England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE APPLEBY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 April 2012

Lady Justice Black:

1. This is an appeal by Miss C, "the mother", against a decision made by His Honour Judge Appleby on 24 February 2011. There have been long-running proceedings in relation to the mother's three children, S, K and R, who are now aged 14, 13 and 10. Judge Appleby's decision involved the making of findings of fact as to what happened during a supervised contact session between the mother and the two younger children on 28 October 2009 and the making of consequential orders in relation to contact.
2. It is common ground that there was an incident during the contact session between the mother and the two local authority workers who were supervising the session, Miss Carroll and Miss Cooper. However, Judge Appleby had to resolve a dispute as to who was to blame for that and what the detail of it was. I will come to the details shortly, but for the moment I simply record that the judge found that the mother had assaulted the two workers. He authorised the local authority on an interim basis to suspend direct contact. He made provision for the organisation Pro Contact to be instructed to facilitate indirect contact and he listed the case for review and directions in front of him in September 2011 so that he could give further consideration to what should be done about direct contact. When he gave the mother permission to appeal, McFarlane LJ indicated that he had not formed any conclusion about the mother's relatively far-reaching proposed grounds of appeal and that:

"The real reason for granting permission to appeal is a far more basic view I have formed of the fact-finding judgment in terms of its overall structure."

3. The point that he considered arguable was the judgment was not sufficiently reasoned so that a reader could not understand why Judge Appleby preferred the evidence of the two local authority workers to that of the mother and why he took a different view of the evidence from that of a Crown Court judge who had earlier considered the same facts. McFarlane LJ expressly refused the mother permission to pursue the points that she wished to take based on double jeopardy and abuse of process. He records in his short judgment that he had before him only a limited number of documents, being the fact-finding judgment, the detailed submissions made at the trial and in support of the permission application, two brief witness statements from local authority workers and the Crown Court judge's judgment.

The History.

4. It is important to see the fact-finding hearing against the background of the considerable number of hearings that had preceded it. I will not burden this judgment with great quantities of detail, but I do need to give an outline of the long history.
5. The parties were married in 1997. The children's father was violent to the mother. They separated in 2002. The children were removed and placed in foster care and care proceedings were commenced at the end of 2002. The mother's mental state was causing concern and the care proceedings involved psychiatric evidence about her and psychological evidence about both parents and the children. The father responded to therapeutic work and ultimately the local authority recommended that the children be placed with him, although remaining subject to care orders, and that was done. They returned to live with him in September 2004 and have been there ever since.
6. The mother's mental health had not been good and a psychiatrist had diagnosed that she had a severe psychotic illness, although there was later a contrary medical opinion. The Official Solicitor had therefore come into the care proceedings to represent her and consented to the making of care orders and orders authorising the local authority to withhold contact with her, although the mother did not agree with that course of action. By the time the matter came back before Judge Newton in 2005 the mother was no longer represented by the Official Solicitor because another psychiatrist had assessed her as competent to manage her own affairs. Judge Newton heard evidence and dismissed the mother's application for the care orders to be replaced by residence orders in her favour and for direct contact. The mother was prohibited by injunction from coming into the vicinity of the children's home or school.
7. The next time the matter came before the court for a substantive hearing it came again before Judge Newton in August 2007, although there had been a number of applications and hearings in the meanwhile. Attempts had been made prior to the August 2007 hearing to reinstate direct contact between the mother and the children. In March 2007 work had been done with the girls to make this possible and the local authority had a tentative plan which would have led, if all had gone well, to two direct contact sessions prior to the August hearing. All did not go well and very soon the arrangement had reverted to indirect contact only.
8. As Judge Newton said in her judgment in August 2007, "The plan fell apart for a number of reasons." The first reason was a pair of telephone calls that the mother made to the father's home in March 2007 when she spoke inappropriately to the oldest girl, S, then aged 9. This was followed by inappropriate telephone messages left by the mother. There was also an incident outside court at a hearing in May 2007 when the mother was abusive, shouting at Miss Cooper and, as Judge Newton put it, "so aggressive that Miss Cooper's manager had to intervene." Alongside this there was "a continuation of inappropriate material being sent directly to the father's home."
9. Judge Newton recorded in her August 2007 judgment that: "The children's views are very clear. They do not currently wish to see their mother." [INTERVENTION BY APPELLANT] Judge Newton concluded that "in her current state" the mother "was very likely to behave inappropriately" in contact in a way that would be emotionally very damaging for the children and she therefore continued the authorisation to the local authority to withhold direct contact.
10. Dealing with indirect contact Judge Newton recorded some touching communications between the mother and the girls, but also that some of what the mother had been sending to the children was inappropriate. She determined that the matter of indirect contact should be left in the discretion of the local authority in the circumstances rather than the court defining it. The judge set up a review hearing to take place in May 2008 to consider contact again.
11. In 2008 there were two direct contact sessions, in October and December. Judge Newton had handed over the case to another circuit judge in the hope that a change would improve the chances of making progress. When the matter came before Judge Appleby in January 2009 he ordered two further two-hour sessions of direct contact as well as indirect contact. Direct contact took place in March 2009 for two hours and there were a further two shorter sessions in July and August 2009 which together made up the other two-hour period.
12. There was then a contested hearing before Judge Appleby in October 2009 at which the local authority proposal was for there to be four direct contact sessions per year and the mother sought regular contact at least every one or two weeks. The judge heard evidence that there had been significant progress and that in auspicious circumstances there could be good interaction between the mother and her daughters. He felt, however, that contact at the frequency the mother wanted would have a very destabilising effect on the children's placement with their father and ordered instead direct contact five times a year, supervised and of two hours' duration. Indirect contact was also to continue. That was intended to be a final order, bringing the proceedings to an end. It was made on 9 October 2009. It was on the next direct contact visit on 28 October 2009 that the incident with which this appeal is concerned occurred.

