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 LAMBETH COUNTY COURT
(HIS HONOUR JUDGE WELCHMAN)

		Royal Courts of Justice Strand London, WC2A 2LL
		26 April 2005

1. LADY JUSTICE SMITH: I will ask Wall LJ to give the first judgment.
2. LORD JUSTICE WALL: Mr Sankofa, the appellant, appeals against two orders made in the Lambeth County Court in proceedings between himself and the respondent, Thelma Seiwa, who is his former partner and the mother of his two children, Gyasi, now aged 14, and Safiya, now aged 9. The appellant has children from a previous relationship who are older and who play a peripheral part in the proceedings.
3. The proceedings between the appellant and the respondent which give rise to this appeal are about their two children. Those proceedings have plainly, from the documentation, been bitter and prolonged. However, neither order under appeal relates specifically to the children who, as I understand it, live substantially with their mother but enjoy extensive contact with their father, namely three weekends out of four and half of school holidays.
4. The appeals arise indirectly out of orders made under Part IV of the Family Law Act 1996 which relate to injunctions concerning intimidation, harassment and pestering, and which also govern the manner in which the children are returned from contact.
5. The first order which the appellant challenges is an order for costs made by His Honour Judge Cox in the Lambeth County Court on 15 August 2003. The judge on that occasion had before him the respondent's application for a further order against harassment and an application by her to commit the appellant to prison for breaches of a previous injunction made on 19 June 2003.
6. The appellant has throughout acted in person, although at least on one of the orders he is recorded as being represented by counsel. That is wrong. On 15 August 2003 His Honour Judge Cox made an order designed to last for 12 months forbidding the appellant from entering or attempting to enter the road or the address at which the respondent lives. The order contained a further direction that he was not to go beyond the corner of that road and the adjacent road. There was an order also against him forbidding him from intimidating, harassing or pestering the respondent or instructing, encouraging or in any way suggesting that any other person should do so. That was the order in relation to harassment. The judge also directed that the injunction would be reviewed on 1 December 2003 to see whether it should continue or not.
7. The judge also made an order in relation to costs. He ordered the appellant to pay the respondent's costs, including apparently costs reserved (an order which is difficult to trace) and he directed that those costs should be the subject of a detailed assessment. That is the first order under appeal.
8. The respondent was legally aided and a public funding assessment of her costs was directed. The judge then went on to give directions in relation to the application to commit. He directed the filing of evidence and that it be listed on 1 December 2003 with a time estimate of one day.
9. When the matter came back before the court on 1 December 2003, it was, somewhat surprisingly, adjourned further. The reason for the further adjournment, we infer from the papers, was that there was hope at that time that the matter could be resolved between the parties, since the tension over handovers appeared to have diminished. Nonetheless, the judge continued the injunction until 16 August 2004 and he adjourned the committal application also to 16 August 2004. I have to say, speaking for myself, that I find that period of adjournment of a committal application somewhat curious. The judge had ordered a directions hearing for 26 July 2004, and it may well be that he hoped that when the matter came before him on that day it would have calmed down so that the hearing on 16 August would be unnecessary.
10. Unfortunately that is not what happened, because on 26 July Judge Cox was not available. The matter came before Judge Welchman and he was obliged to hear the committal proceeding which, as he himself recognised by that stage, were stale. His hearing concluded on 6 September 2004, having overrun its initial time estimate in August. The injunction made by Judge Cox had expired, but Judge Welchman made a fresh injunction due to last until 1 October 2005. I think by that stage the respondent had moved house, although the injunction was otherwise in similar terms. The judge also heard the committal proceedings and, out of a welter of allegations made against the appellant, he found that two were established. He found that on 15 June 2003 the appellant had parked on the Sussex Road side of Alexander Road and shouted at the respondent. He also found that on 29 June 2003 the appellant had driven a car on Cornwallis Road past the appellant's house. The judge made no order on either breach except to order the appellant to pay one/fifth of the respondent's costs, such costs to be the subject of a detailed assessment.
11. As I indicated earlier, the proceedings relating to the children are of long standing. The respondent has not appeared at the hearing of these appeals either in person or by counsel and we have accordingly taken the opportunity to ask the appellant about the current position. We are told that although the injunction made by Judge Welchman remains in force different arrangements are now in place for the return of the children after contact periods: they being slightly older. Although the appellant is not entirely happy with this - they are returned to their mother by being put on a bus for a short journey from Seven Sisters to her address on Sundays, and as the children are collected from school and have always been collected from school on Fridays the parties do not meet on either occasion. The appellant commented that things were better because the children were now older. There is, unfortunately, no communication between mother and father. But at least the position appears to be relatively calm and there are, as we understand it, no outstanding proceedings. That is the background against which one has to look at the two orders. In these circumstances it does not seem to me profitable to go back in time; one has to look at the orders currently under appeal.
