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Fact Finding

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  • The parents had lived together for twelve years. During previous proceedings regarding contact with their two children, the mother had alleged domestic abuse on the father's part, both towards her and towards a subsequent partner. Following a conviction for assault on a third partner, he applied to enforce an order for contact, in response to which the mother raised the issue of his violent behaviour towards multiple partners. The district judge found that there had been domestic abuse, but later recused herself after realising that her son and the mother were members of the same sports club. The judge then agreed to re-open the district judge's earlier findings of fact on the basis of apparent bias. The mother appealed with regard to the recusal and the decision to re-open the findings. Peter Jackson LJ found that the judge's decision had been both wrong and unfair. The district judge had not discovered that her son and the mother knew each other until months after her findings of fact had been made. King and Phillips LJJ agreed. The father's application was dismissed, and the proceedings were remitted for the welfare decision to be taken on the basis of the district judge's findings of fact by another circuit judge. Judgment, 17/12/2020, free
  • The mother's appeal against a finding, made at a fact-finding hearing in the course of Children Act proceedings, that she had assaulted the father just before they separated. She appealed on the grounds that the judge had been in error regarding the photographs the father had taken of his injuries. Judd J DBE found that the date stamps showed that the photographs had been taken on a date inconsistent with the father's account of events, which would have undermined his reliability and credibility with regard to the entire incident. The finding of the Recorder was thus set aside. However, orders had subsequently been made in the Children Act proceedings, and Judd J DBE did not think it desirable or proportionate for the matter to be remitted for rehearing, so it would rest as it was. Judgment, 28/11/2020, free
  • The father sought contact with the child. The mother opposed all contact. In a fact-finding hearing the judge had found that the father had killed the maternal grandfather and attempted to kill the mother and maternal grandmother, by means of poisoning their coffee with thallium. The father now appealed on the basis that the judge's findings had been unsafe. King LJ's view was that the judge's order could not stand. Findings had been made which were not based on a rigorous analysis of the evidence. Nicola Davies LJ and Philips LJ agreed. The appeal was allowed and the matter remitted for retrial before a High Court judge, in order for the court to determine if the poison had been administered deliberately, and, if so, identify the perpetrator if possible. Judgment, 25/09/2020, free
  • The father sought a child arrangements order while the mother opposed any direct contact. The mother alleged that she was the victim of the father's domestic violence and abuse. The case had engaged special measures, with a screen being used for the mother and the father being required to provide Willans J with his questions for her in advance, though Willans J expressed "grave reservations as to the resulting quality of evidence received". The allegations of rape and abduction were not found to be proven, while both mother and father were found to have sent inappropriate communications of a harassing nature to each other. Though the mother was found to have demonstrated implacable hostility, Willans J was not persuaded that the effects of this amounted to parental alienation. Consideration would now have to be given to whether contact could be re-established. The case needed to progress, and a Children's Guardian would be appointed prior to fixing a directions appointment. Judgment, 25/05/2020, free
  • The father sought permission to appeal out of time against a district judge's finding of fact that he had abused his daughter. Francis J decided that the findings were so unsafe and their consequences so series that they could not be allowed to stand, despite the exceptional delay in appealing. He noted with surprise the district judge's assertion that the mother's counsel could conduct the cross-examination of the expert witness on behalf of the litigant-in-person father as well as the mother, a suggestion which Francis J said was "incorrect and plainly wrong". The expert had not been cross-examined on his misunderstanding of a previous judgment in the case, and in failing to depart from the expert's view the district judge fell into further error. The procedure adopted was irregular enough to cause injustice within the meaning of FPR Part 30. Permission to appeal out of time was granted, the appeal was allowed and the finding of fact set aside. The matter would be remitted for re-hearing by a High Court judge of the Family Division. Judgment, 19/05/2020, free

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