Findings of Fact by Trial Judges: The first and last night of the show.

There are some appeal judgments which go beyond simply restating or varying the law to some degree of other.  One such judgment, can be found in the case of  A and R (Children), Re [2018] 20180 EWHC 2771 (Fam), where the High Court, in dismissing the mother’s appeal, issued a strong reminder of how and when findings of fact by a trial judge can and should be properly considered, by way of appeal. Nick McCall explains…

The appeal had arisen from private law proceedings between an affluent mother and father, following findings of fact, made by the trial judge.  The allegations which had been considered at trial, included allegations and counter allegations. These included:

The mother’s allegations against the father of two physical assaults against her by the father, allegations of coercive and controlling behaviour, and allegations of inappropriate sexual behaviour and a lack of boundaries towards one the children.

The father cross-alleged against the mother, physical harm to him by the mother, emotional abuse to him and the children by the mother, and incidents of inappropriate behaviour towards the children.

Findings were made against both the mother and the father. Both were considered in different ways, to have presented their evidence in vague terms. The trial judge found that the father had on balance physically assaulted the mother, and that he had been controlling and coercive towards her, but did not find that he had acted in a sexually inappropriate manner or lacked such boundaries towards their children.  On the other hand, the trial judge found that the mother had on one occasion physically assaulted the father, and that she had put her tongue in her child’s mouth, but that there was no evidence that there was a sexual element to this.

The mother appealed on the grounds of material irregularity, in that that the trial judge had not expressly addressed Practice Direction 12 (in respect of the impact of domestic abuse) in her judgment, and had failed to follow such guidance, in considering the impact of domestic abuse upon the mother and the children. The remainder of the grounds of appeal concerned the trial judge’s analysis of the genesis of the father’s allegations against the mother, and that the judge’s assessment of the mother’s evidence was flawed.

In this matter, the mother appealed on the basis that the judge had failed to consider the impact of that the alleged abuse would have upon her ability to give evidence in court, with the father sitting close by. Perhaps though, the true thrust of the appeal was in the mother’s third ground of appeal, which concerned unfairness. The mother appealed here, on the grounds that the trial judge had formed an “unfairly adverse view of the mother, which had affected the neutrality of her analysis”. 

This third ground, if it was the main thrust of the appeal, was perhaps the weakest part of the appeal.

Appeals on Findings of Fact

In dismissing the appeal , Baker J restated that there should not be interference with the trial judge’s decisions in respect of findings of fact, unless the appeal court was compelled to do so.  There was evidently no such compulsion in this case, and Baker J, cited the words of Lewison LJ in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5, that:

  1. The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.

    ii) The trial is not a dress rehearsal. It is the first and last night of the show.

    iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.

    iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

    v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

    vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done

The case serves as a reminder of three well established principles.

The first is that an omission (on its own) of explicit reference to a procedure by a trial judge in judgment, in this case PD 12J, does not mean that its content was not considered by the trial judge. A  judicial error on its own will not succeed unless it leads to a determination that is beyond  “the generous ambit of reasonable disagreement or (is) wrong within the meaning of the various expressions to which he had referred.”  Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33

The second is that a trial judge is deemed have the benefit of hearing all of the evidence in comparison to the appellate courts, who will deal only with the grounds for appeal.  In this, the trial is the first and last show of the night.

The third point is that there is no duty upon a trial judges to deal (in judgment) and in setting out reasons, to deal with every argument put before them by counsel. The function in judgment is to reach conclusions and give reasons to support the conclusions. As stated in Fage UK Ltd, the function is;

not to spell out every , matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted”

The judgment is clear though in dismissing the mother’s appeal that although there are wide margins within which a Trial Judge may function, without interference from the upper courts, that if there a Judge is “plainly wrong” then the appellate courts have a duty to interfere.

This catch all statement however, clearly cannot be used to generate appeals, simply on the basis of appellant’s desiring a different result from the higher courts, because they disagree with the trial judge. The higher courts are, as in the present case, astute to look for proper and substantive grounds for an appeal, rather than a rehearsing of the evidence. They will also be aware of attempts to utilise a point of procedural error as a Trojan Horse, in order to smuggle through a further and second rehearsal of such evidence, so as to get a second crack of the whip.

As things stood in the present case however, the appeal merely resulted in Baker J criticising both parties for their behaviour towards each other, as parents to the children, and as litigants.

Nick McCall joined Central Chambers from a Local Authority background. He is undertaking a pupillage under Joseph Lynch and is focussing on Family Law and Criminal Law at present.

If you would like to instruct Nick in relation to family work including findings of fact hearings, please contact the clerks by email, the website contact form or by telephone on 0161 2361133.