JB v SW

On an appeal concerning an occupation order, fresh evidence may be admitted where it could not reasonably have been obtained for the original hearing, would probably have an important influence on the result, and is credible. In family proceedings concerning children, those criteria may be applied with some flexibility. The overriding objective remains relevant.

Where the fresh evidence materially changes the evidential foundation and demonstrates that the original evaluation was wrong, the appellate court may set aside the order. Ordinarily, it should remit the matter for reconsideration rather than conduct its own complete evaluation of the evidence and substitute an order.

The appellant appealed against an occupation order made under section 33 of the Family Law Act 1996 in favour of the respondent. The order required the appellant, his cohabitee and her children to leave the family home. Permission to appeal was granted on the basis that the first-instance judge might have mis assessed the impact on the children occupying the property and the respondent’s prospects of remaining there.

The appellant sought to rely on new evidence from children’s services, housing officers and a head teacher. The central issues were whether the evidence should be admitted and, if admitted, whether the original decision was wrong and should be set aside or reconsidered.

1. Fresh evidence. Under rule 30.12(2) of the Family Procedure Rules, the appeal court would not ordinarily receive evidence that was not before the lower court. Applying the attenuated Ladd v Marshall test, as confirmed in [2001] EWCA Civ 906, the court considered whether the evidence could have been obtained with reasonable diligence, whether it would probably have an important influence on the result, and whether it was credible. The overriding objective also applied. In children’s welfare cases, the criteria may be relaxed: Re B (Minors) (Custody), [1991] 1 FLR 137.
2. The second and third limbs were plainly satisfied. Although the appellant had had opportunities to prepare, the case-management directions and the respondent’s evidence had not sufficiently identified the importance of evidence addressing the statutory factors in section 33(6) of the Family Law Act 1996. In the circumstances, the fresh evidence could not have been obtained with due diligence for the original hearing. It was admitted.
3. Appeal approach. Under rule 30.12(3), an appeal may succeed where the decision was wrong or unjust because of procedural irregularity. The appellate court must read the judgment as a whole and avoid narrow textual analysis: Re F (Children), [2016] EWCA Civ 546, and Piglowska v Piglowski, [1999] 1 WLR 1360. The appellate court must respect the latitude allowed to first-instance judges in evaluating competing factors and exercising discretion.
4. The court did not need to determine whether the Recorder had misstated or misapplied the section 33 test. The appeal turned on the fresh evidence and its effect on the evaluation required by section 33(6). The evidence showed that the impact on the relevant children was likely to be substantially more serious than ordinary instability, that the appellant’s family might face bed-and-breakfast accommodation and a change of school, and that the respondent might face under-occupation and a risk of arrears. These matters materially undermined the Recorder’s conclusions in a finely balanced case.
5. The decision was therefore wrong on the evidential foundation now available, without criticism of the Recorder’s evaluation on the material then before him. The occupation order was set aside. The matter was remitted for further consideration, including updated evidence relevant to section 33(6) and (7). The designated Family Judge was to determine which judge should deal with the remitted application.

1. High Court (Family Division): Appeal allowed against the occupation order made by Recorder Willetts. The order was set aside and the matter remitted for further consideration.