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Findings of Fact, Appeal and Delay

Date posted: 15 October 2021

Felicity Jones

The case of Re B-M (Children: Findings of Fact) saw the appeal to the Court of Appeal of the findings of fact made in care proceedings concerning six children.


The Mother argued that the Judge had taken the wrong approach to the additional allegations made by the second child during her oral evidence; that the Judge had based her assessment too heavily on the child’s demeanour; that the Judge had wrongly decided that the Mother was a liar based upon findings which had been made against her in earlier private law children proceedings and that the Judge took judicial notice of matters which she should not have done. The Father (who was the biological father of the younger three children) argued in addition to 1, 2 and 4 above, that the Judge had not given sufficient consideration to the submissions made on his behalf.


The Court of Appeal dismissed the appeal finding in relation to points 1 and 2 that the Judge was “not only entitled but expected to consider the child’s demeanour as part of the process of assessing credibility” and that she had not placed undue weight on this.  In relation to point 3, the Court stated that the Judge was bound to be aware of the outcome of the private law proceedings and that she had correctly given herself a Lucas direction. The Court of Appeal also rejected the Father’s additional argument, stating “I am entirely satisfied that this Judge understood the issues, grappled adequately with them, and gave a decision that explains what she decided and why.”


The final comment in the Judgment relates to delay. Judgment was given orally on 19 March 2021 and the time for making an application for permission to appeal was extended to 14 days after receipt of the transcript of the Judgment. Due to the delay in the receipt of the same, the transcript was not received until 23 June 2021, this meant that the Appellant’s Notices were issues on 7 and 12 July and permission to appeal was granted on 18 August, the full appeal being heard on 14 September 2021. The Court of Appeal warned against such directions stating that “In a case involving young children, an open-ended extension is unlikely to be appropriate while a fixed date may be more effective as a means of securing a transcript within a reasonable time.”


If you would like Felicity’s help on a case concerning the local authority and a child please contact Mavis on 020 8885 7986 for an appointment.