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Cite as: [2009] EWCA Civ 1093

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		Neutral Citation Number: [2009] EWCA Civ 1093
		Case No: B4/2008/3144

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
(MR RECORDER WEINTROUB)
(LOWER COURT No. BH08C00069)

Royal Courts of Justice
Strand, London, WC2A 2LL

23rd April 2009

B e f o r e :

LADY JUSTICE SMITH
and
LORD JUSTICE WILSON
____________________

In the Matter of M (a Child)

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(DAR Transcript of
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____________________

Miss Judy Earle (instructed by Messrs Aldridge Brownlee LLP) appeared on behalf of the Applicant father.
The Respondents did not appear and were not represented.
____________________

HTML VERSION OF JUDGMENT
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Lord Justice Wilson:

Following its refusal by Wall LJ on paper, a father makes a renewed application for permission to appeal against a specific finding of fact made by Mr Recorder Weintroub in the Bournemouth County Court on 5 December 2008. In that my Lady and I are clear that we should grant the application for permission, I will keep this judgment succinct.

The recorder's judgment was made in the course of care proceedings brought by Poole Borough Council ("the local authority") in respect of a boy, J, who was born on 24 October 2005 and so is thus now aged three. He is presently in short-term foster care pursuant to a succession of interim care orders. J's mother is the first respondent to the application. J's father, who no longer lives with the mother, is the second respondent to it. And, of course, J himself, by his Children's Guardian, is the third respondent to it.

In his capacity as a district judge of the Bournemouth County Court the recorder had set up an interlocutory hearing for fact-finding and for consideration as to whether the threshold set by s.31 of the Children Act 1989 had been crossed. No doubt there were good reasons why, albeit unusually, he conducted that later hearing in his capacity as a recorder rather than as a district judge. Contrary to the front cover of his written reserved judgment, it seems that the hearing took place on 19, 20 and 21 August, 26, 29 September and 3 October 2008, whereupon the recorder reserved judgment until a hand-down on 5 December 2008. In the event he found that a variety of serious allegations both against the mother and against the father were established and that the threshold was crossed. His judgment proceeds for 141 paragraphs spread across 72 pages. In his written refusal Wall LJ described the judgment as "discursive and unstructured" and, although on full appeal this court will be able to discern more clearly whether those criticisms are fair, my own prima facie reaction to the judgment would lead me (with respect to my colleague, with whose judgment I almost invariably agree) to deploy neither of those adjectives. My reaction is simply a question-mark against the need for so protracted, so expensive and, in the straitened times for our family justice system, so luxurious an enquiry as that which the recorder felt it appropriate to conduct.

There is no need for me to refer to the findings made against the mother.

In relation to the father the recorder, while not accepting all of the allegations made by the mother against him, upheld a number of allegations. He found, for example, that the father had not only used illegal drugs but had been a drug dealer; that he had a history of domestic abuse; that he regularly drank to excess; and that, not only domestically and also in the outside world, he resorted to violence or threats of violence.

The proposed appeal, as presently constituted, relates to the judge's finding in relation to allegation numbered 8 in the Scott Schedule which the recorder used, namely that on 20 February 2006 the father pinned the mother against a wall in their hallway, held a knife to her throat, pulled her trousers down and raped her. At any rate temporally, allegation numbered 8 was linked with allegation numbered 7, namely that on that same evening the father, who had drunk a bottle of wine, five beers and a quarter of a bottle of vodka, kicked over a coffee table in the family home, pointed a kitchen knife at the mother and smashed glass panels in two doors. Almost immediately the mother had made a complaint to the police in terms analogous to allegation numbered 7; and no doubt her complaint contributed to the judge's conclusion that that allegation was true. Her complaint to the police, however, did not include reference to the alleged rape, being an allegation which the mother raised only early in 2008. There was only one other allegation of sexual violence made by the mother against the father, namely allegation numbered 6 that, on a different occasion early in 2006, the father had raped her; this allegation was not established to the satisfaction of the recorder.

There is no need for me to survey the various points marshalled by Miss Earle in her grounds of appeal and her then accompanying skeleton argument for the proposition that the recorder's analysis of the factors relevant to an appraisal of the truth of the allegation numbered 8 was flawed. It was Wall LJ's view that her arguments did not even cross the threshold of arguability. There is no need for that survey in the light of fresh evidence which has emerged following Wall LJ"s disposal and which is contained in four statements which Miss Earle asks for leave to adduce, namely a statement of the father dated 10 March 2009, a statement of his solicitor dated 13 March 2009 and two statements of his solicitor's secretary dated 12 March and 21 April 2009.

It is convenient here to note that there was a further document included by the father's solicitors with those statements, namely a psychiatric report on the father by Dr Tarantelle. We were perplexed as to the relevance of that report to the proposed appeal, and, following discussion with Miss Earle, it has become clear that there is no subsisting aspiration to seek leave for it also to be adduced.

All four of the statements surround a conversation, or alleged conversation, between the father and the mother; being a conversation which allegedly took place on Saturday 14 February 2009. It seems that the father had invited the mother to have lunch with him on that day and that she had accepted the invitation. Over the lunch they had a substantial discussion, which the father secretly recorded with a digital recording device. If invited to do so, this court or another court can, on another day, consider the ethics of the father's conduct in this regard; but in that event it would be Miss Earle's assertion that in this case the ends justified the means. The task of transcribing the secret recording fell to father's solicitor's secretary; and to her first statement she exhibited her transcript of it. To her second, more recent, statement, she exhibited a slightly amended transcript following, so she explains, her having listened to the tape for a second time. In that second statement she also explains, I have to say slightly to my surprise, that not event the amended transcript is verbatim and in some areas conveys only the general gist of the conversation. Nevertheless it seems to be reasonable at this stage to accept the general accuracy of the apparently important parts of her transcript.

As for the tape, it is idle to guess at this stage what may be said about it beyond any possible challenge to the accuracy of the secretary's transcript. By virtue of the unchallenged findings against the father, his credibility stands extremely low and we will have to wait to see whether the mother accepts either that hers is the female voice on the tape or that the tape is a genuine -- rather than a cleverly doctored -- recording of what was said between them over lunch. Indeed, were she to accept that she made the admissions ostensibly made by her on tape, she may have much to say about the circumstances in which she did so. Taken at face value, however, the transcript seems hugely important. For in four separate passages the mother appears readily and unequivocally to accept that her allegation of rape, which the recorder accepted, had been a pack of lies. If the mother's response to the new evidence were to be such that the father's appeal could not sensibly be resisted, the sooner a consent to the allowing of the appeal is given by the mother, and I suppose also by the guardian, the better.

So I propose that we should grant the application to adduce the four statements as fresh evidence; should grant permission to appeal; and should direct the mother, say no later than 21 May 2009 but on the footing that she might apply to this court on paper for an extension, to file a statement in answer to the four statements. In the event that this court were ultimately to allow the father's appeal to set aside the finding of rape, it would no doubt wish to proceed, if at all possible, to substitute a finding that the allegation had not been established (or even -- but at this stage I speak purely hypothetically -- had been established to be false and the product of perjured evidence) rather than to make a remission which would cause the expensive and luxurious caravan to start to travel again before the Recorder through the court in Bournemouth.

Lady Justice Smith:

As presaged, I agree. Permission is granted.

Order: Application granted.