Can you challenge a finding of fact in a family court?

This is a post by Sarah Phillimore

TLDR; yes  – but its difficult. Don’t rely on being able to challenge a finding after it is made – it is far, far better to challenge it at the time of your court case, if you have all the available evidence.  

However, if you discover evidence after the hearing that shows the findings have been made on an inaccurate basis, it is clear that there is a mechanism to challenge this. 

So anyone who asserts the the Judge ‘got it wrong’ at their hearing and they have the evidence to prove this – ask yourself (and them) why they haven’t asked the court to look at this. 

 

in cases involving children, it is clearly very important that decisions about their welfare are based on sound factual findings. See W (Children), Re [2009] EWCA Civ 59. But what does a parent do if they think the finding of fact was made on the wrong basis?

Section 31F(6) of the Matrimonial and Family Proceedings Act 1984 was inserted by the Crime and Courts Act 2013, section 17(6), Schedule 10, paragraph 1 and came into force on 22nd April 2014.  It gives the Family Court the power to “vary, suspend, rescind or revive any order made by it”. it’s an interesting provision as that undermines the principle in relation to finality of judgments and orders – but which itself is in tension with the principle that decisions about children, which have such long lasting consequences, should be made on the soundest footing.

in the case of Re E (Children: Re-opening Findings of Fact) [2019] EWCA Civ 1447 the  Court of Appeal held that the Family Court had the statutory power under the Matrimonial and Family Proceedings Act 1984 s.31F(6) to review its findings of fact at any time.

In this case, the children were removed from the mother’s care, after the youngest was found to have cigarette burns on her arm. The mother said it was an accident but her accounts were inconsistent. In the criminal investigation, the police medical evidence supported the mother and said she offered a plausible explanation for accidental burns. The mother then got permission to appeal out of time on the basis of that report.

The Court of Appeal found that a finding of fact was not “an order” in the strict sense of s.31F(6), but it could be appealed if it was integral to the order on which it was based and therefore came within the scope of section 31F(6). A finding of fact that the mother deliberately hurt her child was clearly integral to the order made to remove them.

Nor did section 31F(6) express that it was limited to a particular time after the hearing, given that findings of fact often have longstanding consequences for children and their families.

The court refused to follow G (A Child), Re [2014] EWCA Civ 1365  where the judge commented that when a sealed order, after a fact finding hearing, is challenged then that challenge must be to the appeal court and the mother should not have been allowed to apply to the first court to re-open factual issues.

However, the Court of Appeal in Re E dismissed the mother’s appeal and found she should apply directly to the trial court – the trial court was more likely to be in a better position than any appeal court to assess the true significance of the further evidence and was likely to be able to deal with the application more quickly and cheaply.

 

Applying to the first court to look at its findings again.

So if a parent wants to review a finding of fact the approach is set out in Re ZZ, (Children) (Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95.This case adopted a three part test first set out by Charles J in Birmingham City Council v H and Others [2005] EWHC 2885 (Fam):

  • the court must consider whether it will permit any challenge to the earlier findings
  • it then has to decide the extent of the investigation and evidence heard by the review
  • then it hears the review and decides whether or not the earlier findings still stand.

The court will not get beyond the first stage unless there is some ‘real reason; to believe that the earlier findings can be challenged. ‘Mere speculation and hope’ are not enough. The over arching question for the court will be whether there was any reason to think that a rehearing would result in a different finding,

 

Appealing to another court to about the findings

Or a parent could appeal based on further evidence but this might need an application to extend time, as applications to appeal have strict time limits.  Pursuant to CPR r.52.21(3) an appeal to the Court of Appeal would be allowed where the lower court decision was either wrong or unjust because of a serious irregularity.

Under r.52.21(2) any evidence not before the lower court would not be admitted without permission, looking at criteria in in Ladd v Marshall [1954] 1 W.L.R. 1489

  •  that it hadn’t been possible to get the evidence for use at the first hearing
  • if heard, the evidence would have had an important impact on the case
  • and the evidence was credible.

15 thoughts on “Can you challenge a finding of fact in a family court?

  1. Angelo Granda

    Why don’t they use the new evidence?

    I think it is because of the legal-funding problem . Barristers and solicitors cannot make applications for funding unless they think there is more than a 50% chance of success. Unfortunately ,due to the protocol and procedural inequities, they are really able to do so. The odds are stacked against them because the Court can always turn round and say the new evidence would not have had any effect on the original appraisals. It can do this whenever it feels some level of risk remains and ,of course,it is impossible to prove otherwise. Thus the chances are very low.
    In this respect,I believe the barristers are wrong. Why?
    Because when ‘findings’ are made on the ‘balance of probabilities ‘after considering a matrix of facts, just one scrap of new evidence,just one scrap withheld previously and just one scrap disproven may swing the 51/49 balance. The ‘elephants’ in the room theory was tested quite recently at appeal and it was found that it was impossible to judge the percentage impact of each piece of evidence. No Family Court decision can be entirely safe and the barristers should apply for funds accordingly, in my view.

