AB v XY

Robust case management must not become undue acceleration. On an important status issue, the parties must have sufficient time to prepare evidence, investigate disputed matters, obtain advice and make informed submissions. A process that denies that opportunity may amount to a serious procedural irregularity and render the decision unjust.

On appeal, the court should not interfere with factual findings merely because another judge might have assessed the evidence differently. Intervention is justified where there is a clear error of law, an unsupported or materially misweighted factual conclusion, an impermissibly exercised discretion, or procedural unfairness affecting the justice of the outcome. Credibility findings must be evaluated in a nuanced manner and cannot automatically determine every other issue.

The appellant challenged orders made by HHJ Lochrane on 1 November 2018 following an expedited hearing. The hearing had been listed to determine, as a preliminary issue, whether the parties had married in Jordan. The judge also made findings about credibility, beneficial ownership of the family home, and alleged abuse, and made occupation and non-molestation orders.

The appellant argued that two working days for preparation, a short time estimate, the absence of a translated family book, and the extension of the hearing beyond its listed scope caused serious procedural irregularity and an unjust outcome. The respondent conceded several grounds, including the challenges to the findings concerning abuse, beneficial ownership and the use of credibility findings. The central issue was whether the accelerated process rendered the decision unjust.

1. Appeal allowed. The process leading to the order of 1 November 2018 involved serious procedural irregularity and produced an unjust outcome. The findings in paragraph 6 of that order, together with the occupation and non-molestation orders, were set aside.
2. Under rule 30.12(3) of the Family Procedure Rules 2010, an appeal may succeed where the decision was wrong or unjust because of procedural irregularity. Following Re F (Children) [2016] EWCA Civ 546 and Piglowska v Piglowski [1999] 1 WLR 1360, an appellate court must assess the judgment as a whole and should avoid narrow textual analysis. However, intervention is required where the evaluative process contains clear and substantial error or procedural unfairness.
3. The recognised grounds for intervention include an error of law; a factual conclusion unsupported by the evidence; a failure to give proper weight to a significant matter or giving it undue weight; a procedurally irregular and unfair process making the decision unjust; and an exercise of discretion outside the range of reasonable disagreement.
4. The hearing was listed to determine the existence of a marriage but was used to make findings on abuse, beneficial ownership and wider credibility without adequate evidence, preparation or submissions. The compressed timetable was particularly inappropriate because marriage status had far-reaching consequences. The principles in Re S-W (Care Proceedings: Case Management Hearing) [2015] 2 FLR 136 applied: robust case management cannot trump fairness, and justice may be denied by inappropriate acceleration. The warning in Re NL (Appeal: Interim Care Order: Facts and Reasons) [2014] EWHC 270 (Fam) was likewise material.
5. The judge was entitled to consider the untranslated Jordanian family book and to find, on the evidence then available, that the embassy had authenticated the marriage certificate. Those conclusions did not independently justify allowing the appeal, but the marriage issue was remitted for fuller consideration. The parties’ divorce petition and Family Law Act applications were to be listed together, with possible expert applications considered at directions. Costs were reserved.

• High Court (Family Division): appeal from HHJ Lochrane’s order of 1 November 2018 allowed on procedural-irregularity grounds. The matter was remitted to the DFJ at Chelmsford family court.