COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(LOWER COURT No: FD07P1795)
(HIS HONOUR JUDGE KNOWLES)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
|IN THE MATTER OF J (Children)|
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Miss Mariana Hildyard QC and Miss Louise MacLynn (instructed by Penn Legal) appeared on behalf of the Respondent father.
Crown Copyright ©
Lord Justice Wilson:
"In conclusion, please advise if you are instructed to accept service of documents in relation to the abovementioned application that we propose to make for contact forthwith if there is not an immediate resumption of contact. Given the serious nature of the allegations that your client would made, we would have no hesitation in perusing a claim for costs if we are forced to make an application based on allegedly false allegations made by your client with mal fides." [sic]
The father duly applied to the court for an order for unsupervised contact, including staying contact, and in his application he reiterated that the mother was making up allegations of domestic violence against him. In the light of the mother's allegations a district judge set up the fact-finding hearing which District Judge Wicks conducted on 18 and 19 March 2008. Both parties were represented at that hearing by junior counsel; and neither party was in receipt of public funding. For use at that hearing, statements by various family members were filed on behalf of each parent; but the only witness who gave oral evidence in addition to the parents was one of the mother's sisters. There was however further significant documentary evidence, not least an entry by an army GP in Germany following his attendance on both parties on the day prior to the mother's departure for England. The GP noted:
"SPITS IN WIFE'S FACE AND HITS HER. PHYSICALLY AND VERBALLY THREATENING A LOT OF THE TIME. INITIALLY TRIED TO SUGGEST WIFE IS MAKING IT UP. WHEN QUESTIONED COULD PROVIDE NO EXPLANATION TO WHY SHE WOULD …… ADMITTED IT WAS TRUE."
(1) The mother established that, in the presence of R and while she was pregnant with E, the father put his hands around her neck and threatened to strangle her. The father had admitted only putting his hands on the mother's shoulders and shaking her gently.
(2) The mother established that in May 2006, when R was aged two, the father smacked him, thereby causing a bruise on his bottom, threatened to punch the mother's face and pushed her in an aggressive manner. The father had accepted only that he had smacked R because R had kicked him in the face. The district judge's finding was not only that the father had threatened and punched the mother but, inevitably, that the smack had been inappropriate.
(3) The mother established that in February 2007 the father spat in her face, pushed her against a wall and later slapped her across the head. The father had admitted only that he had spat in her face.
(1) The mother established that, when R was aged six months, the father showed him his clenched fist and said "If you don't be quiet, you'll get one of them".
(2) The mother established that at Easter 2006 the father grabbed her face and threatened to kill her.
(3) The mother established that in May 2006 the father lost his temper with R, then aged two, and shouted at him.
(4) The mother established that later that month the father hit R in such a way as to leave marks.
(5) The mother established that in August 2006, after she had discovered a lump in her left breast, the father grabbed the breast, called her an "old cow" and said that he hoped that she would get cancer.
(6) The mother established that, on an unspecified date, while she was holding E, whom she was or had been feeding, the father threw a remote control at her; that it hit the mother, only narrowly missing E's head, and that the mother thereupon threw the remote control away albeit that, in so doing, she smashed a picture.
"Initially I cannot understand why what was once such a loving family unit has been reduced to what it is today a broken family embroiled in Court proceedings which I believe are doing nothing but fuelling a fire between my Wife and I. I love my Wife and adore my children and would do anything to return to how we used to be. I am not a violent aggressive individual and certainly not the man I am being accused of being through the evidence provided to the Court by my Wife and her 'supportive witnesses'. I would never intentionally hurt anyone save through the execution of formal Orders from the British Army …"
"I am not going to make an order in this case. I think the parties had a right to come to court and in those circumstances I am not going to make an order for costs."
"The mother argues in any event that the fact-finding element of the father's application has to be looked at effectively in a different light from the welfare aspect of it. I say straight away that I do not accept that compartmentalised approach. The question of what is in the best interests of the children and their welfare being paramount can, I believe, as a matter of law, only be ascertained by having such a fact-finding hearing as part and parcel of the whole process."
The judge said, second:
"Whilst therefore I accept that the remarks by the district judge in refusing the application for costs were extremely limited …, nonetheless, those words encapsulate the finding that the parties had a right to have the evidence tested. There is no suggestion by the district judge that the father acted unreasonably in giving evidence before him and the findings, I repeat, were not so clear cut and overwhelming that I get any sense that the district judge was saying or even suggesting that the father was lying throughout the whole of his evidence or that his stance had been unreasonable in having his evidence put before the court."
It is my clear view, in accordance with the submission made to us on behalf of the father and contrary to the submission made to us on behalf of the mother, that the circuit judge concluded that the district judge's exercise of discretion had not been flawed and thus that she should not interfere with it. It is not -- in my clear view -- a case in which, instead, she accepted that the discretion had been improperly exercised by the district judge and then proceeded to exercise her own discretion to refuse to make an order for costs against the father. Her prior analysis of the proper treatment of the mother's application for costs can in my view be construed only as a prelude to her conclusion that the district judge had conducted a proper exercise of his discretion.
"Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority are a party … But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable."
Lord Justice Ward:
Order: Appeal allowed.