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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> F (children), Re [2006] EWCA Civ 792 (18 May 2006)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/792.html
Cite as: [2006] 2 FCR 399, [2007] 1 FLR 65, [2006] EWCA Civ 792, [2006] Fam Law 837
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY FAMILY DIVISION
(HIS HONOUR JUDGE RUBERY)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE MOSES
MR JUSTICE HEDLEY
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| IN THE MATTER OF F (CHILDREN) |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR M KEEHAN QC (instructed by Messrs Blair Allison, Fountain Court, Steelhouse Lane, Birmingham, B4 6DR) appeared on behalf of the Respondent.
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Crown Copyright ©
- MR JUSTICE HEDLEY: This is an application for permission to appeal, with appeal to follow if granted, against orders made in the Stafford County Court by HHJ Rubery on 30 January 2006. Two orders were made on that occasion, one providing for the reinstatement of contact between two children and their father, and another order which dealt with a number of procedural matters which had been before the court, and to which reference can be made in due course. The case was set down before the learned judge for the determination of the father's application for contact to two of his children, but the focus of the trial itself was a series of allegations, three in all, that the father had sexually abused his own and other children. Clearly those were most important allegations and upon their resolution many issues, not only of contact to these two children but also in relation to his own relationship with other children, would be significantly affected.
- The father had had four significant relationships, having married in 1984, then again in 1988, then again in 1994 and then entering into his current relationship by cohabitation in early February of 2004. There are a number of children who are his as a result of these relationships, some of whom feature in this case. He had a daughter R born on 6 September 1991, and a daughter G born on 3 March 1994 from the second marriage. R had two friends, one called S who was 13 at the time that I shall shortly speak of, and one called H, who was 11 at that time and who was also the father's then next door neighbour.
- The father by his third marriage had two children who are the specific subjects of the present proceedings, namely A, born on 24 April 2001, and B born on 14 August 2002. To complete the picture, C was born on 17 January 2005 to the father's present cohabitee and, so far is known to this court, they continue to live together as a family unit.
- The mere fact of these allegations imperils every single one of those relationships and clearly the allegations were of very considerable gravity. The first allegation was one that the father had sexually abused R. The second allegation was that in July 2003 he had sexually abused H and S, and the third allegation was that in August 2004 he had sexually abused A.
- The consequence for the father of these allegations is that he has not seen either A or B since 18 August 2004. That is not to say that he delayed, because his application for contact was made in September 2004, and it is a matter both of concern and regret that it is in May 2006 that an appeal is being heard from a trial which, for various reasons, having started in July 2005 was not completed until the date of the order to which I have already referred in January of this year.
- Now the matter came before the judge for trial in July 2005. What was potentially quite a difficult and certainly a very grave matter that was required to be tried, was made rather more difficult by a number of other matters. Neither party was eligible for public funding; the father has therefore funded these proceedings entirely himself. The mother was unable to obtain funding or to fund the proceedings and her solicitor, Mr Tedstone, undertook the very considerable task involved in this trial pro bono, and that has again been replicated on the appeal by Mr Peter Jackson QC.
- The court is very grateful both to Mr Jackson and to Mr Michael Keehan QC for the assistance that they have been able to render the court in a rather unusual appeal.
- I said that there were difficulties caused by funding; a further difficulty was that a large amount of evidence, including the video interviews of S and H, were produced on the second day of the trial never having been seen by any party before. Why that happened we have not enquired particularly closely into, but it did and that clearly caused considerable difficulties. The upshot was that the judge was invited to see agreed extracts from the videos but never invited, as it were, to absorb the videos in their entirety and to form his own impression about them, because of course he was being invited to form a view of the credibility of the young people being interviewed. To make matters more difficult the police, having produced this material, then removed it, so that it was not available to the parties in the latter part of the trial, after it had had to go part heard from July to 31 October.
