Family Law Hub

JY v RY [2018] EWFC B16

In brief: A fact-finding hearing involving two parties who were not legally represented (neither could afford lawyers and both were ineligible for legal aid). The judge made a number of telling observations about the implications of the lack of legal aid for litigants in terms of preparation, process and outcome.

  • Case No: MB17P00250

    IN THE FAMILY COURT AT MIDDLESBROUGH

    Date: 26th April 2018

    Before :

    DISTRICT JUDGE READ

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    Between :

    Mr JY (Applicant)

    - and -

    Ms RY (Respondent)

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    The Applicant and the Respondent both appeared in person

    Hearing date: 28th March 2018

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    JUDGMENT

    Introduction

    1. This judgment concerns my findings of fact on a schedule of allegations made by the Applicant RY (whom I shall also call, in places and for convenience's sake, "the mother") in respect of conduct by the Respondent, JY ("the father"), which she says should affect the conditions under which he sees their daughter FY (who turns 11 in a few months).

    2. The Schedule of Allegations, together with the father's responses, are set out in the Appendix to this judgment. These findings of fact will be required by CAFCASS, who will be considering them in advising the Court at the next hearing concerning any arrangements and steps required for FY spending time with her father. All the allegations are denied by the father.

    3. The family comprised the parents, who had been married for some 10 years at the date of separation in Summer 2016; CY and DY, the mother's sons from an earlier relationship, who are now 17 and 13; FY herself; and their male cousin LY, now 5, who is living with and to all intents and purposes is fully part of the family under the terms of a Special Guardianship Order. The two oldest boys and the youngest boy of the 4 are not the subjects of these proceedings: only FY, the father's natural daughter, is. Both parents are university educated, although of relatively modest means.

    4. I have reserved judgment after having heard a day of evidence and closing submissions, it being quite late in the day when those submissions ended. Also, given the gravity of the allegations and the way in which matters unravelled, it seems right to try to take particular care in drawing the threads together in judgment.

    5. It was vital to finish the evidence and submissions because this hearing had been adjourned twice previously due to the absence of Police Disclosure of relevant interview notes and statements concerning the most serious of the allegations. The mother, and the two older boys in the family, had been interviewed (the latter by the "Achieving Best Evidence" process) and statements taken, including a statement from the mother as to why she wanted no further police action in the case. The father was not interviewed by Police.

    6. Despite this material having twice been ordered previously, and the Police having twice been served with the Court Order containing the request by email, the disclosure did not arrive at court. This, it later transpired, was because the Police had changed their email address for such requests, and had not informed the relevant Court staff. As will become clear, I was not willing to hear evidence on the allegations without sight of the Police material, as it potentially offered vital corroboration and/or would show damning inconsistencies with the two sides' stories on the most important allegations.

    Procedural History

    7. This is relevant to set out in some detail, not least because despite the gravity of the allegations the parents have been without legal representation throughout, resulting in delays which could have been avoided had either or both had a lawyer acting for them.

    8. Father issued his application in February 2017, seeking an order to allow him to spend time with his daughter after the Mother had suspended all forms of contact with him, on the grounds set out in her allegations. The initial First Hearing Dispute Resolution Appointment hearing on 03/04/17 before District Judge Meek had to be adjourned, the mother not attending court but having told Cafcass of the gist of the current allegations of abuse. On 20/04/17 before DJ Sendall the case was further adjourned, the Mother not attending again despite the offer of special measures. The Court relisted the matter, and again reminded the mother that she could request special measures to make her feel safer whilst at court.

    9. The matter then came before Deputy District Judge Spain on 01/06/17 at a second adjourned First Hearing Dispute Resolution Appointment, when the mother was present, and special measures put in place. Directions were given for the allegations to be summarised and tabulated, and served on the Father in schedule form before the next hearing. That happened, and on 18/07/17 DJ Coulthard determined that a Finding of Fact hearing was needed, and gave the necessary and detailed directions for that to take place. The fact finding hearing was first set for 21/11/17. The judge also noted that the court staff would need to prepare hearing bundles, neither party being in a position to do that themselves.

