England and Wales High Court (Family Division) Decisions

IN THE ROYAL COURT OF JUSTICE
FAMILY DIVISION
On appeal from the Family Court at Bristol
HH Judge Harington

		No. 2018/0006 Royal Courts of Justice
		24 July 2018

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MR. JUSTICE BAKER:

1. By a notice of appeal dated 4 January 2008, a mother sought permission to appeal against a decision by His Honour Judge Harington dated 8 December 2017 in private law proceedings brought against the father of the child under the Children Act, 1989. The child is concerned is a little girl whom I shall refer to as, "M", born 12 March 2016 and therefore now aged two years four months and following the hearing before Judge Harington was aged twenty-one months.
2. The application for permission to appeal was considered on paper by Williams J who refused part of the application which he declared to be totally without merit but allowed permission to appeal on the other part of the appeal. The appeal under the second part of the application was listed before a full hearing before me today.
3. The background of the case is as follows. The parties met in 2012 but as I understand it never married. They have one child, M, born 12 March 2016. The relationship between the parties broke down in April 2017 and it seems that thereafter the mother left the family home with M who was then aged just one.
4. In June 2017, the father applied for a child arrangements order. On 29 June, the mother filed her response in Form C1A making allegations of domestic abuse. The matter came for a first hearing dispute resolution appointment before the magistrates on 12 July, at which the appellant was directed to file a Scott Schedule setting out details of her applications by 3 August with the respondent to apply by 11 August. A fact-finding hearing was listed before the magistrates on 16 August.
5. The mother filed her first Scott Schedule on 2 August. At the hearing on 16 August, the magistrates decided to reallocate the case to a circuit judge and thus it was listed before His Honour Judge Rutherford on 15 September. Disclosure from the police and the Local Authority was ordered. At the hearing before Judge Rutherford on 15 September, however, the orders for disclosure were varied and the mother was directed to file a further Scott Schedule or an amended Scott Schedule by 6 October with the respondent to file a reply by 27 October and the further hearing was listed thereafter. The mother's second Scott Schedule was filed on 12 October with the father's response on 26 October.
6. It is convenient at this point to set out what the allegations were and the responses thereto.

1. The first allegation was of controlling behaviour. It was said that the father pinched the mother's nipples during intimacy causing pain to the mother. The mother made it clear to the father that she did not consent to this and did not enjoy it. The father continued to manipulate the situation to carry on his behaviour. The father's response to this was that he denied the controlling behaviour. He accepted that the pinched the mother's nipples during intimacy but ceased this behaviour when she told him she did not like it.

2. The second allegation was controlling behaviour on an animal, in particular the mother's dog. That allegation was denied by the father who asserted that he treated the dog as a family pet and looked after him.

3. The third allegation concerned aggressive and intimidating behaviour towards the mother. It was alleged that the father would have explosive outbursts, sometimes punching the wall during arguments and on one occasion hurt his hand in the process. There was also a pattern of passive-aggressive behaviour, silent treatment, rolling his eyes, derogatory comments, sulking, blaming, stonewalling and causing emotional distress to the mother. The father's response was that he accepted that he had punched the wall in frustration but denied any aggressive or intimidating behaviour towards the mother. He asserted that the behaviour which the mother had alleged against him had in fact been carried out by her.

4. The fourth allegation was that the father had demonstrated aggressive behaviour around M about four times a week when he was struggling to get her to sleep, had shouted at her, punched a wall while holding her and stamped his feet in order to gain the attention of the mother. The father accepted that he had punched the wall in frustration but denied he had done this while holding the child or in her presence. He denied making derogatory comments towards the child.

5. The fifth allegation was that the father had roughly handled the child. It was said that he roughly put her in bed when he became frustrated, that she had regular bruises on her shins, thighs and knees, that she had cried when having her nappy changed and that he tickled her, causing her discomfort. It was denied by the father that he had roughly handled the child at any time. It was asserted that the child was like that having her nappy changed no matter who was doing it. He said that he tickled her and played with her as any normal parent would. In response to a suggestion that he behaved inappropriately while changing her nappy, he replied that he had tried to make nappy changing a less traumatic and upsetting time for the child by playing games.

6. The sixth allegation was that the father displayed controlling, manipulative and intimidating behaviour towards the child. It was said that he would restrain her when she wanted to get down from the table. It was said that he would deprive her of food during the night causing her to scream and would pretend to make himself cry in front of her and try to startle her. This was essentially denied by the father who said that he cared for the child as any engaged parent would.

