England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Watford County Court
His Honour Judge Wilding
IL13C00388

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/04/2015

Lady Justice King :

1. This is an appeal against a case management order made by His Honour Judge Wilding on the 12 December 2014, at the Family Court in Watford. The judge refused an application for an adjournment of an application made by the appellant (the father), for a re-hearing of care proceedings concluded in July 2014 in relation to 4 of his children
2. The central issue of the appeal is whether the judge should have adjourned the hearing of the application. It had been submitted by Mr Jubb on behalf of the father that should the appeal be allowed, the case throws up important issues as to the interpretation of s31 F(6)Matrimonial and Family Proceedings Act 1984, a new power inserted by the Police and Criminal Proceedings Act 2010 Schedule 10, whereby the family courts have power to vary, suspend, rescind or revive any order made by it. In the event it is now agreed by all parties that that the interpretation of the new section is not a matter which should concern this court in relation to the issues now before it.

Background

3. The appellant KU (the father) and VU (the mother) have 5 children. The eldest ZU, was born on the 21 October 1995. Although not subject to care proceedings given her age, ZU featured in the case having made an allegation that the father had sexually abused her when she was 14 or 15 years of age.
4. There are 4 other children of the marriage, AU (born 30 March 1999), BU (born 19 February 2003), and CU and DU (twins born on 9 September 2011).
5. Care proceedings were commenced on the 17 May 2013 in relation to the 4 youngest children of the family. The case became a paradigm example of care proceedings where the case management judges endeavour to have a case heard with expedition in the interests of the children was thwarted at every turn. As a result through no fault of the court or the local authority, proceedings have not yet been concluded after 22 months.
6. Following the issue of the care proceedings, directions were given by HHJ Brasse on 11 July 2013 for disclosure from the Metropolitan Police Service. The finding of fact hearing was listed for the 27 August 2013. A late and, what was described by HHJ Wilding who was to be the trial judge as a fallacious public interest application was then made by the police. This meant that that finding of fact hearing was lost and relisted for the 18 November 2013, only to be adjourned again, due to the failure of the police once again to comply with the court's order for disclosure.
7. The finding of fact hearing was finally heard in December 2013, by which time, despite assurances to the contrary, no charging decisions had been made by the CPS in relation to allegations of rape which had been made by ZU. The matter therefore came on before the judge, no decision having been made as to whether the father was to be prosecuted.
8. This was not however a single issue case. At paragraph 4 of his judgment, the judge identified the key issues in the case:

i) Whether the children had been physically abused their parents;

ii) Whether ZU had been sexually abused by her father;

iii) Whether the children had been present during and had witnessed domestic violence;

iv) Whether the parents had failed to protect the children from harm.

9. The judge heard extensive oral evidence including (via video-link), evidence from ZU and AU. At the conclusion of the trial the judge made findings of physical and emotional abuse, and domestic violence. The findings of physical abuse made by the judge are summarised in a schedule presented to the court for the purposes of this hearing and include ZU and BU being assaulted by their father, he having beaten them with a wooden implement on 23 April 2013. This beating left ZU with, amongst other injuries, an area of severe bruising of 17 cm x 8 cm on her left forearm. Overall the judge concluded:

"Prior to the incident on the 23 April 2013, all members of the household (including all of the children, the mother and the paternal grandmother) had frequently been subjected to physical abuse by the father. The abuse against ZU, AU, the mother and the paternal grandmother was sometimes very serious. The abuse against ZU, AU and the grandmother included the use of implements at times. The physical abuse against BU was less serious and not very often, the abuse against the twins including them being smacked on their bottoms and on a few occasions they were hit when the father was hitting the mother or other members of the family who were then holding the children."

The judge also found that the mother would on occasion, physically chastise the children, sometimes on the father's instruction. The judge made the inevitable finding that the mother had failed to protect the children.

