5th May 2023

Jonathan Jackson recently appeared on behalf of the children in the Court of Appeal in the case of Re: T (Fact-Finding : Second Appeal) [2023] EWCA Civ 475. Judgment has been handed down today.

Jonathan, led by Barbara Connolly KC, acted on behalf of the children’s guardian in the case. He supported an appeal issued by the Local Authority against the decision of HHJ Greensmith to overturn findings of fact made by a Deputy District Judge at an earlier, lengthy fact-finding hearing.  

This was a second appeal following HHJ Greensmith’s determination that the Deputy District Judge was wrong to have attached weight to a flawed ABE interview and had not given proper consideration to the improbability of the alleged abuse.  HHJ Greensmith overturned the findings made and, not withstanding threshold now not being met as a result of his decision, ordered that the matter should proceed to a welfare determination.  

Giving the lead judgment of the Court of Appeal with which LJJ Falk and Singh agreed, Baker LJ found that HHJ Greensmith was wrong to have overturned the findings of fact made by the Deputy District Judge and had erred in his approach to appeals against such findings.  This included the judge conducting his own investigation of the allegations by conducting a Google search of where the alleged abuse took place.   

On this, Baker LJ commented ‘it is wrong for any judge to carry out his own investigations and doubly wrong for a judge to do so on appeal when the issue is whether the judge at first instance was wrong to make the findings on the evidence before him.’

In determining that the findings made by the DDJ should not have been overturned, Baker LJ noted ‘Judge Greensmith alighted on only a few aspects of the evidence in a way that could not unfairly be described as “island-hopping”’.   

In allowing the appeal, the Court of Appeal restored the findings made by the DDJ, a position which was supported by the eldest child, who was separately represented, and the Children’s Guardian. Further, the Court of Appeal determined that even if HHJ Greensmith had been correct to overturn the findings, he misapprehended the consequence of his decision in ordering that the matter should proceed to the welfare stage. 

Baker LJ confirmed that as a result of the decision of HHJ Greensmith ‘there was no basis on which the court could exercise any “welfare” jurisdiction in respect of any of the children’ and accordingly the existing orders should have been discharged and the proceedings ended, or a s. 40 order be made pending appeal by the Local Authority. 

The full judgment can be read here:

Jonathan was instructed by Liam Carlen of Hogans Solicitors.

Jonathan Jackson is a member of the Family Department at 18 St John Street Chambers. If you have any queries about this or any other related subject, please feel free to contact us on our usual contact details and we will be delighted to assist you.