England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM COVENTRY COUNTY COURT
(Her Honour Judge Deeley)

		The Royal Courts of Justice The Strand London
		Thursday 25 October 2001

Thursday 25 October 2001

1. LADY JUSTICE HALE: This is an appeal against the order of Her Honour Judge Deeley made on 8 October 2001 in the Coventry County Court. She found the appellant to be in breach of a non-molestation order made under the Family Law Act 1996. She imposed a sentence of 14 days' imprisonment for that breach. She also implemented a previous suspended sentence of six weeks' imprisonment consecutively, making a total of eight weeks' imprisonment. The main thrust of this appeal, however, has not been against the duration of that sentence so much as against the finding of a breach of the order.
2. The history is this. The parties were married in 1988. They have three children, a boy J who was born in August 1989 and is now 12, and two girls, L who was born in December 1990 and is now ten getting on for 11, and C, born in February 1999, who is now two and three quarters. We direct that nothing be published about this case which would lead to the identification of those children.
3. The parties separated in December 2000. There were various comings and goings, but the outcome was that the mother and the two girls live in the former matrimonial home. The father and J were rehoused in April 2001. In December 2000, when the husband was ordered to vacate the home, the parties gave cross undertakings not to use or threaten violence and not to harass, pester or interfere with one another. In April 2001 the mother issued a committal application alleging various breaches of that undertaking by the father.
4. That application came on for hearing on 2 May 2001. The father admitted attending at the mother's home on three occasions, sending letters to her and making allegations to third parties about her sexual activities. Her Honour Judge Deeley therefore made the order which is in question in these proceedings:

"1. The Respondent ... shall not attend at or go within 100 metres of [the mother's address].

2. The Respondent ... shall not harass or pester the Applicant ... by making allegations to the Applicant or Third Parties about the sexual activities of the Applicant.

3. The Respondent ... is forbidden from communicating directly to Applicant whether by writing or telephone."

A power of arrest was attached to each paragraph of that order.

5. On 30 May 2001 there was a hearing following the arrest of the father for an alleged breach of that order. He admitted that in the course of a telephone call on Friday 26 May 2001 he had said to a third party that he had found the mother in bed with an antiques dealer and that she was expecting a baby by another man. His Honour Judge Eccles on that occasion imposed a term of imprisonment of six weeks, but suspended until 5 December 2001 on terms that he complied with the order of 2 May.
6. In the meantime there were other proceedings continuing between the parties concerning the future of their children. A CAFCASS report was ordered and produced, dated 13 August 2001, for a hearing to take place later that month. That report recommended that the children should remain living with the parent with whom they were currently living, despite the fact that that meant that they were divided, because this was what J and L both wanted. They also wanted to remain in contact with one another, and so the recommendation was that contact should alternate between the mother and father on a weekly basis.
7. The outcome on 23 August was an order by consent that the two girls were to live with their mother and J was to live with his father. Contact was to take place on alternate weekends at each parent's home, beginning with the weekend of 8 September at the father's home. Thus on 8 and 9 September the girls went to stay at the father's home. The alleged breach of the order of 2 May took place over that weekend. The mother put it in this way in the affidavit which she swore later:

"When I collected the girls on the Sunday at 5.00 pm, before [L] got into the car she wanted to know if I had started cooking dinner as she was starving. As I drove away [L] asked me what a prostitute was. I explained what it meant and then [L] said that Dad had said to her that 'your mum is a prostitute and sleeps with men for money'. According to [L] she told her father that I was not a prostitute."

8. The consequence of that was that the mother contacted her solicitor. Her solicitor advised her to contact the police. A police officer came round. On 19 September she took a statement from the mother in L's presence and she also interviewed L. The father was subsequently arrested on 3 October, brought before the court and granted bail. The hearing of the matter came before the court on 8 October. Her Honour Judge Deeley found the breach proved and imposed the total of eight weeks' imprisonment which I have already described.
9. The challenge to that finding was originally based on two grounds. The first was as to the admissibility of the hearsay evidence of what L had said to her mother. The second was as to whether it was open to the judge to be satisfied, on the standard of proof, beyond reasonable doubt, of the truth of what L had said to her mother.
10. The admissibility point has somewhat fallen by the wayside in the course of this hearing. It is common ground that these are civil proceedings. If authority be needed, it can be found in C v C (Contempt: Evidence) [1993] 1 FLR 220, a decision of this court in connection with the Children (Admissibility of Hearsay Evidence) Order 1991. Hearsay is admissible in civil proceedings by virtue of section 1 of the Civil Evidence Act 1995. Miss McGrath on behalf of the appellant makes a point under section 5 of that Act. Section 5(1) reads:

"Hearsay evidence shall not be admitted in civil proceedings if or to the extent that it is shown to consist of, or to be proved by means of, a statement made by a person who at the time he made the statement was not competent as a witness.