10. In relation to the credibility of the parents, the judge made the following finding:

"Their evidence to my mind was characterised by evasiveness, defensive responses, obstruction, obfuscation and downright lies. I preferred the evidence of ZU and AU in every respect in regards to these incidents and I find they happened as pleaded."

11. The judge having found that the children had been subjected to physical violence and had witnessed domestic violence, found also that they had suffered emotional harm; the particulars of emotional harm centred around 3 examples found on the schedule when ZU or AU had either taken an overdose or otherwise tried to harm themselves.
12. The final category of allegation made by ZU alone, was that she had been sexually abused by her father. The judge made findings set out in the schedule in relation to 4 occasions of attempted rape or sexual abuse. In addition to evidence of ZU and the parents, the court also heard evidence in relation to the sexual abuse allegations from a Miss Y and also from a community worker known as Raj.
13. Raj was a community worker who became involved with the family around the 25 May 2013. It was a short lived connection as Raj and the parents fell out and he was no longer welcome in the family home by the 7 June 2013. It was to Raj that ZU made her first allegation on the 11 June 2013 and it was Raj who supported ZU when she reported the matter to the Social Services and thereafter to the police on the 21 June 2013. This was the extent of his involvement, he gave no evidence in relation to the events surrounding the physical abuse, nor could he.
14. The focus in both the care proceedings (in relation to ZU's allegations of sexual abuse) and the subsequent criminal proceedings, was as to whether Raj was a malign and dishonest influence, who encouraged a vulnerable girl to make false allegations against her father in revenge for his having been slighted by them. The reason it was said that ZU would have been susceptible to such influence, was her own desire to see her parents separate and to punish her father for being too strict and not allowing her enough freedom.
15. In the care proceedings the judge concluded that Raj was an honest and hardworking member of the Tamil community. He regarded Raj's evidence as much more reliable than that of the parents in relation to the circumstances in which their relationship broke down. In this, he said, he was supported by the evidence of the social worker in relation to issues of timing and ZU in relation to the influence that he exerted over her. The judge found as a fact that Raj did not use his position, such as it was, to persuade ZU to tell lies because the family had slighted him.
16. Evidence was given by Miss Y on behalf of the parents; Miss Y alleged that Raj had shown photos of young girls of a sexual nature, and that she had heard that Raj had acted towards the mother in a sexual way. The judge regarded Miss Y as "utterly unconvincing witness" clearly "partial and biased". He did not accept her evidence and believed it likely that she had been "put up to it by the father or someone on the father's behalf".
17. Accordingly the judge, having analysed various inconsistencies that he had identified in the girls' evidence and considered reasons why ZU might have made up the allegations, concluded that they were true and accordingly made the findings.
18. Following the making of the findings, the parents underwent a parenting capacity assessment and a psychological risk assessment. The conclusions of each of the assessors was that none of the children should be returned to the care of either parent, that the twins should be placed for adoption, with the two older children placed in long term foster care.
19. At the subsequent welfare hearing, the mother dishonestly asserted that she had separated from the father on the 11 April 2014 and since that date had been living with her brother and his wife; it was on this basis she had sought an assessment as a single parent. It became clear within the criminal proceedings that that had been a lie and that the parents had been, and continued to be, a couple (although it is unclear to me as to whether there had been a brief separation as at one stage the mother had filed a statement in which she accepted that there had been significant domestic violence, admissions which she later retracted).
20. The final hearing took place over six days concluding on the 2 July 2014. Care orders were made in respect of all four children and placement orders in relation to the twins. The twins were placed for adoption on the 24 September 2014.
21. The father stood trial in respect of the allegations of rape against ZU, starting on the 8 September 2014. The father, the mother, ZU and Raj all gave evidence. The father was acquitted.

