Interfering with Findings of Fact on Appeal

15 December 2022

In an appeal from findings of fact arising from allegations of domestic abuse, including transnational marriage abandonment (or stranding), it was argued that the appellate court should interfere with the findings of fact made by the trial judge because the decision could not be reasonably explained or justified[1]: A, Re (A Child : Findings of Fact) [2022] EWCA Civ 1652: Peter Jackson, Elisabeth Laing, Snowden LJJ

There were 41 separate allegations grouped under 12 main headings, and 7 different types (including stranding, physical abuse and threats of violence, sexual abuse, controlling and coercive behaviour, psychological and emotional abuse, finance abuse of the child S.

The mother’s case on the stranding allegation was that the father removed her passport and ID document from her upon arrival in Pakistan and coerced her into reporting them as lost (which she did in September 2021) before stranding her in Pakistan. The father said the mother lost them.

The judge found that the stranding allegation was the only allegation proved. She rejected the evidence of the father on that issue and the evidence of the mother on all other issues.

The mother appealed and sought a rehearing on three grounds: (1) the judge failed to consider the relevance of her finding of abandonment and stranding to the other allegations; (2) there was a flawed approach to the other evidence and insufficient reasons for those findings; (3) it was wrong to refuse to adjourn for an intermediary assessment and there was a failure to take account of the mother’s vulnerability when assessing her evidence.

The case management decision was not open to any criticism and ground 3 was not pursued.

As a matter of general principle, where a court had to assess the evidence given by competing witnesses on a number of issues, it was entirely possible for it to prefer the evidence of one witness on some issues and another witness on the other issues.

The mother gave a detailed account of a consistent course of seriously abusive behaviour in two countries while the father denied everything. The possibilities were that the mother was broadly telling the truth, that the father was broadly telling the truth or that each was telling the truth about some things and lying about others, there being no room for honest mistake.

The judge’s conclusion was that the mother was lying about events in England and the father was lying about events in Pakistan, their credibility in fact running on geographical lines. On these facts that was, in the view of Peter Jackson LJ, a truly surprising conclusion. Perpetration of domestic abuse was an expression of an aspect of a person’s character within a relationship and the fact that a person was capable of being seriously abusive in one way inevitably increased the likelihood of them having been abusive in other ways. There was no indication that the judge acknowledged this. Instead, and despite her correct self-direction, she treated the various limbs of the mother’s allegations as if they existed in unconnected compartments.

The judge clearly considered that the mother’s evidence could be accepted only if it were corroborated. It was of course necessary for her to take a view of the parents. However, the judge’s assessment of the mother’s evidence was vulnerable in a number of significant respects.

Firstly, although she was clearly aware of the FPR 3A.2A assumption that the quality of the evidence of a victim of abuse would be diminished, she did not make that assumption or explain why she was not making it in her assessment.

Second, when explaining the mother’s motive for lying, the judge reached inconsistent conclusions about the father’s (necessary) claim that it was all a plan for immigration purposes.

Third, she did not interrogate the likelihood of a person who was “naïve in some respects” being capable of manufacturing such elaborate and sustained lies, whether as part of a calculated plan or out of anger and desperation.

Fourth, the judge placed unjustifiable weight on the absence of corroboration at the expense of a broader assessment that took proper account of the predicament of victims of an abusive relationship and of the inherent probabilities.

Fifth, the reasons for dismissing such potentially corroborative evidence as there was were superficial.

Sixth, it was hard to understand the reservations expressed about the implausible level of detail of the mother’s account of events that were all said to have taken place within the past two years and would have been memorable if true.

Seventh, the judge did not take account of her own assessment that the mother had told the truth about the stranding while the father had lied about it, and factor that into her assessment of both parties’ credibility on the other issues.

Finally, she did not consider that the mother was giving an exaggerated rather than an untrue account of an abusive relationship.

In contrast, the judge’s assessment of the father was remarkably indulgent in the light of her findings as a whole. If her conclusion about stranding was sound it showed him to be a man who was capable of gross cruelty to his wife and grave abuse of his son by depriving him of his mother indefinitely.

Assessments of the parents permeated the judgment. They were not sustainable and did not supply the reasoning necessary to justify what was in other respects a surprising conclusion. The package of findings of fact could not reasonably be explained or justified.

The appeal was allowed and the matter ordered to be reheard. Both parties would be in a position to present their cases on all issues. The concern of the court was not that the judge should have made more findings against the father but rather that her reasoning did not justify making the mixed findings that she did. At the retrial all options would be open.

[1] Henderson v Foxworth Investments Limited [2014] UKSC 41 at para. 67

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