England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE RUSSELL-VICK)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 31 July 2002

1. LORD JUSTICE THORPE: Mr Baker renews an application for permission which was lodged in this court on 6 June 2002, eight weeks out of time, challenging a judgment of His Honour Judge Arnold Russell-Vick, a recently retired designated judge, given on 20 March 2002. The single issue that the deputy judge had to try was whether the applicant, as an adult woman, had sexual intercourse with an 11-year old boy some five years previously. It is unnecessary to record the family circumstances or the history of previous litigation, save to say that there was a hearing in the county court conducted by His Honour Judge Poulton in which he had to consider whether to make findings of sexual abuse against KP Snr and KP. At that trial, the applicant was a witness but was not a party and was not therefore represented.
2. Judge Poulton made a finding that she too was responsible for sexual abuse in having had intercourse on a single occasion with KP's son, also named K. That hardly went to her discomfort, other than in obvious and general terms, until on 16 December she herself gave birth to a child, leading to local authority intervention. As to the proceedings concerning her daughter, M, it became necessary for the county court to reconsider, or to consider in the context of those proceedings, the single factual issue, had the applicant indeed had sexual intercourse with K jnr on that occasion in the past. Judge Poulton very wisely said it should be tried by another judge. It was in those circumstances that the case came before Judge Russell-Vick.
3. Having heard three days of evidence the judge reserved his judgment and handed it down as a written judgment on 20 March 2002. He was clear in his conclusion that the act of sexual intercourse had taken place. He made a consequential finding that there were child protection issues that needed to be addressed in relation to M.
4. Mr Baker, in his able submissions, concentrates on a single paragraph of the judgment which he submits fails to meet the test set by this court in the case of B v B (Residence Order: Reasons for Decision) [1997] 2 FLR at 602. The essential proposition appears from the headnote:

"Although the appellate court did not consider that the lower court had made any error of law or that the recorder's decision was 'plainly wrong', an appellate court was only able to assess whether or not relevant or irrelevant matters had been taken into consideration if the court had set out its reasons with sufficient detail and clarity to make clear the facts upon which it had relied and the matters which it had taken into account in exercising its discretion and reaching its decision."

5. That proposition was prompted by a judgment in the court below in which the recorder had said no more in determining a contested residence order application than this:

"I have to make a decision as to where the residence of this child should be. It is a very finely balanced case but, having regard to all the evidence that I have heard, all the documents to which I have been referred, having listened very carefully to the court welfare officer and having heard and listened very carefully to the submissions made by counsel on behalf of both these parents, I think that the residence order should be in favour of the father."

6. That comment rightly attracts criticism. All the recorder has said is, "I have done the job I am paid to do, I have listened to the evidence, I have read the relevant documents and I have listened to the submissions". There is absolutely nothing there to indicate why he has preferred father to mother.
7. The question is, does the paragraph criticised come into that category or not? In this case, Judge Russell-Vick says on the essential issue, "Is this a true bill or is it not?".

"There is no doubt that K jnr was at age 11 both dishonest and sexually experienced. On his own account he had had sexual intercourse with girls of about his own age and in one case a girl rather older. He was not therefore innocent of what was involved so that an act of sexual intercourse with an older women might be unusual and a novelty but not such as would disturb him. R said that she regarded K jnr as a younger brother and that their relationship was a good one. She would read to him and assist him with his homework and it is therefore surprising that K jnr should make this allegation against someone whom he evidently liked. I have to ask what could be the motive for the allegation unless it is true? He had nothing to gain from it, in my judgment. I find that R having been badgered by K snr eventually succumbed. I find that she had a strong sexual drive at that time and living in a household where sexual boundaries did not exist she took advantage of K jnr in the way he described. It is a finding I am reluctant to make given her good character and present circumstances, but I am driven to that conclusion for the reasons I have set out."

8. As I said in my written reasons, this is a succinct judgment made by a very experienced judge. Perhaps, one of the skills that comes from long experience of trials in the county court, is the virtue of brevity. Here the judge has drawn attention to no less than six considerations that inclined him to make a positive finding.

1. That K jnr was, despite his young age, sexually experienced and therefore would know precisely what he was encountering when seduced by the applicant.

2. That they were not strangers; that there was a relationship of closeness if not affection between them.

3. That the absence of motive for a false charge was something to be weighed in the scales.

4. That the applicant had been pressurised by a perverted adult within the household.

5. That the applicant had a strong sexual drive.

6. That she was a member of a household in which there were simply no sexual boundaries. There was an extremely perverted sexual environment.

9. Against that, he put into the scales the fact that she was a women of good character and that the finding would be in relation to circumstances very different from those that pertained at the time of the offence. I cannot see that the criticism mounted of the recorder in the case of B v B could possibly be run against this judgment.
10. I remain of the firm view that it would be quite disproportionate to admit this case to leave. There have already been two trials in the county court, albeit in only of which was the applicant represented. Even if an appeal were to succeed, all this court could do would be to order yet another trial in the county court. This is a finding of fact which, whatever its consequences, is, in my opinion, a finding of fact that should not be further reviewed in this court.
11. I confirm my provisional order dismissing the application.
Order: Permission to appeal refused. Public funding assessment of the Applicant's costs.