England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY
(Mrs Justice Bracewell)

		Royal Courts of Justice Strand London WC2 Monday, 11th March 2002

1. LORD JUSTICE WARD:This is an application made by the father of three young children for permission to appeal against the order made by Mrs Justice Bracewell on 9th October 2001. She was dealing with what has been called the "causation" aspect of care proceedings, where the allegations against this father were that he had sexually abused his two step-daughters and a friend of theirs. The judge found those allegations proved.
2. Very briefly, the facts are that the father was born in Iraq and came to this country to further his studies. He met the mother when they worked together, and they married in 1993. They have three children: Z is a girl, now six and a half; U is a boy of four and a half; and H is the third child, a boy of three. The step-daughters are M, who is nearly 17, and L, who is already 22; and their friend is E, who is likewise about 22 years of age.
3. The father feels very strongly indeed that the findings were unfair and made in breach of his right to a fair trial under article 6 of the European Convention. In so far as he relies on breaches of article 6(3), he is probably wrong because they relate to criminal offences. These were not criminal charges. Those had been dealt with in the Crown Court, when he was acquitted of all the charges against him. These proceedings relate to the determination of his civil rights and obligations, and article 6(1) is the governing part of that article. He was entitled to a fair and public hearing of his civil rights and obligations within a reasonable time by an independent and impartial tribunal. All of that seems to me to have been fully satisfied.
4. Dealing specifically, however, with the nub of his complaints, he is distressed that the judge did not appear to have full regard to the fact that there was a record made of his interview with the police which was in fact only a summary of a larger transcript probably occupying some four tapes, according to the transcript of the criminal trial to which I have been referred. But the judge dealt with that matter in the following way. She said (at p.22 of her judgment):

"Mr [A] gave evidence at length. He was both extremely emotional and extremely evasive. As with the pattern of his police interview, he was rambling, concentrating on irrelevant matters, failing to address the real issues and, further, he displayed no sensitivity or understanding about the family into which he married. His whole approach was to justify himself. He complained bitterly about the transcript of the police interview, which he stated had been dismissed as inaccurate, at the criminal trial. When his complaint was investigated during the course of this hearing, it emerged that, indeed, an additional transcript of much greater length had been before the jury at the request of the defence but that this merely transcribed the lengthy repetitions and irrelevancies, which in no way detracted from the reliability of the shorter transcript."

5. So the judge was fully alive to the fact that there were these two transcripts and I cannot see, therefore, that there is any cause for complaint.
6. The father then says that the judge was quite wrong not to take into account the report of the NSPCC. That was a lengthy assessment of the risks. The copy of the report which was apparently before the judge has a paragraph added at the end of it which does not appear in the draft of the report which was given to him. That addition reads:

"We however accept that due to the uncertainties in this case a Causation Hearing may be necessary. It may be impossible to move forward in working with this family without this due to Mr [A's] unresolved feelings about being treated unfairly and as if he has offended. If Mr [A] is innocent of the allegations made against him, then obviously these feelings are very understandable."

7. I have no reason to believe that that paragraph was not properly inserted into the report at some stage after it was first drafted; and, of course, what it says makes eminent good sense. What the father does not appear to understand is that, at p.39 of the NSPCC report, in both his version and the version before the court, the NSPCC were saying:

"It is the position of the assessors that they are unable to say clearly, given the information available to them, whether or not there is any truth in the allegations made by [L, M] and [E]. Given this position, the task of assessing potential risk has been difficult ..."

