Since becoming a tenant in October 2020 Molly has practised predominantly in Criminal and Family (Children and Finance) Law. More recently Molly has been specialising in Family Law and accepts instructions in Public and Private Children matters as well as Financial Remedy and Injunction matters. She also accepts instructions in Education and Court of Protection work.
Molly's aim is to ensure that clients feel heard both in and outside of the Court room and receive thorough and realistic advice they can trust when making tough decisions. She is aware that coming to Court can have long lasting effects on those involved and endeavours to use problem solving strategies and take a global view to ensure that the best overall outcome is achieved for each client.
Within the Family Court Molly has been involved in a number of fact-finds including those involving coercive and controlling behaviour which was the topic of her LLM dissertation, 'Coercive Control: A Defence?' as well as issues of physical, emotional and psychological abuse. Whilst representing Rule 16.4 Guardians Molly has been involved with cases including allegations of child abuse and neglect and an external relocation case at a fact-find with live issues including imprisonment and child abduction. Having dealt with proceedings at all stages from the first to final hearings Molly is alive to evidential issues and approach of the Court and is able to advise on the merits of pursuing such allegations and advocate both for and against findings. At final hearings Molly has dealt with issues such as contact with grandparents, allegations of implacable hostility and arguments of care order vs supervision order and represented foster carers seeking SGOs.
Molly also has experience of child and vulnerable witnesses both within the Family and Criminal Courts at contested hearings where she has put her (criminal) vulnerable witness training to use.
Molly is able to accept instructions on a direct access basis.
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Molly is regulated by the Bar Standards Board, holds professional indemnity insurance with Bar Mutual and is VAT registered.
BPTS (BTPC with integrated LLM), University of the West of England Very Competent (assessed as outstanding in Criminal Advocacy, Conferencing, Advanced Criminal Law and Family Law)
GDL, University of Law - Commendation
Bachelor of History, Cardiff University Upper Second Class with Honours
ADR ODR International Accredited Civil Commercial Mediator
Honourable Society of Lincolns Inn
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Fact-finding decisions can be life changing for a parent, carer and children and whilst everyone involved with endeavour to ensure the outcome of a fact-find is the right one inevitably they will not always be. We all know about an immediate appeal b ...
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OKFact-finding decisions can be life changing for a parent, carer and children and whilst everyone involved with endeavour to ensure the outcome of a fact-find is the right one inevitably they will not always be. We all know about an immediate appeal but what if we do not know that the decision is wrong until much later for example when new evidence comes to light, can we do anything. The answer is potentially yes.
The case of Re E (Children: Reopening Finds of Fact) [2019] EWCA Civ 1447 is your go to case in this instance. It deals with this exact situation, the procedure for challenging the decision and the factors to be taken into consideration on such an application. Two other key sources you at least will need to be aware of are, CPR51.1(2); s31F(6) Matrimonial and Family Proceedings Act 1984; and the case of Ladd v Marshall [1954] EWCA Civ 1. The first thing to note is that proceedings do NOT have to be live either for the child involved in the fact-find proceedings or for another child with the someone party to the fact-find involved. At paragraph 17 and 41 of Re E Peter Jackson LJ says that the application can be a free-standing application thanks to s31F(6) Matrimonial and Family Proceedings Act 1984 which says,
âThe family court has power to vary, suspend, rescind or revive any order made by it, includingâ
(a)power to rescind an order and re-list the application on which it was made,
(b)power to replace an order which for any reason appears to be invalid by another which the court has power to make, and
(c)power to vary an order with effect from when it was originally made.â
It should be noted this does NOT apply to the High Court, they will have inherent jurisdiction under Re X [2016] EWHC 1342 and as a result this article will not consider the position in the High Court. If you are making a free-standing application this will be made using Part 18 procedure (Re E [46]) and should be made to the trial judge where possible. This is not the same as an appeal in that it is not the decision of the judge that is being queried. This is a reconsideration of matters because new evidence has come to light and as the person who heard the evidence and knew the case it is the trial judge who will be best placed to determine if there are grounds for re-opening the fact find.
