Family Law Hub

M-D (A Child) [2013] EWCA Civ 1219

F's application to appeal against a fact-finding judgment, in the context of an application for contact between F and the child, where the judge found that he had inappropriately touched his daughter. Application refused.

  • Case No: B4/2013/1805

    Neutral Citation Number: [2013] EWCA Civ 1219

    IN THE COURT OF APPEAL (CIVIL DIVISION )

    ON APPEAL FROM THE PRINCIPAL REGISTRY

    FAMILY DIVISION

    (MRS ROBERTS QC)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Wednesday 21 August 2013

    Before:

    LORD JUSTICE TOMLINSON

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    IN THE MATTER OF M-D (A CHILD)

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    (DAR Transcript of

    WordWave International Limited

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    Official Shorthand Writers to the Court)

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    Mr Oriel Hinds (instructed by Direct Access) appeared on behalf of the Applicant

    The Respondent did not appear and was not represented.

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    Judgment

    (Approved)

    Crown Copyright (c)Lord Justice Tomlinson:

    1. This is an application for permission to appeal by SM-D (to whom I shall refer as "the father") against a fact-finding judgement of Mrs Jennifer Roberts QC, sitting as a deputy judge of the Family Division, a judgment which I am told was either handed down or at any rate made available to the father for the first time on 25 March 2013. The findings of fact were made in the context of an application by the father for contact to his daughter, A, a child born on 25 August 2005 who is therefore now just a very few days short of 8 years old. Before going any further, I should indicate that no report of these proceedings or of this judgment should include anything from which the identity of the child could be deduced, and that of course includes the name of the father and of the mother, to whom I shall refer in a moment.

    2. The most significant of the findings made by the judge and in respect of which the father seeks permission to appeal is a finding that the father had inappropriately touched his daughter in her genital area on one or more occasions during shared care arrangements which were in operation between December 2008 and November 2009, when the child was therefore between the ages of three and four.

    3. The application for contact at the moment stands adjourned. It was last I think before HHJ Finnerty, sitting as a deputy judge of the Family Division on 21 June 2013.

    4. The father has been represented today by Mr Oriel Hinds, who did not appear for him at the fact-finding and who has only been instructed by Direct Access within the last two or three days. I am extremely grateful to Mr Hinds for the clarity of his submissions which he has made this morning upon the basis of his recent instructions.

    5. The first matter with which I have to deal is in fact an application for an extension of time within which to make an application for permission to appeal. The Appellant's Notice was filed on 28 June or possibly only on 2 July, which is the date of the court stamp, whereas the judgment had become available to the father, as he tells me, on 25 March 2013. The application is therefore some two months out of time. As I understand it, the father, through lack of means, was not at the time in receipt of legal advice, and in fact he appears to have made an appearance before the President of the Family Division on 9 May 2013, on which occasion he was given advice as to how he should go about seeking to challenge the judgment. In the circumstances, I am prepared to grant an extension of time in which to make the application.

    6. I need to go into a little of the background in order to place the application into context. The parents of the child, the mother being LM-D, became engaged in November 2004 and the mother became pregnant very shortly thereafter. Following the birth of A in August of the following year, the parents, together with A and another child moved to Spain. That other child was a son, Js, born on 27 June 1999 to a different father. Subsequently the mother has borne another child, a son, C, who was born on 7 January 2009 to a new father, a Mr O. He is now four. As I have said, following the birth of A, the parents and the two children, Js and A, moved to Spain, and on 16 March 2006 they married in Gibraltar. Unhappily the marriage was short-lived. By July 2007 the mother had left the matrimonial home without the children and had begun a relationship with Mr PO. A shared care agreement was reached by the parents' Spanish legal representatives in September 2007. This provided that the children would have alternate weekly contact with mother and father. That agreement broke down in April 2008, with Js returning to the mother's care permanently. In July 2008, the mother having first told the father that she was pregnant with Mr O's child, returned to England with the two children without the father's consent. Hague Convention proceedings were begun. Through agreed mediation, a further interim shared care plan was put into place. This involved the mother flying to Spain for two weeks out of every four, during which time she would base herself at her parents' home, which was also in Spain, and A's care would be shared between the mother and the father.

    7. There was further activity before the Spanish courts. The mother, in November 2009, was granted an interim residence order and contact to the father was restricted to one week only per month. Similarly, in November 2009, a court in Spain, which I understand to have been a criminal court, handed down a judgment in proceedings which the mother had brought against the father, alleging that he had assaulted her, I think in the domestic context. The court found that the assault had occurred and granted the mother injunctive relief against the father. In the same month, the mother returned to this jurisdiction with A. So far as I can glean from the papers, it was agreed that the courts of England and Wales should have jurisdiction so far as concerns matters concerning A's welfare, although I am not sure to what extent the father accepts that this is so. But for present purposes that is immaterial. The father has sought to appeal the conviction for assault made in the Spanish courts, as I understand it without success, and as I also understand it, although I have no details, he has taken his appeal in that case to the European Court of Human Rights. Again, I do not know what progress has been made in that application.