    Reply
    1. Angelo Granda

      Readers take a look at this link: (Re M (Children) [2013] EWCA Civ 388).
      In my opinion, to find a fact proved on the balance of probabilities does not equate, without more, to a finding that an allegation is true…………..or untrue for that matter. A finding of fact is not a finding of truth which will last for evermore. This is why I think there should be automatic,legally funded appeals always available to families in serious public law cases. I define ‘serious’ as any case where families are to be parted and permanent liquidation may be the outcome.
      Currently, the strict criteria laid down to be met before permission to appeal is granted is set down mainly in order to counter intractability and any refusal to accept findings in private law hearings . In less serious cases, continued argument and endless reviews ,appeals etc. may not be best!
      These cases usually only concentrate on decisions as to custody. The principle does not transpose fairly into serious Public Law cases . Nor do most Family Court principles.

      Reply
  2. Angelo Granda

    QUOTE: it is clearly very important that decisions about their welfare are based on sound factual findings. See W (Children), Re [2009] EWCA Civ 59: UNQUOTE.

    Clearly, in order to make fair and balanced ‘appraisals’ and decisions the Court must have a sound factual basis ( simple matrix of evidence) on which to do so.
    In reality, the L.A. lawyers do not check the facts presented and it doesn’t matter one iota to them whether a respondent provides evidence during the lower court hearing which ‘proves’ that the information provided is not factual.The authorities claim it doesn’t matter; the FACT that someone ‘THOUGHT’ the ‘evidence base’ was factual and that ‘concerns’ had arisen about children involved is quite enough for the Court to take decisions at its own discretion. No Judge is going to return children just because the evidence is not made on a sound ,factual basis; a ‘no smoke without fire’ attitude prevails and when it is ‘thought’ a risk of significant harm remains however small, he or she will issue orders at discretion.
    So , in many,many cases parents can prove evidence false but simply cannot ‘prove ‘ their own claims in court at the final analysis because it is impossible. ALL children are at some level of risk no matter what and ALL harm to children is significant especially to the child’s parents. This will be why barristers don’t advocate applications for funding to appeal,i suppose.

    However most of these barristers also act for L.A’s on occasion and they should examine their own consciences when doing so. Even when evidence is proven wrong in Court, they don’t alter and correct it. Even when it is found they have withheld certain facts, they don’t include them in future documentation. They leave everything as it is which obviously has a detrimental effect on all future hearings and/or appeals.I dare say you will be well aware of this ,Sarah,if you have ever represented L.A.’s yourself.
    Study the original documents presented to the care-proceedings ,readers, then take a look at those presented later to the placement order hearing. The presented so-called facts will be exactly the same,even when by that time everyone (including the Judge) knows they aren’t. It makes no difference to them! ‘CONCERNS’ don’t have to be based on facts not in Family Courts anyway.

    Sarah,please also note that Respondent lawyers should check out applications,chronologies and other documents ( threshold etc.) very thoroughly before the case goes to the Magistrates at the outset of proceedings. One solicitor knew full well that the L.A. evidence was not factual and incomplete being mainly about a different family but failed to inform the Magistrates.
    An ICO was issued as a result of a flawed ‘finding of facts’. it is almost impossible to overturn a finding of facts,once made.
    Afterwards, the respondent herself asked the solicitor why he had not made any attempt to correct the falsehoods as instructed and expected. His reply was that ,in his opinion,it was better that matters should go to the County Court. But it was much too late by then. The Magistrates sent the children into care with all the trauma and abuse that entails.

