish positively that K had not had penetrative intercourse.
3. The judge was entitled to assess the parents’ credibility from their evidence and conduct during the proceedings. Their learning difficulties could permissibly be considered as part of that judicial assessment, without being treated as a scientific proposition. The parenting assessment evidence could properly be regarded as relevant to welfare rather than fact-finding.
4. Some observations were unnecessary or inappropriate. The discussion of sexual disinhibition, speculation about what K meant by pornography, and reference to members of the judge’s family went beyond what was required. Those matters did not undermine the overall conclusions or affect the result.
5. Findings of fact once made are definitive in all normal circumstances. The court does not conduct a rolling review. It will revisit findings only as a distinct exercise where solid grounds for doing so are shown. The Anna Freud Centre report was not a credibility assessment, was prepared without judicial findings, and contained non-specific observations. It therefore did not provide solid grounds for reopening the findings.
6. The judgments showed that the judge had considered the evidence as a whole. The local authority’s failure to establish its central allegations did not demonstrate a failure by the judge to assess the broad canvas of evidence.

• Court of Appeal (Civil Division) — [2018] EWCA Civ 801: appeal by Reading Borough Council dismissed.
• Reading Family Court — HHJ Oliver, case no RG17C00355: fact-finding judgments given on 14 and 15 December 2017.