Family solicitor Zuher Makri considers this recent Court of Appeal decision which reiterates that judges must be very clear in their choice of words when making (or not making) findings in family hearings:

AB v CD [2021] EWHC 819

This is a private law children case with cross-allegations of domestic abuse, which involved a Father’s appeal against findings of rape and threats to remove their child to Pakistan, following a 4-day fact finding hearing.

The Judge found five of the Mother’s allegations proved, but did not find her allegations of physical abuse proved. However, in a recital of her approved order, she referred to the physical abuse allegations as having ‘strength and power’.

The Father appealed on the grounds that the judge’s reasoning process was fundamentally flawed and that her findings could not stand. The judge was  said to have focussed on parts of the evidence and excluded some very serious matters, taking a selective approach. The Judge had decided that she did not need to consider or determine some of the allegations raised by the Mother. The Father’s appeal argued how such a decision drove the Judge to consider some of the allegations, without asking herself whether the mother was capable of fabricating very serious allegations.

In an appeal hearing, it was not suggested that the Judge made any error of law, but rather that she failed to properly assess the evidence and improperly weighed and balanced it. The recital of ‘strength and power’ only served to generate doubt about whether and to what level the Judge analysed those matters when considering credibility. It was said that it was a mistake to have included such a recital about the ‘strength and power’ of the allegations, which she claims to have ignored in her survey of evidence.

In cases when one party claims that allegations have been fabricated, it is necessary for the fact-finder to explain carefully why the claim of fabrication is rejected.

If you have a family case you require assistance with, please contact Mavis on 020 8885 7986 for an appointment.

If you have a family law case you need assistance with, please contact Mavis on 0202 8885 7986 to arrange for an appointment with a solicitor in the family team.

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