“Unusual facts and procedural irregularities”

Background facts 

This case of Re S (Care and Placement: Schedule of Findings of Fact) [2026] EWCA Civ 85 concerns S, a girl born at 25 weeks and 3 days' gestation. Due to her prematurity, S is developmentally delayed and has additional needs. Before her birth, the mother sought to terminate her pregnancy and misrepresent the baby’s health to midwives, but was informed she was beyond the legal limit for termination. A week later the mother presented at hospital in early labour. S was born and clinicians observed the remnants of a pink tablet and white powder on or around the mother’s vagina. Forensic testing confirmed the tablet contained misoprostol, a function of which is to terminate pregnancy. 

The mother discharged herself from hospital and S was subject to police protection. Upon visiting the parent’s home, the police found a leaflet for ‘Cytotec’ (a prescription drug containing misoprostol, commonly used to prevent gastric ulcers), in their bedroom. The parents shared their bedroom with the paternal aunt, who was pregnant and had fled domestic abuse. The police also found tablets branded ‘Breeky’ (a drug used for abortion and available in Pakistan), in the aunt’s jacket. 

Proceedings 

Care proceedings commenced, the aunt was joined as an intervenor, and adverse findings of fact were made against the parents and the aunt. A draft order, including a schedule of the findings made, were agreed by counsel. This schedule contained the following findings: 

1. the mother, or the mother and father have attempted to procure an abortion outside of the legal time limit; 
2. the mother and/or the father have colluded with … the paternal aunt, in a deliberate act with the intention of procuring an abortion outside the legal time limit. 

The aunt appealed the findings made against her and permission was granted on the basis of the draft order. The final approved order was not shared with the aunt’s representatives, nor did those representing the aunt have access to the documents uploaded to the FPL Portal.

Appeal 

Procedural irregularities

The day before the appeal hearing, counsel for the aunt, Gemma Taylor KC identified that the final approved order contained revised findings of fact. All parties had been working from an incorrect version of the order which contained different findings within the schedule. 

The revised findings of fact which were ultimately the subject of appeal were: 

1. [The aunt] had 'Breeky' tablets which also contain misoprostol and it is likely that she brought the Cytotec tablets to the parents' room where she was sleeping; 
2. The mother, father or [aunt] put the misoprostol tablet into mother's vagina.

Grounds of appeal 

The aunt appealed on the following grounds: (1) the Judge’s reasoning and approach to the evidence was flawed, (2) the judgment failed to adequately set out the evidence, the parties’ case on the issues, the Judge’s analysis or explain why the findings were made (3) the Judge erred when deciding the evidence supported the findings made against the aunt, (4) the Judge failed to address dishonesty, the weight that ought to be attached to lies and the relevance of them to the issues, (5) the Judge failed to examine each of the potential perpetrators and the likelihood of them having perpetrated the alleged act.  

The Local Authority did not object to the setting aside of finding ii (the inserting of the tablet) so far as it affected the aunt, but otherwise opposed the appeal. Both parents and the Children's Guardian supported the Local Authority’s position but opted to take no effective part in the appeal. 

Outcome 

Allowing the appeal in part, finding ii against the aunt was set aside. This was not a finding any party had sought, therefore the Judge below was required to exercise a higher level of care when taking a quasi-investigative approach, to ensure that the finding was ‘securely founded in the evidence’ (Re G and B [2009] EWCA Civ 10 applied). The judgment below lacked the additional level of care expected and did not show how finding ii had been reached in respect of the aunt. The mother did not explain how or when the aunt was purported to have inserted the tablet, nor was the allegation properly put to the aunt in cross examination. Thus the finding was not supportable by the evidence. 

The appeal in relation to finding i was dismissed. There was no dispute that the aunt had 'Breeky' tablets and on the evidence the Judge was entitled to conclude it was likely the aunt had taken the tablets into the parents’ bedroom. 

To avoid the procedural difficulties that arose in this case reoccurring: 

• Cobb LJ encouraged the relevant groups (Lead Judge of the Public Law Working Group, Judd J and the Lead Judge of the Standard Orders Group, Peel J; in liaison with the Family Procedure Rules Committee) to consider formalising the practice of including a schedule of the court’s findings with public law orders [54]; 
• Coulson LJ recommended judges cross-reference their schedule of findings with the relevant paragraph(s) of their judgment [72]; 
• The court should appoint one of the parties (or in the absence of agreement, the local authority) to ensure that any intervenors are provided in real time with the documents they are entitled to, including final sealed orders [57].

Ellie Andrews is pupil barrister at 42BR. Gemma Taylor KC of 42BR represented the appellant.