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M v F (Appeal: Fact Finding) [2019] EWHC 572 (Fam) (12 March 2019)

Mother’s appeal on grounds relating to issues of fairness and public policy, the Findings and the application of the law in respect of a fact finding judgment.

This case concerned a child, C who was born in 2014. The mother left the parties' home in 2017 with the child and moved to a refuge. The appeal was in respect of the judgment of HHJ Tolson QC after a two day fact-finding hearing within cross applications by the father for a child arrangements order and an application for a non-molestation order issued by the mother.

The mother's original schedule of allegations had 14 allegations [11] including serious violence, coercive and controlling behaviour, use of force against the child, and emotional abuse of the child.

At the end of the hearing HHJ Tolson QC made 6 findings [10], finding only one instance where the father was physical towards the mother (and stated this was provoked), that there was no clear controlling or coercive behaviour, and that the father did not pose a direct risk to the child, or any psychological risk to the mother.

Fourteen grounds of appeal were raised by the applicant mother [4] – three on issues of fairness and public policy, nine in respect of the findings made by the judge, and two in respect of the application of the law.

In his judgment Mr Justice Williams summarised the law on appealing more generally, and in respect of fact findings [13-18].

Mr Justice Williams indicated he had not read the entirety of the transcripts but had immersed himself in detail in the submissions and subsequent judgment given, and stated there had been no inappropriate intervention by HHJ Tolson QC in respect of those submissions [20] and that the comments made by the judge did not indicate he had prejudged but were a result of his analysis of the witnesses overall [21].

When considering the findings made by HHJ Tolson QC, Mr Justice Williams found no reason for worry. He stated the intervention within submissions and the subsequent judgment had the "appearance and hallmarks of a concise, robust piece of judicial decision-making based on a thorough understanding of the essential principles which bore upon the decision he had to make" [28].

The judge went through each of the grounds of appeal.

In respect of the first three grounds, the judge found there were no issues of fairness or public policy – the judge had not minimised the seriousness of domestic violence, the mother had been given a fair hearing and the judge had not prejudged the issue [31-38].

In respect of the findings of fact made (or not made) by the judge, Mr Justice Williams stated that the conclusions reached on the evidence were open to the judge and there was nothing stated by the appellant that suggested these were insupportable. The findings made did not victim blame the mother [43], were evidence based [44], and the judge was permitted to find a link between the mother's exaggeration and her subsequent honesty or reliability as a witness [45]. Although the judge had focused on two of the alleged physical incidents he had not failed to grapple with the wider factual matrix [49].

In respect of the application of the law, the judge had not erred in his application of the balance of probability test [50]. Nor had he erred in his application of Practice Direction 12J [51], as it was the general principles within 12J (paragraphs 4-5) which HHJ Tolson QC was referring to when considering the implications for the future relationship between the father and the child, as PD12J was relevant in assessing whether an allegation required determination.

As a result, Mr Justice Williams found none of the grounds of the appeals had any realistic prospect of success [52].

Summary by Victoria Halsall, barrister, 1 King's Bench Walk

For the full judgment click here