- Evidence and submissions having been concluded on 1 November, the judge then reserved judgment. It appears that on or about 28 November a copy of the judgment was sent to the parties with an indication that it would be handed down formally on 17 January. No explanation has ever been forthcoming as to why there was that significant delay of seven weeks or so between the provision of a copy of the judgment and its handing down. It is understandable that a hearing was required because of course there had to be the resolution of the actual form of the Contact Order, but even that did not bring matters to an end because once the judgment had been seen, Mr Tedstone was anxious to raise a number of matters which he believed had not been adequately dealt with in the judgment.
- When the matter came before the learned judge on 17 January he adjourned the mother's application for further reasons, directing skeleton arguments. In fact Mr Tedstone filed a skeleton argument and Mr Keehan filed a position statement in which the judge was encouraged to say something about the credibility of the parties generally, but not to accede to any further requests. The very fact that the judge was invited to say something about the credibility of the parties was the first indication as to the inadequacies of the judgment itself in a case in which credibility must always have been a central issue.
- The other difficulty which the judge had was that, for reasons that one can readily understand with private-paying parties, he did not have available to him any expert guidance on the subject of the inherent reliability or otherwise of the allegations that had been advanced to him. Of course that is not mandatory, some cases do not require it, but very often it can be of considerable assistance.
- Notwithstanding those difficulties, the learned judge was clearly under an obligation to determine the three issues of fact and to provide a reasoned explanation as to why he had concluded as he had. His judgment, which is spread over some 14 pages or so, appears to conclude that he found none of the allegations proved and he so states in paragraph 12 of that judgment.
- Mr Jackson in effect put forward a very stark submission to this court. What he says is that the reasoning that underpins this judgment is so inadequate that not only does no one know why the judge has decided what he has decided, but that it gives all the appearance of a case never really having been tried at all and in his detailed submissions, both written and oral, he develops those points.
- In approaching this matter of course it is very important that the appellate court has in mind its proper role in relation to appeals which challenge factual conclusions of judges, both in terms of the fact that the judge, as he indicated, had thought carefully and had considered all the evidence written and oral that he had heard, and also this court also has to bear in mind the observations of Lord Hoffman in Piglowska, that the court ought to assume that an experienced judge knows what he has to take into account and deals with matters accordingly and of course the court has to bear in mind the repeated assertions that no judge is to be criticised for brevity, if otherwise the judgment does all that is required of it.
- Of course what Mr Jackson says is that the judgment does not begin to do all that is required of it because, he says, it simply is wholly deficient in its reasoning. He has drawn our attention to decisions of this court in Re B Appeal (Lack of Reasons) [2003] 2 FLR 1035 and English v Emery Rhinebolt and Strick Ltd [2002] 1 WLR 2409, and he says that this judgment simply does not match up to the minimum threshold required by those cases.
- In my judgment, I have reached a clear conclusion that Mr Jackson has made good his submission that this judgment is so lacking in reasoning and substance that it presents at least an appearance not to have engaged fully with the important issues that were being ventilated before the learned judge and that it is wholly deficient in explanations as to how or why he has arrived at the conclusions that he has.
- For me a particular concern in this judgment is the absence of explanation as to why he disbelieved S and H in relation to the second allegation, and in particular, given that the question about whether there were inconsistencies or not in their evidence was controversial, has not dealt with that matter in any way at all.
- Secondly, he used the expression of the father that although he was essentially credible, his credibility had been dented, without explaining what he meant by that or much more particularly what the implications of that conclusion were in terms of findings that he was or was not prepared to make based upon on it.
- Thirdly, the judge having made a number of adverse findings against the father based on his communications, in particular text and telephone communications, with S and H, which he properly described as being particularly inappropriate and wrongful, did not go on to consider what the implications of that finding were: was it something wholly unconnected with anything else or was it a piece of classic grooming? He also failed to consider what the implications of that behaviour were in relation to the evaluation of the third allegation, because of course if a person in relation to some children behaves with sexual intent, it lowers the weight of evidence required to overcome the inherent improbability of his interfering with another child, in this case in relation to the third allegation.
- Moreover, in relation to the third allegation it is simply impossible to work out from the judgment whether he accepted that the child had made the allegation that the mother says the child made, whether the allegations were or were not consistent with any other evidence, as for example the medical evidence, and why it was that the evidence was not capable, even at its highest ,of sustaining the allegation that was being made by the mother.