7. Finally, it was asserted by the mother that she had found a dried substance between the child's thigh and vulva on one occasion in March/April 2017 when changing her nappy after the father had had sole contact with the child. The mother asserted that the substance had the appearance of dried semen. The father denied that the substance found on the child was his semen and believed there was some other explanation, such as nappy cream.

7. Following the filing of that schedule and the father's responses, the dispute resolution appointment took place between a district judge on 8 November 2017. Again, further directions were given and the matter was directed to remain in the list for a fact-finding hearing in December.
8. On 4 December, a few days before the fact-finding hearing, the mother's solicitors contacted those representing the father to inform them that the child was ill and seeking an adjournment on the basis that the mother's assertion that the child was unable to attend the childminders. The response from the father through his solicitors was to suggest that his parents provided childcare. The mother did not agree with this proposal and on 6 December her solicitors filed a formal application to adjourn the fact-finding hearing, although it seems that application was not served on the father's solicitors. The mother thus came before Judge Harington 7 December as listed and at the outset of the hearing the mother applied for an adjournment. That application was refused and the judge proceeded to conduct a hearing without oral evidence in circumstances which I shall describe below. Having heard submissions, he proceeded to deliver a judgment.
9. In summary, the judge broadly accepted the father's written evidence, preferring that to the mother's, and only made findings in respect of the father on those matters where he had made admissions – for example, punching the wall. The vast majority of the allegations set out in the Scott Schedule by the mother were rejected by the judge.
10. On the following day, the matter came back before the judge, the case having been listed for two days, for consideration of what orders to make in the light of his findings. On that occasion, an application was made for permission to appeal on behalf of the mother. The application was refused. A child arrangements order was made in the following terms:

1. The mother shall make the child available to spend time with the father as follows.

(a) The father shall by 4.00 p.m. on 12 December via solicitors send photographs of himself which the mother should show to the child no later than 19 December.

(b) The father should send cards, letters, gifts by way of indirect contact via solicitors first during the week of 11 December and thereafter fortnightly.

(c) There should be direct contact for one hour on 23 December 2017 at 3.30 p.m. at a shopping centre in the town where the parties live. Such contact on this occasion to be supervised by either the mother or a third party identified by her who knows the child. It was further directed that the paternal grandparents would be able to attend.

(d) Facetime contact on 30 December 2017 at a time to be arranged.

11. The judge had made a costs order requiring the mother to pay £400 towards the father's costs at the hearing the day before but on 8 December that order was set aside.
12. On 3 January, the matter came back before Judge Harington for further consideration. The mother's counsel informed the judge that an application for permission to appeal to this court was going to be made. The judge ordered an expedited transcript of his transcript dated 7 December and made an order that until the next hearing the mother should make the child available to spend time with the father as follows.

1. Indirect contact by form of cards, letters and gifts to the child during contact sessions and on the child's birthday.

2. Direct contact for one and a half hours from 3.30 every other Saturday at the shopping centre in the town where the parties live and any additional direct contact as agreed between the parties.

3. Facetime contact on 9.00 a.m. on a Sunday every alternate week plus such additional Facetime contact as the parties may agree.

The judge made further directions for a Cafcass report for future child arrangements.

13. On 4 January, the mother filed a notice of appeal to this court. On 16 January, Williams J made preliminary directions in the appeal. On 24 January the mother filed a skeleton argument in accordance with those directions. On 27 April, Williams J refused permission to appeal in respect of part of the grounds as I have already stated but gave permission to appeal in respect of others and listed the matter before a judge of the Division, Thus the matter comes before me today.
14. The grounds of appeal were in the following terms. It said that the mother sought permission to appeal against the adjourned order, by which she meant the refusal of the judge to order an adjournment, for the following reasons:

"1. The respondent mother was absent from the hearing on 7 December 2017 as she was unable to organise childcare arrangements for her unwell child. The respondent mother provided sufficient evidence of the child's health in the form of photographs.

2. The court held that the mother was keen to conclude the hearing. The mother had given the court no other reason but based on previous court attendances to suggest that she was attempting to frustrate the process.

3. The mother's non-attendance was not beyond the bound of what was reasonable.

4. The mother had filed an application for an adjournment the day before the hearing. In any event, the court and the father's representatives had knowledge of the adjournment application. The father had suggested his parents as childminders but the mother had not felt that was appropriate given the length of time since they had seen the child and the child's ill health and vulnerability.