The Judgment of February 2011.

13. The judge set out the evidence that he heard in relation to what occurred on 28 October. He heard from the local authority workers, Miss Carroll and Miss Cooper, and from the mother. The local authority account was (and I use my words by way of summary rather than the witnesses' words) that the mother was wound up when she arrived. They warned her not to make inappropriate comments in front of the children but she continued to do so and they terminated the session. They said that when Miss Carroll was trying to stop the mother handing documents to the girls which they had not vetted, the mother took hold of Miss Carroll's hair and forced her head towards the ground. Miss Carroll's evidence was that she received several blows to the side of her head before Miss Cooper intervened and stopped the mother. Miss Cooper's evidence seems to have been in line with this, except that she said that Miss Carroll's head hit the ground. She said that when she took hold of the mother and tried to pull her away the mother fell on top of her and then started to hit her.
14. The mother's account, as recorded by the judge, was that she went to the contact centre well prepared for the visit and was not tense when she arrived. She considered that the local authority workers were intent from the start on the contact session failing. She said that when she tried to give the girls the cards she had prepared for the session Miss Carroll intervened and pushed her hand away three times and after the third push the mother stood up from where she had been kneeling in front of the girls and grabbed Miss Carroll's hair instinctively in response to being pushed. She said that as a result Miss Carroll lowered her head and she, the mother, let go of her hair. The incident ended then, on the mother's account. She said that Miss Carroll walked away but then Miss Cooper came towards her in a threatening manner and she, the mother, clipped Miss Cooper on the face. She said that Miss Carroll and Miss Cooper hugged each other and then took steps to get help, including from the police.
15. It was agreed that the girls were present during the incident, although the mother said that, although concerned that the session had been terminated, they were not showing any sign of distress. The local authority staff said that the girls were distressed and crying. The staff said the girls were then taken to another room, but the mother recalled that they remained in the room with her.
16. The judge recognised the "extreme contrast in the evidence" that he had heard and read. It is clear from paragraph 11 of his judgment that he had the different conclusion of the Crown Court in mind and also the different standard of proof in the two sets of proceedings, civil and criminal. He also recorded that at the time of the Crown Court proceedings the mother had been of good character, whereas by the time of the hearing before him she had been convicted on her own plea of an offence of assault arising from an unrelated incident in Argos. He appears to have included this reference in order to contrast the position before him with that in the Crown Court, although he made nothing further of the Argos assault thereafter in his judgment.
17. He went on to make a series of findings, starting at paragraph 12, which were predominantly against the mother. However, his findings did not simply follow the evidence of the local authority witnesses. He found that as a result of the mother's continued use of inappropriate comments in front of the children the social workers deemed it necessary to terminate the contact after a number of warnings to the mother. He found that as the mother then attempted to pass papers to the girls without them first being approved by Social Services, Miss Carroll properly intervened and the mother overreacted. There was no physical assault or threat from Miss Carroll. The mother simply stood up and took hold of Miss Carroll's hair by both hands and forced her head down to the ground. The judge did not accept that Miss Carroll's head had struck the ground, as Miss Cooper had said, but did find that a blow was struck by the mother to the side of Miss Carroll's head. He found that Miss Cooper was struck a blow to her head as well when trying to halt the assault on Miss Carroll and that the mother fell on top of Miss Cooper, although almost certainly not deliberately. He did not accept that Miss Cooper's recollection of the number of blows to her was accurate. He did not accept either that the staff had hugged each other before summoning help or that the children remained alone in the room with the mother in the aftermath.