12. As far as the question of costs are concerned, the difficulty this court had when the papers were first submitted was that there was no note of the judgment of Judge Cox explaining why he had ordered costs against the appellant, particularly since the appellant at the time was either in part-time employment or on benefit or a combination of both, and not in a position to meet any substantive order for costs, given the child responsibilities he has, not just in relation to the two children of this relationship but to his older children. Unfortunately the notes we have now received do not really explain the judge's reasoning, although it can be inferred from the solicitor's note containing the rather Delphic reference that when the judge asked the appellant why he should not pay the costs the appellant is recorded as replying: "I think... " - so the explanation which was given is not recorded. It would seem, looking at the note we now have of the order made by the judge, that the reason the appellant was ordered to pay the costs was that the judge took a dim view of his conduct and regarded him as responsible for the need for continuing injunctions. Once again there is no explanation, and certainly there does not appear to have been any investigation of the appellant's means, either by the judge or by anyone else. In my judgment, if an order for costs was to be made against someone in the appellant's position, it should have been accompanied by an investigation as to means and an assessment of what it was reasonable for him to pay - either a substantive amount or a nominal amount - and an explanation should have been given as to why a somewhat unusual order in these circumstances was being made. It was against this background and without any explanation that I gave permission to appeal.
13. Now that we have the note of the judgment I do not think we are very much further forward. Certainly we have no explanation of the judge's thinking, apart from what can be inferred and, speaking for myself, I do not think it would be appropriate to allow that order to remain in place. It is largely academic. No attempt has been made to enforce it. But if it were, the costs of enforcement would be substantial. It would be likely to place the appellant in substantial difficulty were he to have to pay it. Thus I have come to the conclusion that the order for costs made against him on 15 August 2003 should be set aside. That is the only part of that order which the appellant seeks to appeal.
14. I turn to the second limb of the appeal which is that relating to the findings made in the committal proceedings. As the judge rightly observed, the history of the committal proceedings demonstrate a most unfortunate timetable. It seems from the papers that the application to commit was issued on 18 July 2003. It came appropriately before Judge Cox on 15 August. He adjourned it to December. It was then adjourned from December 2003 to July 2004 and then to 16 August 2004. It was accordingly for the judge a very difficult application. Other judges in his position might well have struck out the application - made more than a year after the event - on the ground that the allegations were stale and that committal proceedings needed to be dealt with promptly. The judge did not do that and I do not criticise him for it because he was not the judge who had adjourned the matter. I think it had been hoped and anticipated that Judge Cox (who had adjourned it) would be available to hear the committal proceedings, he having a much longer knowledge of the case. It may be that if Judge Cox had had the matter in summer it would have proceeded differently. Be that as it may the judge was facing the difficult decision. He had to adjudicate on the allegations made. He had to do his best and that is what I am satisfied he did. He directed himself appropriately as to the standard of proof. He had to be satisfied beyond reasonable doubt so that he was sure.
15. The difficulty which he immediately faced was that the respondent's case (as the applicant seeking the committal of the appellant) was that nearly everything that had happened had been recorded in her diaries; that her diaries represented the contemporaneous record of what had occurred and that she had little independent recollection apart from what was in the diaries themselves. I remind myself that the appellant was in person before the judge, and one of the complaints he has made to us today was that he felt throughout that the burden of proof was on him to disprove the allegations rather than the burden of proof being on the respondent to establish their truth. He demonstrates this by one example which relates to an incident recorded in the diaries having taken place on 27 April 2003, when he was able to establish by reference to the school that the school had been on holiday on that day and therefore the incident which the respondent described as taking place simply could not have happened. The judge recognised that as a good point. He records the respondent saying "Well, there must have been something happen on that day that I can't now recall." But he pointed out that it was an entry made on the diary on a particular day and since the respondent had no independent recollection about the event that inevitably casts doubt on the event itself. The judge described it as "one of the by-products of the delay that has occurred in this case." The judge discarded the diaries as effectively dead letters and simply recorded matters which may or may not be accurately recorded. He therefore concentrated on the oral evidence that he heard as between the two parties and as to which, he said, came to life.
16. In that respect there were three incidents with which he dealt. On the first he found that on 15 June the appellant had parked his car on the Sussex Road side of Alexander Road so that he was in view and had shouted at her. That the judge recorded as being the essence of the live evidence which he had been given. He recorded that on 29 June the respondent had said that she had seen the appellant driving along Cornwallis Road past her house in breach of the order.
