A and R (Children), Re

An appeal against findings of fact in private-law children proceedings is a review, not a rehearing. The appellate court should not interfere with a trial judge’s assessment of witnesses, primary facts, evaluations or inferences unless the decision was wrong, unjust because of procedural irregularity, or plainly outside the generous ambit of reasonable disagreement.

Practice Direction 12J requires the court, wherever practicable, to consider the nature and impact of established domestic abuse, including its impact on children. Failure to record an express conclusion on impact does not necessarily invalidate the decision where the trial judge had the correct framework in mind and the omission does not undermine the findings or outcome. Fact-finding schedules must remain proportionate, but courts must guard against overlooking a broader pattern of abuse.

The mother appealed against findings made by Miss Recorder Evans on cross-allegations of domestic abuse and inappropriate behaviour in proceedings concerning child arrangements for the parties’ two sons. The Recorder found that both parents had assaulted the other on particular occasions, rejected the alleged pattern of coercive and controlling behaviour and most other allegations, and directed further welfare assessment.

The mother contended that the Recorder had failed to apply Practice Direction 12J, had inadequately analysed the evidence, and had acted unfairly. The appeal concerned the proper appellate approach to findings of fact, the significance of the Recorder’s failure expressly to address the impact of established abuse on the children, and her treatment of the allegation of coercive and controlling behaviour.

1. Appeal dismissed. The mother had not shown that the Recorder’s findings were wrong or that there had been a material procedural irregularity.

2. An appeal to the Family Division is a review rather than a rehearing. The appellate court must exercise caution before interfering with findings based on witness credibility and evaluation. The trial judge sees and hears the witnesses and is best placed to assess the whole body of evidence. The appellate court must not substitute its own evaluation merely because it might have reached a different conclusion. Intervention is justified where the decision was wrong, unjust because of procedural or other irregularity, plainly wrong, or outside the generous ambit of reasonable disagreement.

3. The Recorder had Practice Direction 12J firmly in mind, despite not referring to it expressly in her judgment. She had considered the definitions of domestic abuse and coercive and controlling behaviour and had made findings on the specific allegations before her. The absence of findings on every evidential detail did not materially undermine the judgment.

4. Paragraph 29 of the Practice Direction requires the court, wherever practicable, to consider the impact of established domestic abuse on the children. The Recorder’s judgment did not address that issue expressly. That omission did not, however, provide a ground of appeal on the facts of this case. The issue could be considered at the forthcoming welfare hearing with the benefit of an independent social worker’s report.

5. Limiting allegations in a fact-finding schedule is a proportionate case-management technique, but parties and courts must ensure that significant issues are not overlooked. A broader examination may sometimes be necessary to identify a pattern of harassment or domestic abuse. Here, the disparate allegations and the structure of the hearing made it difficult to identify a pattern, but that difficulty was not attributable to any appealable error by the Recorder.

6. The Recorder was entitled to accept some evidence from each parent, reject other evidence, and conclude that the allegation of coercive and controlling behaviour had not been proved. Her failure to characterise the father’s litigation conduct as coercive or controlling did not make the findings unsafe.

• High Court (Family Division): appeal from findings made by Miss Recorder Evans on 11 June 2018. The appeal was dismissed.