Appealing a finding of fact- Re A (Appeal: Findings of Fact) [2025] EWHC 1279 (Fam)

This case provides important guidance on procedural and substantive aspects of private law fact find hearings.

The case concerned three children, with the parties involved in significant litigation and allegations being raised by both sides. There had been considerable delay in the court system (in part due to delays in identifying the recording of the fact find judgment), with the finding of fact hearing having taken place three years earlier. The outset of the appeal judgment notes-

“The litigation had begun to drift from its mooring. By the time of the hearing, there were in excess of seventy allegations and counter-allegations, clustered around various incidents and dates” (paragraph 11) and highlights the issue when there is a lack of consistency of both representation and the judiciary “I regret to say that there was a striking lack of constructive case management or any real endeavour to marshal or hone the case into a coherent structure. Nor does there appear to have been, at any stage, focus on evaluating the proportionality of what actually needed to be determined in order to identify where the best interests of the children lay. At times, both parties had been unrepresented and there had also been an absence of judicial continuity. Nine judges had heard the case. The Recorder allocated to the fact-finding hearing faced an unenviable task” (paragraph 12).

The fact find hearing was listed for three days, including allegations of marital rape. The father sought to appeal the decision on five grounds, citing bias and procedural unfairness. The fifth ground was for a finding of rape. Permission was given for this ground only; on the basis it was arguable that the Recorder had failed to give sufficiently cogent reasons.

In relation to the principle of findings of fact, Mr Justice Hayden highlights-

“An Appellate Court will not interfere with findings of fact made by the trial judge unless it is constrained to do so; this applies not only to primary facts but extends to the evaluation of those facts and inferences reasonably to be drawn from them. The correct approach is set out in the frequently cited Fage UK Limited v Chobani UK Limited [2014] EWCA Civ 5, per Lewison LJ. Later, in Volpi v Volpi [2022] EWCA Civ 464, per Lewison LJ who characterised the approach to an appeal on a pure question of fact as a “well-trodden path” signposted by the following principles:

“2.…

i)An appeal court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong.

ii)The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.

iii)An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.

iv)The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.

v)An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge’s conclusion was rationally insupportable.

vi)Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”

Self-evidently, these principles shield the findings of a first instance judge with a robust and durable armour, though not, ultimately, an impregnable one” (paragraph 18 and 19).

In consideration of this case, Hayden J considered that the Recorder had erred in making findings that were “ambivalent in identifying whether the sex was consensual” (paragraph 27) and “In contrast to what I have said about the broader evidence, the analysis relating to the rape allegations in the Recorder’s judgment is, I regret to say, abstruse, inconsistent, and ambiguous” (paragraph 37).

Hayden J highlighted that in cases concerning domestic abuse “when the Court has decided that domestic abuse allegations are relevant to determining the welfare of the child, it must then consider and sift out which of the allegations are likely to be relevant and, it follows, which are not. The question is a specific, not a generic one. The decision to conduct a fact-finding hearing, in respect of domestic abuse, does not automatically open a floodgate to a litany of allegations which may be years old. That is simply not the purpose of the Children Act proceedings. The investigations require to be linked, inextricably and exclusively, to those matters which are required to determine the children’s welfare” (paragraph 41).