The Father's Application

22. By an application dated 8 December 2014, the father sought a stay in respect of the care and placement orders and a rehearing of the case pursuant to s31F (6) of the Matrimonial and Family Proceedings Act 1984 ...as amended).
23. The basis upon which the father sought a reopening of the case is set out in his application notice as follows:

"5. It is understood that at the criminal trial of the father before HHJ Saggerson sitting with the jury ZU admitted under cross examination that she had only made allegations of sexual abuse against her father after she had met Raj and commenced a relationship with him. It is understood that she accepted her motivation had been to take revenge on her father as she desired that her parents separate. HHJ Saggerson directed the jury on the basis that there were many inconsistencies in the evidence given by ZU and that further the evidence of Raj could not be relied upon. The jury returned a unanimous verdict of "not guilty" and the father was acquitted."

24. The local authority did not accept the accuracy of this summary in the absence of a transcript of the evidence or summing up. Accordingly when the matter came back before HHJ Wilding on the 27 October 2014, the application was adjourned by consent until 12 December 2014 to allow a transcript to be obtained. The order made by the judge on the 27 October 2014 contained a number of recitals including:

And the court expresses the view that a transcript of the summing up by HHJ Saggerson in the trial of R v KU would assist the court in determining the issues.

25. The matter came on before the judge on 12 December 2014, when unhappily, but perhaps predictably, the transcript remained unavailable notwithstanding that the requisite application form had been sent to the Crown Court by the proposed appellant's solicitors some weeks previously.
26. The inevitable application for a further adjournment was made on behalf of the appellant in order for the transcript to be obtained. The application was opposed by both the local authority and the guardian, although supported by the mother. The judge refused the application for a further adjournment and set out his reasons in an extempore judgment. He then went on to hear the substantive application for a rehearing, which he refused for reasons to be given at a later date.

The Refusal of the Adjournment

27. The judge, as he identified in his extempore judgement, was faced with balancing two rival issues saying:

"[8] Clearly there are a number of competing issues here. There is the need to ensure justice to the father and the mother and the children. There is a need to have finality in respect of the proceedings generally, but in relation to children particularly and to avoid delay. It is not I confess, an easy decision to make weighing up each of those factors."

28. The judge then weighed up, on the one hand the detriment to the welfare of the children in the event of further delay and on the other, the prejudice to the father if his ability to make an effective application for a rehearing was undermined by the denial of a further adjournment.

The Law

29. In Re B [2013] UKSC 33, [2013] 2 FLR 1075 the Supreme Court held that whether in relation to a finding that the threshold was satisfied, or a decision that a care order was to be made, the Court of Appeal can only interfere if the judge making those findings and orders was 'wrong'.
30. Lord Wilson conducted what he categorised as an Appellate review of determinations made in care proceedings. Lord Wilson started his analysis by restating the classic exposition of the role of the appellate court in reviewing a trial judge's order to be found in G v G (Minors: Custody Appeal) [1985] 1 WLR 647, [1985] FLR 894. At para [38] of his judgment Lord Wilson quoted from G v G saying:

Lord Fraser said at 651 and 897–898 respectively:

'The Jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge's decision was wrong, and unless it can say so, it will leave his decision undisturbed.'

He added, at 652 and 899 respectively:

'Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as "blatant error" used by the President in the present case, and words such as "clearly wrong", "plainly wrong", or simply "wrong" used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.'

The concept of the generous ambit of reasonable disagreement was derived from the judgment of Asquith LJ in Bellenden (Formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345, which Lord Fraser had already quoted.

31. Lord Wilson continued:

[39]   Lord Fraser proceeded, at 653 and 899–900 respectively, to quote with approval from the judgment of Bridge LJ in Re F (A Minor) (Wardship: Appeal) [1976] Fam 238, [1976] 2 WLR 189. This was a dispute between a father and a grandmother about the residence of a child. Bridge LJ, at 266 and 213 respectively, reminded himself that, in granting residence to the grandmother, the trial judge had been exercising a discretion. He observed that none of the factors which often vitiate the exercise of a discretion and so require it to be re-exercised – namely that the judge had considered an irrelevant matter, failed to consider a relevant matter, erred in law or applied a wrong principle – was present. The judge's error, according to Bridge LJ, was in the balancing exercise, in other words that he had given too little weight to the factors favourable to the father's case or too much weight to those adverse to them. Bridge LJ went on to hold that, where a judge's conclusion was not justified by his advantage in seeing and hearing the witnesses and was vitiated by an error in the balancing exercise, an appellate court could set it aside.

