ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Roderic Wood
 EWHC 2216 (Fam)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE MUNBY
|In the Matter of A (A Child) (No 2)|
Mr Anthony Hayden QC and Mr Hassan Khan (instructed by Dawson Cornwell) for the Respondent (mother)
Hearing date : 8 December 2010
Crown Copyright ©
Lord Justice Munby :
"are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses."
"I have … concluded that he is a wholly unreliable historian in relation to a very significant part of his claim for asylum. Whilst I am accordingly suspicious as to his account of his activities in Iran/Iraq as a justification for asylum, I can do no more than record that suspicion. Since it is suspicion and does not achieve the necessary standard of proof to qualify as a probability I shall put that aspect of the matter firmly out of my mind."
"I take as one particularly egregious example of an attempt to mislead me from the paternal grandfather's evidence to the effect that he has never discussed with his son the reasons for the failure of his marriage and what has ensued. I am not, I emphasise, in making this finding projecting on to their familial culture an increasing tendency in "the West" to intrude into private matters. These two families have a powerful sense of what is right and wrong (although their respective senses may be different from each other's). When relationships go wrong (as here they demonstrably did) it is groups of elders (and on the more formal occasions only male elders) which come together to attempt to resolve these problems. They do not come to such meetings and discussions blind of what has been going on, and the attempt to persuade me that these distressing matters had not been discussed is, I find, patently absurd."
"The task of the court considering threshold for the purposes of s 31 of the 1989 Act may be to evaluate parental performance by reference to the objective standard of the hypothetical 'reasonable' parent, but this does not mean that the court can simply ignore the underlying cultural, social or religious realities. On the contrary, the court must always be sensitive to the cultural, social and religious circumstances of the particular child and family …
… We must guard against the risk of stereotyping. We must be careful to ensure that our understandable concern to protect vulnerable children (or, indeed, vulnerable young adults) does not lead us to interfere inappropriately – and if inappropriately then unjustly – with families merely because they cleave, as this family does, to mores, to cultural beliefs, more or less different from what is familiar to those who view life from a purely Euro-centric perspective."
"Although it is possible to appeal against a finding of fact, it is notoriously difficult to succeed in so doing. Where findings of fact are made based on the demeanour of a witness, the appeal court will seldom interfere because the trial judge has a special advantage over the appellate judge."
I entirely agree but think there may be advantage in exploring the point a little further.
"Character and personality certainly cannot be judged as well from a transcript of evidence … as by seeing and hearing those involved."
"the appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge's evaluation of those facts"
He went on to quote his earlier observations in Biogen v Medeva PLC  RPC 1, page 45:
"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed … An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
i) The mother experienced an unhappy childhood in Iran in which she was subjected to physical harm within her own family.
ii) Functionally illiterate and without any effective family support the mother was isolated and vulnerable within her marriage.
iii) The father has a history of dishonesty in his dealings with the State (main judgment paragraphs , ).
iv) Both families are patriarchal, to the extent that the women are expected to obey the men.
v) Though not unhappy with the prospect of marriage to the father, the mother faced considerable familial pressure to marry him (main judgment paragraph ).
vi) The mother exaggerated the extent and frequency of the father's physical and sexual assaults on her.
vii) The mother has not always provided an acceptable level of care for A (main judgment paragraph ).
viii) The mother suffered from mental health problems prior to (main judgment paragraph ) and during the course of the marriage.
ix) Both parents have a strong sense of family duty (main judgment paragraph ).
x) The decision to terminate the mother's second pregnancy was driven by the father; he was the interpreter and placed the mother under what the judge called "enormous pressure" (main judgment paragraph ).
xi) The father had intended to take the mother to Germany and to abandon her there (main judgment paragraph ).
xii) Significantly, it was agreed evidence (in a case where such was extremely thin on the ground!) that both sides of the family had historically operated in a culture where honour killings (so-called; there is no honour in such behaviour) were what the judge called a "dominant feature" (main judgment paragraph ).
xiii) Against the family's assertion, the judge found that those views continued to have currency within the family at the time of the hearing.
"[he] was attempting to use her mental health problems to improve their access to greater benefits."
"is more likely than not to have been the result of inattentive care rather than positive assault."
"I was shocked to see a huge scar on his bottom. I asked her how he had got it and she told me that he rolled against the heater when she was smacking him."