    10. When the case came before me that day, both parents were still representing themselves. It was instantly unfortunately apparent that the Court had failed to provide bundles for this hearing, and the Police had not disclosed the necessary material. Special measures had again been put in place, with screens and separate entrances and waiting areas for the parents.

    11. Treating the hearing as a pre-trial review, I gave directions to remedy those problems, and for both parents to file a list of questions with the Court which they wanted the judge to ask the other about their evidence. Having checked with them, it was clear that neither could afford lawyers, and that neither was eligible for Legal Aid; and so applying the provisions of the new Practice Direction 12J as well as I could, this seemed the most suitable, fairest and least oppressive way to proceed.

    12. Having reserved the case to myself, the adjourned hearing was listed before me on 31/01/18. The Court staff had prepared four identical bundles, although these were not indexed or paginated. On that day, the Police disclosure was still missing, but I had a comprehensive and carefully drafted set of questions by the Father to ask of the Mother.

    13. The mother had not filed an questions of her own for me to ask the father – when I asked her why, and whether she would yet be able to do so (maybe with some help from the local domestic abuse agency which had supported her throughout the proceedings), she said she had said all that she felt she wanted to say, and just could not face it. Without trying to sound critical, I told the Mother that I was concerned at the effect of the lack of direction from her on my own ability to question the Father in place of her or her legal representative, and the effect on the overall fairness of the proceedings. I accepted her decision, but asked her to reconsider, as there would be a further delay caused by me having to adjourn the case yet again.

    14. When the hearing was finally effective (28/03/18), everyone had received the Police disclosure. Before we started hearing evidence, and being conscious of the likely effect of such sensitive and controversial evidence, and of intrusive and upsetting questioning, I asked the father whether he wished to consider his position of outright denial on the 10 allegations, and allowed him a brief adjournment of 15 minutes to consider that. Before doing so, I warned him that while I had not made any findings, there would always be a chance that I might make findings more serious than what he might choose to admit: and what he might admit might be likely to be acceptable as a basis for moving forward. In the event, he decided not to make any admissions, and the hearing proceeded.

    Issues

    15. The issues that arose from the schedule of allegations need no detailed repetition here, as they appear in the Appendix. In summary, they are 10 in number, and span the period from September 2015 to September 2016. Number 1 concerns an assault by JY on CY, and the second by him on RY, both around other family members. The third through to the eighth allegations concern events said to have taken place on a family holiday abroad, No.3 being aggressive and abusive behaviour by JY to RY in public, the fourth being an allegation of sexual and physical assault in the hotel pool, the fifth being an allegation of rape in the hotel room, and the sixth an assault on the room's balcony, all 3 by JY on RY with the younger children present (and asleep during the alleged non-consensual intercourse). The seventh allegation is the forcible removal of RY's mobile phone by JY; the eighth aggressive and threatening behaviour in front of the 3 younger children. Number 9 concerned abusive and threatening behaviour on returning the two youngest children after contact; and the tenth a non-verbal threat and intimidation outside the younger children's school.

    16. It needs to be mentioned that accompanying the allegations was the general assertion that JY exerted control over the family, and created and maintained an atmosphere of coercion which at times he enforced physically, particularly over the older boys. The father made a counter allegation that it was in fact RY who was the partner who was exerting coercion and control

    Evidence

    17. The mother gave evidence on oath confirming her Schedule of Allegations and her statements to the Police. I asked her the questions prepared by the father which I deemed relevant and fair – which was nearly all of them, as it happens – and gave her a 10 minute break from the witness box after an hour or so.

    18. Shortly after resuming my examination of her, she became upset and left the courtroom unexpectedly half way through giving her answer to a question on Allegation No.3, as to whether she enjoyed having power over JY, when she began to relate how the father kept touching her inappropriately and making advances to her whilst on the holiday flight and then later on the holiday. (Both parents agreed that they had only gone on this long-booked holiday for the children's benefit, having previously split as a couple some few weeks earlier.)