18. In terms of explanation for why the judge reached the conclusions that he did on the evidence, there is no paragraph specifically dealing with the credibility of the witnesses. But it is implicit in the judge's findings that he accepted the local authority witnesses as essentially truthful, although he found that they were mistaken about certain aspects of the incident. There are indications towards the end of the judgment as to how the judge had formed the view that he did of the evidence. In part it appears to have been influenced by the demeanour of the witnesses and in part by the intrinsic probability, or otherwise, of what was described.
19. He found at paragraph 13 that the aim of the social workers was "to achieve a successful outcome to the contact session", rather than, as he accepted the mother perceived, to make it fail. This was an important finding as it was an intrinsic part of the mother's case that the social workers were hostile to her from the outset and generated the incident or fabricated allegations because they wanted the contact to fail. The judge found that the social workers did not lightly decide to end the session and did so because the mother had made inappropriate comments in front of the children, and only after giving her a number of warnings.
20. There are other findings made by the judge from which it can be seen that he was not accepting the mother's case about the malign intent of the social workers, but had concluded that they were carrying out their professional duty properly. He said at paragraph 14 that it was a "perfectly proper course of action" for Miss Carroll to intervene to prevent papers being passed to the girls, although he observed that it would have been less confrontational to inquire as to the contents first. It is also implicit in paragraph 22 that the judge was accepting that the social workers were adopting a proper professional approach when he said:

"Given that the professional role of the social workers was to supervise the contact, it is highly unlikely they would have left the girls unsupervised."

21. It can be seen in paragraph 21 that the judge assessed the distress that the local authority workers had shown in recollecting the incident in evidence as genuine. This supported his rejection of the mother's account that Miss Carroll "let out no more than an 'ah' at the time that her hair was pulled", and what was, I think, his acceptance that the local authority witnesses were in fact screaming in pain and calling for help. The genuine distress was also no doubt an indicator for him that the local authority witnesses were describing real and upsetting events, rather than making false allegations, recounting the successful unfolding of a scheme which they had devised to derail contact, or simply describing some drama of their own making.
22. The judge was conscious that he was not accepting the entirety of the local authority account and it is clear that he had considered what the reasons may be for such inaccuracies as he thought it contained. When he rejected Miss Cooper's recollection as to the number of blows struck to her, he said, at paragraph 20, that the inaccuracy was "possibly as a result of the fall and the distress that this caused", Miss Cooper having been, as the judge recorded in paragraph 18, eight weeks pregnant at the time. He had earlier found also that she was mistaken when she thought that Miss Carroll's head hit the ground.
23. As to the respective plausibility of the witnesses' accounts, he thought it was highly unlikely that the staff would have left the mother alone in the room with the children as she alleged, given that their professional role was to supervise contact. He considered the mother's contention that the social workers hugged each other before summoning help untenable (paragraph 23) and he thought that the girls would have been upset as the incident unfolded in front of them (paragraph 22).