5. The mother has the right to a fair trial in accordance with Art.6 of ECHR and that would not occur in her absence.

6. On a procedural level, there has been a lack of continuity in proceedings contrary to the overriding objective. The previous order had stipulated the case was to be heard by the district judge. No reason was provided as to why the case was reallocated to the Circuit Judge on the day of the hearing. The judge had not had the opportunity to see or address the mother in the previous hearings she attended.

7. Where there was a lack of corroborating evidence to support the mother's allegations, the court has to assess the parents' credibility. No party gave oral evidence, the lack of corroborating evidence from the mother was noted many times in the judgment, therefore the court should have had the opportunity to assess the mother's credibility through cross-examination.

8. The court deemed the allegations taken at their highest were insufficient to prevent the father having direct or indirect contact. The mother submitted that it is not the promotion of contact but how that contact should take place that is the issue. The court made no findings against the father and therefore indicated that he is not a risk to M. The mother submitted that, given his acceptance of punching walls and stomping on the floor, and the fact that he was on antidepressants for stress, there was a concern that, were he to care for the child unsupervised or unsupported without a period of supervision, there would be problems in contact.

9. The court was wrong not to consider that the father had punched the wall or stamped on the floor in the child's presence. The court acknowledged the father accepted that he punched the walls and that he stamped on the floor but failed to recognise the mother's statement that he said he was stamping on the floor while trying to get M to sleep. This behaviour was deemed not to have an impact on the father's direct contact with the child.

10. The court was wrong to deem allegations made by the mother as 'bizarre' or 'exceptional' without hearing oral evidence from the mother and assessing the credibility.

11. The court was wrong not to believe that the father's behaviour amounted to controlling and coercive behaviour as recognised in the revised Practice Direction 12J.

12. During the judgment it was submitted there was no note of what mother's counsel said in respect of allegation six. It was submitted this was wrong as to the risks in respect of the father's startling behaviour towards the child and how there was finally a contention that he tried to make the child happy. This was not something which he asserted in his statement his behaviour actually achieved or what the child's reaction to his behaviour was."

15. Williams J having considered all those grounds as I have already indicated made the following order:

1. Permission to appeal in respect of grounds one to six is refused. The decision to proceed with the hearing is well within the parameters of judicial discretion in relation to case management decisions. It cannot be said that the judge reached a decision that no judge properly directly himself could have reached the appeal as totally without merit in this respect.

2. Permission to appeal was granted in respect of grounds of appeal paras.7-12. Having decided to proceed with the fact-finding hearing it is at least arguable that findings on the schedule should not have been made without hearing evidence from the parties, including giving the mother the opportunity to attend on the second day of the listed hearing.