    19. It was noticeable that the mother had left the witness box just before my questioning of her was due to reach the allegations of a sexual nature. In taking a shortened early lunch break at that point, I asked the mother's support worker if she could ask the mother to reconsider over lunch. On returning to court, I asked the mother if she would resume giving evidence. She declined, saying she could not continue, and asked me to form a judgment on what I'd heard from her so far, also stating that if she wanted a battle she'd not have withdrawn her allegations on the criminal investigations, and thought that this case was just about contact with FY.

    20. I did then hear live evidence from RY's brother, PK, who was cross examined by JY. He gave his account of the alleged assault on CY at Allegation 1, which he said he had directly witnessed. I also heard similarly from JM, RY's mother, chiefly about that corroboration of the aftermath to that allegation, and the atmosphere in the family home in later times.

    21. I then heard from the father, on oath, and after he confirmed his witness statements as being true, I went through his written evidence and asked him a series of unrehearsed and unprompted questions of my own devising. His evidence is discussed further below.

    22. There was also the material from the Police. This was not, of course, sworn evidence given on oath, but comprised either transcripts of formal interviews (under the "ABE" procedure, in the two oldest boys' cases), or statements given with a signed declaration as to the truth of the contents. The material comprised an interview transcript with the mother from shortly after her return from the holiday, and two handwritten statements from her, the second of which from December 2016 related her reasons for not wishing there to be any prosecution of JY for the alleged rape, sexual, and physical assaults. One other statement from another un-named witness was of no direct relevance, but there was a statement from JM, also alluding to allegations 4 and 6.

    Analysis

    23. These being civil proceedings, the burden of proof is on the party raising the allegations (the mother) to prove them. But the standard of proof is very different from, and lower to, the criminal standard employed by the Crown Court: it is that the Court needs to be satisfied on the balance of probabilities that an incident happened, or in other words, that it was more likely than not that it happened.

    24. So much therefore depends upon how I perceive the parties' own live evidence, taking what help I can from the corroboration offered by the additional material and statements. The weight to which I can give evidence that was not given on oath in court is very limited, unless it clearly supports evidence that was given on oath and which is itself credible. This is because it has not been tested by questioning under oath, and is inherently less likely to be reliable.

    25. That must mean that in this case – and I do not blame or criticise RY for her leaving the witness box when she did – I must treat what she said on the allegations on which she was not questioned with extreme caution. The mother's evidence was emotional at times, but she never lost control or a sense of proportion. Her account did not need to be totally accurate and consistent in every respect, provided I did not find glaring inaccuracy or inconsistency and found her explanations for inconsistency credible: but there had to be the opportunity for challenge.

    26. Her statements to the Police do corroborate what was in her written statement and her Schedule of Allegations. She gave a plausible and believable set of reasons for not wishing to proceed with the prosecution of JY, also appreciating that her children may later be required to give evidence too. It was all too much for her, she said, and (perhaps aware of the statistics and the risks) she feared his acquittal in the end, despite what she said she knew to be true.

    27. DY's police interview corroborates his mother's account of the incidents at 6 and 7, and the atmosphere of fear and control within the household. While CY's interview does not corroborate any specific incident, it does bear witness to the control that his step-father exerted at home. CY was not asked by the Police about incident no.1: this instead formed the bulk of his uncle AC's evidence.

    28. Despite PK's inability to pin down the exact date of the alleged assault on CY, only having been asked for it years later, I found his recollections clear, detailed, and untainted by malice. He expressed shame for leaving the scene temporarily just after the assault, and I accepted his explanation of why it was kept in the family and not reported to the Police. Though not directly, his account was supported, without exaggeration, by JM, who spoke to her grandson at some length after the event.

    29. The father's evidence on the first allegation could only be taken to mean that PK was making it up. He said he was unable to produce any abusive texts that he claimed to have received from the mother because he had lost his phone. Aside from it being for the children's sake, he saw the holiday abroad as being brought about by RY wanting to mend things with him, yet bitterly criticised her for not arranging any gifts or cards for him for his birthday, which occurred at the start of that holiday. (A fact that the mother denied, saying she had bought him a present in Duty Free).