That account was not challenged in cross-examination and there was, in our judgment, no reason for the judge not to accept it. The finding should accordingly be amended to read:
"is more likely than not to have been the result of inattentive care rather than positive assault, having been caused, as the mother told the father's sister, when he rolled against the heater when she was smacking him."
Ms Crowley asked us to find that the mother's actions although not deliberate were reckless. We declined to go that far.
"her [the mother's] brother H told her brother K, according to the evidence of K, that the former found that the mother had bruised wrists when he subsequently saw her."
"this mother's life is at real risk if she were to reveal her identity and location, or be found. I consider that she would be at risk from … the paternal grandfather … the paternal grandfather has made threats to the life of the mother, and would, more probably than not, have them carried out if he ascertained her whereabouts."
"aware of the paternal grandfather's emphatic denial of such a threat … or indeed any threats. I disbelieve him."
That, as the page reference the judge gave made clear, was a reference to what the paternal grandfather had said in a witness statement. The crucial paragraph to which the judge referred did indeed say "I have never made such a threat" (emphasis in the original), but in relation to specific matters was confined to answering the maternal grandmother's assertions in respect of the cousins.
"the maternal grandfather is a man of his word."
"as to the essential matters on this subject."
A document produced by the hotel was described by the judge (paragraph ) as being:
"a reasonably reliable account of these events in its essential particulars. This document, in significant respects, confirms the mother's evidence about her abandonment. It describes her being found helpless after she cried out, and that when she left the next day she was still worried and crying, and bore the visible mark of a "blow" on her face."
"at some stage he provided her with a pill which rendered her sleepy."
"she was, for the most part, telling me the truth about this relationship, "marriage" and separation."
"Overall, looking at these events, and leaving aside the issue of whether or not the Afghan male had at one time had a gun (even though not discovered on a search), in respect of which I make no finding, I consider it more likely than not that she was, for the most part, telling me the truth about this relationship, "marriage" and separation. In her oral evidence she spoke eloquently of her abandonment by all, her total isolation from any form of community (save for the hotchpotch community she was then staying in where the other young women had their children with them, making her feel even more lonely), and the investment of her hopes (woefully misplaced) in this marriage in which she felt, finally, she would be safe. She was only to find, all-too quickly, that she had married a man who was certainly very controlling of her."
Ms Crowley says that this analysis is not supported by the evidence. Mr Hayden begs to differ. This assessment of the mother's demeanour in the witness box and the findings which flowed from it are, he suggests, buttressed by the judge's wider thematic finding that isolation has been a feature of this mother's life history.
"He has perpetrated acts of non-consensual vaginal, anal, and oral rape upon her … regularly and frequently over the course of their time together."
"I do not know whether or not this behaviour began on their first night together …, but I doubt it, and accordingly it is possible to ask why I have not regarded the rest of her evidence on this subject (she being firm in her account that it did begin on that first night) as less than credible. The simple answer is that I believed her account on the subject of the nature of the assaults, its narrative flow, and its compelling and congruent detail, but that her conflicting evidence as to the length of a number of the period when he was kind to her at the start of their marriage, one of which would take this young couple beyond the time of that first night, contradict her evidence on this point. I suspect, but cannot come to any concluded view, that her evidence on the date of commencement may be designed to emphasise and exaggerate his brutishness."
In relation to this Ms Crowley submits that the deficiencies and inconsistencies in the mother's accounts of the assaults she sustained were so great and of such a nature that it would be impossible to regard the "narrative flow" of the mother's account as anything other than fatally undermined; that the "congruent detail" is not identified in the judgment, alternatively, that such congruent detail as there is, is undermined by the detail which the judge has found either to be deliberate lies or not established or to have been learned from her viewing of pornography; and that there is insufficient analysis in the judgment as to how the judge discerned what in the "compelling detail" was truthful in an account which included lies that were "deliberate", told "in order to paint the father even more darkly" or "may have been designed to emphasise and exaggerate his brutishness."
"The nature of their sexual behaviour together (as alleged by her) is set out below. But at this point I simply note that her evidence to me was that he was frequently cruel, and enjoyed watching her suffering during intercourse and/or sexual activity of other kinds. In describing her misery she was obviously distressed in the witness box, and I have no doubt she was giving me a true account as to how it felt for her as he took his pleasures, paying no regard to her comfort and feelings. Such a finding does not, however, amount to findings accepting the totality of her evidence of his sexual appetites and the manifestation of them."