17. There was a third incident about which both parties gave evidence relating to 20 June where there had clearly been an unfortunate incident at the school gate at a time when one of the children had returned from a school trip. Father was due to take the children off on contact and mother turned up to collect the suitcases. It is a sad feature of this case that apparently whenever the parents come into contact there is some sort of argument. But the judge found that on that occasion although there had been a very unpleasant scene between the parties it could not be constituted a contempt of court or a breach of the injunction. Therefore he found the two short allegations I have already identified found proved, and that the appellant was accordingly in contempt of court.
18. During the course of argument today my Lady directed the court's and the appellant's attention to the diary entries for the two dates in question, that is 15 June and 29 June. Without going into the detail of the records in the diary it is immediately apparent that those are much more elaborate records of incidents and in some respects inconsistent with what the respondent told the judge at the hearing. This troubles me because, as the appellant rightly points out, we are dealing with the criminal standard of beyond reasonable doubt. It seems to me that in that context the judge should have looked at the diary entries to see how they contrasted or compared with the oral evidence given by the respondent, particularly as he had evidence that the diary entry of April (relating to a time which was plainly wrong) did to a substantial extent dent the respondent's credibility. Although he quite sensibly put all the diary entries to one side and was not relying on them as positive evidence to prove allegations of contempt against the appellant it does seem to me that, in the light of the damage to her credibility shown by the diary entry of 20 April, if the judge had conducted the exercise and said "That is what she has told me in the witness box. Now I contrast it with what she said in her diary", he might well not have been quite as sure as he ended up being. In normal circumstances where a judge hears two witnesses, applies the burden and standard of proof appropriate to committal proceedings - the criminal standard - and reaches a conclusion, it is often difficult for an appellant to challenge that in this court. The judge saw the witnesses. He assessed them. He directed himself according to the burden and standard of proof that was appropriate and made an order.
19. In the instant case the judge plainly did not think that the findings he had made warranted any form of punishment. He recognised that a fine was inappropriate. He recognised that it was not appropriate to impose a custodial sentence and he made no order on both heads. The appellant nonetheless is entitled to come to this court and to say "That's all very well; he may not have imposed any penalty, but I nonetheless have a finding made against me and in any employment which I wish to seek, the fact that I have been shown to be in contempt of court and breached a court order may well tell against me", particularly if the findings were unsafe.
20. The appellant also goes on to argue that the judge has not properly explained his thinking in making the orders as he did and, as I indicated earlier, complains that he felt throughout that the burden of proof was on him rather than the other way round.
21. Had it not been for the diary entries and for the inconsistence with the respondent's oral evidence I am not sure that I would agreed with him on this particular point. The judge did form the impression of both parties (as he was entitled to do) and in that respect explains his reasoning. But where he does not explain his reasoning - and it seems to me where he may have fallen into error - is that whilst recognising that the allegations were stale, he needed also to recognise that the diaries were, as had been demonstrated, unsafe and therefore that they needed to be compared with the oral evidence that the respondent was giving on specific incidents. In the absence of that exercise I am left with a sense of unease at these findings remaining.
22. The appellant does not need permission to appeal this order since it relates to the liberty of the subject and, speaking for myself, I have come to the conclusion that the findings made by the judge are not safe and accordingly should be set aside. I would accordingly allow this appeal.
23. The judge also made an order that the appellant should pay one/fifth of the respondent's costs. It seems to me that if we set aside the order on committal we should also set aside the order for costs which not only falls with it but also has the disadvantages of that which was made in August 2003 by Judge Welchman.
24. The injunctive order, however, remains in force until later this year and I would do nothing about that. However I very much hope that the arrangements for the collection and return of the children can proceed peacefully without any further court intervention.
25. For those reasons would I allow both appeals.
26. LADY JUSTICE SMITH: I agree with everything that Wall LJ has said and I agree, therefore, that both appeals must be allowed.
27. The order of the court is as follows. The findings of contempt of court made by Judge Welshman on 6 September 2004 are set aside, as is the judge's order that the appellant should pay 20 per cent of the respondent's costs of those proceedings. In respect of the order made by Judge Cox on 15 August 2003, the order for costs is set aside and quashed. As my Lord Wall LJ has just indicated, the injunction renewed by Judge Welchman in September 2004 will remain in force until 1 October 2005.

A copy of the judgment is to be sent to both parties.

(Appeals allowed; injunction to remain in force; transcript of judgment to be sent to both parties at public expense).