    8. The first application, I think, in the present English proceedings was issued by the mother on 3 May 2011. She invited the English court to accept jurisdiction and to make injunctive orders prohibiting the father from pursuing what she alleged had been an Internet vendetta against her. That vendetta had, she said, been prompted by allegations which the mother had made to social services for the first time in March 2010 that the father had sexually abused A. It was in the context of those allegations and counter-allegations that the matter came before the deputy judge.

    9. In October of last year, there was a five-day hearing between 15 and 19 October 2012, and then the matter, I am told, came back before the judge on 16 January this year, because she wished to clarify certain matters arising out of the mother's evidence. In due course, the judge prepared a substantial reserved judgment which runs to 59 pages and 189 paragraphs, which as I have said was made available to the father on 25 March 2013; hence this application for permission to appeal.

    10. Putting it broadly, the judge made the following findings. She found that the father had engaged in a campaign of harassment against the mother and her family members as well as the local authority in which she was living, A's school and indeed the police. The judge found, on the basis of the Spanish conviction which had not been overturned, that the father had assaulted the mother in Spain, indeed in the presence of the child, A. The judge found in favour of the father in respect of an allegation made by the mother that the father had provided the child with a mobile phone with GPS capability in order to enable him to track the mother and child's whereabouts. The judge was satisfied that the father had no such intention and was merely attempting to facilitate communication with his child, as previous attempts had been thwarted by the mother. The judge also rejected a serious allegation made by the mother to the effect that the father had installed video equipment in the home which she shared with Mr O and thereby obtained sexually graphic images which he had disseminated to agencies concerned with the child protection investigation. Critically, the judge also found that the father had inappropriately touched A on one or more occasions in the manner in which I have already described between December 2008 and November 2009, and the judge found that she was not satisfied that the mother and maternal grandmother had coached A to make those sexual allegations. So far as concerns that last point, it was plainly a significant feature of the hearing before the judge that the father maintained that what had happened here was a clear case of coaching driven by what he termed the syndrome of "parental alienation", and he buttressed his case in that regard by reference to what he said was a very similar course of conduct pursued by the mother in relation to the older child, Js, in order to influence decisions to be made concerning contact between that child and his own father to the point that Js had in fact had little or no contact with his father whilst he was growing up.

    11. The father has prepared Grounds of Appeal and a skeleton argument in support and he has also, at the invitation of the President of the Family Division, prepared a substantial response to the judge's judgment. That document is very largely a commentary on the judge's judgment, although it also contains at sections B, C, and D details of the contact which he requests and the basis on which he seeks it; at C, a list of persons who he would wish to be required to appear as witnesses in proceedings relevant to his application; and lastly his case, so far as concerns persons who he says should be joined in the proceedings, with a view to the court making findings concerning their involvement.

    12. As Mr Hinds of course recognises, but which I emphasise purely for the sake of the father who sits behind him, I am concerned this morning only with his application for permission to appeal. I am not concerned with the question of whether or not he should be awarded contact to his daughter, nor am I concerned with any question as to further investigations which may or may not be deemed appropriate or which he may feel ought to be pursued. I am only concerned with the question whether an appeal against the critical fact found by the judge in her judgment has a real prospect of success.

    13. It goes without saying that I understand that the father feels extremely strongly that the finding made by the judge was wrong and he vehemently denies that he has ever abused his daughter in the manner alleged. But, as is again explicitly recognised by Mr Hinds, that of itself it not a ground of appeal. The father needs to persuade me that the judge has either reached a decision which is plainly wrong or, alternatively, that she has fallen into error in the manner in which she has gone about the fact-finding exercise which would justify this court looking at the matter afresh.

    14. It seems to me that the grounds which the father seeks to put forward are essentially fivefold.

    15. Firstly, he alleges that the judge made a mistake in finding that the father began a sexual relationship with the mother when the mother was only 15 years old. The father met the mother whilst working in Torquay during the summer. At that time the mother was employed as a dancer and a waitress at a holiday camp. According to the father she was aged 16 at the time that they met, but in any event at that time they were not engaged in a sexual relationship, which he says is something that happened very much later in time. He says that the assertion that he had a sexual relationship with the mother when she was only 15 is untrue and unsustainable and has only been raised by the mother in recent times in order to bolster her own case in an attempt falsely to show that the father was prepared to have sexual contact with minors. He alleges that the judge's unsustainable conclusion in that regard may have had a considerably prejudicial effect on the way in which the judge went on to weigh the remaining evidence and has caused the judge to fall into error.

