Family Law Hub

D (Children) [2012] EWCA Civ 1222

  • Case No: B4/2012/0827

    Neutral Citation Number: [2012] EWCA Civ 1222

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM BRENTFORD COUNTY COURT

    (HIS HONOUR JUDGE OPPENHEIMER)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Friday, 20 July 2012

    Before:

    LADY JUSTICE BLACK

    IN THE MATTER OF D (Children)

    (DAR Transcript of

    WordWave International Limited

    A Merrill Communications Company

    165 Fleet Street, London EC4A 2DY

    Tel No: 020 7404 1400 Fax No: 020 7831 8838

    Official Shorthand Writers to the Court)

    Ms Suki Juhal (instructed by Ravi Sethi Solicitors) appeared on behalf of the Applicant father.

    The Respondent mother did not appear and was not represented.

    Judgment

    As Approved by the Court

    Crown copyright(c)

    Lady Justice Black:

    1. This application concerns proceedings which relate to three children whose ages range from nine to five. The context of the present application is an issue between the parents about the children's residence and contact with them.

    2. The mother made allegations of domestic violence against the father in relation both to his conduct to herself and to the children. In a judgment dated 1 February 2012, Judge Oppenheimer made findings of fact in relation to eight of the mother's allegations. The judge said that he did not find proved any direct violence by the father to the children, but that otherwise "as a matter of generality I accept ... the thrust of all the allegations in the schedule, and furthermore that some of the violence occurred in front of the children".

    3. He accepted that the children had had a good time with the father during contacts before contact was stopped in I think May 2011, but he accepted also that the children remained frightened of their father "partly because the father has been violent to the mother in their presence and partly because the mother had coached the children as to what to say to officials such as social workers".

    4. In his judgment, the judge did not work through the schedule of allegations item by item. However, he made clear that he had considered all of them separately. He dealt in detail with an important allegation referred to as Allegation 10 and he gave examples to support his approach in other respects, particularly his approach to the differences that he identified in the mother's accounts of the individual incidents, which the judge took the view were not in fact significant differences.

    5. The father had made a limited admission in relation to Item 10 and that is that he had kicked the mother and thought he had caused her a bruise. The father had been cautioned for this. The judge found that he had minimised that incident in evidence, but equally he found that insofar as the allegation concerned the father being violent to one of the children, B, that was not proved. It followed that in relation to that incident the judge thought that neither party had been entirely truthful.

    6. It is inevitable that a judge is considerably influenced in a case such as this by the way in which the witnesses come over when they gave their evidence. That was clearly so here. When he came to make his findings, the judge said:

    "Having heard the mother and the father give evidence to me, I believe that there were other occasions of violence by the father to the mother."

    7. He had examined the material put before him and thought there was some support for the mother's account, for instance in the complaints that she made to the general practitioner to some degree. But he was also aware of the factors that were against the mother's case, for example (1) the assertion was that the children were fearful and yet there was at one time in the history of the case a series of text messages that demonstrated that good quality, loving contact was occurring; (2) he had himself found against the mother in relation to part of Item 10, which had undermined her credibility in relation to part of that incident; (3) the mother had been coaching the children as to what to say as the judge recognised, for example asking them and their schools not to refer to her new partner.

    8. The father wishes to advance by way of appeal a number of different points in relation to the judge's judgment. He submits:

    (1) that the judge reversed the burden of proof and required him to disprove the allegations. Counsel who has ably put all the points that can be put on behalf of the applicant today took me to various passages in the papers in an attempt to demonstrate that, but I can see no sign at all that the judge in fact fell into that error.

    (2) that the judge's findings were against the weight of the evidence, particularly in the light of the problems relating to the mother's credibility. He invites attention, for example, to the history where the mother had made at one point an allegation of sexual abuse by the father in relation to one of the children which was found after investigation to be unfounded.

    (3) that the judge failed to give proper weight to the discrepancies in the detail of the mother's account of the incident. The father criticises the judge for failing to deal in detail with those discrepancies which he dealt with globally.

