Schedules of Findings in Public Law Must Match the Judgment: Fairness Limits on “Off‑Piste” Pool Findings

1) Introduction

S, Re (Care and Placement: Schedule of Findings of Fact) [2026] EWCA Civ 85 is an appeal from care and placement proceedings under Children Act 1989, s.31 and Adoption and Children Act 2002, s.21 concerning a child, S, born at 25 weeks after apparent induction of labour by misoprostol.

The appellant was the child’s paternal aunt, joined as an intervenor because allegations implicated her in the events leading to S’s premature birth. Although the care plan for S (adoption) was not affected by the aunt’s appeal, the aunt challenged findings that carried serious reputational and future safeguarding consequences.

Two features made the appeal unusual:

  • Procedural irregularity: the appeal proceeded for months on an unsealed draft order containing a schedule of findings later materially amended by the trial judge without consultation, and not initially provided to the aunt’s legal team.
  • Substantive focus: the appeal narrowed to (i) whether it was “likely” the aunt brought Cytotec (misoprostol) into the parents’ room, and (ii) whether the aunt could properly be included in a “pool” finding that she (with mother or father) inserted a misoprostol tablet vaginally.

2) Summary of the Judgment

The Court of Appeal (Cobb LJ; Jeremy Baker LJ and Coulson LJ agreeing) held:

  • Finding [5] upheld: it was open to the judge to infer that it was “likely” the aunt brought Cytotec tablets to the room where the three adults slept, given the evidence as a whole (including her possession of “Breeky” misoprostol tablets and recorded conversations about “pills” and abortion).
  • Finding [6] set aside as against the aunt: the “pool” finding that “The mother, father or [aunt] put the misoprostol tablet into mother’s vagina” could not fairly or properly stand insofar as it implicated the aunt. It was not sought, was not supported by adequate reasoning, and was not properly put to the aunt in cross-examination in a particularised way.

Coulson LJ added practical guidance: when schedules of key findings are appended to family orders, it is good practice for each finding to be cross-referenced to the paragraph(s) of the judgment supporting it, to ensure coherence and reduce later dispute.

3) Analysis

A) Precedents Cited

i) Appellate restraint in challenges to findings of fact

The court’s approach was anchored in established appellate restraint:

  • Volpi & another v Volpi [2022] EWCA Civ 464 was relied upon for the principle that appellate courts must respect trial judges’ advantages in evaluating oral evidence and credibility, interfering only where a conclusion is plainly wrong or insupportable.
  • Piglowska v Piglowski [1999] 1 WLR 1360 and Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 reinforced that a trial judge’s fact-finding should not be re-tried on appeal; absence of mention of a point does not show it was ignored.
  • Re B [2013] UKSC 33 (Lord Neuberger at [52]) was cited for policy reasons against routine factual appeals in family cases (delay, cost, disruption), and (Lord Kerr at [108]) for the trial judge’s “range of impressions” unavailable to an appeal court.
  • Re A (No.2) (Children: Findings of Fact) [2019] EWCA Civ 1947 was used both for general appellate approach and (critically in this case) for the caution required when a judge makes findings not sought by the parties.

These authorities explain why the court upheld the inference in finding [5] (permissible evaluative judgment), while striking out finding [6] (process and reasoning defects).

ii) When permission to appeal fact-findings may be justified

  • Re B (Split Hearings: Jurisdiction) [2000] 1 WLR 790 illustrated the more typical scenario: factual findings directly affecting welfare outcomes. Here, by contrast, the aunt’s findings did not affect S’s care plan, sharpening the need to justify the appeal on other grounds.
  • Re W (A child) [2016] EWCA Civ 1140 was cited for the proposition that serious findings engaging an individual’s ECHR rights can justify appellate scrutiny even if the child-related orders are unaffected.
  • Re K (Non-Accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181 (Wall LJ at [55]–[56]) was cited for the public interest in identifying perpetrators of serious harm to children where possible, and in enabling children to know the truth as they mature.