    16. Secondly, the father alleges that the judge was wrong in that she failed properly to weigh the evidence to the effect the mother had failed to report the alleged disclosures by the child at the first opportunity. The first alleged disclosure to the maternal grandmother was in August or September 2009 and the mother failed to report that to the Spanish authorities or to the Spanish court despite being regularly engaged with that court and those authorities at that time on issues of contact and divorce. The father points also to the fact that the mother did not seek to raise these disclosures during the Hague Convention proceedings. He suggests that the mother did nothing until she could use the alleged disclosures to her own tactical advantage in the litigation and that the judge should have recognised this and proceeded accordingly when deciding what weight should be given to the alleged disclosures.

    17. Thirdly, and perhaps absolutely critically in the light of the way in which Mr Hinds has put the matter this morning, the father alleges that the judge failed properly to deal with his contention that there were clear indicia that A had been coached to make the disclosures that she did and that the mother had induced into the child and cultivated a set of untrue beliefs about her father regarding sexual abuse. He points to the fact that A allegedly repeated certain words when she made the disclosures in a manner suggestive of having been given those words to use and she was unable to recall some of the facts surrounding specific incidents which she alleged and that she gave changing accounts regarding the frequency of the alleged abuse. He points to the circumstance that, as he says, the step-brother Js had been coached but that again no disclosure concerning those matters had been made during the Hague Convention proceedings, but only later and in a manner very similar to that in which the disclosures from A emerged. Mr Hinds, on the father's behalf, suggests that the judge failed properly to weigh this evidence and came to a wrong conclusion concerning it.

    18. Fourthly, it is suggested that the judge erred by failing to give sufficient weight to the circumstance that the father had always engaged with and sought to co-operate with the authorities in relation to these matters both in Spain and this country, and that that should have weighed in his favour.

    19. Finally, it is suggested that the judge gave insufficient weight to what the father alleges is the mother's propensity to lie and, in particular, to make false allegations. For example, it is suggested in the grounds of appeal that the allegation that the father had been involved in an assault upon the mother is a false allegation and, further, that the mother had made an allegation during the proceedings that the father had attempted to assault her then current partner, Mr O, I think in 2008. I have also referred to the allegation, which the judge in fact rejected in fact, that the father had installed video recording equipment in the home shared by the mother and Mr O. Again, it is said that the judge failed properly to weigh the significance of those allegations.

    20. Mr Hinds this morning has sought to elaborate upon those basic grounds, but I do not consider that anything he said effectively goes beyond the ambit of what I have attempted to summarise as the grounds of appeal, save in one respect to which I will refer a little later.

    21. As to the first ground, the allegation that the judge was wrong to conclude that the father had had intercourse with the mother when she was 15 years old, the judge addresses this point at paragraph 159 of her judgment. She was, as she says, faced with two differing accounts. She said that the mother had given her a fairly graphic description of her memory of losing her virginity to the father when she was not yet 16 and that other evidence showed that the father had given inconsistent accounts of when he had first had sexual intercourse with the mother. In a police interview he had told the police that the mother was 16 or 17 years old when they had first had sexual intercourse, whereas the case he put to the mother in court was that she was 25 when they had first had intercourse. The judge's conclusion, after hearing live evidence from both parties, was that on the balance of probabilities the father had had sexual intercourse with the mother when she was not yet 16. That conclusion was, in my judgment, a conclusion which was well within the ambit of reasonable decision-making open to the judge, and it was a conclusion which she could fairly reach on the evidence before her. It cannot be said to be obviously wrong. I would also point to the fact that the judge explicitly reminded herself that just because a person, here the father, had been found by her to be untruthful about one aspect of his evidence, and one aspect of his relationship with the mother, it did not necessarily follow that she could place no reliance on the truth of other aspects of his evidence. At paragraph 174 of her judgment, the judge made clear that in other respects she drew no support for her findings adverse to the father from the fact that he had been untruthful to her, as she found, about the date when he first began a sexual relationship with the mother.

    22. As to the second ground, the point that the judge dealt inadequately with the reporting of the disclosures, the judge considered the mother's evidence and indeed the maternal grandmother's evidence, and considered carefully the reasons she gave for not having initially reported the disclosures. The evidence is considered by the judge at great length between paragraphs 80 and 103 of her judgment. The first disclosure was, as I have said, made in August or September 2009. The mother gave evidence about that because it was a disclosure made to the maternal grandmother and reported immediately to the mother, and there is extensive discussion of the extent to which that had been considered as between the mother and the grandmother and the extent to which it was thought that some of what was alleged might be explicable by the father having attempted to assist the child with her chronic constipation and other matters which are there discussed.

