Dr Martina van der Leij summarises judgment in Re T (fact finding: second appeal) [2023] EWCA Civ 475 for Family Law Week about a second appeal from a circuit judge allowing an appeal against findings by a deputy district judge in care proceedings concerning 4 children.
The fact finding concerned allegations by T, then aged 15 that over the course of 3 years, her stepmother would wake her in the middle of the night and take her to a car outside the home occupied by 2 male family friends. One man would kiss T in the front of the car, while the other had sexual intercourse with the stepmother in the back of the car.
A flawed ABE interview of T took place. However the deputy district judge, after considering all evidence, found the allegations proved.
The stepmother appealed and her appeal was upheld. The circuit judge found that the previous judge had attached too much weight to the flawed ABE. He set aside all findings but declined to discharge the interim care orders, declined to continue the orders pursuant to s 40 as the local authority proposed pending appeal, and set the matter down for a welfare hearing.
The local authority appealed.
The Court of Appeal found the circuit judge was wrong to have overturned the findings. Also he had failed to follow the proper approach of the appellate court to findings of fact by a court of first instance. In respect of the circuit judge's finding about the inherent improbability of the allegations, Baker LJ observed “It is wrong for any judge to carry out his own investigations and doubly wrong for a judge to do so on appeal when the issue is whether the judge at first instance was wrong to make the findings on the evidence before him".
Read the full summary on Family Law Week.