A (A Child : Findings of Fact), Re

An appellate court reviewing domestic-abuse findings must assess the evidence as a whole. Allegations cannot be placed in disconnected compartments. A finding that a party deliberately stranded a spouse is not a trump card, but it is relevant to character, credibility and the inherent probabilities of other abuse. Corroboration may be considered, but its absence cannot bear unjustifiable weight, particularly where vulnerability and the dynamics of abuse may explain non-reporting or apparently contradictory conduct. Under the Family Procedure Rules 2010 rule 3A.2A, the court must address the assumption that a putative victim’s evidence may be diminished, or explain why it does not apply. A fact-finding judgment is unsafe where its mixed conclusions and credibility assessments cannot reasonably be explained or justified.

This was the mother’s appeal from a fact-finding judgment in the Family Division. The judge considered 41 allegations of domestic abuse, including transnational marriage abandonment or stranding, physical and sexual abuse, coercive and controlling behaviour, emotional abuse, financial abuse and abuse of the child. Only the stranding allegations were proved. The mother argued that the judge had compartmentalised the evidence, relied excessively on corroboration, failed to account for vulnerability and the effect of the stranding finding on credibility, and wrongly refused an adjournment for an intermediary assessment. The central issue was whether the judge’s mixed findings could reasonably be explained and justified after a proper overall assessment of the evidence.

Jackson LJ delivered the judgment of the court, with which Laing LJ and Snowden LJ agreed.

1. Appeal and appellate threshold. The appeal was allowed. Applying the rule stated in Henderson v Foxworth Investments Limited [2014] UKSC 41, an appellate court may interfere with findings of fact, absent another identifiable error, where the decision cannot reasonably be explained or justified.
2. Overall assessment. A fact-finding judge may prefer one witness on some issues and another witness on others, and may find that each is truthful about some matters and untruthful about others. Such a surprising conclusion requires a robust explanation. Allegations may be considered in any sensible order, and the judge need not address every allegation in detail, but the evidence must be analysed overall and the principal elements correlated. Patterns of behaviour must be considered alongside specific allegations.
3. Significance of stranding. A finding of stranding is not a trump card that inevitably requires findings on every other allegation or dictates the welfare decision. It is nevertheless relevant to character, credibility and inherent probabilities. A person capable of serious abuse in one way is more likely to have been abusive in other ways. The judge treated the allegations as disconnected compartments and failed to make the stranding finding visible in the assessment of the remaining allegations.
4. Corroboration and vulnerability. External evidence may properly be considered, but the absence of corroboration cannot receive unjustifiable weight at the expense of the broader circumstances and the predicament of an abuse victim. The judge failed to address the assumption under the Family Procedure Rules 2010 rule 3A.2A(1)(a) that the quality of a putative victim’s evidence may be diminished, or to explain why she did not apply it. The court endorsed the observations in Re M [2021] EWHC 3225 (Fam): a vulnerable person may cling to the hope of a successful relationship and accept treatment that others would reject. The judge also failed to consider whether the mother’s account was exaggerated rather than wholly untrue.
5. Reasons and rehearing. The judge’s treatment of the mother’s motive for lying was inconsistent, her reasons for rejecting potentially corroborative evidence were superficial, and her assessment of the father was unduly indulgent in light of the stranding findings. The package of findings could not reasonably be explained or justified. The matter was remitted to the Family Division for a full rehearing, with all options open to both parties and the previous Children’s Guardian capable of being reappointed.

• Court of Appeal (Civil Division): In [2022] EWCA Civ 1652, the court allowed the appeal against the fact-finding judgment and remitted the matter for a full rehearing.
• High Court of Justice, Family Division: Following a three-day fact-finding hearing, the judge handed down judgment on 20 April 2022. She found the stranding allegations proved but rejected the remaining allegations. Permission to appeal was granted on 26 July 2022.