    30. I did ask him questions about the alleged events (4 to 10) on which the mother had not been subject to questioning, in case he made any admissions or revealed any stark inconsistencies. He was keen to blame DY over the allegedly stolen phone, saying that he had been told to lie on his mother's behalf on that and on other issues. He was keen to minimise the importance of him checking RY's phone for text messages, though did admit that he had kept her phone after that, which he now accepts was wrong, although not out of an intention to control her. He told me that he only ever slept in the hotel room with RY, later revising that when challenged to say that he did sleep outside on the sun lounger on one night.

    31. The picture he painted of the holiday was not one which bore any resemblance to the other 3 accounts, although I note that only the mother's was even tested in part by questions from the court. I found his account of how he dealt with calm and dignity with the "betrayal" of finding out that RY had seen another man (post-separation), and that the holiday featured no arguments, to be inconsistent and utterly lacking in credibility.

    32. Wherever the father's evidence was contradicted by the evidence of another witness which was tested on oath, or wherever it was inherently implausible (compared with other sources) or internally inconsistent, I preferred the version of events which supported the mother's allegations. I preferred it to the extent that I find that the father was lying to the Court on Allegations 1 & 2.

    Conclusions

    33. I have no hesitation in finding allegations 1, 2 and 3 proved. The unprovoked assault on CY (then aged 14 or 15) was particularly unpleasant, he being hit on the head by JY's hand, causing him to fall and hit his head on a table. That and the mother's account of No.2, when I found that her son DY found her very shortly after the assault took place, lead me to conclude that the father did exert control and coercion over the family, which he would exercise violently and physically at times, leading them (or at least the older boys and RY) to be in fear of him at times, especially and increasingly towards the end of the marriage.

    34. Having said all that, and despite me being able to find that the holiday was horrible and (on his own admission) that the father did wrongly take the mother's phone away, I do not think that I can find the allegations numbered from 4 to 10 to be proved. The lack of opportunity for them to be tested on oath, especially given the gravity of allegations 4, 5 and 6, means that only the clearest corroboration from independent sources should tempt the court into accepting them as being more likely than not to be true. That corroboration simply was not there.

    Observations

    35. Having dealt with the proceedings, a number of concerns arose in my mind. It seems important to make some particular observations, some of which also have wider application:

    (1) I am in little doubt that had one or both of these parents been represented, the fact finding process and probably the outcome would have been very different.

    (2) Neither parent could afford a lawyer, and neither was eligible for Legal Aid. I found this surprising in the mother's case in particular, given that I was told that she was dependent entirely on state benefits and yet failed the means test, despite the nature of the case.

    (3) Secondly, were one or more instructed, a solicitor would have quickly noticed the lack of Police disclosure by the court-set deadline, and made appropriate enquiries. I am sure that the email address problem should then have been revealed, and the necessary papers supplied before either of the November and January adjournments. It is not the role of the Court staff to try to enforce orders for disclosure by third parties, even if they could find the time.

    (4) Thirdly, proper Court bundles would have been prepared if either or both parties had been represented. The ones which we had, together with the Police disclosure, were a good 25mm thick. These bundles did not have papers in chronological order, nor were they indexed or paginated – it was near impossible for judge and witnesses to tell what was where, though I was at least able to flag mine in advance. This badly hampered and delayed both the questioning of witnesses, and the making of submissions.

    (5) Again, it is not the job of hard-pressed court staff to prepare bundles, though here they did so to the best of their ability, and only at the judge's request. They do not know how to do it, not being trained or equipped to do so in the way that solicitors' staff are. The existing Practice Direction 27A does not adequately cover such eventualities, other than to require the litigants to do it, which (with apologies to those concerned) they rarely if ever do or do properly.