Mother's Submissions on Appeal.

24. The mother herself has made submissions in writing in support of her appeal and we are grateful to Mr Rowley for the submissions with which he has supplemented these since he was instructed last week. I will not deal with all the points made in these various submissions in turn, but I have taken them all into account.
25. The mother's sense of injustice about the history of this matter generally and about the direction that following her acquittal on criminal charges there should still be a determination in family proceedings as to what had occurred on 28 October 2009 is clear. She feels that it was entirely unreasonable for there to have been a hearing on the subject at all. She feels that she had made a concerted effort to make the contact a success, whereas the social workers set out to make it fail and made up their accounts of what occurred. She argues in her submissions that there were significant discrepancies between the two social workers' descriptions of events and that each one also changed her story over time, which should have led the judge to reject their accounts. In truth, she says in her submissions, Miss Carroll assaulted her and she merely defended herself. As for her lightly striking Miss Cooper's cheek, that occurred when Miss Cooper barged towards the direction of the children and the mother in a forceful manner.
26. Mr Rowley submits that the judgment is so inadequate in terms of its reasoning and so flawed that it is impossible to understand why the judge preferred the evidence of the social workers to that of the mother. He says that it contains no assessment generally of the witnesses in terms of their demeanour and coherence and the impression that the court formed of them and there is no way of knowing why the judge chose the path that he did through the evidence. In his written submissions, he also subjected the evidence and the judgment to detailed scrutiny with a view to demonstrating that the judge was wrong in making the findings he did, having failed to evaluate the evidence properly. He lists a number of issues with which he submits the judge failed to deal appropriately. In order to reduce this judgment to manageable length I will group those into a number of categories.
27. First, Mr Rowley complains that there were conflicts in the evidence, and not just the evidence of the mother in comparison with that of the local authority witnesses, but also conflicts of evidence between one social worker and the other, with which the judge did not deal and which he needed to resolve in order to make a proper determination of the credibility of the various accounts of the witnesses. For example, he complains that the judge failed (i) to decide to whom the mother directed her comments on the lies that she claimed had been told, (ii) to resolve whether the mother was "aggressive" or "flustered and excitable", (iii) to determine precisely what the mother's movements were, including whether she was pacing the room, and what she said, (iv) to determine what the demeanour of the social workers was, (v) to decide what precisely triggered the termination of the contact.
28. Secondly, he argues that the judge got certain things factually wrong. By way of example, the judge said that the events of contact took place in approximately ten minutes, when the evidence indicated that it was less than eight minutes from the mother arriving at the centre to the police being summoned. This meant that the judge failed to consider the rapid breakdown of the contact and the reasons for that in its proper context. The judge also thought that the mother was trying to hand cards to the girls when it was in fact a bag of gifts which the mother asked to be able to give to the children.
29. Thirdly, Mr Rowley argues that the judge failed to give weight to material factors. An example of this is the judge's failure, Mr Rowley would say, to consider that the mother's deeply held religious beliefs would make it highly unlikely that she would lie on oath.
30. Fourthly, he makes some submissions about the discrepancies in the evidence about the alleged assault itself. Miss Cooper said that Miss Carroll's head was repeatedly banged on the floor, whereas Miss Carroll did not allege that. She said that the mother dragged her to the floor and started to punch the side of her head. This had an important influence in the acquittal of the mother on her Crown Court appeal, submits Mr Rowley, and it should have influenced the judge. It was not open to him, he argues, simply to attribute it to a mistake by Miss Cooper when it should have reflected badly on the credibility of the two local authority witnesses.
31. Miss Carroll said that the mother punched her head about six times, but the judge found that at least one blow was struck to the side of the head. Mr Rowley argues it was incumbent on the judge to say more than he did about why he rejected Miss Carroll's account and also the account of both social workers that Miss Cooper was struck in the stomach. This could not be explained as a mere mistake by the witness and must have reflected on their credibility.
32. Lastly, Mr Rowley makes some points about the absence of visible injury noted on either woman. Miss Cooper said she had a bruised cheekbone that was red and her eye was puffy, but nothing was noted when she went to Accident and Emergency two hours after the incident or visited her GP a few days later. Similarly, Miss Carroll's GP noted nothing. Mr Rowley submits that the judge should have dealt specifically with the implications of this for the witnesses' credibility.

