Factual and Procedural Background
This appeal (with conditional permission from Judge Jackson) challenges factual findings made after a final hearing in care and placement order proceedings under section 31 Children Act 1989 and section 21 Adoption and Children Act 2002 concerning a girl ("Child"), now nearly two years old. The Family Court in The City heard the proceedings before Judge Grocott. The Appellant was an intervenor, the paternal Aunt, who was implicated by adverse findings. Company A is the only effective respondent; the Mother and Father did not participate in the appeal and supported Company A's position. The Child was represented below by a Children's Guardian, who does not participate in the appeal.
Key factual findings below (drawn from the sealed final order) include that: the Mother sought a termination on 17 February 2024 and presented in active labour on 25 February 2024 when Child was born extremely prematurely; clinicians noted remnants of a tablet at delivery, forensic testing confirmed misoprostol; a leaflet for Cytotec (misoprostol) was found in the adults' bedroom; police seized a strip of 'Breeky' (misoprostol) tablets from the Aunt's jacket. The parents were arrested and Company A commenced proceedings on 4 March 2024. The final hearing ran over ten days across several months with an extensive documentary bundle and video material.
Procedurally, a schedule of findings was prepared and a draft final order was submitted to Judge Grocott. The Judge amended that draft by deleting two original draft findings and inserting different findings (including findings [5] and [6] in the sealed order). The parties and the Court initially worked from an unsealed draft; the error was discovered during appeal preparations. The appeal challenges parts of the sealed schedule of findings: finding [5] (that the Aunt had 'Breeky' and it was likely she brought Cytotec into the parents' room) and finding [6] (that the Mother, Father or Aunt put the misoprostol tablet into the Mother's vagina).
Legal Issues Presented
- Whether the Judge's reasoning and approach to the evidence met the minimum standard of adequate reasoning given the seriousness of the allegations (Ground 1).
- Whether the Judge failed adequately to record, analyse and evaluate the evidence and parties' cases in support of the challenged findings (Ground 2).
- Whether the Judge erred in law in making findings against the intervenor (the Aunt) that were unsupported (Ground 3).
- Whether the Judge failed to address lies/dishonesty, the weight to be attached to them and their relevance to the key issues (Ground 4).
- Whether the Judge failed to examine the likelihood of each named potential perpetrator individually and to balance the factors which would identify any perpetrator (Ground 5).
Arguments of the Parties
Appellant's Arguments (Attorney Taylor)
- The Judge failed to account for factors making it improbable the Aunt had Cytotec or brought it into the parents' bedroom, including the Aunt's distressed state from alleged domestic abuse and her consistent account that she only had 'Breeky' tablets.
- No police evidence linked Cytotec to the Aunt; it made no sense for the Aunt to possess more than one misoprostol drug; insufficient weight was given to her distress and to her assertions.
Respondent's Arguments (Company A; Attorney Cheetham)
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re B (Split Hearings: Jurisdiction) [2000] 1 WLR 790, [2000] 1 FLR 334 |
Contexts in which appeals against findings of fact in family cases are heard. |
Used to explain when factual findings attract appellate scrutiny (e.g., impact on child/rights). |
| R v Lucas [1982] QB 720 |
Principle on lies and corroboration (lies are not direct proof of guilt but may amount to corroboration). |
Referenced to caution against treating lies as conclusive proof, while allowing lies to inform assessment of credibility. |
| Re H-C (children) [2016] EWCA Civ 136 |
Application of R v Lucas in family proceedings. |
Supported the view that lies can inform credibility but are not decisive on their own. |
| Re B [2013] UKSC 33, [2013] 1 WLR 1911 |
General caution against appellate interference with trial judge's factual findings; deference to trial judge. |
Used to frame the high threshold for appellate interference and the judge's advantage in assessing witnesses. |
| Re K (Non-Accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181, [2004] 3 FCR 123, [2005] 1 FLR 285 |
Public interest in identifying perpetrators and circumstances for appellate intervention. |
Quoted to explain public-interest grounds for permission to appeal on serious findings. |
| Re W (A child) [2016] EWCA Civ 1140 |
When findings may engage ECHR rights and justify appeal. |
Referenced as a basis to permit appeal where human-rights implications exist. |
| Volpi & another v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48 |
Principles on appellate review of factual findings and deference to trial judge. |
Used to summarise the appellate standard and the judge's advantage in fact-finding. |
| Piglowska v Piglowski [1999] 1 WLR 1360 |
Appellate interference with findings of fact—standards for reversal. |
Included in the authorities on appellate restraint and criteria for intervention. |
| Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5, [2014] FSR 29 |
Appellate review standards on findings of fact. |
Part of the set of authorities emphasising rare circumstances for appellate interference. |
| Re A (No.2) (Children: Findings of Fact) [2019] EWCA Civ 1947, [2020] 1 FCR 313, [2020] 1 FLR 755 |
Guidance on fairness when a judge makes findings not sought by parties and when going "off piste". |
Applied to stress the additional care required when a judge makes unsolicited findings and the need to ensure fairness and secure evidential foundation. |
| Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10, [2009] 1 FLR 1145 |
Caution where judge departs from parties' pleaded case; requirement that additional findings be securely founded and fair. |
Relied upon to require heightened care when making findings not pleaded or sought; used to set aside finding [6] as inadequately founded. |
| Re M (Allegations of Rape: Fact-Finding Hearing) [2009] EWCA Civ 1385, [2010] Fam Law 452 |
Practice of setting out findings of fact in an order/schedule. |
Quoted to support the practice of attaching a schedule of findings and to criticise inconsistencies between judgment and schedule. |
| Griffiths v Tui (UK) Ltd. [2023] UKSC 48, [2023] 3 WLR 1204 |
General rule that a party must challenge by cross-examination any witness evidence on a material point they wish to dispute to safeguard fairness. |
Applied to conclude the Aunt was not afforded a particularised challenge and thus deprived of opportunity to answer a specific accusation underpinning finding [6]. |
Court's Reasoning and Analysis
The Court began by reiterating the high appellate threshold: appellate interference with trial findings requires satisfaction that the trial judge was plainly wrong or the conclusion was unsupportable, based on authorities such as Volpi and Re B. The Court considered three discrete matters: (i) why an appeal was pursued, (ii) the difficulties of overturning factual findings on appeal, and (iii) the special caution required where a judge makes findings not sought by the parties.
On finding [5] (Aunt had 'Breeky' and likely brought Cytotec to the parents' room), the Court accepted the Judge's advantage in assessing credibility and concluded that the Judge could reasonably infer the Aunt likely had Cytotec in addition to 'Breeky' for the following combined reasons drawn from the judgment: undisputed possession of 'Breeky' (misoprostol); no evidence parents possessed Cytotec; recorded conversations where the Aunt referenced "take the pills, get rid of the baby"; internal inconsistency in the Aunt's account about what pills she knew of; the Judge's scepticism about the Aunt's claimed ignorance; evidence suggesting the Aunt telephoned a clinic; and the Judge's overall assessment of the Aunt's credibility. The Court found these factors together made the Judge's inference open to a reasonable judge and thus not liable to appellate interference.
On finding [6] (that the Mother, Father or Aunt inserted the misoprostol tablet vaginally), the Court concluded the Judge's approach was deficient. The Judge had made a 'pool' finding without analysing the likelihood of each adult being the perpetrator, without particularising the allegation against the Aunt, and without affording the Aunt the procedural opportunity to answer a specific accusation by focused cross-examination. The finding was not one advanced by Company A at trial and therefore required heightened care under authorities such as Re G and B and Re A (No.2). The Court held the judgment lacked the necessary analysis and explanation to support implicating the Aunt and that fairness principles (including the need for specific cross-examination per Griffiths) were not satisfied. Accordingly, the Court allowed the appeal in relation to finding [6] as to the Aunt.
The Court also addressed the procedural irregularity that the parties and the Court had proceeded on an unsealed draft order and emphasised best practice: schedules of findings appended to orders must accurately reflect the reasoned judgment and applicants must file the sealed order when pursuing appeals. The Court recommended procedural safeguards for intervenors' access to documents on the public law portal and for cross-referencing findings in orders to judgment paragraphs.
Holding and Implications
Holding: The appeal is dismissed in relation to finding [5] (the Judge's inference that the Aunt likely brought Cytotec to the parents' room is upheld). The appeal is allowed in relation to finding [6] insofar as it implicated the Aunt; finding [6] is amended to remove reference to the Aunt.
Implications: The direct effect is that the sealed schedule of findings continues to record finding [5], but finding [6] as against the Aunt is set aside. The Court emphasised no new general legal principle was created; however, it urged improved practice on (i) ensuring schedules of findings in public law orders accurately mirror reasoned judgments and are sealed before appellate steps, (ii) providing intervenors with access to filed documents, and (iii) cross-referencing schedule entries to judgment paragraphs to avoid inconsistency.
This summary has anonymised all personal identifiers in accordance with the available opinion.