AB v CD & Anor

An appellate court may interfere with family fact-finding where the judge applied an erroneous legal approach, reached a conclusion unsupported by the evidence, failed to consider significant evidence, adopted an unfair procedure, or exceeded the range of reasonable disagreement.

A fact-finder need not address every evidential point, but must give sufficiently clear reasons to show the parties why they won or lost and to permit effective appellate review. Where fabrication is alleged as part of a strategy to exclude a parent, the judge must explain carefully why that case is rejected and assess the evidence against the totality of the evidential canvas. A Lucas direction requires recognition that dishonesty may have several causes and that past lies do not themselves prove present lies.

The father appealed against findings made by Recorder Armitage in private law proceedings concerning contact with the parties’ child. The Recorder found that the father had twice raped the mother, emotionally abused her, and threatened to remove the child to Pakistan, while accepting one allegation made by the father against the mother.

The appeal challenged the adequacy of the Recorder’s reasoning, including her treatment of the evidence, her decision not to determine several allegations, the absence of a clear credibility analysis and Lucas direction, and a recital referring to the “strength and power” of allegations on which no findings had been made. The central issue was whether the fact-finding process and reasons were sufficiently fair, coherent and transparent for the findings to stand.

1. Appeal allowed. The Recorder’s findings were set aside and the matter was remitted for an early rehearing.

2. Under rule 30.12(3) of the Family Procedure Rules 2010, an appeal must be allowed where the lower court’s decision was wrong or unjust because of a serious procedural or other irregularity. The appellate court may draw any justified inference of fact under rule 30.12(4). Relevant questions include whether there was an error of law, whether the conclusion was open on the evidence, whether significant evidence was overlooked or given inappropriate weight, whether the process was unfair, and whether the decision fell outside the range of reasonable disagreement.

3. A judgment must explain clearly the reasons for the decision. It need not address every point raised, but must be read as a whole and provide sufficient detail for the parties to understand the result and for an appellate court to assess sustainability, applying the guidance in Re F (Children) and Piglowska v Piglowska.

4. The Recorder’s judgment lacked a sufficient structured analysis of credibility and of the father’s case that the allegations had been fabricated to prevent contact. Her decision to leave some allegations undetermined was permissible as case management, but those allegations had then to play no part in the analysis. The recital describing them as having “strength and power” created uncertainty and suggested that matters said to have been excluded had nevertheless influenced the decision.

5. In a case alleging fabrication as part of a course of conduct designed to marginalise a parent, the fact-finder must explain carefully why that case is rejected and must consider the evidence against the totality of the evidential canvas. The Recorder’s compartmentalised approach and insufficient explanation rendered the findings unsafe.

6. A proper R v Lucas direction recognises that a person may lie for different reasons, including shame, fear, distress, confusion or emotional pressure. Past dishonesty does not itself prove present dishonesty. The judge must then show in the judgment how that direction affected the assessment of credibility. Simply putting the previous dishonesty entirely out of mind was inadequate.

• High Court (Family Division): Appeal from the order of Recorder Armitage in the Family Court at Leeds dated 30 October 2020. Appeal allowed; findings set aside and matter remitted for an early rehearing.