When considering whether to make an application and what the judge will consider the starting point will be CPR 51.21(2) (NB. This will be CPR 52.21(2) once the 2021 amendments come into force on 6th April 2021), that permission is needed for the court to hear new evidence. Ladd v Marshall is to be applied when deciding if the new evidence is admissible, however, it should not be as rigorously imposed in family cases (Webster v Norfolk County Council [2009] EWCA Civ 59 [135]). We need to ask ourselves,
1. Could the evidence have been obtained for the first trial with due diligence?
2. Would it have an influence on the decision even if it is not decisive?
3. Does it seem credible, even if not incontrovertible?
If the answer is, no we couldnât have had this evidence, yes, it is influential and yes, it is credible then the likelihood is it will be admissible.
That will not be the end of the road though, before a re-opening is ordered the judge will need to balance the interests of those involved with the public interest. Children have the right to know what happened to them but this does not mean that there should be a re-opening of decisions, we have to consider if the money and time spent on the re-opening is justifiable. One factor in this is whether or not the current arrangements will be impacted. The best interests of the child and the welfare checklist cannot be ignored then and must not be ignored. If the decision of the fact-finding and arrangements is likely to change then a re-hearing should be ordered.
There is limited guidance on the circumstances and what will cause a decision to be re-opened however, I would suggest that the more serious the matters the court have before them the more likely it is that a re-opening will occur. In Re E a mother had been said by the judge to have âeither inflicted deliberately or caused by seriously culpable negligenceâ cigarette burns to the youngest of her three children [4]. The matter was not criminally charged as one of the several accounts the mother put forward, that the burns were accidental was felt to be plausible by a forensic burns consultant and forensic plastic surgeon [6]. The family court had heard evidence from a consultant dermatologist who did not feel this was a plausible explanation but he did accept that he had âextensive expertise in the matterâ [8]. The Court of Appeal did not determine whether there should be a re-opening of the fact-find to take into account the evidence of the forensic burns consultant and plastic surgeon and I am not aware that the decision of that court has been published. Using this fact pattern it could be said that the evidence was not available on reasonable diligence, it will have an impact on the decision and it seems to be credible coming from an expert witness in a relevant field. On that basis, it would seem right that the evidence is put before the court and is admissible. Balancing the public and partiesâ interests, it is a serious matter and given that care orders (the children were removed prior to the final hearing so presumably the care plan was for foster care) were made, I would suggest it could impact on the final orders made. If the burns were accidental and without any other concerns it would seem likely that the children would be returned to their Motherâs care possibly without any order in place. On that basis it would seem right that the fact-find is re-opened. Where issues determined at the fact-find were only part of a larger picture of concerns, a change in the outcome of the fact-find may not be enough to change the final order and so it would not be in the interests of justice to re-open the fact-find.
Re-opening a fact-find is not an impossible task however, it should be approached with caution. As with every case the best and welfare interests of the children are going to be key and ultimately the determining factor and it is this which you will need to have in mind when considering if the re-opening is justifiable.
OKIt is truly heartening to have such generous and compassionate barristers as yourself, who continually prioritise pro bono as part of their practice. Your commitment to access to justice is inspiring.
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Molly had a few days to prepare for my hearing and represent me. I was amazed at the level of professionalism and ability within such a short timeframe. Molly was very helpful and I will seek to use Molly for her support again should I require.
OKThe excellence and compassion of Molly Mifsud who represented me with articulate advocacy with genuine compassion whilst understanding the complexities of my divorce background and facts. My family and I could not have asked for, or expected such an excellent counsel, she is truly remarkable.
For anyone who is experiencing the complexities and sheer pressure of a divorce hearing, I could not recommend any stronger advice other than to secure the services of Molly, as I am utterly confident that one can be sure, that their case will be in the best of hands and a favourable result will be secured.
I just wanted to write to say that Molly Mifsud did a great job during my 3 day fact finding hearing. Her level of attention and professionalism was outstanding and as you know got us the end result we wanted.
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