- For those principal reasons but also because of the overall impression created by the inadequacy of the judgment, I would conclude that it is insupportable in the form in which it presently stands. The issue then is: what is this court to do about it? Clearly there are two options to be considered.
- Mr Jackson says that simply the order should be discharged in its entirety and this matter reheard elsewhere. That brings with it serious detriment in a children case, in terms of extra delay, the court bearing in mind the structures of section 1(2) of the Children Act, and of course issues of cost, which may have a sharper edge to them in this case than in many a case that appears under the Children Act.
- Mr Keehan, acknowledging those matters, seeks to suggest that what the court should do is to invite the learned judge to amplify his reasoning so as to enable everyone to understand the conclusions that he has reached and the reasoning and evidence upon which they are based. It has to be said in this case that that would require a very extensive revisiting of the judgment, in circumstances where a judge may or may not have a proper recollection of what has happened and, in any event, it may be extremely difficult for the judge to reconstruct the thought processes at this length of time that led to his conclusions. Moreover, the whole exercise would be futile if this court entertained real anxieties about the correctness of the findings which he has reached in this case.
- In my judgment, I find myself entertaining real anxieties, in particular about the allegations that involve S and H, in the light of the matters that were undoubtedly established in the evidence. That is not, of course, not to be expressing any concluded view as to the outcome on proper investigation; it is merely to indicate that asking the judge for his reasons is likely to be futile because that cannot address the central anxieties that certainly I feel in relation to those conclusions.
- For those reasons, however unfortunate it may be, I am unable to arrive at any view other than that there will have to be a retrial in this matter. Not only are the learned judge's findings deficient and the reasoning for them really concealed from view, but I at least am left with a real anxiety about whether the judge has really got to grips with the difficult and sensitive issues that this case presented and which demanded resolution.
- In order to try to mitigate the effects of that order, in my view the proper way of dealing with this now would be to remit the matter on paper with the judgement of this court to McFarlane J, as the Family Division Liaison Judge for the Midlands circuit from where this case came, with an invitation to him to consider the proper venue and tier of court and perhaps to allocate a trial judge to it, for him to consider whether he ought to give paper directions or convene a directions appointment before himself or the trial judge nominated by him, because there are a number of matters that no doubt should be considered: whether or not in the particular circumstances of this case the children should be separately represented by a guardian under rule 9(5) of the Family Proceedings Rules and whether or not there should be an expert assessment in relation to the potential reliability of the evidence which is relied upon in this case. It has also to be said that the father must be entitled, if so advised, to ask the court to reconsider the interim position in relation to contact.
- It is important to say in making an order for a retrial that that carries with it no implication as to what the answer on a retrial should be. It is conceivable that the court will come to different conclusions to those reached in this case. It is equally conceivable that it will arrive at the same conclusions. What matters is that the crucial points raised in this case, which are a fundamental importance to this father and this mother, should be dealt with in a manner that befits their gravity, by proper and reasoned findings, so that they know where they are and others, if necessary, know what implications they may have for the other children to whom I have referred.
- For those reasons I would propose that permission to appeal should be granted and the appeal should be allowed. The matter should be remitted for further hearing, initially to Mcfarlane J to make the necessary determinations.
- LORD JUSTICE MOSES: I agree.
- LORD JUSTICE THORPE: I also agree with the orders that Mr Justice Hedley proposes and with his reasons. Given that the proceedings below involved four consecutive days in July 2005, two consecutive days in the autumn and I think two separate days in January 2006, the costs below are substantial. Neither party is eligible for public funding. The father has privately funded representation by his solicitors and by Mr Michael Keehan QC. The mother, who is only just ineligible, has had the advantage of pro bono representation by Mr Tedstone below and in this court by Mr Peter Jackson QC, instructed by Mr Tedstone. Mr Jackson's skeleton argument bears witness to his great ability and commitment.
- In those circumstances, remission for rehearing is to throw all those costs to the winds. That is the result of the judge's failure to deliver a judgment that meets the minimum requisite standard. Whether those facts give rise to any claim of compensation, the parties may wish to investigate.
Order: Application granted. Appeal allowed.