M v F (Appeal : Fact Finding)

Permission to appeal from a fact-finding decision should be refused where the judgment, read with its context, shows a fair hearing and findings reasonably open on the evidence. An appellate court must focus on substance rather than semantics and must not substitute its own evaluation of oral evidence for that of the trial judge absent an identifiable error, unsupported critical finding, demonstrable misunderstanding of evidence, or failure to consider material evidence.

In domestic-abuse cases, a judge may consider demeanour, character, consistency, accuracy and contextual detail as part of the overall evaluation, but must not determine the case solely by whether the complainant appears to be a victim. Practice Direction 12J may remain relevant during fact-finding because allegations must be assessed for their likely relevance to the child-arrangements decision.

The mother sought permission to appeal against His Honour Judge Tolson QC’s fact-finding decision of 17 July 2018, arising from cross-applications concerning child arrangements and a non-molestation order. The judge made limited findings concerning physical incidents, rejected allegations of controlling and coercive behaviour, and concluded that the father posed no direct physical or psychological risk to the child or mother.

The mother advanced 14 grounds alleging unfairness, procedural irregularity, errors in assessing domestic-abuse allegations and witness evidence, failure to determine every allegation, and misapplication of the balance of probabilities and Practice Direction 12J. The central issues were whether the decision was wrong or unjust for procedural irregularity and whether there was a realistic prospect of success or another compelling reason to hear the appeal.

1. Outcome. Permission to appeal was refused. None of the 14 grounds had a realistic prospect of establishing that the decision was wrong or unjust by reason of procedural irregularity.
2. Appellate restraint. The judgment under appeal had to be read as a whole, in context and with regard to its structure. The appellate court’s concern was substance, not semantic imperfection. It was not permissible to use narrow textual analysis to identify error where the judgment, read fairly, disclosed an intelligible and sustainable decision. The trial judge was entitled to form tentative or firm views during submissions without thereby prejudging the case.
3. Findings of fact. The trial judge had heard the oral evidence and was entitled to assess credibility, exaggeration, inconsistency and reliability. Interference was justified only on an identifiable error, such as a material error of law, a critical finding without evidential basis, a demonstrable misunderstanding of relevant evidence, or a failure to consider material evidence. The findings concerning the alleged biting, financial control, physical incident, medical material and psychological risk were open to the judge.
4. Domestic abuse and presentation. A complainant’s presentation could be considered as one part of a broad assessment of written and oral evidence and character. It could not, by itself, determine whether domestic abuse occurred. The judge had not applied such an impermissible test. The use of experience from other cases was also permissible as part of a wider evaluation, provided the case was not decided solely by comparison with an assumed model victim.
5. Scope of fact-finding. A fact-finding judge has case-management discretion to determine which allegations require findings, having regard to the facts necessary for the child-arrangements decision. Prior approval of a Scott schedule did not fetter that discretion. It was permissible to focus on the principal allegations and decline to determine allegations that would add nothing to the decision.
6. Practice Direction 12J. Although much of the direction is procedural, its general principles include consideration of the nature of an allegation and its likely relevance to whether, and in what terms, a child-arrangements order should be made. It could therefore be relevant during a fact-finding hearing. Its use did not show that the judge had decided the child-arrangements outcome first and worked backwards.
7. The court also rejected the submission that expert psychological evidence was a prerequisite to a judicial assessment of psychological risk in every family case.

1. High Court (Family Division): His Honour Judge Tolson QC made findings after a fact-finding hearing on 17 July 2018. The mother lodged an appeal on 7 August 2018.
2. High Court (Family Division): Mr Justice Williams refused permission to appeal after hearing the application on notice. No appeal followed.