SITTING IN THE ROYAL COURTS OF JUSTICE
On appeal from the Family Court sitting at Chelmsford
Recorder Feehan QC
Strand, London, WC2A 2LL
B e f o r e :
|- and -
Stefanie Wickins (instructed by Ellisons Solicitors) for the Respondent
Hearing dates: 13-14 December 2021
Crown Copyright ©
Mr Justice Peel :
i) FPR PD27A by para 2.1(b) applies to all hearings in the Family Court.
ii) By para 2.2 "Hearing" includes "all appearances before the court, whether with or without notice to other parties, whether at first instance or (subject to 5.2A.3) on appeal and whether for directions or for substantive relief.
iii) By para 5.2A.1 "Unless the court has specifically directed otherwise….and subject to paragraph 5.2A.2 below.." skeleton arguments are limited to 20 pages.
iv) By para 5.2 all documents in the bundle (which includes skeleton arguments) must be typed or printed in a font no smaller than 12 point and with 1 ½ or double spacing.
v) By 5.2A.3 "the bundle must comply with PD30A".
vi) PD30A makes separate, tailored provision for the filing of documents relevant to an appeal. It does not make separate, or different, provision as to the length of skeleton arguments. That is unsurprising. It would be extraordinary if, on appeal, litigants are entitled to file skeleton arguments limitless in length, whereas for the substantive hearing below they are confined to 20 pages. It would similarly be extraordinary if appeals to the Court of Appeal, which are governed by separate rules, are subject (as they are) to strict limits as to the length of skeleton arguments, but appeals heard by a High Court Judge are not. The same must apply to appeals to a Circuit Judge from a decision made at District Judge level.
vii) Accordingly, in my view, by PD27A skeleton arguments upon appeal are limited to a maximum of 20 pages, a limit which should be scrupulously observed unless directed otherwise.
The general law on appeal
i) an error of law has been made;
iii) the judge has clearly failed to give due weight to some very significant matter, or has clearly given undue weight to some matter: B-v-B (Residence Orders: Reasons for Decision)  2 FLR 602.
iv) a process has been adopted which is procedurally irregular and unfair to an extent that it renders the decision unjust: Re S-W (Care Proceedings: Case Management Hearing)  2 FLR 136.
v) a discretion has been exercised in a way which was outside the parameters within which reasonable disagreement is possible: G v G (Minors: Custody Appeal)  FLR 894.
22. "Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP  EWHC 3964 (Fam),  1 FLR 228, para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."
23. The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski  1 WLR 1360. I confine myself to one short passage (at 1372):
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in "narrow textual analysis".
"Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them…..The reasons for this approach are many. They include
i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
ii) The trial is not a dress rehearsal. It is the first and last night of the show.
iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.
115. It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted."
Vulnerable witnesses: Part 3A
3A.3 When considering the vulnerability of a party or witness as mentioned in rule 3A.4 or 3A.5, the court must have regard in particular to the matters set out in paragraphs (a) to (j) and (m) of rule 3A.7.
3A.4 (1) The court must consider whether a party's participation in the proceedings (other than by way of giving evidence) is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions.
(2) Before making any such participation directions, the court must consider any views expressed by the party or witness about giving evidence.
3A.5 (1) The court must consider whether the quality of evidence given by a party or witness is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more participation directions.
(2) Before making any such participation directions, the court must consider any views expressed by the party or witness about giving evidence.
3A.6 (1) The court must consider whether it is necessary to make one or more participation directions to assist (a) the protected party participating in proceedings; or (b) the protected party giving evidence.
(2) Before making any such participation directions, the court must consider any views expressed by the protected party's litigation friend about the protected party's participation in the proceedings or that party giving evidence.
3A.7 When deciding whether to make one or more participation directions the court must have regard in particular to—
(a) the impact of any actual or perceived intimidation, including any behaviour towards the party or witness on the part of—
(i) any other party or other witness to the proceedings or members of the family or associates of that other party or other witness; or
(ii) any members of the family of the party or witness;
(b) whether the party or witness—
(i) suffers from mental disorder or otherwise has a significant impairment of intelligence or social functioning;
(ii) has a physical disability or suffers from a physical disorder; or
(iii) is undergoing medical treatment;
(c) the nature and extent of the information before the court;
(d) the issues arising in the proceedings including (but not limited to) any concerns arising in relation to abuse;
(e) whether a matter is contentious;
(f) the age, maturity and understanding of the party or witness;
(g) the social and cultural background and ethnic origins of the party or witness;
(h) the domestic circumstances and religious beliefs of the party or witness;
(i) any questions which the court is putting or causing to be put to a witness in accordance with section 31G (6) of the 1984 Act;
(j) any characteristic of the party or witness which is relevant to the participation direction which may be made;
k) whether any measure is available to the court;
(l) the costs of any available measure; and
(m) any other matter set out in Practice Direction 3AA.
