Family Law Hub

M (A Child) [2013] EWCA Civ 1181

Appeal in respect of a fact finding hearing where the F, who had been found to have sexually abused his daughter, complained that the judgment was deficient.


  • Case no: B4/2012/2523

    Neutral Citation Number: [2013] EWCA Civ 1181

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM COVENTRY COUNTY COURT

    (HER HONOUR JUDGE FISHER)

    Royal Courts of Justice

    Strand

    London WC2A 2LL

    Tuesday, 9 July 2013

    B e f o r e:

    LORD JUSTICE THORPE

    LORD JUSTICE MOSES

    and

    LORD JUSTICE SULLIVAN

    IN THE MATTER OF M (A CHILD)

    (DAR Transcript of

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    Mrs Julie Sparrow (instructed by Rotherham & Co Solicitors) appeared on behalf of the Appellant father.

    Mrs Kathleen Hayter (instructed by The Family Firm) 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. The parties to this appeal commenced a relationship in 2001 and their only child, a little girl, was born on 2 May 2003. Almost immediately afterwards the parents separated. Thereafter there was contact between father and child, which ended abruptly when in September 2006 the little girl said that during contact she had been interfered with by her father, who had put a finger in her vagina. That led to investigations including a paediatric examination, which was inconclusive and there the matter rested.

    2. There was a long intermission, five years, when there was no contact between father and child. All this history was resurrected by his application for contact of 15 July 2011. In December of the same year, the court directed a fact-finding hearing. The fact-finding hearing was conducted by HHJ Fisher between 24 May and 29 June. Clearly she looked at the case thoroughly because there were four days given to the hearing, at the conclusion of which she reserved and handed down on 16 July.

    3. She only had to make clear findings in relation to four allegations that were advanced by the mother and directed for investigation and decision by the judge. The judge found all four allegations proved. The first allegation was that the father had been angry and violent towards the little baby prior to the separation. The second allegation was that he had allowed the child to see magazines relating to physical degradation or mutilation. The magazine apparently has the title "Bizarre".

    4. The third allegation, which was clearly the most significant, was the allegation of the insertion of a finger into the child's penis, and the fourth allegation was that on one occasion post-separation father had been violent towards the mother and had attempted some sort of strangulation.

    5. The judge found all four allegations proved by her hand-down judgment. Unfortunately counsel who had conducted the hearing for the father, Mrs Sparrow, was unable to attend the hearing when judgment was handed down and, when she had considered it, she wrote a letter to the court suggesting that the judgment as it stood was deficient and that it should be elaborated. Alternatively, she suggested there should be a re-hearing because some police statement had not been available to the judge.

    6. The judge's response of 6 December was in these terms:

    "I am grateful for the opportunity to reconsider the Judgment delivered on 13th July. Following hearing detailed evidence of each of the parties together with their witnesses I do not wish to clarify or add to my judgment. My findings were based upon the evidence which I heard and the fact that I preferred the evidence of the mother on disputed factual issues."

    7. The case had in the interim been in the management of McFarlane LJ who had made his first direction on 22 November and who, following the receipt of the judge's brief addendum, directed this hearing. That he did on 16 January, and I am not at all clear why the case has waited some six months for this listing.

    8. Mrs Sparrow, who appeared in the court below as I have already said, has pursued her appeal this afternoon with tenacity and with conviction. She says that this simply does not meet the required standard which was perhaps explained in the case of Re B [2003] 2 FLR 1035, and further considered in the case of Re A and L [2012] 1 FLR 134. There is no erudition in the first of those two cases, but the essence is that a litigant is entitled to a judgment that sufficiently explains the findings and the conclusion, as well as the process of reason by which the judge made the findings and then reached conclusion. Mrs Sparrow has said that the judge simply failed to satisfy that test in her written judgment, and that she hardly improved her position by the brief supplement that I have already cited.

    9. With due acknowledgement to the preparation and presentation from Mrs Sparrow, I am quite unpersuaded by her argument. The reserved judgment records the evidence of all the witnesses who testified almost as though the judge was summing-up to a jury in a criminal trial, but the meat of her judgment is there in paragraphs 29, 30 and 31 when she moves from "Record" to "Conclusion". She deals with the first allegation with balance to the child and she accepts the case, although accepting as mitigation that the father was no doubt tired through his long hours at work and therefore more vulnerable to irritation and lack of control.

    10. She says specifically that the allegations, and there were two, she found proved to the appropriate standard "despite the father's denials". She deals with the magazines, saying that for her it was important to note that the little girl herself had made reference to the various pictures of people cutting themselves when undressing her own Barbie doll.

    11. The judge's findings in relation to the attempted strangulation are plainly reasoned. She notes that the fear had resulted in a referral to a local centre, the Caludon Centre, and she reasoned that had there not been such an incident of that nature, there would not have been such a referral.

    12. The third allegation relating to the little girl's vagina was accepted by the judge as being the most serious because there was a sexual dimension, but again she reasoned her conclusions by reference to contemporaneous disclosure at the preschool, supported by documentation, a similar disclosure in May 2007, and that consistent with disclosure to the maternal grandmother. The judge concludes:

    "On the balance of the probabilities which is the appropriate standard here, I am satisfied that the father did in this way sexually abuse his daughter."

    13. I do regard the judge's supplement as being of significance and I only regret that she did not more specifically in her first judgment deal with the respective credibility of the parents, and particularly deal expressly with the credibility of the father. We know from the supplement that effectively she found the evidence of the mother credible and the evidence of the father not credible. It is a very important function of the judge at these preliminary issue trials to make clear findings as to the credibility of the person who asserts, and the person who denies, but I am in no doubt at all that the complaints which Mrs Sparrow levels at the judge fail. The judgment has, in my view, sufficiently met the required standard, and I would dismiss the appeal.

    LORD JUSTICE MOSES:

    14. I agree.

    LORD JUSTICE SULLIVAN:

    15. I also agree.

    Order: Appeal dismissed

Judgment, published: 04/10/2013

Topics


Published: 04/10/2013

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