    Reply
  3. Angelo Granda

    As one who worked with computers as early as the 1960’s and 1970’s, it is my opinion that Family Courts ( indeed any courts) make a very, very big mistake when they make evidence admissible when it is made on the contents of any computer data base or system.
    It is a known fact that computer input can never be 100% reliable in normal use and considerable allowances are made for reasons of safety especially with regards to crucial decision-making.
    The effects of computer data on justice can only be malignant fundamentally.
    We soon found in those early days that not only was it commonplace and predictable for false figures and other information to be entered onto computers as a result of human error but also that it was extremely difficult ( and time-consuming) to change the mistakes and amend documentation. It was much quicker and more economical to let it go.
    Family Courts definitely don’t have the time to examine computer data and will tend to accept the data similarly AND even if Judges know false facts are entered ,they are physically unable to change the documents and the computer . The same applies to the lawyers and the SW’s and the L.A’s. Even the Court office prints forms out with a computer. They would actually need a computer analyst, a programmer and an operator in Court along with the computer itself.
    Yes, it is much easier to let justice slide,i’m afraid. Often multiple mistakes are made as a result of the use of computer data. I would say it is undeniable. The L.A’s use it as its ‘evidence base’ and the Courts treat it as an oracle too.
    When Courts make ‘likely’ decisions on such a basis, injustice is bound to follow. Garbage in,garbage out.
    A case in point would be this CPR resource. Sarah is a professional barrister and makes very few, if any, mistakes in her posts or comments. However, how often do other readers both parents and professionals make ‘typos’ and mistakes? Very often and I think we can all agree that it is impossible for us to alter the original input once the error has been made. Neither can Sarah alter it without expending a great amount of time and effort.She is incapable of it. Computer systems are malignant to truth. For example , the times we make comments are stated wrongly ,aren’t they? They are an hour or two out but no one has the time or ability to correct the issue. We just let it go!
    It is said SW’s spend 60% of their times on computer . I think the same applies to L.A. lawyers who compile documents for use in Court.
    Result: Miscarriages of justice.

    Reply
    1. Sarah Phillimore Post author

      I am well aware of this! I would say that 80% of my job is to spend time carefully reading and cross referencing documents to find precisely these kind of errors. But I agree that harm is done when the error is not corrected and hardens over time to a ‘fact’ that cannot be challenged.

      Reply
  4. Angelo Granda

    But it is not possible for you to check or cross reference errors of omission. For example , where a L.A. reports a referral,you can check it by asking for a copy and you can see the date on it and read the allegations made and see it is true the referral was made . It will be added into the matrix as true and you will accept it as evidence of a ‘long history’ of ‘concerns’ about a family. It will go against parents on the balance of probabilities.
    However, if it hasn’t been entered in the records that on investigation at the time, the referral and all the allegations were untrue,that they had been deemed wrong and the case closed without action, you can’t do much about it ,can you?
    As i and other parents have suggested many times , the L.A. solicitors are deceitful and dishonest and critical,pertinent information is deliberately omitted and maybe even deleted from the records.So even if you are granted access to them ,you can’t see the omissions.
    In actuality,the L.A’s have merely ‘disclosed’ previous concerns,they do not bother giving the full facts and admit that the allegations were false ones.How can they if the full facts were not recorded at the time? Plus even if you show them documentary evidence allegations are untrue, they will not or CANNOT amend their records and the incomplete record will be ‘disclosed’ to all the assessors and decision-makers for example, the Guardian nevertheless.
    As H.S. ( a social worker) said in one of her comments if facts are not on the computer database, they didn’t happen as far as they are concerned!
    Thank you for listening to comments, Sarah, but you are not ‘connecting’.I repeat the L.A. lawyers and management ( particularly the City or borough solicitors) are deceitful and dishonest. Please don’t rely on their evidence given on oath in forms and documents.

    Reply
    1. Sarah Phillimore Post author

      No. I don’t work by just checking LA documents against their own records. I check against other records. Therefore it is usually not too hard to see where an error has crept in. LA recorded three investigations re child sexual abuse against my client. I checked against police and NSPCC records. There was one investigation, not three – and that one was found to have been a malicious referral. Lawyers are not quite as stupid and useless as you would like to think.

      Reply
      1. Family Court proceedings

        Sadly, (a) L.A’S report malicious referrals as received very often even when they are known to be anonymous and untrue. They even concoct referrals themselves.
        ( b) Police reports don’t contain facts; they are only allegations and information noted down based on intelligence etc. Very often, the results of their factual investigations are not revealed because they aren’t completed until after the 26 week time scales set for Family Court proceedings.
        (c) The various assessors thus use false information in their work
        (d) even when barristers prove evidence wrong, it makes no difference; the judge won’t return children home just because they have been removed unlawfully on the strength of false evidence. The risk of future significant harm cannot be disproven. Sarah, can you say how many times this has happened to you? I.E. you show evidence to be wrong but the children are still not sent home?

        Reply
      2. Angelo Granda

        That last comment was by me. It suddenly sent itself.It was going to end with (e) the only way to ensure a judge takes decisions on true facts is to get the referrer to Court to give evidence and answer questions under oath. If the referrer is anonymous, that is impossible to do thus the Judge can only get to make decisions on hearsay allegations and intelligence etc. No way should unlawful data bases be used in evidence.