"may well have followed on from her making her views clear about the nature of the accommodation, and how far they fell short of what she had been led to expect, as well as her increasing withdrawal from him as she became more depressed … There is reference in the papers to him being sexually frustrated over a long period prior to his marriage, and this, too, may well have led to what she, subjectively, regarded as excessive demands for intercourse and sexual play. There may well have been other reasons. I shall not speculate further."
Of this Ms Crowley submits that there is no analysis as to how the judge bridges what she calls the enormous gulf between the mother's subjective regard for sexual activity with the father as excessive and what the judge had described (main judgment paragraph ) as an "account of almost unrelenting degradation of every conceivable kind"; that the only reference in the papers to the father's long standing sexual frustration was given by the mother and corroborated nowhere else; moreover, he was not cross examined on this; and that there is no analysis of how or why brutal regular rapes might follow on from the mother making her views clear about the nature of the accommodation. Such a proposition, she submits, is speculative and inherently unlikely.
"I do not recall hearing screaming or sounds of violence. The sound insulation between the flats is pretty bad. I could for instance hear A crying or the television if it is on at a high volume which occasionally it is … if there had been serious and ongoing domestic violence in [their] flat, I would have heard this at the times I was there. I would have taken action if I had heard this".
She also said that "From outward appearances [they] seemed a very happy couple." Another neighbour, whose evidence was accepted in its entirety by the judge (it was of her that he said "I did not doubt anything she said") described in her witness statement how:
"When I first met [the mother] she did not strike me as unhappy. I did not perceive that she was the victim of domestic abuse as I could see that she did not seem frightened of [him] in any way and seemed quite confident in his presence … During the time I knew her she did not strike me as being in any way frightened of him. As a teacher I am trained to look for signs of abuse and I did not see any. I never heard raised voices when I approached the house."
A relation of the mother who stayed with the couple for some months in 2005, and who was not cross-examined on this point, said in his witness statement:
"Whilst I stayed with them, I saw [them] as a normal couple; they were good with each other. I did not see any sign of trouble between them. Their flat was quite small and not very soundproof so I would have heard screaming, shoving, or fighting … I never heard anything that would have indicated that [the mother] was ill treated by her husband."
"I am further reinforced in my view that the mother has been exaggerating her allegations (in part) having heard the evidence of a number of the family's neighbours … and of the mother's cousin K (a young man who stayed with the mother and father during the summer of 2005). None of them heard the sort of levels of noise (crying out, screaming and crying) which the mother alleges took place, and which they would have been likely to hear if the assaults had taken place as frequently as she claims. Given the nature of the accommodation they were occupying, and given that at one stage her cousin K was sleeping in the next room, it is simply not credible that she was making these sorts of sounds at the level and frequency she asserts. A partial answer to this, accounting for some periods when others might well not have heard her, is to be found in her evidence that when she was crying out in the course of such activities he would stuff her mouth with a sock or his boxer shorts, or put a hand over it to diminish the sound levels. This sounds all-too credible, and I find it to be a compelling detail despite his denials. Overall I find she is exaggerating. However, I do not find the absence of complaint by her to others to be surprising. These are deeply private matters, and she would have had to trust someone to take her seriously and not report back to the father that she had complained. There was no such person to whom she could turn, for with the exception of K to whom it would have been wholly inappropriate to complain, she had no relatives or friends."
In relation to this Ms Crowley complains that the judge wrongly referred to the witnesses as not hearing levels of noise consistent with abuse when the evidence was that they heard no sinister or concerning noise at all; that the judge failed even to refer in his judgment to the fact that the mother had agreed in cross-examination that the father shouted during these assaults; and that the judge, although he found that the assaults could not have taken place as frequently as the mother asserted, failed to analyse why the more obvious explanation – that they did not take place at all – was unlikely.
"The physical damage to her noted in the records relates to the injuries suffered after the birth of A. She required repairs to tears in the vaginal region, and a torn clitoris. It is impossible to determine whether or not this damage is related to complications at the time of the birth of A or to brutal sexual activity."
He added (main judgment paragraph ):
"I do not find the absence of medical evidence on this subject of damage to her vaginal and anal areas as determinative of the issue. Over many years of practice, and as a judge in this Division, I have heard evidence from many doctors including gynaecologists and obstetricians, and whilst there is no formal expert medical evidence in relation to the issue in this case I feel able to take a view. Often, when listening to such experts, I have heard evidence of the ability of both the vagina and the anal sphincter muscles to accommodate the insertion, even with significant degrees of force, of large objects including a penis, without leaving signs of obvious damage."