    23. At paragraph 94 the judge carefully evaluates the mother's position in the light of emails exchanged between her and the maternal grandmother and then forwarded to the mother's solicitor which predate the first disclosure and which refer to her suspicions that the father might have some paedophiliac tendencies. That is a matter to which Mr Hinds gave particular prominence this morning: that is to say the extent to which the mother may have been obsessed with her concern as to the father's tendencies, which he suggests sits ill with having initially downplayed the report made of alleged abuse.

    24. The second disclosure was made on 13 March 2010 to social services in the United Kingdom. The judge deals with the mother's failure to report it and, I should add, deals also with what Mr Hinds alleges are shortcomings in the circumstances in which that matter was considered by the relevant social worker, a Mr Fitzpatrick, who was not conversant with the history and in particular was not conversant with the circumstance that there had been a previous allegation or that the father alleged that the child had been coached in the manner alleged. Again, the judge considered all that material and reached a carefully considered conclusion in relation to it. The judge asks herself, at paragraph 177 of her judgment, the question "why the mother did not play the disclosure card in August and September 2009 if this were genuinely a case where she had been deliberately coaching the child".

    25. It is plain that this was a matter which was in the forefront of the judge's mind when reaching her final conclusions, and again, in my judgment, the conclusions to which she has come in relation to the mother's reasons for not reporting these matters earlier fall within the ambit of reasonable decision-making. That effectively deals also with the question of coaching by the mother, which the judge dealt with at length between paragraphs 163 and 171 of her judgment, including everything which the father wished to say on the extent to which the mother had allegedly behaved in a similar manner with the older boy, Js.

    26. The judge found that the father had not proved the allegation that the mother had deliberately coached A to make the disclosure to her maternal grandmother in August and September 2009. She reached that conclusion on a careful evaluation of all of the evidence. Again, in my judgment that is a conclusion with which it is unrealistic to think this court is likely to disagree, bearing in mind that this court on an appeal would not have the advantage which the judge enjoyed of seeing and hearing the witnesses give their oral evidence.

    27. So far as concerns the point that the judge allegedly failed to give the father sufficient credit for his engagement with the authorities, that again is a matter which did weigh with the judge. She refers to it explicitly at paragraphs 45 and 141 of her judgment and it is plain that that was something which she took into account in the decision-making process. So far as concerns the false allegations made by the mother, the judge records her conclusion at paragraph 163 of her judgment that "neither parent has been wholly truthful in all the evidence put before the court." It is plain from this long and careful judgment that the judge conducted an evaluation of the credibility of both the mother and the father. The father's suggestion that the mother's allegation as to an assault in Spain was manufactured was almost bound to fail, having regard to the fact that the Spanish court had found the matter proved and appeals against the conviction were unsuccessful in the Spanish courts. I appreciate that the father has taken the matter to the European Court of Human Rights, but that does not mean that the judge was wrong to approach the matter on the basis that she did. The judge did not find that the father had attempted to assault the mother's current partner Mr O in 2008, and the judge expressly acknowledged that the mother had made a false allegation so far as concerns as the installation of video equipment in the house which she shared with Mr O in Spain. In my judgment, it cannot be suggested that the judge went about her task of assessing the mother's credibility in an inappropriate manner, nor can it be said, again, that she has reached a conclusion which is outside the ambit of reasonable decision making.

    28. I should mention that Mr Hinds, on the basis of his instructions, has said that there may be another ground of appeal open to the father, which relates to the alleged incompetence on the part of his solicitors who were acting for him at the time of the fact-finding exercise before the judge. Mr Hinds says, on instructions, that the father had a number of further witnesses who he wished to call whose evidence would prove that he was most unlikely to have behaved in the manner alleged. Those matters do not appear in the father's Grounds of Appeal, and although Mr Hinds said that possibly the father ought to be making an application to amend his Grounds of Appeal, the fact remains that there is no such application before me, nor is there any material at all before me upon the basis of which I could evaluate any suggestion that the father had been incompetently represented on the earlier occasion.

    29. As I said at the outset, I acknowledge and understand that the father feels profoundly that the judge has reached an incorrect conclusion. However, it was the judge's task to reach a conclusion on the basis of the evidence which was deployed before her by the parties, and it is not the task of this court simply to interfere with a judge's conclusion upon the basis that one or other of the parties thinks it to be wrong. It is not demonstrated that the judge reached a conclusion which is plainly wrong, nor is it demonstrated that the judge failed to take advantage of her ability to see and evaluate the witnesses for herself. On the contrary, there is every indication from this long and detailed judgment that the judge went about her task in entirely the correct manner.

    30. For all those reasons, therefore, which I am afraid I have given at a little length, but out of deference to the circumstance that this is a matter of very great importance to the father, I have concluded that an appeal has no real prospect of success and that I ought accordingly to refuse permission to appeal.

    Order: Application refused


Judgment, published: 11/10/2013

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Published: 11/10/2013

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