The hearing before the judge
i) Hayden J in F v M  EWFC 4 at para 113:
"Ms Jones has invited me to make comment on the use of Scott Schedules (i.e. a table identifying the allegations and the evidence relied on in support) in cases involving this category of domestic abuse. Having given the matter considerable thought I have come to the clear conclusion that it would not be appropriate to give prescriptive guidance. Whilst I entirely see the advantage of carefully marshalling the evidence and honing down the allegations, I can also see that what I have referred to as a particularly insidious type of abuse, may not easily be captured by the more formulaic discipline of a Scott Schedule. As I have commented above, what is really being examined in domestic abuse of this kind is a pattern of behaviour, possibly over many years, in which particular incidents may carry significance which may sometimes be obvious to an observer but to which the victim has become inured. It seems to me that what is important is that the type of abuse being alleged is made clear to the individual who is said to be the perpetrator.
An intense focus on particular and specified incidents may be a counterproductive exercise. It carries the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour. This was the issue highlighted in the final report of the expert panel to the Ministry of Justice: 'Assessing Risk of Harm to Children and Parents in Private Law Children Cases' (June 2020). It is, I hope, clear from my analysis of the evidence in this case, that I consider Scott Schedules to have such severe limitations in this particular sphere as to render them both ineffective and frequently unsuitable. I would go further, and question whether they are a useful tool more generally in factual disputes in Family Law cases. The subtleties of human behaviour are not easily receptive to the confinement and constraint of a Schedule. I draw back from going further because Scott Schedules are commonly utilised and have been given much judicial endorsement. I do not discount the possibility that there will be cases when they have real forensic utility. Whether a Scott Schedule is appropriate will be a matter for the judge and the advocates in each case unless, of course, the Court of Appeal signals a change of approach."
ii) The Court of Appeal in Re H-N  EWCA Civ 448 at para 46:
"… serious thought is now needed to develop a different way of summarising and organising the matters that are to be tried at a fact-finding hearing so that the case that a respondent has to meet is clearly spelled out, but the process of organisation and summary does not so distort the focus of the court proceedings that the question of whether there has been a pattern of behaviour or a course of abusive conduct is not before the court when it should be."
iii) Poole J in FG & HI and JK  EWHC 1367 at paras 25 and 26:
"25. Since Scott Schedules had been prepared and the case has been managed by reference to them, I did not dispense with them but, at my invitation, the parties prepared short narrative summaries of their respective cases about the allegedly coercive and/or controlling behaviour of the other. The summaries were very different in style and illustrated the complexities involved in presenting allegations for a finding of fact hearing such as this one where there are overlapping allegations by the mother against the father of coercion and control, physical violence against the mother, physical violence against the child, and allegations by the father against the mother of control, fabrication, and abduction. How can the party alleging a pattern of coercion and control over a relationship that has lasted several years present that case for a finding of fact hearing in a way that is proportionate and manageable, and without giving a day by day account of the whole relationship?
"26. Patterns of behaviour are formed from many individual incidents of conduct. It is difficult therefore to separate the pattern from the specific events said to establish the pattern. In this case every one of the mother's allegations is denied by the father. The court cannot make findings about a pattern of behaviour without evaluating the evidence in relation to specific incidents that allegedly contributed to that pattern. The difficulty is in identifying a limited number of incidents that would, if proved, establish a pattern of behaviour. Some specific instances of behaviour will not constitute abuse themselves and may appear to be relatively trivial if looked at in isolation but are in fact important evidence of a pattern of abuse, or the effects of abuse, when set alongside other findings.
i) 3 of sexual abuse;
ii) 13 of verbal abuse;
iii) 6 separate, individual allegations which did not fit into either of the above categories.
"She was unwell and was in resus for a couple hours while her condition stabilised. Her symptoms started after the court hearing on 14th; she was extremely stressed and anxious. She was questioned about past trauma which included about when she was raped, smothered and choked by her ex-partner on several occasions….She reports her symptoms were highly likely the stress of this event….".
