Family Law Hub

S (Children) [2013] EWCA Civ 1091

Father's application to appeal judge's findings in respect of domestic violence in a contact case. Application refused.


  • Case No: B4/2013/1370

    Neutral Citation Number: [2013] EWCA Civ 1091

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM TAUNTON COUNTY COURT

    (HHJ BROMILOW)

    Royal Courts of Justice

    Strand

    London WC2A 2LL

    Tuesday, 16 July 2013

    B e f o r e:

    LORD JUSTICE THORPE

    LADY JUSTICE BLACK

    --and--

    LORD JUSTICE KITCHIN

    IN THE MATTER OF S (CHILDREN)

    (DAR Transcript of

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    Miss Sarah Evans (instructed by Devereux and Co Solicitors) appeared on behalf of the Applicant Father

    Mr Rupert Chapman (instructed by KSFLP) appeared on behalf of the Respondent Mother

    J U D G M E N T

    (As Approved by the Court)

    Crown copyright(c)

    Lord Justice Thorpe:

    1. HHJ Bromilow, who is the designated judge in the Taunton County Court, heard evidence on issues of domestic violence on 6 and 7 March 2013 and delivered a reserved written judgment on 2 May. He was deciding only whether or not ten selected items of violence against either wife or children had been made good in preparation for the determination of what are the real issues in the case, namely father's contact to his four children.

    2. The children were born respectively in 2001, 2003, 2004 and 2007. They were born to parents who had married in 2001 and thereafter led what the judge described as "busy, even hectic" married lives. The marriage endured for a decade. They separated in the summer of 2011, and the assertions of violence during family life percolated and resulted in proceedings which registered a residence order in favour of mother and a contact order with father. Contact was initially successful, in part that is to the support given to contact by the maternal grandparents. But very sadly, after they were unable to continue with their input, contact faltered and ultimately died. That is a sad state of affairs, and of course the court will be anxious to ensure that no step is overlooked in the search for restoration. However, it is well established on authority that complete determination depends on first establishing the extent of the problem, and that very often means establishing the history. So that was Judge Bromilow's limited and preliminary task: establish the history to enable him to see how to tackle the bigger problem.

    3. Of the ten specific allegations, he found nine proved, and that led to an application for permission to appeal by Appellant's Notice filed on 23 May. The judge had before the filing of the notice set up a directions hearing which took place on 24 June. By that date, the Cafcass officer had prepared a report which recorded that only the youngest of the four children was at ease with the prospect of seeing the father. So the Cafcass report concluded that, certainly for the time being, direct contact was not practicable. However the proceedings in the county court were quite rightly put on hold pending the mother's proceedings in this court.

    4. The papers were referred to Lloyd LJ, who on 1 June directed an oral hearing with appeal to follow. As he observed, it was difficult to measure the force of the skeleton argument settled by Miss Evans for the applicant without having a transcript of the judgment below. That judgment came to hand between the order of Lloyd LJ and the listing today, so we are now in as good a position as we will ever be to evaluate the strength of Miss Evans' application.

    5. Miss Evans has represented the father robustly throughout. She appeared below. She took the reserved judgment. She pointed out to the judge a factual error at the outset of his judgment. She has settled the skeleton argument and the grounds, and she has argued her case before us with force and skill. Her criticism of the judge is one that is hard to make good in this court, for she does not suggest that he has misdirected himself in law. Her first criticism is that he has insufficiently analysed his conclusions on each of the investigated incidents.

    6. Her second criticism is that the judge has not dealt proportionally with the factors, some positive, some negative, in relation to each of the incidents. It is not said that he has left anything out of account that he should have considered nor that he has introduced into his decision-making process any irrelevant factor. The assertion is that he has simply lacked proper proportion in carrying out the balance, the "on the one hand", the "on the other hand".

    7. Those are the complaints that have been advanced at this oral hearing. There were others that were expressed in the skeleton argument, with which I will not deal. It must be remembered that the skeleton was written at a time before the judgment was available.

    8. In view of the criticism, I think it would be helpful just to, as it were, provide an index to what is an admirably concise judgment. As Miss Evans correctly stated, between the first and tenth paragraph the judge summarised the background. In paragraph 11 he dealt with the contribution of the Children's Guardian. Between paragraphs 12 and 19 he directed himself as to the legal framework. Between paragraphs 20 and 23 he made an assessment of the mother as a witness; the same of the father between paragraphs 24 and 25.