    (4) that the judge failed to make a finding that the children had been alienated by the mother which would have been significant to his consideration of whether what they were saying about having witnessed domestic violence was genuine or the product of the process of alienation.

    (5) the father seeks to make a procedural complaint and that is that the judge unreasonably curtailed the cross-examination time for his counsel in relation to the mother's evidence to one hour, which meant that counsel was not able to go into the allegations in detail.

    9. Just as I did with the first potential ground of appeal, I propose to deal with this one immediately. The judge was clearly under time pressure as is so often the way in the courts dealing with family cases these days. He took the course which was open to him of setting a timetable in advance for the hearing. There was discussion as to the cross-examination time that would be allocated to each of the parties. Counsel for the father asked for an hour and twenty minutes to cross-examine and the judge said that an hour would be allowed for that process. Exactly the same treatment was given, it seems, to the other side who were also given one hour for their cross-examination. I cannot see that that sort of a curtailment by the judge of the process of cross-examination was in fact such as to render the hearing unfair in any way. And counsel has today taken me to various passages in the transcript of the hearing which demonstrate that there was detailed cross-examination carefully going through matters, such as the discrepancies between the mother's accounts at various times of the incident, and also show that the judge was following this and added his own questioning from time to time. I do not, therefore, see that there is anything in that point.

    10. In the note for the purposes of this hearing, counsel amplified the proposed grounds of appeal, including submitting that the judge had put too much importance on the father's admission in relation to Allegation 10. She used that as part of the submission with which I have already dealt in relation to the question of reversing the burden of proof. But she uses it to underline the submission also that the judge's acceptance of the mother's evidence was not only against the weight of the evidence, but also contradictory in the light of his rejection of a serious part of her allegation with regard to Allegation 10.

    11. As McFarlane LJ implied, it is an uphill task to appeal against findings of fact made by a judge who has had the opportunity to hear oral evidence from witnesses. I do not consider there to be any realistic prospect of successfully advancing an appeal in this case. It can be seen from the judgment that the judge was well aware that the mother's evidence was not entirely reliable and that he had in mind the flaws in it. His judgment is not intended as a complete record of everything. What he was required to do was to give sufficient reasons for his finding and he was entitled to take the approach that he did by taking examples to show his conclusions. These show that except in respects he identified, he found the mother's evidence credible and preferred it to the father's on the question of the incidents of violence to her; notwithstanding the faults that he acknowledged there were in relation to the mother's evidence.

    12. He was entitled to regulate the weight that he gave to various matters such as the missing record which did not feature in the medical records. I say just one or two words about that because it featured large in submissions today. The mother had said in relation to an incident at the beginning of September 2010 that she consulted the general practitioner about that. The mother's medical records were available and did not show a consultation with the general practitioner about domestic violence on that day. It was therefore submitted that this was a serious inconsistency between what she said and what must in fact have happened and, therefore, that the judge should not rely upon the mother's evidence of that incident, nor would he be able to rely on her evidence of other incidents.

    13. It is fair to say that one notices immediately on looking at the medical records that whilst that incident does not form the subject of a note by the general practitioner, both sides of that date there are in fact consultations with the general practitioner by the mother about alleged domestic violence. The writing is difficult to read at some points in the medical records, but certainly in relation to a consultation in July 2010 the note showed that the doctor had found bruising on the mother after she had reported to him an incident of violence by the father. A glance of that kind at the medical records shows that the judge was right to say that there was support in the medical records for the mother's account of what had been going on.

    14. As to the question of coaching of the children and its implications for the evidence that was before the judge, I need not I think improve upon what McFarlane LJ said. He dealt with that point and I do not see any reason to differ from him in relation to it.

    15. Taken as a whole, despite the careful argument on behalf of the applicant in writing and today, I can see no reason to suppose that there would be a realistic chance of a successful appeal in this case and, in those circumstances, I refuse permission to appeal.

    Order: Application refused

Judgment, published: 27/09/2012

Topics


Published: 27/09/2012

Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.

Bookmark this item