IJ v KL

Permission to appeal against findings of fact in family proceedings should be granted only where the proposed appeal has a realistic prospect of success or there is another compelling reason for hearing it. An appellate court reviews, rather than rehears, the first-instance decision and must exercise particular restraint when findings depend on evidence and credibility. It may intervene where the decision is plainly wrong, outside the reasonable range of disagreement, or affected by procedural unfairness. A judge conducting a domestic-abuse fact-finding hearing need not determine every allegation separately. The central task is to assess the evidence relevant to any alleged pattern of coercive or controlling behaviour and to the children’s welfare. A judgment is not defective merely because it does not mention every piece of evidence or allegation.

The appellant father sought permission to appeal findings made by Her Honour Judge Gibbons after an 11-day fact-finding hearing in private-law proceedings concerning the parties’ two children. The judge found, among other matters, that the father had engaged in controlling and belittling behaviour, had assaulted one child on several occasions, and had had sexual intercourse with the mother without her consent. She rejected allegations of sexual abuse of the child and various allegations made against the mother.

The proposed appeal alleged serious procedural irregularity, findings contrary to the weight of the evidence or unsupported by the requisite standard of proof, and a defective decision-making process, including misuse of the Lucas direction. The central issues were whether the fact-finding approach was fair and whether any finding was plainly wrong or procedurally unsafe.

1. Permission test. Under r.30.3(7) of the Family Procedure Rules 2010, permission required a real, meaning realistic rather than fanciful, prospect of success or some other compelling reason for the appeal to be heard.
2. Appellate restraint. An appeal from family fact-finding is a review, not a rehearing. The appellate court must exercise particular care where findings depend on oral evidence and credibility. It may test findings against documents, probabilities and the evidence as a whole, but intervention is justified only where the decision was plainly wrong, outside the generous ambit of reasonable disagreement, or the decision-making process was plainly defective. The principles in AA v NA (appeal: fact-finding), Re A and R (Children), Fage UK Ltd & Anor v Chobani UK Ltd & Anor, Re B (A Child), Biogen Inc v Medeva plc, Piglowska v Piglowski, Datec Electronics Holdings Ltd v United Parcels Service Ltd, McGraddie v McGraddie, Re T (Fact-Finding: Second Appeal) and Gabriele Volpi & Delta Ltd v Matteo Volpi were applied or followed.
3. Domestic-abuse fact-finding. The judge was entitled to focus on allegations relevant to the welfare issues and to assess whether the evidence established a pattern of coercive or controlling behaviour. She was not required to make findings on every allegation in the mother’s schedule, particularly where the allegations had been explored in evidence and submissions. The approach reflected Re H-N and Others (children) and Re B-B (Domestic Abuse – Fact Finding).
4. Evidence and credibility. The first-instance judge was entitled to evaluate the whole evidential canvas, to accept some evidence and reject other evidence from the same witness, and to make findings without independent corroboration where the evidence was sufficient. The fact that a witness had exaggerated or given unreliable evidence on some matters did not require rejection of all that witness’s evidence.
5. Lucas direction. The judge’s self-direction was adequate. The principles in R v Lucas remained applicable but had to be tailored to the facts and the witnesses. The judge was not required to obtain corroboration before accepting the maternal grandmother’s evidence.
6. Disposition. None of the proposed grounds had a real prospect of success and there was no other compelling reason to hear the appeal. Permission to appeal on Grounds 1, 2 and 3 was refused.

The judgment itself describes an earlier appeal by the mother against a case-management decision, which was allowed by Judd J in June 2021. That earlier decision concerned the admission and scope of evidence in the same proceedings.

High Court (Family Division): Permission to appeal the fact-finding judgment of Her Honour Judge Gibbons was refused on all three grounds.