ZR v TP
[2023] EWHC 3407 (Fam)
S (Children) (New Evidence), Re
24 October 2024
[2024] EWCA Civ 1265
Court of Appeal
A mom challenged a court decision about her kids moving to England without her. New documents showed dad lied to the court. The appeal court said the original decision was wrong because of the lies and ordered a new trial with a different judge.
Key Facts
- •Mother appeals a Family Division judge's decision regarding her children's relocation to England from Afghanistan without her consent.
- •New evidence from Home Office disclosures regarding visa applications significantly contradicts the father's testimony.
- •The father's visa applications contained inconsistencies concerning his marital status and the children's residency.
- •The judge's findings relied heavily on the father's credibility, which is now challenged by the new evidence.
- •The mother does not seek the children's return to Afghanistan, but challenges the judge's findings as materially flawed.
Legal Principles
Principles applicable when making findings of fact in family cases, emphasizing the importance of assessing the credibility and reliability of parties' evidence.
Re B-B (Domestic Abuse: Fact-Finding) [2022] 2 FLR 725 and Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] 1 WLR 1821
Jurisdiction to hear appeals from fact-finding judgments in family cases.
In re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790
Rules governing appeals against findings of fact in family proceedings.
Family Procedure Rules 2010, PD30A, para 3
Criteria for admitting new evidence on appeal, with a more relaxed application in children's cases due to the paramount importance of the child's welfare.
Ladd v Marshall, Re E (Children: Reopening Findings of Fact) [2020] 2 All ER 539, Webster v Norfolk CC, Re Webster (children) [2009] 2 All ER 1156, Re S (minors) (discharge of care order) [1995] 2 FLR 639
Outcomes
The appeal is allowed.
The new evidence materially undermines the judge's findings, rendering them unsustainable. The inconsistencies between the father's evidence to the court and his visa applications are significant enough to require a rehearing.
The matter is remitted for rehearing before a different Family Division Judge.
The judge's findings, based on the now-contradicted evidence, are no longer a sound basis for welfare decisions. A rehearing allows for a determination based on all available evidence.