T (Fact-Finding: Second Appeal)

An appellate court may interfere with a trial judge’s findings of fact only where there is a very clear justification. It must not retry the case, reallocate evidential weight or infer that unmentioned evidence was overlooked without compelling reason.

Departures from Achieving Best Evidence guidance may reduce, and in an extreme case eliminate, the weight given to an interview. The trial judge must assess their effect in the context of the interview and the evidence as a whole. That assessment is primarily for the trial judge.

A judge must not conduct independent factual research. If findings establishing the statutory threshold for care proceedings are set aside as incapable of being made, existing care orders cannot lawfully be continued merely to manage the children’s welfare or prepare for their return home.

In care proceedings concerning four children, a deputy district judge accepted allegations made by the eldest child and found that she had been subjected to sexual and emotional abuse and that the parents had failed to protect her. The judge reached those findings after considering a deficient Achieving Best Evidence interview and the wider evidence.

On the parents’ first appeal, a circuit judge set aside all findings. He concluded that the allegations were highly improbable, that no weight should have been given to the interview and that the trial judge had mishandled the parents’ lies. He nevertheless continued the proceedings and the existing care orders for a welfare hearing.

The local authority brought a second appeal. The principal issues were whether the circuit judge had exceeded the proper appellate role when reviewing findings of fact and whether his consequential treatment of the care proceedings was lawful.

1. Appeal allowed. The circuit judge had correctly stated the governing principles but failed to apply them. An appellate court may interfere with findings of fact only where compelled to do so. It must respect the trial judge’s evaluation of the whole evidential picture and must not substitute its own assessment by selecting isolated parts of the evidence. The deputy district judge’s findings were restored.

2. The deputy district judge had undertaken a comprehensive analysis and given adequate reasons. A trial judgment need not mention every item of evidence or answer every submission. An appellate court should ordinarily assume that the trial judge considered the whole of the evidence and should not subject the judgment to narrow textual analysis.

3. The deficiencies in the Achieving Best Evidence interview did not entitle the circuit judge to direct that it receive no weight. The deputy district judge had watched the recording, recognised the departures from the guidance and assessed their effect alongside the child’s free narrative and the wider evidence. The weight attached to that material was within his province as trial judge.

4. The trial judge was entitled to consider the parents’ inconsistencies and lies as part of his overall credibility assessment. His judgment disclosed no failure to apply the principle that a person may lie for reasons unrelated to the relevant allegation. Nor had he reversed the burden of proof by finding implausible the parents’ assertion that they could not locate two former close friends.

5. The trial judge was not required expressly to address every asserted improbability. The central allegation and the physical character of the street were plainly before him. The circuit judge impermissibly relied in part on his own Google research. A judge must not carry out an independent factual investigation, particularly on an appeal confined to the evidence before the first-instance court.

6. Had the findings properly been set aside as findings which no court could make, the threshold under section 31(2) of the Children Act 1989 would have disappeared. The proceedings, interim orders under section 38 and the final care order could not lawfully have continued merely to facilitate welfare planning. A fresh section 31 application was required for new allegations. A short interim order under section 40 could instead have preserved the position while an appeal was considered.

1. Court of Appeal (Civil Division): The local authority’s second appeal was allowed. The first appellate decision was set aside and the deputy district judge’s findings were restored: [2023] EWCA Civ 475.
2. Family Court, HH Judge Greensmith: The parents’ appeal was allowed on all grounds. The deputy district judge’s findings were set aside, but the proceedings and care orders were continued for a welfare hearing.
3. Family Court, Deputy District Judge Hornby: Following a fact-finding hearing, the judge substantially upheld the local authority’s allegations concerning abuse, failure to protect and the risk of significant harm.