For this purpose ... a child shall be treated as competent as a witness if he satisfies the requirements of section 96(2)(a) and (b) of the Children Act 1989 (conditions for reception of unsworn evidence of child)."

Miss McGrath argues that the judge did not address herself to whether those conditions were satisfied in this case in relation to L. The conditions are:

"(a) he understands that it is his duty to speak the truth; and

(b) he has sufficient understanding to justify his evidence being heard."

However, it is clear from the wording of section 5, which I have quoted, that the burden lies on the person who asserts that the maker of the statement is not competent to make that assertion and to make it out. That does not appear to have happened in the court below. In any event, it would have been difficult to do so, bearing in mind L's age and the fact that she is doing well at school, to say nothing of the appellant's own case that she knows what a lie is. There is little or nothing in that point.

11. The more substantial point is that an application was made on behalf of the appellant that the case should not go ahead unless L was called to give evidence in person. Section 3 of the 1995 Act provides that:

"Rules of court may provide that where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief."

That section makes it plain that there is a discretion in the court whether or not to insist that such a person is called. The relevant rule for this purpose is contained in the County Court Rules 1981 Order 20 rule 16.

12. The judge gave careful consideration to whether L should be called to give evidence. She pointed out that:

"It is always a difficult matter when an allegation is made by a child. There is always a distaste at having to require live evidence in court from a child and much is done to avoid that."

Further:

"There are particular ways of interviewing a child which makes their recorded evidence more acceptable".

But:

"…there are occasions when a child is called".

In this case, of course, there was neither such a video recorded interview, nor was there any witness statement from the child. But she went on to consider the circumstances that L was ten and if called she would be required to give evidence to support one of her parents against her other parent:

"It seems to me wholly reasonable for her mother to have taken the view that she did not wish to put the child in such a very, very difficult position. This is a child who is part of the family and will continue to be so after today's proceedings."

Miss McGrath does not seriously challenge the relevance of those considerations, nor the exercise of the court's discretion not to insist that L was called to give evidence in person. So that disposes of that aspect of this matter.

13. As for the second ground of challenge, Miss McGrath argues that no judge properly directing herself could have been satisfied beyond reasonable doubt that what the child had said was true, bearing in mind a number of factors. Firstly, the child had told at least one significant lie on a previous occasion. This was an occasion when a car recently bought for the mother by the father had been damaged and the mother had made up a story about how this had happened, which both J and L had backed up for her and indeed embellished. The judge considered this and thought that the circumstances were altogether different from what this case was about. It was the mother who was using a lie to cover her actions and she allowed the children to enhance her lie but it did not cause the judge to doubt either the mother's evidence, or indeed the child's.
14. Secondly, the divorce had been extremely acrimonious and this had caused the child anxiety which had been serious enough to warrant treatment. That is indeed the case. But by itself it takes matters not much further unless it is combined with the third point, that the child was anti her father and pro her mother. As to this, the judge again dealt with it with some care. She contrasted that with the CAFCASS report, which was to the effect that the children had divided loyalties but wanted contact to take place. There were, of course, also unresolved issues between the parents, but those might affect the credibility of the mother rather than the child.
15. The judgment, which is detailed and careful, shows that the judge had correctly directed herself on the standard of proof; she had correctly directed herself as to the caution with which she should approach the child's statement; she had considered, where relevant, the matters set out in section 4 of the Civil Evidence Act 1995 in relation to weighing hearsay evidence; all in all, she is to be congratulated on a judgment of considerable care.
16. In my view she was entirely entitled to reach the conclusion she did. She heard the evidence of the mother and she was impressed with that evidence. She found her to be a truthful witness, quiet and impressive and quite plainly desperate to be free of the interventions such as she was complaining of by the father. She also heard evidence from the father and she did not find him to be an impressive witness. Significantly, "I found him very keen to tell the court that he believes that the applicant is still associating with others." A man was named and he believed that she had a caravan of men in the garden. It was therefore important to the father what the relationship was that mother might have with other men, and he wanted others to think less of her because of that.
17. The judge concluded therefore that she believed that L had said what she said to the mother. In the circumstances, there is no possibility that this court could interfere with that finding of fact based on the judge's views of the credibility of the witnesses.
18. It therefore being clear that L had said what she had said to her mother, the question was whether or not it was true. The judge considered and believed that L did not know what the word prostitute meant. She had heard it from somewhere. It was a word the father had used in the past about the mother. The child had asked about it on the way back from the father's house. There is no suggestion that there was a conversation about prostitutes between the children. L did not know the meaning of the word and she did not know the terms of the injunction of 5 May or of the suspended committal order of 30 May. The judge concluded:

"I do not find it a reasonable proposition that she had made this up in order to get her father into trouble. It seems to me to be remote and beyond all reasonable possibilities."

