Z (A Child), Re

An appellate court should interfere with a trial judge’s factual findings only in rare circumstances, such as where there is no evidential basis, a material misunderstanding or failure to consider relevant evidence, or a conclusion no reasonable judge could reach. A judge may accept parts of a witness’s evidence while rejecting other parts. Inconsistencies or lies on some matters do not require rejection of the whole account if the findings are rationally supported by the evidence as a whole. Findings of domestic abuse must be accurately recorded in the order under Family Procedure Rules 2010 PD12J, paragraph 29. An erroneous additional finding may be deleted without undermining findings properly made.

The father appealed findings of fact made by Theis J in proceedings seeking the return of his eight-year-old son to Egypt after the mother wrongfully removed him. The mother relied on allegations of domestic abuse. The High Court rejected allegations of coercion and control, sexual abuse and financial abuse, but found that allegations of verbal, physical and emotional abuse were very largely established. The final welfare hearing was adjourned pending the appeal.

Permission was granted on grounds that the judge had failed to give adequate reasons and had adopted a flawed evaluation of the evidence. The central issue was whether the findings under the physical and emotional abuse categories were legally unsustainable or inadequately reasoned.

The Court of Appeal unanimously dismissed the appeal. It directed that paragraph (i)(e) of Schedule B to the order be deleted because it recorded a significant finding that appeared neither in the allegations nor in the judgment.

1. Appellate restraint. The court applied the principles stated in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911, Henderson v Foxworth Investments Ltd and another [2014] 1 WLR 2600 and Volpi v Volpi [2022] 4 WLR 48. Intervention is justified only in rare circumstances, including an unsupported critical finding, a demonstrable misunderstanding or failure to consider relevant evidence, a material error of law, or a conclusion which cannot reasonably be explained or justified. The question is not whether the appellate court would have reached a different conclusion.
2. Evaluation of evidence. The guidance in Re B (A Child) (Placement Order; Adequacy of Reasons) [2022] 4 WLR 42 was valuable as to the structure and content of judgments, but the applicable approach to this appeal was the established one governing challenges to factual findings. The judge was entitled to accept parts of the mother’s evidence while rejecting other allegations. Her lies and inconsistencies did not require rejection of the whole account.
3. Application. Theis J had considered the evidence across the judgment, including the parties’ credibility, the mother’s inconsistencies and the findings made against her. Her conclusions concerning the incident on 24 November 2021, the earlier argument and the broader pattern of abusive behaviour were rationally supported. The judge had not simply adopted the mother’s schedule and had expressly rejected some allegations, including that the father hit her while pregnant and shook J.
4. Recording findings. PD12J of the Family Procedure Rules 2010 requires domestic-abuse findings to be recorded in writing in a Schedule to the relevant order. A court should ensure that each specific element recorded has actually been found, or formulate a general finding instead. The erroneous paragraph (i)(e) was a drafting error and could be deleted. Minor inaccuracies in other formulations were immaterial to the return issue and did not justify appellate interference.
5. Welfare observation. The court noted that the limited findings were unlikely to have a determinative or significant effect on the eventual welfare decision, which should be made as soon as practicable. That observation did not interfere with the task of the welfare judge.

1. Court of Appeal (Civil Division): The father’s appeal against the High Court’s factual findings was dismissed unanimously. The Court directed deletion of paragraph (i)(e) from Schedule B.
2. High Court of Justice, Family Division: Theis J made fact-finding determinations in proceedings seeking the return of J to Egypt. The final welfare decision was not made.