These cases framed why permission had been granted (initially on a more serious collusion finding in the draft schedule), but also why—once the schedule was corrected—permission might have been more doubtful had the true scope been known earlier.

iii) “Off-piste” findings: proactive judging and fairness

The court treated the trial judge’s inclusion of the aunt in finding [6] as an “off-piste” step (a finding not sought by any party), engaging a line of authority requiring special caution:

  • Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10 (Wall LJ at [15]–[16]) was used for the warning that additional/different findings must be securely founded in evidence and must not compromise fairness.
  • Re A (No.2) (Children: Findings of Fact) [2019] EWCA Civ 1947 was again relevant for the proposition that if judges go beyond the pleaded/sought findings, they must ensure the process remains fair and transparent.

iv) Lies, credibility, and the Lucas direction in family proceedings

  • R v Lucas [1982] QB 720 and Re H-C (Children) [2016] EWCA Civ 136 were cited for the principle that lies may be relevant but are not, of themselves, proof of the alleged act; there must be careful reasoning about what the lie shows and why.

This mattered particularly to finding [6]: suspicion or general adverse credibility cannot substitute for an evidenced and reasoned basis to place a person in a pool of perpetrators.

v) The rule in Griffiths: putting the case in cross-examination

  • Griffiths v Tui (UK) Ltd. [2023] UKSC 48 was central to setting aside finding [6]. The Court of Appeal applied the principle that fairness generally requires a party to challenge a witness by cross-examination on a material point they seek to dispute—especially where the allegation is grave—so the witness can respond and the judge can assess the issue properly.

In this case, the allegation that the aunt inserted a tablet vaginally was not put to her in a properly particularised and accusatory way, undermining procedural fairness.

vi) Recording findings in orders: schedules and good practice

  • Re M (Allegations of Rape: Fact-Finding Hearing) [2009] EWCA Civ 1385 (Ward LJ) was cited as the origin of the strong steer that orders should reflect what was found, ideally via a schedule attached to the judgment.
  • The court contrasted PD12J FPR 2010 (which requires schedules of domestic abuse findings in private law) with the silence of PD12A FPR 2010 and standard public law templates, while acknowledging a widespread practice of appending schedules in public law.
  • Hershman and McFarlane on Children Law and Practice was cited approvingly for the proposition that the court should set out exactly the findings it has made in an order or attached schedule.

Coulson LJ’s additional guidance—that each scheduled finding should be cross-referenced to judgment paragraphs—develops the practical dimension of these authorities and responds directly to the confusion caused in this appeal.

B) Legal Reasoning

i) Upholding finding [5]: permissible inference and appellate deference

The appeal court approached finding [5] through the lens of appellate restraint: could a reasonable judge, on the evidence, conclude it was “likely” the aunt brought Cytotec into the room? Although there was no direct proof tying Cytotec to the aunt, the court held the inference was open based on a combination of factors the judge was entitled to weigh, including:

  • Undisputed possession by the aunt of “Breeky” (misoprostol) tablets.
  • Recorded conversations with her husband referring to “pills” and ending a pregnancy, inconsistent with total claimed ignorance of abortion-related properties.
  • The judge’s adverse assessment of the aunt’s clarity and consistency about the tablets.
  • Lack of evidence that the parents had acquired Cytotec.
  • Evidence linking the aunt to making a clinic contact about termination options.

The Court of Appeal rejected the submission that distress from domestic abuse made it improbable that she would carry such medication; the judge had noted the aunt’s PTSD/anxiety and was entitled to assess its relevance.

ii) Setting aside finding [6]: fairness, reasoning, and the perils of a “pool” finding

Finding [6] failed on three interconnected grounds:

  1. “Off-piste” without demonstrable extra caution: the Local Authority had not sought a pool finding including the aunt; given the seriousness, the judge needed to show enhanced care to ensure it was securely founded and procedurally fair (per Re G and B and Re A (No.2)).
  2. Inadequate reasoning: the judgment did not analyse the relative likelihood of each potential perpetrator nor explain why the aunt belonged in the pool. The Court of Appeal noted the judge’s own conclusion that she could not say on the balance of probabilities who inserted the tablet, making the scheduled pool finding appear unmoored from the narrative reasoning.
  3. Unfairness in the forensic process: the allegation was not properly particularised and was not squarely put to the aunt in cross-examination, contrary to the fairness rationale in Griffiths v Tui (UK) Ltd.. This denied the aunt a proper opportunity to meet the case and denied the judge the benefit of tested evidence.

