A (No. 2) (Children: Findings of Fact) [2019] EWCA Civ 1947 (14 November 2019)

Monday 25 November 2019

Rebekah Wilson of Garden Court represented the appellant father, led by Andrew Bagchi QC of 1 Garden Court, and instructed by Shanthi Balakrishnan of Imran Khan and Co Solicitors in the Court of Appeal case.

The judgment was handed down on 14 November 2019.

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This decision provides a rare example of the Court of Appeal setting aside findings of fact made by a High Court Judge ( Hayden J), perhaps best summed up by Peter Jackson LJ when he states that he was in no doubt that the appeal must succeed on the grounds that the decision was both “wrong and procedurally unjust”.

Of the many grounds argued and considered were that:

“It is further said that in contrast to his giving little attention to the evidence about the family's very positive characteristics, the judge gave undue prominence to their origins and assessed their religious and cultural identity in an unbalanced way. The wider canvas showed no relevant family pathology, no mental illness or personality disturbance, and no relevant substance abuse. These matters were treated in a manner that was discriminatory in terms of Art. 14 as applied to Arts. 6 and 8.”
(Para 80)

The case related to the circumstances of the death of a child and the decision set out guidance in relation to the conduct of such hearings in circumstances where the judge develops a case theory not advanced by any party. Uniquely, the Court of Appeal has remitted the case for a second rehearing or a third fact-finding hearing and the judgment addresses the reasons for doing so when the family argued that to do so would be unfair and disproportionate.

Read the full judgment: A (No. 2) (Children: Findings of Fact) [2019] EWCA Civ 1947 (14 November 2019)

Rebekah Wilson is a member of the Garden Court Chambers Family Team.

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