[40]   It is clear, however, that, in quoting with approval the proposition of Bridge LJ that even only an error in the balancing exercise might justify appellate intervention, Lord Fraser was not intending to redraw any part of his earlier delineation of the boundaries of intervention. Thus an error in the balancing exercise justifies intervention only if it gives rise to a conclusion that the judge's determination was outside the generous ambit of reasonable disagreement or wrong within the meaning of the various expressions to which he had referred. (my emphasis)

32. It has always been the case that a case management decision is peculiarly that of the first instance judge and the Court of Appeal will be slow to interfere with such a determination. This was reaffirmed in Re TG(Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5,[2013] 1 FLR 125, a case primarily concerned with expert evidence and heard by The President shortly before Re B. The following general observations made by the President at paragraph 36 of Re TG remain equally true (wrong having been substituted for plainly wrong) following Re B (see Lord Wilson at paragraph 45). The President said:

35. (4) Fourth, the Court of Appeal has recently re-emphasised the importance of supporting first-instance judges who make robust but fair case-management decisions: Deripaska v Cherney [2012] EWCA Civ 1235, paras [17], [30], and Stokors SA v IG Markets Ltd [2012] EWCA Civ 1706, paras [25], [45], [46]. Of course, the Court of Appeal must and will intervene when it is proper to do so. However, it must be understood that in the case of appeals from case management decisions the circumstances in which it can interfere are limited. The Court of Appeal can interfere only if satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge: Royal & Sun Alliance Insurance plc v T & N Limited [2002] EWCA Civ 1964, paras [37]-[38], [47], Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427, para [33], and Stokors SA v IG Markets Ltd [2012] EWCA Civ 1706, para [46]. This is not a question of judicial comity; there are sound pragmatic reasons for this approach. First, as Arden LJ pointed out in Royal & Sun Alliance Insurance plc v T & N Limited [2002] EWCA Civ 1964, para [47]:

"Case management should not be interrupted by interim appeals as this will lead to satellite litigation and delays in the litigation process."

Second, as she went on to observe:

"the judge dealing with case management is often better equipped to deal with case management issues."

The judge well acquainted with the proceedings because he or she has dealt with previous interlocutory applications will have a knowledge of and 'feel' for the case superior to that of the Court of Appeal.

36. Exactly the same applies in family cases……

33. In emphasising the difficulty faced by an Appellant in challenging a case management decision, it should be emphasised that the court is in no way minimising the importance of such decisions. Many case management decisions have a significant impact on the ultimate outcome of a case; an example would be when a judge refuses an application for a residential assessment, or an additional expert, or as here, where the refusal of the application for a further adjournment meant, (it was acknowledged by the judge), that the father was left with little of substance to support his primary application, namely that the care proceedings should be reopened. The court must be astute, as was the judge in the present case, to factor in to the balancing exercise the effect an interlocutory case management decision will, or may have, on the case as a whole.

The Balancing exercise

34. This case has been bedevilled by delay not withstanding that s1(2) Children Act 1989 provides:

"1. Welfare of the child

(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."

35. The Children and Families Act 2014 has now added a new s32 Children Act 1989 which has buttressed that general principle with a statutory time frame.

"1. A court in which an application for an order under this Part is proceeding shall (in the light of any provision in rules of court that is of the kind mentioned in subsection (2)(a) or (b)) –

a) draw up a timetable with a view to disposing of the application –

b) without delay, and

c) in any event within twenty-six weeks beginning with the day on which the application was issued.."