    9. The other evidence as to which there was a substantial list he considers between paragraphs 26 and 32. The scene thus set, he dealt with the schedule of allegations seriatim between paragraphs 33 and 43.

    10. Now, this was by no means an open and shut case. The obstacles that presented to the mother's case was that there was by and large an absence of contemporaneous complaint, corroboration was thin, and, once the assertions began to surface, they seem to have magnified progressively.

    11. Miss Evans had prepared for the purposes of this hearing what is described as a "case summary". There were 11 pages of chronology and comment, a very detailed analysis of the circumstances presented by Miss Evans to suggest the fundamental implausibility of what was in her client's view essentially a trumped-up charge, or series of charges. Her whole preliminary document runs to some 17-pages.

    12. Mr Rupert Chapman, who represented the mum below and in this court, had himself filed a five-page skeleton argument. The judge had a lot of assistance from the Bar in approaching the case, and, as he made plain in his judgment, he had been at pains to read the voluminous papers. He had spent hours watching the recorded DVD interviews with the children. He, I think it can be seen, regarded the parents as having been guilty of a degree of lack of proportion. The issue of father's contact with children is highly emotive.

    13. As the case developed, inevitably the father was stung by what he regarded as highly exaggerated stories and the mother, no doubt in a desire to make certain of the outcome, added either incidents or detail to previously recorded incidents. So the thing had really got out of hand with some 120-odd allegations, which the District Judge had very sensibly restricted to a mere 10.

    14. There is then a need to answer the submission that the judge has failed to perceive these allegations as highly exaggerated, and fundamentally implausible when measured against all the surrounding circumstances.

    15. I think the short answer to that is to be found in his assessment of the evidence of each of the parents. The judge recognised that this was not a settled case. It was plainly not all one way. In paragraph 20, he emphasised, with I think some degree of implied criticism, the mother's complete absence of affect during the course of her examination and cross-examination and as she listened to the cross-examination of the respondent. The judge impliedly felt that this impassivity did not lie comfortably with her diagnosis of post-traumatic stress disorder.

    16. In his assessment of the father, he was complimentary in some respects, describing his evidence as balanced and sensitive. But on the other hand he said:

    "Throughout his oral evidence, I detected a clear pattern of a reluctant acceptance of his behavior; his denials of the allegations must be viewed with caution."

    17. So the impression of this judgment that I take is that it is a balanced judgment and a sophisticated judgment from a judge with vast experience of adult relationship breakdown.

    18. I cannot accept that there is an absence of essential analysis. He takes each allegation in turn and succinctly reasons the factors which had persuaded him to acceptance. Equally, in paragraphs 21 and 40 he has explained the factors that led him to reject the most serious assault that the mother advanced. Miss Evans has said, well, we are left in the dark; he has simply said that he is unpersuaded. Does that mean that it did not happen, that it was invented, or, as the judge himself suggests, was it simply exaggerated?

    19. In the following paragraph (paragraph 41) the judge specifically directed himself that the fact that he had found one allegation exaggerated did not carry the consequence that the mother's evidence had been exaggerated throughout. There are very clear statements in recent authority in the Supreme Court that it is only in the most exceptional circumstances that this court will interfere with the findings of the final judge, who has, over the course of two days, listened to oral evidence and reached conclusions as to credibility and fact. Because not every point has been covered, I can understand Miss Evans' sense that she has been short-changed in that the judge has not specifically responded to all the recent argument that she developed in the course of her case summary why this could not have happened, why this probably did not happen, where the inconsistencies lay in the mother's case. In my judgment, it was not incumbent on a trial judge to answer each and every submission or to counter each and every point made on conflict or inconsistency. He has given his clear conclusion, and that presents a great problem for the father in the pursuit of restoration of contact relationship. Had he found the other way and dismissed the mother's assertions as being contrived, invented, manipulative, exaggerated, it would have presented her with an equal problem in seeking to advance herself as a responsible long-term carer. The result is as it was. I will not contemplate disturbing it. I would simply refuse permission.

    Lady Justice Black:

    20. I agree. I would only underline what Thorpe LJ has said about recent Supreme Court authority. That is the case of Re B (A Child) [2013] UKSC 33. In that decision there is to be found at the start of paragraph 52 this statement:

    "The Court of Appeal, as a first appeal tribunal, will only rarely even contemplate reversing a trial judge's findings of primary fact."

    21. I would therefore also refuse permission to appeal.

    Lord Justice Kitchin:

    22. I agree with both judgments.

    Order: Application refused

Judgment, published: 02/09/2013

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Published: 02/09/2013

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