RJ v CM

An appeal is a review, not a rehearing. The appellate court may interfere with factual findings only where the first-instance judge was wrong or there was a procedural irregularity. A party who agreed, after an adjournment application was refused, that proceedings should continue on written submissions cannot ordinarily challenge the absence of oral evidence on appeal. In domestic-abuse fact-finding cases, oral evidence will nevertheless be necessary, and often essential, in the vast majority of cases. The unusual circumstances of one unsuccessful appeal do not establish a general practice of deciding such allegations without oral evidence.

The appellant mother appealed against findings and child-arrangements orders made by HH Judge Harington in private-law proceedings concerning her child. The first-instance hearing proceeded without oral evidence after the mother’s application for an adjournment was refused. The judge rejected most allegations of domestic abuse and accepted only matters admitted by the father.

Permission to appeal was refused on the adjournment and case-management grounds, but granted on grounds concerning the making of findings without oral evidence and alleged failures to consider the mother’s evidence. The central issues were whether the judge had been entitled to proceed on the written evidence and whether his findings and conclusions about contact were open to him.

1. The appeal was dismissed. An appeal is a review rather than a rehearing. The appellate court could intervene only if the first-instance judge was wrong or there had been a procedural or other irregularity.
2. The refusal of an adjournment was not before the court. Permission to appeal on that issue had been refused and the application had been certified as totally without merit.
3. After the adjournment application was refused, neither party asked to call oral evidence on the first or second day. The parties agreed that the case should proceed by submissions. In those circumstances, the mother could not challenge on appeal the decision to proceed without oral evidence.
4. The first-instance judge had considered the allegations and the written evidence overall. A judgment need not address every evidential point expressly, particularly where it is delivered ex tempore. The appellate court was satisfied that the judge had the relevant evidence in mind.
5. The findings rejecting the allegations, including the conclusion concerning the substance found on the child, were conclusions to which the judge was entitled on the limited evidence. The limited admissions that the father had punched a wall and stamped on the floor did not make the contact arrangements unsafe, given the findings made.
6. As an important qualification, in the vast majority of domestic-abuse cases it will be necessary, and indeed essential, to hear oral evidence before making findings of fact. The result did not suggest that oral evidence is generally unnecessary. The court also endorsed the approach stated in Re LG [2017] EWHC 2626 (Fam).

• High Court (Family Division): Permission to appeal was granted on limited grounds by Williams J. Baker J dismissed the appeal against the decision of HH Judge Harington.
• Family Court at Bristol: On 7–8 December 2017, HH Judge Harington refused an adjournment, made findings largely rejecting the mother’s allegations, and made child-arrangements orders.