"Ms Crowley helpfully and rightly reminds me of the primary evidence relating to a clitoral tear, a tear to the labia minora, and a tear "ex sphincter", all of which were the subject of a repairing procedure at 22:00hrs on 26th November 2005, a few hours after the birth of A.
These tears, in all probability, occurred during the birth process. What the evidence does not establish, for there was no medical evidence called (understandably), is whether or not any of these individual tears arose because the area in question had been made more vulnerable than would normally be the case by prior brutal sexual activity. I can come to no conclusion on that possibility.
As to "violent and/or vigorous sexual activity engaged in whilst the area was still healing", as a matter of common sense I imagine that such activity would be painful, but, again, in the absence of medical evidence do not know the precise effect that this would have on healing areas. To give but one illustration, the answer to that question might depend upon the extent to which the mother was physiologically self-lubricating."
"In describing her misery she was obviously distressed in the witness box, and I have no doubt she was giving me a true account as to how it felt for her as he took his pleasures, paying no regard to her comfort and feelings (paragraph ).
The simple answer is that I believed her account on the subject of the nature of the assaults, its narrative flow, and its compelling and congruent detail (paragraph ).
… her evidence that when she was crying out in the course of such activities he would stuff her mouth with a sock or his boxer shorts, or put a hand over it to diminish the sound levels … sounds all-too credible, and I find it to be a compelling detail despite his denials (paragraph )."
I do not repeat but merely reiterate in this context the points I have already made above when considering similar submissions in relation to Ground 9. The judge was persuaded, and he has given compelling examples of what it was that persuaded him, that despite all her lies the central core of the mother's case was true. The judge was entitled to come to that conclusion and for the reasons he gave.
"he has at times been guilty of physical (but non-sexual) assaults upon her. She has alleged that he kicked, slapped and punched her. I find at times that he has carried out such acts."
"Although she was intermittently seeing others at this time, there were other times when she was not, sufficient for such an injury to repair itself without visible sign. I was unimpressed by the line of questioning best illustrated by the enquiry into why doctors/nurses/midwives had not seen any injuries at ante-natal clinics. It seemed to me that her straightforward answer that she only bared her stomach for such examinations was entirely credible, and more likely than not to have been the case. I do not forget that this young woman comes from a culture which has a greater respect for physical modesty than is currently fashionable in the West."
The judge's finding that any injuries sustained by the mother had time to repair themselves by virtue of the fact she was only seeing people intermittently was, she says, inconsistent with the evidence of the neighbours and the mother's relative which I have already referred to, and failed adequately to grapple with the facts that during her pregnancy in 2005 the mother had regular examinations and that subsequent to her discharge from the psychiatric ward in late 2006 she was visited daily by the Community Mental Health Team for the administration of medication. Ms Crowley submits that although the judge accepted that the mother only bared her stomach for examinations by medical professionals during and subsequent to her pregnancy, this evidence provided no explanation as to why the injuries to parts of her body which were usually covered by clothing (which might include the abdomen) were not discovered or as to how injuries to her head, neck and face would not be visible to friends, relations and neighbours or to those treating her either at hospital or subsequently in relation to her mental health. Nor, she says, did the judge deal with the internal inconsistency in the mother's account that any injuries sustained by her were only to parts of her body which were not on display when her original allegations of domestic violence, for example in her ABE interview, were of bruising to her head, neck and all over her body.
"I have at various points in this judgment recited aspects of the history in respect of which I have not made findings where the parties cannot agree what occurred. I have not done so on some occasions (declared on the face of the judgment) because the evidence was insufficiently illuminating to permit me to make findings on the cross-allegations. I have also declined to make findings on occasion because I do not feel it necessary to do so in order to come to a proper conclusion on the main aspects of the case."
In other words, the fact that the judge has made the finding, expressed in somewhat general terms, of which complaint is made does not mean that the judge accepted, or is to be understood as having accepted, the totality of the mother's allegations. Plainly he did not.
"I was, in particular, persuaded that he went so far as to punch her by her compelling oral evidence of one example when he left her with a swollen and bloody lip after such an assault."
Lord Justice Aikens :
Lord Justice Richards :