S, Re (Children - New Evidence)

Factual and Procedural Background

The mother, an Afghan national, appeals a judgment by His Honour Judge Middleton-Roy concerning the circumstances under which her two children travelled from Afghanistan without her to live in England with the father and his partner. The parents married in 2009 and the children were born and raised in Afghanistan until mid-2023 when they moved to England with the father. The mother remained in Afghanistan and initiated proceedings in England in November 2023 seeking the return of the children, asserting their removal was without her consent.

Initially, the Home Office disclosed limited immigration information showing the father had "Family/Private Life" leave to remain since 2021 and the children had dependent child leave since 2023. The father claimed the mother had consented multiple times to the children living with him in England and referred to a visa application for the mother. He opposed the children's return citing alleged abuse by the mother and reliance on welfare reports indicating the children felt safe in the UK and did not wish to return to Afghanistan.

The judge heard oral evidence from both parents and a Cafcass Officer, ultimately finding the father's evidence consistent and the mother unreliable, dismissing the mother's application for summary return of the children but leaving welfare issues, including contact, to be decided later.

Following further procedural developments, the court ordered disclosure of all visa applications made by the father and children. This resulted in the Home Office producing approximately 700 pages of documents, which contained significant discrepancies with the father's oral evidence. The mother sought to rely on this new evidence in her appeal.

Legal Issues Presented

1. Whether the mother's appeal challenging the judge's factual findings regarding consent to the children’s relocation should be allowed in light of new evidence.
2. Whether the new immigration documents disclosed materially undermine the judge's findings and justify a rehearing.
3. Whether permission should be granted to admit new evidence on appeal under CPR rule 52.21(2)(b).
4. The scope and appealability of fact-finding judgments in family proceedings.

Arguments of the Parties

Appellant's Arguments

• The mother contended that the judge's findings were materially flawed and undermined by new evidence disclosed by the Home Office.
• She submitted that inconsistencies between the father’s evidence to the judge and to the Home Office were so significant that the interests of justice required a rehearing.
• The mother sought permission to rely on the new evidence in support of her appeal.

Respondent's Arguments

• The father’s counsel suggested the appeal might be academic as the mother no longer sought the children’s return to Afghanistan and any findings set aside would not affect the welfare inquiry.
• He applied for an adjournment to adduce evidence in response to the new evidence, which was refused.
• It was submitted that the mother could have applied to set aside the judgment below rather than appealing, but the court found this was not consistent with the overriding objective.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first recognized that the mother’s appeal raised significant questions about the judge’s evaluation of evidence and findings. However, the emergence of new evidence disclosed by the Home Office fundamentally altered the factual matrix underpinning the judge’s decision. This new evidence included numerous visa applications made by the father and the children, which were inconsistent with the father’s oral evidence to the judge, particularly regarding the marital status of the parents and the existence of any visa applications involving the mother.

The court considered the established principles for admitting new evidence on appeal in family cases, notably the more flexible approach adopted in children’s matters to ensure welfare decisions are based on sound factual findings. Applying these principles, the court found it was plainly in the interests of justice to admit the new evidence, which materially undermined the judge’s critical finding that the father’s evidence was consistent and credible.

The court rejected the father’s arguments for adjournment and that the appeal was academic, emphasizing that the findings under appeal were relevant to ongoing welfare proceedings. It also noted that the mother’s appeal from fact-finding judgments was properly within jurisdiction and permitted by procedural rules.

Ultimately, the court concluded that the judge’s findings could no longer stand given the new evidence and that the matter must be remitted for rehearing before a Family Division Judge, who would have discretion over the scope of the rehearing and would not be bound by previous case management decisions.

Holding and Implications

The court allowed the mother’s appeal and granted permission to rely on the newly disclosed evidence. The judgment below was set aside to the extent that the judge’s factual findings were undermined, and the case was remitted for a rehearing before a Family Division Judge allocated by the President of the Family Division.

The direct effect of this decision is that the factual issues concerning the children’s relocation and parental consent will be reconsidered in light of the new evidence. No new precedent was established; rather, the court applied established principles regarding appeals from fact-finding judgments and the admission of new evidence in family proceedings involving children. The decision underscores the importance of accurate and complete disclosure of material evidence in proceedings affecting child welfare.