16. Before me, I have had the benefit this morning of written arguments and oral supplemented submissions made by counsel, Ms. El Nazer on behalf of the mother and Mr. Baggley on behalf of the father. I am grateful to both counsel for their helpful submissions in this case.
17. It must be stressed that an appeal is not a rehearing. The appellate court is only carrying out a review and can only interfere where the court is satisfied that the judge at first instance was wrong or that there was a procedural or other irregularity.
18. It is important to stress that a matter of the judge's decision to refuse an adjournment is not before me today. Williams J refused permission to appeal against that decision and further declared that the application for permission to appeal against the refusal of an adjournment was totally without merit. As a result, the appellant mother cannot now renew her application for permission to appeal against that decisin at an oral hearing.
19. Following the judge's refusal of the adjournment, it would have been open to the parties to ask the court to hear oral evidence either on that day, the 7^th, or on the following day. Significantly, however, neither party did so. They agreed that, once the application for an adjournment had been refused, the case should then proceed on submissions. In those circumstances, it does not seem to me that it is really open to the mother to pursue the seventh ground of appeal as set out above. It would have been open to mother's counsel to have applied to call her client on the following day or to apply to cross-examine the father, but she did not take that course. In those circumstances, given William J's decision, it is not open to the appellant to challenge before this court the judge's decision to proceed on the basis of submissions only.
20. The remaining grounds advanced on behalf of the appellant mother can really be distilled into one ground, namely that the judge failed to take into account all the evidence before him and, in particular, failed to take into account the evidence put forward on behalf of the mother.
21. Ms El Nazer submits that there are material omissions from Judge Harington's judgment when he is considering the seven allegations set out in the Scott Schedule as quoted above. As a general proposition, it is unsurprising that the judge did not deal with each and every point made in the evidence. This was very properly an ex tempore judgment. The judge did consider all the allegations and referred in some detail to some of the evidence. Understandably, there were points in the evidence that he did not mention in his judgment but, looked at overall, this was, in my view, a judgment of reasonable length in all the circumstances in which the judge demonstrated, to the satisfaction of this court, that he had carefully considered the written evidence put before him.
22. Furthermore, and in my mind importantly, Ms. El-Nazer indicated in the course of her submissions to this court that, in the course of her submissions to Judge Harington, he did refer to the mother's statement and to the exhibits attached thereto in support of her submissions. Thus, I am entirely satisfied that Judge Harington had those relevant parts of the mother's evidence firmly in mind even though he did not refer to them in detail in dealing with some of the allegations.
23. In respect of allegation one, for example, the judge did not refer to all the instances of alleged controlling behaviour. Allegation one in the schedule only referred specifically to the father's alleged behaviour during sexual intimacy and not to other examples of controlling behaviour set out in the mother's statement. It is true that the judge does not deal with all the allegations of controlling behaviour in detail, but I am satisfied, for the reasons set out above, that the judge was fully aware of those allegations and the evidence in support of them.
24. As to the allegation of the father behaving aggressively and in a controlling way around the child, in the absence of oral evidence the judge was in a difficult position. He had to weigh up one party's written account against the others. Looking at the evidence on these issues in the context of all the other evidence, he found that the allegations were not true. This court cannot say that he was wrong in reaching that conclusion.
25. As for the allegation about the substance having the appearance of dried semen, the judge spent some time in his judgment dealing with this allegation, unsurprisingly as it was potentially the most serious. He noted that there was no corroborative evidence, that the mother had not taken the nappy or clothing for analysis and had not reported her concerns to social services or the police. The judge concluded that, had she genuinely been concerned about this matter, she would have acted differently. In my judgment, the judge's conclusion on that issue was one to which he was entitled to come on the limited evidence available.
26. It is further complained that the judge was wrong to describe some of the mother's allegations as bizarre. It is submitted that it was not open to him to reach that conclusion without hearing oral evidence. For the reasons already stated, in my judgment it is not open to the mother to complain to this court that no oral evidence was led. In the circumstances, the judge had to deal with matters on the basis of written evidence only. His conclusion that some of the allegations were bizarre was a view he was entitled to come to on that written evidence. The mother's counsel further contends that it was wrong of the judge not to conclude that some of the father's behaviour was controlling and coercive. I am satisfied that the judge did have the evidence about those matters firmly in mind and his conclusion, for the reasons set out above, is not one which this court can say was wrong.
27. The judge's conclusions were, in short, that he did not accept any of the mother's allegations save insofar as they were the subject of admissions by the father. The father did make some limited admissions, that he had punched the wall and that he had stamped on the floor when holding the child in order to get the mother's attention. The mother submits that, taking those factors into account in the context of a situation where the father was apparently on antidepressants, the circumstances gave rise to sufficient concern that, were he to have unsupervised contact, some harm might come to the child. As to that, the judge concluded in the final paragraph of his judgment that, insofar as there were any allegations against the father that had been proved or admitted, none of them had any relevance to the issue of contact or to the child's right to see her father. I do not think the judge's conclusion in that respect can be said to be wrong given the very limited findings that he made.
28. Overall, therefore, I have reached a clear conclusion that, in the context of a case in which, in the circumstances described above, no oral evidence was given, it is impossible for this court to say that the judge's findings were wrong. The appeal is therefore dismissed.
29. In reaching that conclusion, I wish to stress that, in the vast majority of cases, it will be necessary, indeed essential, for the court to hear oral evidence before making findings of fact on allegations of domestic abuse. The circumstances in which oral evidence was not adduced in this case, and the constraints which this court is therefore under hearing this appeal, have been fully explained above. It should not be though that, simply because this appeal has not succeeded, this court is indicating that oral evidence is not required in these cases. On the contrary, I am clear that, in the vast majority of cases, oral evidence will be essential to enable a judge to decide who is telling the truth on important allegations of domestic abuse.
30. Equally, nothing I have said in this judgment should be taken as departing in any way from what I said in the earlier case of Re LG [2017] EWHC 2626 (Fam) at paras.21-24. In particular, I wish to endorse the observation of the President in the circular entitled, "Domestic Abuse PD12J" published on 14 September 2017:

"Domestic abuse and all its many forms and whether directed at men, at women or at children continues more than forty years after the enactment of the Domestic Violence and Matrimonial Proceedings Act, 1976 to be a scourge on our society. Judges and everyone else in the Family Justice system need to be alert to the problems and appropriately focused on the available remedies."

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