Family Law

(Court of Appeal, Thorpe, Patten LJJ, 16 February 2012)

A fact-finding hearing concluded that the child had suffered non-accidental injuries caused by one of the parents. After the judge retired, at a subsequent hearing a different judge went further and said he thought the mother was the more likely perpetrator but would not rule the father out entirely.

The mother appealed. The findings not expressed in the resulting order and so were not ordinarily appealable. However, fairness to the mother required the offending paragraphs of the judgment to be struck out. The second judge had gone beyond the initial findings of the judge who had heard the evidence first hand. The mother's fundamental right to a fair trial had been breached and if the paragraphs remained in the judgment the mother's prospects of developing a harmonious relationship with the child and carers could be blighted. Appeal allowed.

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