K v G

Where an appeal challenges a fact-finding decision, the appellate court must consider whether fresh or overlooked evidence materially undermines the reasoning supporting the finding. A significant inconsistency between objective evidence and a witness’s detailed account may affect the witness’s reliability and credibility as to the whole incident, rather than merely a peripheral detail. If the finding cannot safely stand, the court may set it aside without remitting the issue for rehearing where a rehearing would be disproportionate and the existing welfare arrangements make remission undesirable.

This was an appeal by the mother from a finding made by Miss Recorder Davies on 11 March 2020 in Children Act proceedings. The Recorder had preferred the father’s account of an alleged assault and rejected the mother’s case that the father had assaulted her.

The appeal concerned one finding only. The mother relied principally on the date and timing of photographs of the father’s injuries, and also argued that the Recorder had confused the evidence concerning injuries to the mother. After permission was granted, the father did not file the ordered skeleton argument and did not attend the substantive hearing. The central issue was whether the objective dating of the photographs materially undermined the factual finding.

1. Appeal allowed. The finding that the mother had assaulted the father was set aside. The matter was not remitted for rehearing.

2. The photographs, with their proper date and time information, showed that they had been taken at 19.29 and 21.34 on 9 November and at 10.58 on 10 November. They were therefore taken before the assault which the father said had occurred on 10 November.

3. The father had given detailed evidence placing the alleged assault in a particular sequence of events. That sequence involved an argument lasting most of the day, the mother taking the children swimming, a further confrontation on their return, and the father leaving the home immediately afterwards. The objective dating of the photographs did not fit that account.

4. The inconsistency was not merely a mistaken date of limited significance. It materially undermined the father’s reliability and credibility concerning the whole incident. The Recorder would have been bound to take the evidence into account when deciding whether to make the finding. The issue concerning the mother’s alleged injuries also depended on the same factual account.

5. Although the court recognised that memories may be unreliable and dates can readily be confused, the combination of objective evidence and the detailed surrounding account made the error material. In light of the existing Children Act orders, the children living with the mother and the contact order in favour of the father, a rehearing would not have been desirable or proportionate. The matter therefore rested without a fresh fact-finding hearing.

• High Court (Family Division): The appeal from the finding made by Miss Recorder Davies on 11 March 2020 was allowed. The finding was set aside and the issue was not remitted for rehearing.