The Respondents' Positions.

33. Both the local authority and the guardian agree that the judge's reasoning was sparse. Neither wishes us to remit the case for rehearing as they submit that that would not be a necessary or useful course. However, they each propose a different course of action. The local authority invites us simply to dismiss the appeal on the basis that the judge's judgment is sufficient when taken in context. The guardian invites us to dismiss the appeal, but also to remit the matter to Judge Appleby for him to amplify his reasons.
34. The local authority points out the difficulty for the judge in giving a full and nuanced decision in the face of the mother's habitual conduct during the course of any judgment that is adverse to her, which conduct can be seen from the transcript of the hearing in front of the judge. The local authority submits that the February 2011 judgment should not be seen as a stand-alone judgment but should be read in the context of the whole proceedings and as part of the series of reasoned judgments given by both Judge Appleby and, before him, Judge Newton. These earlier judgments addressed the mother's conduct and her personality. They recorded instances of the mother losing control of her very intense emotions and behaving in an alarming fashion during some hearings and at court. They also included findings that at earlier stages in the proceedings Miss Cooper and the guardian had not been intent on thwarting the mother's relationship with her children but had been struggling to find a way to enable her to have direct contact. In resisting any suggestion that the matter should be returned to Judge Appleby for him to give further reasons, the local authority points out that the mother was represented at the hearing and had the opportunity to request this there and then but did not do so.
35. Like the local authority, the guardian identifies a number of factors upon which the judge was entitled to, and the guardian submits undoubtedly did, put weight, and he invites us to confirm the judge's findings. The factors he identifies as material are (i) the guardian's unchallenged report, including the information there provided about the wishes and feelings of the children and their recollections, (ii) the "similar fact evidence" of the incident in the Argos store, (iii) the previous judgments of the court, (iv) the demeanour and presentation of the mother throughout that hearing and previous ones, (v) the "whole factual survey", and (vi) the judge's own impressions of the mother.
36. The reason why the guardian wishes the matter to be returned to the judge for further reasons to be given is that he considers that it is necessary for the children to know how the judge reached his decision. He says this, notwithstanding that in practical terms further elucidation is unlikely to make a difference to decision making because, it is said, the children are resistant to contact and to the continuation of the proceedings and the mother has continued to behave inappropriately, for example, making contact with S on Facebook.

Discussion.