That is a conclusion, once more, that was entirely open to the judge and with which this court could not interfere.

19. Turning now to the sentence, Miss McGrath has not complained about the 14 days, in my view rightly so. Nor has she complained about activating the six weeks' suspended sentence. She had invited the court below to suspend the consequent total sentence and, of course, there was considerable difficulty about an immediate sentence of imprisonment, given that the father was responsible for the care of J. Any court which is contemplating sending the primary carer of a child to prison has to give very careful consideration to that, not least because of the terms of Article 8 of the European Convention on Human Rights. However - and I do not blame the judge for this because it was not put to her - she appears not to have considered whether the totality of eight weeks' imprisonment was correct. One has to take particular care when implementing suspended sentences to consider whether the suspended sentence may in fact have been too long. This is because the court has always to consider, in these cases, what alternatives there are to immediate imprisonment and how short the sentence can sensibly be, and suspended sentences, unfortunately, sometimes tend to be rather longer than would have been appropriate for an immediate sentence of imprisonment. That is not the correct approach, but one has to acknowledge that it happens from time to time. Furthermore, one has to acknowledge that if blessed with a suspended sentence, people do not always appeal even if the term is somewhat too long. Therefore the judge has to contemplate whether the whole of such a suspended sentence should be implemented.
20. In my judgment, had the judge considered matters in that way, she would not have implemented the full six weeks of the previous sentence. There is an apparent disparity between six weeks for a remark to a third party, who was presumably an adult familiar with the parents and able to form her own judgment of the accuracy of the tale she was told, and a remark made to the couple's own child. In my view the remark made to L was of a different order of gravity from the remark made to the third party. It is difficult to think of more damaging things for a child to hear from one parent about the other, and I am alarmed to think that Miss McGrath, on behalf of father, resists the continuation of an order even to prohibit such remarks being made.
21. Bearing those considerations in mind, I would allow the appeal to the extent of implementing only 14 days of the suspended sentence, thus making a total period of imprisonment of 28 days.
22. The third matter which has come before us, effectively for the first time today, is the question of varying the order of 2 May. Miss McGrath argues that telling lies to other people about the sexual activities of the mother in this case is not the sort of behaviour that non-molestation orders under the Family Law Act were intended to prevent. She relies upon the words of Sir Stephen Brown, President of the Family Division, in C v C (Non-molestation order: Jurisdiction) [1998] 1 FLR 554 at page 556H:

"... there is no legal definition of 'molestation'. Indeed, that is quite clear from the various cases which have been cited. It is a matter which has to be considered in relation to the particular facts of particular cases. It implies some quite deliberate conduct which is aimed at a high degree of harassment of the other party, so as to justify the intervention of the court."

The standard definition of molestation upon which that draws is that of Ormerod LJ in Horner v Horner [1983] 4 FLR 50 at page 51G:

"... I have no doubt that the word 'molesting' .... does not imply necessarily either violence or threats of violence. It applies to any conduct which can properly be regarded as such a degree of harassment as to call for the intervention of the court."

23. As Mr Dismorr points out on behalf of the mother, this was conduct which was calculated to cause alarm and distress to the mother. One can well understand that, when faced with an application to prohibit such conduct, the court should pay careful attention to whether this is a justifiable interference with the freedom of speech of the other party and should also consider, as one always does in these cases, whether making an order of this nature is going to do more harm than good. But given the history of this case as I have related it, and given what subsequently transpired, including the evidence given by the father to Her Honour Judge Deeley on 8 October, one cannot have much doubt that this is conduct in which he is engaging in order to cause alarm and distress to the mother and in which he is prepared to involve the children as well. That is the sort of behaviour, in my judgment, which does call for the intervention of the court and I would not delete or amend paragraph 2 of the order of 2 May.
24. I do have some concern about the attachment of a power of arrest. Mr Dismorr has not been able to show any evidence that there was before the court on 2 May of the use or threat of violence by the father against the mother or the child, and without it there was no power under section 47(2) to attach a power of arrest to the order. I would therefore vary the order by the deletion of that power of arrest.

MR JUSTICE DAVID STEEL: I agree.

ORDER: Appeal allowed to the extent of substituting 14 days for the six weeks, making a total of 28 days in all, and the order of 2 May will be varied by the deletion of the power of arrest. No order for costs, but detailed assessment of both parties' costs. (Order not part of approved judgment)