S (Care and Placement: Schedule of Findings of Fact), Re

In an appeal against family findings of fact, the Court of Appeal should intervene only where the conclusion is plainly wrong, unsupported by evidence, based on a misunderstanding, or one no reasonable judge could reach. A judge may make an unrequested finding, but must take particular care that it is securely founded and procedurally fair. This includes putting a particularised allegation to the affected witness and allowing it to be challenged in cross-examination. A finding placing a person within a pool of possible perpetrators requires analysis of each candidate’s likelihood and the relevant competing factors. Lies alone cannot support such a finding. A schedule appended to a public-law order must accurately reflect the reasoned judgment.

The appeal arose from final care and placement proceedings concerning S, a very premature child. The appellant, S’s paternal aunt, had intervened because she was implicated in allegations concerning the use of misoprostol to induce the child’s premature birth.

The Family Court sitting in Manchester recorded findings in a schedule to the final order. After an earlier draft had been lodged for the appeal, it emerged that the judge had amended the schedule without consultation. The sealed order recorded that the aunt was likely to have brought Cytotec tablets to the parents’ room and that the mother, father or aunt had inserted the tablet into the mother’s vagina.

The aunt challenged both findings. The central issues were whether the inference concerning Cytotec was open to the judge and whether the finding implicating the aunt in inserting the tablet was adequately reasoned and reached through a fair fact-finding process.

The Court of Appeal, in the lead judgment of Cobb LJ, with Baker LJ and Coulson LJ agreeing, allowed the appeal in part. The challenge to finding [5] was dismissed. The appeal against finding [6] was allowed, and that finding was amended to remove reference to the aunt.

1. Appellate restraint. The court applied the principles in Volpi, Piglowska, Fage, Re A (No.2) and Re B. An appellate court should not interfere with primary factual findings unless the conclusion is plainly wrong or falls within a rare category such as absence of evidence, misunderstanding of the evidence, or a conclusion no reasonable judge could reach. The trial judge need not rehearse every item of evidence, provided the judgment adequately identifies, analyses and evaluates the material relied upon.
2. Finding [5]. The judge was entitled to infer that the aunt was likely to have possessed and brought Cytotec to the parents’ room. Relevant matters included her possession of Breeky tablets containing misoprostol, the recorded conversation about abortion pills, the absence of evidence that the parents possessed Cytotec, inconsistencies in the aunt’s evidence, the clinic contact concerning termination, and the judge’s assessment of credibility. The finding was sufficiently secure and was not one which no reasonable judge could have reached.
3. Finding [6]. A judge may make a finding not sought by any party, but must exercise particular caution to ensure that it is securely founded in the evidence and that the process is fair, as explained in Re A (No.2) and Re G and B. Here, the allegation that the aunt inserted the tablet was not particularised or properly put to her in cross-examination. Applying Griffiths v Tui (UK) Ltd, the court held that she was denied a fair opportunity to explain or refute the allegation. The judgment also lacked analysis of the likelihood of each possible perpetrator, and the finding could not be supported by lies alone.
4. Orders and practice. Although no equivalent requirement to PD12J paragraph 29 applies in public-law proceedings, a schedule used in such proceedings must accurately reflect the reasoned judgment. Before appealing, parties should ensure that the schedule has been approved and that the lodged order is sealed. Coulson LJ added that findings should preferably be cross-referenced to the relevant judgment paragraphs.

1. Court of Appeal (Civil Division): In [2026] EWCA Civ 85, the appeal was allowed in part. Finding [5] stood, while finding [6] was amended to remove reference to the aunt.
2. Family Court sitting in Manchester: Recorder Grocott KC made findings of fact at the conclusion of care and placement proceedings and recorded them in a schedule to the final order.