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Sarah Watters successfully represented Liverpool City Council in the Court of Appeal.

T (Fact-Finding : Second Appeal) [2023] EWCA Civ 475.
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Sarah, led by Nick Goodwin KC (Harcourt Chambers) pursued an appeal on behalf of Liverpool City Council against the decision of HHJ Greensmith to overturn findings of fact made by Deputy District Judge Hornby following a lengthy fact-finding hearing.  The case involved allegations of sexual abuse and sexual exploitation. 

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 failed to attach sufficient weight to the improbability of the alleged abuse and other undermining evidence.  HHJ Greensmith overturned all of the findings made by the DDJ  at first instance and, notwithstanding that threshold was no longer met as a result of his decision, ordered that the matter should proceed to a welfare determination.  HHJ Greensmith declined the invitation by Miss Watters on behalf of the Local Authority to make interim orders under s.40 of the Children Act 1989. 

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 such an appeal.  This included the judge conducting his own investigation of the allegations by conducting a Google search of where the alleged abuse took place.   

In respect of 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 re instated the findings made by Deputy District Judge Hornby. 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 ought to have been made pending appeal by the Local Authority as had been submitted by Miss Watters.

The full judgment can be read here: https://www.bailii.org/ew/cases/EWCA/Civ/2023/475.html

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