CA-2025-000682 - [2025] EWCA Civ 1058

Fact-finding is an integral part of our family justice system. Whether in private law cases within the family (such as this one) or public law cases involving the state, the principle is that the court’s powers can only be exercised on the basis of proven facts. As circumstances are so varied and facts so infinite, the court has to take care to identify the issues that it needs to decide and the facts that are relevant to them. Having fairly considered the evidence and the arguments, it then gives its decision, supported by adequate reasons. All of these matters call for an exercise of judgement: no two cases are identical, and no two judges will approach matters in exactly the same way.

In most cases about children, facts are found and welfare decisions are made at a single hearing. In other cases, the factual inquiry is so complex or significant that there has to be a split hearing, but the requirements of fact-finding and reasoning are the same in each case. It is not uncommon for one judge to have to make welfare decisions on the basis of facts found by another judge, either in the same case if judicial continuity has not been achieved, or in another case involving one or more of the same individuals.

The purpose of fact-finding in a case about children is therefore to provide a fair and sufficient factual foundation for the court’s welfare decisions. In a public law case, the facts as found will feed into the preliminary question of whether the threshold for intervention has been crossed, and they will no doubt also have wider significance for the later welfare analysis. In either case, the fact-finding process should encapsulate the court’s conclusions about past events, allowing it to look to the future when addressing welfare.

For these reasons, I would reject the submission that a fuller description of the nature and significance of findings of fact can deferred to the welfare stage. A core purpose of fact-finding, particularly where there is a split hearing, is to package the court’s findings about the past as a foundation for its decisions about the future. The findings are a foundation, not a straitjacket, but the court is not engaged in a process of continuous revision or elucidation. In the present case, the judge rightly did not suggest that he was making provisional or incomplete findings which he would later revisit.