8. I think the father misunderstands the use of that risk assessment report. The judge was, in my view, quite right to say that it was of no materiality to her decision whether or not these allegations were true or false. It would, however, be highly material to the next stage of the inquiry: that is to say, whether or not he presents a risk to the three children with which the court is concerned, Z, U and H. Whether or not he has committed sexual abuse of the three older girls, nonetheless the court still has to judge the risk he poses to his own children. That part of the inquiry is due to take place next week, and I have no doubt that on that occasion the NSPCC report will be fully considered, together with the update to it which the judge ordered on 9th October.
9. The complaint made about the judge's failure to look at a video to see the lifestyle of the family again, I think, falls into the same category. The video does not assist to prove whether or not sexual abuse occurred. It is highly relevant to the sort of relationship this father has with his three children, but the others are no longer in the home. The question for the judge is what risk he poses to Z, U and H. Obviously the video may have some relevance. I have not seen it and I cannot answer this fully, but it may have some relevance to the question of what kind of father he is to his own children. That will be dealt with next week also.
10. The father complains of differences in treatment as between the circuit judge who tried the criminal matters and Mrs Justice Bracewell in that, for example, the circuit judge directed the jury, as he was bound to direct them, to consider the complaint of each girl separately. That is a standard direction in a criminal trial and a wholly proper one. But Mrs Justice Bracewell, sitting in the civil court, could take a broader view of the matters and look to see what similarities, if any, there were in the complaints of the three girls.
11. The father complains that medical reports and educational reports were not before the judge when they ought to have been. I have no doubt that if they were material she would have had occasion to consider them. But I do not think they would have had great bearing on the sex abuse side of this inquiry. The judge did have medical reports available to deal, for example, with some of the allegations of sexual abuse, and she took them fully into account. I cannot see that she was prejudiced by the full transcripts not having been available at the beginning of the trial. The judge had ample opportunity to consider them and I have no doubt that she did, and I have no doubt that her attention would have been drawn to any material parts of them.
12. A criticism the father has made in his written submissions, but has not advanced today, is that he was incompetently represented by counsel. The judge, in the course of her judgment, made many references to the extent to which counsel had criticised the witnesses and had put every point that could have been put on the father's behalf. When it came to his seeking permission to appeal, counsel indicated that a ground would be the incompetence of his representation. The judge replied:

"I certainly do not support the contention that Mr [A] has been incompetently represented. You have done everything you could have done in order to represent him and you have asked searching, detailed questions of the witnesses."

13. That is borne out by her comments in the course of the judgment.
14. The sorry truth of this application is this, and I hope I can explain it to the father a little better. The criminal trial dealt with matters on a criminal burden of proof, where the jury had to be satisfied beyond reasonable doubt. The civil trial proceeds on a lesser standard of proof - the civil burden of proof; and the judge correctly directed herself to the right test established by Re: H and R [1996] AC 563. She therefore had to assess the witnesses which she heard. She dealt with the inconsistencies at p.5 of her judgment. She found that counsel had very properly pointed out the inconsistencies; the retractions of the girls; their failure to complain, and so forth. She referred to the absence of the medical evidence. She concluded that the medical evidence available neither proved nor disproved the allegation of penile penetration.
15. She dealt with the evidence of the girls themselves and said of the girl E (at p.10 of her judgment):

"Assessment of the witnesses is of crucial significance in this case, and each witness has been closely cross-examined, with searching questions. ... I found [E] to be an intelligent, articulate, truthful young woman, who was also perceptive and accurate in her description of the dynamics of the [A] household."

16. She said:

"[E] described in some detail, I accept as truthful her evidence, of the approach of Mr [A] when [E] and [L] were on the bed ... "

17. She said that, despite the challenge to her evidence:

"... I find her a very impressive witness, who was truthful. ... There are discrepancies in her evidence. I do not find these of crucial significance."

18. When she dealt with M, she acknowledged she was not as impressive a witness as E. She again referred to the inconsistencies and the false allegations, but she found other parts of the evidence compelling. She found that M had not "worked to eject her step-father from the house". She felt the retractions made by M had been engineered by her mother, and she found that other aspects "lend credence to [M's] account".
19. When she came to deal with the father, she concluded (at p.23): "I found him an unsatisfactory witness, whose evidence cannot be believed. I do not believe his evidence and I find that he is a man who will say anything that he thinks might assist him."
20. On that basis she found that there had been abuse of E and of M. In regard to L, she found that there was a high possibility that she had been abused but, since L had not given evidence and that evidence had not been tested, she did not find that abuse proved to the appropriate standard.
21. The sad fact for this father is that this court cannot possibly interfere with those findings. It is for the judge who sees and hears the witnesses to make up her mind as to who she believes. Unfortunately for him, she believed these two girls and she did not believe the father. Unless it can be shown that she abused the advantage she had of seeing those witnesses, this court does not interfere with findings of fact of that kind. It is for the trial judge to decide those matters and, absent her going plainly, wildly wrong, this court cannot and does not interfere.
22. There is, therefore, absolutely no prospect of success in this application. It is brought long out of time and, even if the difficulty over legal aid excused that delay, the prospects of success are so limited that the applications must be dismissed.
Order: applications dismissed.