36. When the judge heard the application for an adjournment on 12 December 2014, it was already 19 months since proceedings had been issued and over 5 months since the placement orders had been made. Had the judge allowed the adjournment, it was anticipated that it would be something in the region of 5 months from the date of the making of the application, until the next case management hearing, (just a little under the statutory time limit for the whole of a care case from beginning to end). It was accepted by Counsel that if he were to succeed in his ultimate goal to set aside the findings of sexual abuse, there would thereafter be further substantial delay for these children; the summing up when obtained would not be evidence in itself but would provide a pointer as to which, if any, transcripts of evidence from the criminal proceedings should be obtained for consideration by the court in determining the father's application.
37. In the event that the judge, having examined the transcripts of evidence ultimately allowed the case to be reopened, further delay would ensue as many months would inevitably pass before a retrial of the sexual abuse allegations could be accommodated. The judge was only too well aware that the two younger children, settled in their adoptive placement, were developing the attachments vital to their future well being, and that their prospective adoptive parents would be living with the near intolerable strain brought about by the protracted uncertainty as to the children's future; strain which would necessarily impact on the family environment to the detriment of the children.
38. The older children too were, and would be, further affected by delay. They were in foster care, still connected to their family and living with the uncertainty of whether the case had come to an end or whether, in AU's case, she might have to give evidence again.
39. If delay sat heavily on one side of the scales, on the other side was the prejudice to the father if he were unable to draw upon what he asserted to be the evidence in the criminal proceedings; evidence which it was submitted on his behalf, had led to an acquittal and which notwithstanding the differing standard of proof applicable in the two jurisdictions, significantly undermined the findings made in the care proceedings. The care judge recognised that there was little the father could do to further his application without more than the assertions he was putting forward as to the content of the summing up.
40. The judge frankly recognised the difficulties inherent in whichever decision he reached, but a decision had to be made. This was a classic example of a case where any decision made by the judge would be "imperfect".
41. The judge:

i) Properly summarised the admissions the father alleged that ZU had made in cross examination in the criminal trial, namely that her allegations of sexual abuse were made only after she had met Raj and commenced a relationship with him and that her motive had been to take revenge on her father as she desired her parents separate.

ii) The judge in carrying out the balancing exercise took the father's case at its highest, that is to say that the assertions made by the father were true. (It should be noted that this court has now seen a transcript of the summing up, although not a transcript of the evidence. The allegation made by the father that ZU accepted she had been motivated by malice to make the allegations does not appear to be substantiated, although the judge was undoubtedly troubled by the inconsistencies he identified in the evidence of ZU and Raj).

iii) The judge took into account the prejudice to the father of a refusal of the application to adjourn, but felt that to have been balanced by the fact that he had had [9]… lengthy and fair hearing before myself at which I made detailed findings which are not in themselves the subject of appeal.

42. Having carefully weighed up all the factors, the judge concluded that a delay to the next hearing (which he identified as being unable to take place until February or March 2015), cannot be countenanced and refused the application for an adjournment.
43. Mr Jubb on behalf of the father, submitted that the findings of sexual abuse were by far the most important findings made and that the outcome of the case (and therefore whether there should be placement orders), rested upon those findings. Whilst Mr Jubb accepted that the other findings of physical and emotional abuse are not the subject of a specific appeal, it was his case that notwithstanding that there was no appeal in relation to them, those findings may also have to be reopened if a court determined that ZU's allegations of sexual abuse had been motivated by malice. The local authority does not accept that to be the case. The outcome of the case would they submit, have been the same even if the findings of sexual abuse were to be set aside.
44. In relation to the other serious findings of physical and emotional abuse, the local authority submit that the court had not been dependant on the evidence of ZU alone but also the medical evidence, the evidence of AU and the judge's assessment of the parents, having heard them give evidence. The court, submit the local authority, should bear in mind that whatever role Raj's involvement with the family had played in the criminal proceedings, it had been minimal in the care proceedings as a whole.
45. I cannot agree with Mr Jubb's submission that the whole case turns on the issue of sexual abuse. The serious assault on ZU took place in April 2013 when the family were unknown to Raj or him to them; similarly the evidence of ZU was by no means the linchpin upon which the findings in relation to the culture of physical violence within the family depended. It is hard to see on what basis the other extensive findings could be significantly undermined even by a finding that ZU was a malicious liar. The judge still had ample evidence upon which to reach the findings he did in relation to the physical and emotional abuse of the children.
46. In my judgment the judge was entitled to conclude that the balance lay in favour of refusing the application for a further adjournment. He properly identified the competing arguments and weighed each one up briefly but with care. He clearly had at the forefront of his mind the importance of the application and the potential prejudice to the father's case which would result from a refusal. The judge had had the advantage of conducting a lengthy trial and of making his own assessment of the parties prior to making the findings of fact to the civil standard of proof. He appropriately considered the father's case at its highest and properly bore in mind the other extensive findings, which were unaffected by the criminal trial and which were in themselves serious, before concluding that the further substantial delay which would be occasioned by a further adjournment could not be countenanced in the interests of the children.
47. In my judgment the judge conducted the appropriate balancing exercise and reached a conclusion which cannot be categorised as wrong and accordingly I would dismiss Grounds 1–3 of the Grounds of Appeal which relate to the refusal to adjourn.