This letter was, of course, not available to the judge during the hearing. It indicates the enormous stress which GK may have been under whilst giving her oral testimony.
i) By way of introduction, the judge referred to the large volume of evidence, and said that "Many of the allegations made depend upon the findings I make as to the credibility of the parties. I see my task in this judgment as being to survey the broad canvas of the evidence, to make findings as to who I can rely upon, to compare oral testimony with any documentary support or contradiction and then to indicate the effects of that exercise in setting put what I do and do not find".
ii) The judge set out the background.
iii) He then cited well-established principles as to the approach to be taken in fact-finding cases. He referred to the caution to be applied when considering demeanour. He referred at other points in the judgment to the fact that people lie for different reasons (the Lucas direction, although he did not reference it by name) and cited the seminal judgment of Russell J in JH v MF  EWHC 86 (Fam). He made a number of references in the judgment to patterns of coercive and controlling behaviour.
iv) The judge went on to review the written and oral evidence of the parties and concluded that GK's evidence left him with grave concerns, whereas PR overall tried to assist the court with truthful answers.
v) He then proceeded to analyse each of the sexual allegations, the grouping of verbal abuse allegations, and the further six uncategorised allegations, in each instance either positively rejecting GK's case, or making no finding, being unpersuaded that she had proved her case.
Ground 1: Failure to apply Part 3A of the FPR 2010, PD3AA and PD12J
i) No ground rules hearing took place before the fact-finding trial. The rules are clear as to the need for a ground rules hearing. Had it taken place, the vulnerability issues raised in this case would have been addressed. As it is, the judge was left without any previous court guidance, and in my view ought therefore to have applied a more critical, or proactive, eye to participation measures. This case demonstrates, in my opinion, why early identification of potential vulnerability, and a ground rules hearing, are indispensable elements of the case management process.
ii) The judge made no reference to Part 3A in his judgment.
iii) This was not a straightforward case. The allegations contained in the witness statements were numerous. Even when refined in the Scott Schedule they still numbered, initially at least, 29. The bundle was extensive. Some of the allegations were of the utmost gravity.
iv) GK has a medical condition which is exacerbated by stress, and counsel referred to her anxiety and health at the start of the fact-finding hearing. It is apparent from the GP letter (available now to me, but of course not available to the judge, and therefore I have the wisdom of hindsight) that her condition resurfaced as a result of the process of giving evidence. The anxiety for a woman giving evidence in court against a former partner, alleging abusive conduct, and in the context of seeking to (as she sees it) protect her child, cannot be underestimated. The transcript shows that, albeit after giving her evidence, she became unwell during the hearing, towards the end of the first day, including saying that she was struggling to breathe.
v) No thought was given to a different process of cross examination (perhaps written questions and/or questions directed via the judge, or a focus on particular topics). The very fact of reducing a long witness statement to a number of identified examples, while perhaps of assistance to a judge trying to pick his way through the evidence, may not have best served the case.
vi) It became clear during the hearing before me that, during GK's evidence at the fact-finding hearing, PR was able to see her throughout on screen. It also appears that she was able to see PR as the camera was pointed at his counsel, behind whom he sat. In my judgment, these arrangements were not appropriate and although her counsel does not appear to have raised objection, it should have been addressed at the outset given the nature of the allegations, GK's potential vulnerability and the possible impact upon her.
Ground 2: Wrong to dismiss the allegations of rape
Ground 3: wrong in the approach to allegations of verbal and emotional abuse and coercive and controlling behaviour.
Ground 4: Wrong to dismiss further six allegations of domestic abuse.
i) An allegation was made that PR covered GK's mouth and nose in a threatening manner. In dismissing the allegation, there is no mention of a report to medical professionals of being choked by PR which, on the face of it, is consistent with GK's account.
ii) Another choking allegation is not found to be proved, but the judge did not refer to reports made by GK to the police and medical professionals of the alleged incident.
iii) When referring to text messages after separation, the judge described them as an irritant, yet GK's reports to the police laid bare what she described as their abusive and harassing nature i.e the impact upon her of the nature and quantity of messages sent by PR was not properly considered by the judge.
Ground 5: Failure to consider corroborative evidence.
Ground 6: Judge failed to address additional allegations of domestic abuse.
The way forward