    (6) Fourthly, the lack of legal representation gravely affected the fairness and efficiency of the process of questioning both parents. So far as my role in this was concerned, although I did my best to abide by the guidance in PD12J at paragraph 28, I was hesitant about participating in this way, being reluctant to be seen to step into the arena myself. Ours is an adversarial (i.e., led by opposing parties) not an inquisitorial or judge-led legal system: judges have neither the training, tradition nor natural inclination to subject witnesses to detailed questioning.

    (7) Having professional representation and advice will tend to support and help an alleged victim of domestic abuse in a moral and practical way that goes far beyond what a voluntary support agency can or should offer. It can fortify a witness before questions are asked, be a reassuring presence during that process, and debrief them afterwards. It can reassure them as to outcomes, and act as a safeguard during what may be a hugely bewildering and scary experience. Its presence is the mark of a civilised society and a mature and balanced legal system. Conversely, it can moderate, inform and balance the approach taken by the alleged perpetrator. No English or Welsh criminal court would proceed as this court had to, in the absence of representation for parties dealing with such grave allegations.

    (8) I was also perturbed by the mother's inability to produce a list of questions for me to ask the father, despite encouragement and opportunities to do so. I make no criticism of her in that: the justice system should never have left her in that position. Had she been represented, that simply would not have happened.

    (9) As is his right, the father was not prepared to make any admissions. Yet upon hearing the evidence I later found him manifestly to be lying on the first 2 allegations, those being the only ones on which the mother and her witness were fully challenged in oral evidence. In this case, pre-trial negotiation between advocates might have obviated the need for a fact finding evidential hearing entirely, had sufficient admissions been made upon legal advice.

    (10) There is always the fear in the mind of the Court that the questioning of an alleged victim about their abuse merely prolongs that abuse by other means. Given my findings in this case, limited though they are to only the first few allegations, I think that fear is borne out here. I am also worried that the father will see his stance of not making any admissions to have resulted in him "winning", in some sense, because only a few of the allegations were ever properly tested.

    (11) The questions I asked the father were rather stilted, and lacked any of the finesse, insight or skill of those that they would have had had they been asked by an advocate who had prepared the case properly. I cannot pretend that I was either thorough enough, probing enough, or pursued the right lines of enquiry in asking questions of either parent's evidence, but especially the father's.

    (12) I would also concede that my questioning of the mother was less than ideal, even though it had a script to follow, especially given that it was unduly lengthy. I did not want to cut short the number of questions the father had prepared for me to ask her, lest he think the Court was short-changing him or being less than even handed.

    (13) I therefore think there is a very strong likelihood that the outcome of the fact finding would have been different, and most probably a truer reflection of what really happened, had the parents been represented. It would surely have concluded sooner, more fairly, and at far less expense to the public purse than ultimately was the case, with two wasted days at Court. It may also have been less painful for the participants.

    (14) Overall, while this is not the first such hearing that I have conducted, it was manifestly the most unsatisfactory in terms of procedural history, preparation, process and outcome. I know that more senior members of the judiciary have repeatedly suggested the implementation of simple legislative measures which would avoid this.

    36. Despite making these specific findings, against a background of significant though not the most serious coercion and control, I would want to make the following quite clear. The issues now to be determined are to what extent the father should engage in further work, and/or to what extent that his time together with FY be supervised, assuming that he accepts the findings.

    37. Any other ancillary matters can be addressed by the court when I hand judgment down formally.

    District Judge Simon Read

    Handed down 26/04/18

    Footnote

    Judgment was handed down at a hearing that CAFCASS were required to attend, and the Court file shows that they had been sent the Notice of Hearing, draft Judgment and Schedule of Allegations in advance. The CAFCASS officer was due to discuss the findings with the parties, and (pursuant to the Private Law Programme) advise the Court as to what steps to take next, with a view to resolving the issues in the light of the findings, and for any party to undertake any necessary work. For unknown reasons, CAFCASS did not attend, and the case has had to be adjourned for a further 4 weeks.

Judgment, published: 15/05/2018

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Published: 15/05/2018

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