        Reply
  5. Angelo Granda

    I am not speaking out of place when i use the word dishonest in respect of these officials.
    To me, it is unarguable that they are deceitful ,dishonest and thoroughly unethical professionally to use the L.A. database as an evidence base . Why ? Because the data is collected and recorded unlawfully in contravention of the Data Protection Act . Parents are not informed and given the opportunity to correct mistakes.

    Reply
  6. Angelo Granda

    QUOTE: Afterwards, the respondent herself asked the solicitor why he had not made any attempt to correct the falsehoods as instructed and expected. His reply was that ,in his opinion,it was better that matters should go to the County Court. But it was much too late by then. The Magistrates sent the children into care with all the trauma and abuse that entails : UNQUOTE

    The Mum involved got a new solicitor and instructed her to present proof at the subsequent directions hearing in front of the District Judge ( representing the High Court) that the application, threshold document,chronologies etc. were not factual. The D.J. ordered them to be amended and ordered that new assessments were to be made for the planned County Court ( Family Proceedings) hearing and twin-track planning was to be commenced.
    The Local Authority ignored the Court Order.

    QUESTIONS.

    Do you think the Solicitor should have advised Mum to appeal the Interim Care Order (ICO) at that stage? Please note,at the time ICO’s were only valid for 28 days so ,alternatively, could the solicitor have opposed the renewal? The order had not been made on a sound factual basis. Or should the D.J. have reviewed the Magistrates decision and quashed the ICO?
    The L.A. would have been forced to send the children home accordingly and thus have lost ‘possession’ ( fait accomplis).

    In my view,the L.A’s see the Law as a barrier to cross not as a set of rules to work with. They will abuse rules and procedures whenever they can get away with it. It is the task of the Courts and lawyers to stop them. In the case i have described briefly, two different solicitors and one Judge failed to act appropriately and failed to make the L.A. accountable. Some may say malpractice was swept under the carpet or covered up . It could have been reported to the Police because the course of justice had been perverted by false evidence given under oath by the L.A. solicitors.
    No way did the Mum fail to engage with them. She gave clear instructions and clear evidence in support of her claims.
    The lawyers failed the children.

    One wonders what a barrister might have done had one been involved.

    Reply
  7. Angelo Granda

    Fundamentally, IN PUBLIC LAW cases, the findings of fact are not findings of truth , The former are findings made by the Judge at his or her discretion after their personal review of all the presented evidence .
    An appellant is not saying the Judge is wrong, the appellant is calling for a hearing in a higher court in order that the higher authority might review all the previous evidence and exercise ITS OWN DISCRETION in another way. The appellant may or may not present new evidence to the appeal court but if it is admitted, it will have some effect. Usually ,though, it will not change the L.A. or Guardian’s assessments; they usually stick to previous decisions disregarding new evidence stating the Court has already made a decision.I suppose this is why the judicial review system has little positive effect on them.
    I repeat appellants are not trying to prove the lower court judges are wrong. They are asking a higher court to take a look at the lower court discretionary decision and to issue fresh directions.I hope readers can see what i am trying to explain to them.

    In my view , all parents should have a fundamental right to make an appeal ( call it a plea if you like) in order that the higher court ( authority) might make a fresh discretionary judgement. In some cases, the parents involved may indeed be a ‘risk’ to their children but that should not mean they don’t deserve mercy and/or a more proportionate care-plan. The parents are asking for a higher authority’s decision to overrule the lower court one! They may not be challenging the original finding of facts. The lower court Judge might not be wrong , but parents are pleading for a fresh final decision.
    In serious cases e.g. death sentences, incarceration for life, lifetime degradation, family liquidation, non- consensual adoption orders,enforced medical treatment or wherever life-changing decisions essential to human rights are concerned, i believe ordinary citizens take this right to appeal for granted. Yet they haven’t got an automatic ( fully-funded) right to appeal.
    EVEN WHEN cases have been conducted wrongly and there is fresh evidence, they don’t !
    I would say that the fact lower court hearings are in secret makes automatic appeals more necessary.

    Readers, appeal to a higher authority for a fresh discretionary decision is an age-old and very simple concept which is basic to justice. I can recall when i was a young man, i put in work late or something fairly minor and was carpeted by the manager who fined me two days wages. I resigned myself to it but then i read the rules which said i could appeal to the general manager.Without even seeing me ,on appeal,the G.M. decided at his own discretion loss of pay was over-harsh and issued me a warning for the future. His discretion over-ruled that of the manager.
    I also believe the simple concept is by and large well known and accepted generally in all other legal spheres such as the criminal justice system. Family proceedings lawyers don’t appear to grant us very basic rights.

    Reply

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