England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MRS JUSTICE PARKER)

		Royal Courts of Justice Strand London, WC2A 2LL
		14 January 2015

LORD JUSTICE McFARLANE:

1. This is an adjourned application in the course of permission to appeal proceedings. The potential appeal relates to orders for financial provision made within divorce proceedings by Parker J in the middle of 2014. The prospective appellants are the husband and two of his sisters.
2. The substantive application for permission to appeal came before me at an oral hearing on 3 December 2014 when I had the benefit of hearing detailed submissions from Mr Michael Horton, counsel instructed on behalf of all three of the potential appellants. On that occasion, I delivered a substantial judgment, substantial in the context of a short oral renewal hearing in which I made it plain that each and every one of the potential grounds of appeal then pleaded failed to satisfy me that there was a reasonable prospect of success and that, in due course, there would be no basis of permission to appeal with respect to any of those pleaded grounds. However, I was sufficiently concerned by what I was told by Mr Horton about a document that had been current within care proceedings relating to the two children of the family to adjourn the permission application so that that document could be disclosed both to me and also to Mr Horton so that evaluation of any additional grounds of appeal could be undertaken based upon what that document might contain.
3. In the judgment of 3 December I describe in more detail what I had been told on that occasion about the document. The document is named or described as "addendum assessment report" dated 17 November 2014 by a social worker, Ms S Dewan. In an unusual manner, that document had been protected from disclosure and having any currency following the conclusion of the care proceedings by orders made by Parker J. In short terms, the judge did what she could, and it seems from what I have been told this was effective, to draw in and/or have destroyed any extant copies of that document other than one which was to be held by the court in safe custody.
4. Following the hearing on 3 December, I established a process which I anticipated would lead to the document being disclosed to Mr Horton for him to consider and take instructions on undertakings which he was kind enough to give to the court on 3 December. That would enable him, without undue pressure of time, to consider the merits of any potential application to amend the grounds of appeal. In the event, having contacted Parker J to investigate the possibility of that development, she communicated by email to me in clear terms to the effect that any step to disseminate the contents of the documents to Mr Horton or, indeed, to anyone should only be contemplated after a process which allowed the wife to make submissions. I therefore established this hearing today on 14 January on notice to the wife so that submissions could be made on her behalf. In the meantime, Parker J was able to furnish me with a copy of the report.
5. This morning I have heard submissions from Mr Horton, again on behalf of the three potential appellants, and Ms Patricia Roberts on behalf of the wife. Ms Roberts has the advantage of having been counsel in the care proceedings whereas Mr Horton was not. He has been involved solely with the financial side of the case. On behalf of the wife, Ms Roberts has been stoic in opposing any suggestion that the document should be shown to Mr Horton at all. I was not persuaded that that was a proper course. A further element of this morning's hearing has been that unfortunately, the father of all three of the potential appellants, they being brother and sisters, has been taken seriously ill in recent days and they have not attended court this morning. Mr Horton has therefore effectively been here on his own to represent the interest of those appellants. It was therefore physically possible to contemplate a tightly controlled process whereby Mr Horton could have the document without any suggestion that it would be seen by either of the two sisters, at least one of whom probably has never seen the document before. I therefore acceded to the request for Mr Horton to have time to read the document and he has taken some 40 minutes or so to read through it. It is a substantial document and that amount of time was justified.
6. The purpose of that process was to undertake an evaluation of whether there was any material in the document that might provide the basis for an amended ground of appeal. Mr Horton having concluded that process, has indicated that there is material in the document which might form the basis of a ground of appeal and he now seeks the further adjournment of this hearing to allow him to take instructions upon that issue with a view either to concluding that they do not, that there is no further ground of appeal that could be pleaded or, to allow an application to amend the grounds to be perfected and brought back at a subsequent hearing before the court. Although I have not heard from her in detail on that, Ms Roberts' client's position is plain; she is anxious about any further dissemination of the document.
7. Mr Horton's application is to have the entirety of the document in his possession, albeit subject to further undertakings which he is willing to give not to disclose the document physically in terms of copying it to any other person. Further complications might apply in relation to what, if anything, could be said about the contents of the document to the two ladies who were not themselves party to the care proceedings.
8. I am afraid, despite the care with which Mr Horton has taken me to the extracts upon which he wishes to rely, I am totally unpersuaded that there is anything in this document that could possibly form the basis of renewed or amended grounds of appeal. The document as a whole, understandably and rightly, focusses upon the welfare of the children. It is a document which purports to annex a number of recordings that the social worker made of meetings which she had with each of the two parents and the children and others in the course of conducting a comprehensive assessment focussed on the welfare of the children for the purposes of the care proceedings.
9. In making the observations that I now do about the document, whilst I am aware of the very substantial caveats that both the mother, and more importantly Parker J, attached to this document and the manner in which it had been produced, I am simply looking at it with favourable eyes to the husband and looking at it at face value. Approaching it in that way, despite what Mr Horton says, I conclude that there is nothing in it that could possibly found the basis of renewed grounds of appeal.
10. Mr Horton identifies four potential elements within the document that might support his clients' case; I will deal with them all in short terms. The first relates to physical domestic violence and the point being taken arises out of annex 7 of the report, pages 6 and 8. At trial, in the financial proceedings, the issue of the power balance in the relationship between this husband and this wife was before the court and in the course of her judgment, Parker J deals with it, albeit in short terms. At paragraph 102 she says this:

"(102) W's case is that the marriage was very difficult and that H was volatile, aggressive, abusive, controlling, dismissive and disrespectful of her and demanding and unreasonable. W says that the marriage was very unhappy."