Application for a rehearing

48. By Ground 5 the father seeks to appeal the judge's dismissal of the substantive application for a rehearing pursuant to s31F(6) Matrimonial and Family Proceedings Act 1984.
49. In considering this application the judge made his decision by reference to the test found in Re ZZ, (Children)(Care Proceedings: Review of Findings) [2014] EWFC 9;[2015] 1WLR 95, an approach which was not resisted by any of the parties. Re ZZ adopts a three part test first propounded by Charles J in Birmingham City Council v H and Others and adopted by the President in Re ZZ at [12] as:

…Firstly the court considers whether it will permit any reconsideration or review of or challenge to the earlier finding…If it does the second and third stages relate to its approach to the exercise. The second stage relates to, and determines, the extent of the investigations and evidence concerning the review. The third stage is the hearing of the review and thus it is at this stage that the court decides the extent to which the earlier finding stands by applying the relevant tests to the circumstances then found to exist

50. In considering the first stage the President said [33]

……one does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my part I would be disinclined to set the test any higher.

51. The judge explained that there was no evidence to support the father's submission other than his own assertions about what had happened at the trial The judge's decision to refuse to permit a reconsideration of the findings of sexual abuse did not rely exclusively on the absence of the availability of the summary of evidence that the father had hoped would be found within the summing up. The judge concluded there were no grounds, let alone solid grounds, for revisiting his findings. The judge pointed to the fact that he had seen and heard all the witnesses and that he was alert to the father's case that ZU had ulterior motives for making the allegations. In relation to the criminal trial, the judge observed that even had the judge conducting the criminal trial said that which the father alleged he had in the summing up, care proceedings are conducted to a different standard of proof. The judge alluded also to the likelihood there was significantly more surrounding evidence available to the him as the judge in the care proceedings than that put before the jury in the criminal proceedings; an observation accepted on behalf of the father.
52. Not only did the judge unequivocally conclude that the first limb of the test was not satisfied, but he referred to the other serious findings of physical and emotional abuse and domestic violence saying There is no suggestion… that those findings would not stand against the father, and indeed the mother. Finally the judge concluded that even had the father passed the first test in Re ZZ, there would be no reason for further investigation as there was more than adequate material which is unchallenged, to found the making of the orders that have been made in respect of each of the children.
53. I agree with the analysis of the judge, who was well aware that his decision meant that the father would be unable to challenge the findings of sexual abuse. Given the totality of the unimpeachable findings and the need for finality in the interest of these four damaged children, I cannot see upon what basis the court could conclude that the earlier findings need revisiting in order for a court to reach the right decision in the interests of the children.
54. I would accordingly dismiss the father's appeal in relation to the substantive application for a rehearing of the finding of fact hearing.

Lord Justice Lewison :

55. I agree.

Lord Justice Moore-Bick :

56. I also agree.