37. I am not attracted to the guardian's thinking about the need for Judge Appleby to give further reasons. I would only consider inviting a trial judge to provide further reasons for his decision if that might have a bearing upon whether or not to allow the appeal against it. Self-evidently, if we dismiss the appeal it would follow that we felt we were in a position to do so without requesting further elucidation from the judge. As for the children, who, we must recall, were present at the incident themselves and will have their own memories of it, what is likely to matter to them, I think, is what the judge found occurred rather than why he found it to be so. If their recollection accords with what the judge found, they should have no difficulty accepting his findings. If it does not, I venture to doubt that they will be assisted in reconciling the two versions by further reasoning from the judge.
38. I turn therefore to consider whether Judge Appleby's decision as it stands weathers the criticisms levelled at it on behalf of the mother.
39. This court is conscious of the practicalities of giving first instance judgments, even when the judge takes overnight to consider what he is going to decide and how to explain it, as this judge did. Experienced judges should be encouraged to set out robustly, and where appropriate relatively briefly, the reasons why they have come to particular decisions. It is well established that the judgment must explain sufficiently what the judge has found and the process of reasoning by which he arrived at his findings, but equally the reasoning should be read on the assumption that, unless he has demonstrated to the contrary, the judge knew how to perform his functions and which matters he should take into account. An appellate court has to resist the temptation to subject the judgment to a narrow textual analysis and it must recognise the limitations of language in explaining the complexities of a hearing with witnesses.
40. These observations have of course been made before and those listening will have heard in what I have just said the echoes of what has been said by other judges, for example, in English v Emery Reimbold and Strick [2002] EWCA Civ 605, in Piglowska v Piglowski [1999] 1 FLR 1360, and quite recently by Munby LJ in another fact-finding appeal in the matter of A and L (Children) [2011] EWCA Civ 1611. It is not to be expected that the judge will necessarily have to deal with each and every inconsistency or conflict of evidence specifically, or indeed give lengthy reasons for his conclusion as to where the truth lies. He has the advantage of watching the witnesses give their evidence and hearing the conflicts explored with them during it and then discussed during submissions. He forms a view as to credibility and as to what probably happened. That view is sometimes susceptible of considerable intellectual explanation, but sometimes it is more difficult to articulate why ultimately one witness is preferred to another. The judge must simply do his best to put into words the impression with which he has been left at the end of the hearing.
41. There can be no question but that the findings Judge Appleby made were open to him on the evidence. It must be recollected when considering them that the mother admitted certain features of the events during contact which would not normally form part of a contact visit, that is that, as it is put in the schedule of proposed findings which contains her response as well as the allegations made against her, she "grabbed Miss Carroll by the hair" and that she "inflicted one light blow to the face of Miss Cooper", although of course she denied that she had begun the incident or that her conduct was blameworthy. There was clear evidence from the social workers to the contrary, which the judge was entitled to accept.
42. I would not overstate the significance of the earlier judgments given by Judge Newton and Judge Appleby because it was incumbent on the judge to make his own findings about the contact session with particular concentration on the evidence directed at that issue. However, the history was not irrelevant and I do not accept Mr Rowley's argument that it cannot be taken to be part of the judge's reasoning because he failed expressly to refer to the earlier judgments. It provided background information about the mother's approach to the issues over her children and to Social Services and about her personality, including her propensity to lose control.
43. In my judgment, it is not necessary to rely upon the earlier material to know why it was that Judge Appleby found the facts as he did. His essential approach is in fact set out in his February 2011 judgment, even if not collected together into a single paragraph dealing with his assessment of the witnesses. I have referred earlier to the passages towards the end of his judgment which show his thinking and I do not intend to rehearse them here. His acceptance of the genuine distress on the part of the local authority witnesses when recounting events was a sound foundation for a finding that they were essentially telling the truth about the incident and for preferring their evidence to that of the mother.
44. As for the discrepancies in the evidence, it is entirely to be expected that there will be some discrepancies in the evidence of eyewitnesses to a sudden violent event of this type. Judge Appleby identified a particular reason why one of the witnesses may have been honestly mistaken, but there would have been other reasons. The presence or absence of visible injuries is not necessarily a reliable indicator of whether or not there has been an assault of this type and the points made about Miss Carroll's and Miss Cooper's apparent lack of injury did not dictate that the judge should reject their account.
45. In all the circumstances, the judge's findings of fact, which were findings he was entitled to reach on the evidence, were explained sufficiently, if briefly. I would therefore dismiss the appeal in that respect. Mr Rowley realistically did not actively pursue an appeal against the order that Judge Appleby made halting contact, although I have no doubt that the mother feels as distressed about that as about the findings of fact made in relation to the incident, if not more so. Judge Appleby's determination was clearly within the scope of his discretion, given his findings. Furthermore, matters have moved on since February 2011. Pro Contact have been involved and are expected to make their final recommendation on 8 June 2012. The case is listed for a hearing in the County Court in July. I see no reason to disrupt that plan and I would not allow the appeal in that respect either.

Lord Justice Elias:

46. I agree with my Lady, both that the reasons are adequate and it would be a pointless exercise to send the matter back to the judge for further clarification in any event.

Lord Justice Ward:

47. I also agree.

Order: Application refused