11. At paragraph 104 the judge describes the evidence in this way:

"(104) As well as W's compellingly believable evidence, H's conduct in these proceedings, and his domineering, self-absorbed performance in the witness box, and in particular unstoppable tirades which did much to prolong the hearing, leads me to have no doubt that W's description is correct. I notice particularly his anger, aggression and agitation, interspersed with histrionic, self-pitying monologues when he wept, I thought for effect, in the midst of invective against W."

Subsequently the judge says at paragraph 228:

"(228) I am quite satisfied not least from the way this case was run that this was an abusive relationship and I am in no doubt that W did what she genuinely felt she had to do to protect herself and the children rather than from any malign motive."

12. What relevance does annex 7, pages 6 and 8 of Ms Dewan's document have to this? It is limited; without quoting verbatim from the document, Ms Dewan describes how the wife has reported "concerns of control" to professionals and describes at the bottom of page 6 of that annex how one such professional from "FSS" developed heightened concerns that there might be suggestions of domestic violence in what the wife had said. However, that is as far as it goes. It seems in me in no way to touch upon the judge's findings which were largely based, not only on her overall favourable view of the credibility of the wife, but, more importantly for a trial judge who has sat in the court room for a number of days and watched the participants' behaviour, upon the judge's own observations. It would take a great deal to overturn those findings and, in particular, it is of note that the wife was measured in the allegations that she made to the extent that she specifically did not allege physical violence before the judge and the judge did not find physical violence. In particular, the summary in Ms Dewan's report of what she understands the understanding of the FSS worker was falls short of recording the wife as alleging domestic violence. It is simply a report of heightened concern amongst the professionals. What then follows on page 7 is simply a record of this social worker's conclusion that "the evidence thus appears to suggest" that the wife may have misused processes. That, it seems to me, falls a long way short of anything that could establish an attack on the overall finding of the judge as to the balance of power in this relationship.
13. The next point that Mr Horton draws attention to arises from annex 5 on the first page. There the author gives an account of the wife responding to questions about the proceedings by saying that she does not read the post that comes from her solicitors and that in response to various specific questions about the case, she gives a reply which is "I'm not entirely sure, I can't remember". Mr Horton says that this resonates, to use his word, with the evidence that the wife gave to the judge which was on a number of occasions simply to say "I can't remember". I ask, rhetorically, if what is in this document at that point resonates with what the wife was saying to the court, how can it possibly be fresh evidence sufficient to lead to an overturning of the judge's overall conclusion. In my view, it simply does not get to the starting blocks.
14. The third point that is made arises from Annex 9 of the social worker's report at page 4 where at one point it says this, "on further probing, (wife) confirms that nobody in the family had ever asked her to give any of the money that she was earning", whereas Mr Horton tells me, and I accept from him, that her evidence at trial was that she regularly contributed to the family finances.
15. This will have been, if it was an issue, a matter which could have been canvassed fully, and no doubt was if it was an issue, before the judge. The fact that the social worker has a note on this point which relates to one sentence cannot possibly support the basis of an application to set aside the judgment and re-open the case. It is on a de minimis basis really something which is so insignificant that it cannot get far at all. As I say, that is without any cognisance given by me at this stage to the overall unreliability of the document which Ms Roberts would be keen to urge upon me.
16. Finally, in relation to Annex 7 again at page 5, the social worker makes some observations from her own experience as a member of the Gujarati community as to what Asian women would or would not do in relation to jewellery. Where jewellery was, who had it and what happened to it was an issue before the judge and the social worker offers her own opinion based on "my knowledge and professional experiences". In this respect, the social worker is not being relied upon as a witness of fact to record what the wife said to her or what the husband said to her. The social worker's view is being put forward as a potential expert witness as to what women would or would not do if they were acting in accordance with the ordinary way ladies behave in the Gujarati community. To contemplate a ground of appeal which says that there is a one line expert opinion that is now available on that point is simply fanciful and gets one nowhere.
17. I am conscious that Mr Horton has only had a limited amount of time to look at this document but I had longer and I formed a very clear view prior to this hearing that there was nothing in it that could provide any traction for a further ground of appeal. Mr Horton with his eyes firmly attuned to this case has only been able to identify these four matters. I could contemplate adjourning the process yet again to allow for the further evaluation that Mr Horton has described, but I think it is incumbent upon me to take a robust view because I am satisfied that there is absolutely nothing in these points, either separately or taken together, that could come anywhere near allowing for the development of a fresh ground of appeal that would have any prospect of success.
18. Accordingly, I refuse the application to adjourn. The grounds of appeal therefore remain as they were before me on 3 December and I simply confirm the view that I described for the reasons given in my judgment on that occasion which is that permission to appeal should be refused in respect of all three of the potential appellants on the basis that I have outlined in my earlier judgment.

Order: Application refused