A (A Child) (Rev 1)

In a fact-finding appeal, serious findings may be overturned where the judge has not rigorously analysed all relevant evidence. Oral evidence remains important, particularly in family proceedings, but its weight must be assessed alongside contemporaneous documents, known or probable facts, and the fallibility of memory. A judge must not elevate one category of evidence without explaining why. A finding based substantially on a witness’s recollection of a brief event many years earlier requires particular caution. Motive is not an essential element of a finding that a person deliberately caused harm. However, where a judge chooses to make a finding about motive, it must be grounded in a careful analysis of the evidence and must not be speculative. The appeal was allowed and the fact-finding issue remitted for rehearing before a High Court Judge.

The father appealed against findings made by the Family Court sitting at West London after a four-day private-law fact-finding hearing. The judge had found that he deliberately administered thallium to the coffees of the maternal grandparents and mother, causing the grandfather’s death and serious illness to the other two, and had failed to obtain urgent medical treatment for the mother. The appeal was a reasons appeal. The father argued that the judge had failed to analyse material evidence concerning the mother’s recollection that he had been leaning over the coffee cups and had speculated about motive. The central questions were whether those deficiencies rendered the findings unsafe and, if so, whether the matter should be retried.

1. Appeal allowed; retrial ordered. The findings that the father had deliberately administered thallium could not stand. The matter was remitted for directions and allocation before a High Court Judge, to determine whether the poison had been deliberately administered into the grandparents’ coffee and, if so, whether the perpetrator could be identified.
2. Assessment of evidence. Oral evidence is important in family fact-finding proceedings, and first-instance judges have an advantage in seeing and hearing witnesses. That advantage does not permit reliance on demeanour or credibility in isolation. The court must assess all the evidence in a manner suited to the case, including contemporaneous or near-contemporaneous documents, known or probable facts, and the fallibility of human memory. It must not inappropriately elevate oral evidence over other evidence or disregard evidence without adequate explanation (paras [29]–[42]).
3. The mother’s account concerned a brief incident recalled seven years later after traumatic events. The finding that the father had been leaning over the coffee cups was treated by the judge as central to the conclusion that he had administered the poison. The judge had favoured that aspect of the oral evidence without sufficiently analysing the written and contemporaneous material. That omission undermined the findings (paras [43]–[50]).
4. Motive. A finding of motive is not necessary to establish deliberate administration of poison. Nevertheless, once the judge chose to address motive, the conclusion that the father wished to remove the grandparents was speculative. It had not been put to him in cross-examination and was not supported by a careful forensic analysis of the evidence concerning his relationships with the mother and grandparents. That error further undermined the judgment (paras [51]–[56]).

• Court of Appeal (Civil Division): [2020] EWCA Civ 1230. Appeal from the Family Court sitting at West London allowed. The fact-finding issues were remitted for directions and allocation before a High Court Judge.
• Family Court sitting at West London: Order made on 6 January 2020 after a fact-finding hearing. The court made findings that the father had deliberately administered thallium to the maternal grandparents and mother and had failed to secure urgent medical treatment for the mother. Those findings were set aside for the purposes of a rehearing.