The result was targeted: the court amended finding [6] to remove reference to the aunt, rather than disturbing the wider factual matrix about misoprostol-induced labour.

C) Impact

i) Practical and procedural impact on public law case management

The case highlights that schedules of findings in public law—though not formally mandated like PD12J schedules in private law—carry real downstream significance (for safeguarding, reputational consequences, immigration/asylum contexts, and future risk assessments). The judgment’s key practical impacts include:

  • Accuracy and status of orders: parties (and especially appellants) must ensure the order lodged is the sealed order and the schedule is judge-approved before appellate steps. The court plainly signalled that failure to do so can distort permission decisions and waste resources.
  • Cross-referencing findings: Coulson LJ’s recommendation to cross-reference each scheduled finding to judgment paragraphs is likely to be adopted as good practice, especially in complex public law fact-finds where findings are “scattered” through a narrative judgment.
  • Intervenors and the FPL Portal: where intervenors lack portal access, the court suggested routine case management directions requiring a party (defaulting to the local authority) to provide intervenors with filed documents in real time, including the sealed final order—an important procedural safeguard.
  • Systemic reform prompt: the encouragement to the Public Law Working Group and Standard Orders Group to consider formalising the schedule-of-findings practice could influence standard templates and/or rule committee attention.

ii) Substantive impact on fact-finding methodology

The decision reinforces that “pool of perpetrators” findings—particularly where they extend to someone not squarely accused in the pleaded/sought case—require:

  • Transparent reasoning, not mere adverse credibility impressions.
  • A fair opportunity to answer a properly put allegation.
  • Caution when findings go beyond the parties’ positions (the “off-piste” problem).

Future fact-finding judges may be more reluctant to include additional individuals in pools unless the allegation has been properly articulated and tested, and unless the judgment clearly explains why such inclusion is justified.

4) Complex Concepts Simplified

  • Schedule of findings of fact: a written list (often attached to the order) stating precisely what facts the court has found proved. It matters because later professionals and courts often rely on it without re-reading the whole judgment.
  • “Pool of perpetrators” finding: where the court cannot identify who did an act, it may identify a limited group who could have done it. This is still a serious finding and must be justified and fair because it can stigmatise those included.
  • Balance of probabilities: the civil standard of proof—more likely than not.
  • Misoprostol / Cytotec / Breeky: misoprostol is a drug that can induce uterine contractions; Cytotec is a brand associated with misoprostol; “Breeky” tablets also contained misoprostol and were found in the aunt’s possession.
  • “Off-piste” finding: an informal description of a judge making a finding not sought by any party. It is not prohibited, but requires extra care to preserve fairness.
  • Griffiths principle (putting the case): generally, if you want the court to reject a witness’s evidence on a key point, fairness requires you to challenge that witness on the point in cross-examination so they can respond and the judge can assess it.
  • FPL Portal: the digital platform for filing and sharing documents in family public law. Lack of access can create information asymmetry for intervenors unless managed.

5) Conclusion

S, Re [2026] EWCA Civ 85 delivers two connected lessons. First, on substance, appellate courts will generally uphold evaluative inferences (like who likely brought medication into a household) where they are rationally open on the evidence, but will intervene where a grave “pool” finding is reached without adequate reasoning and without fair forensic testing. Second, on procedure, the case exposes the fragility of relying on schedules of findings that are not clearly anchored to the judgment or even properly sealed—and it offers practical guidance: schedules should reflect, and ideally cross-refer to, the judgment paragraphs they derive from, and intervenors must not be left outside the document loop.