B4/2006/1140

Neutral Citation Number: [2006] EWCA Civ 1527
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
(HIS HONOUR JUDGE BOND)

Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday 8 September 2006

B e f o r e:

LORD  JUSTICE  MUMMERY

and

LORD  JUSTICE  WILSON

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IN THE MATTER OF C (CHILDREN)

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(Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4A 2HD
Telephone 020 7421 4040
Official Shorthand Writers to the Court)
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MR RICHARD EGLETON (instructed by Frettens, Dorset)
appeared on behalf of THE APPLICANT MOTHER

MISS ELEANOR DAVIES (instructed by Dickinson Manier, Dorset)
appeared on behalf of THE RESPONDENT FATHER
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J U D G M E N T
Friday  8  September  2006

LORD JUSTICE MUMMERY:  I will ask Lord Justice Wilson to give the first judgment.

LORD JUSTICE WILSON: 
1.  A mother applies for permission to appeal against certain findings of fact, or more accurately a refusal to make certain findings of fact, contained within a judgment given in residence and contact proceedings under the Children Act 1989 by His Honour Judge Bond in the Bournemouth County Court on 30 March 2006.  In providing that the application be heard at an oral hearing and on notice to two of the three other parties to the proceedings, Wall LJ directed that, were permission to be granted, the substantive appeal should be heard forthwith.

2.  The two other parties to whom I have referred are the father and the Borough of Poole ("the local authority").  The father appears today by counsel and opposes the grant of permission and, if granted, the appeal.  The local authority, however, have written to the court to the effect that they played only a minor role at the hearing on 27 and 28 February and 2 March 2006, following which the judge handed down his written judgment on 30 March, and they explain that in those circumstances they do not intend to participate at this hearing.  There is a fourth party to the proceedings, namely the mother's present cohabitant; but he has no active role in the part of the proceedings with which this court is now concerned and thus he was not directed to be served with notice of this hearing.

3.  The proceedings concern three marital children, namely E, a boy, who was born on 3 January 1999 and is thus aged 7; A, also a boy, who was born on 11 July 2002 and is thus aged 4; and Y, a girl, who was born on 19 September 2003 and is thus aged almost 3.  All three children reside with the father; and the mother has contact with them on, presently, only a supervised basis.  The local authority, for their part, are satisfied, and indicated prior to the hearing before Judge Bond that they were satisfied, with the way in which the father is caring for the children and they take the view that the mother is unable to care for them.  In the proceedings, however, the mother applies for a residence order under which the children would move to reside with her and her cohabitant, or at least for an order for contact on an unsupervised basis.

4.  Prior to the hearing in February and March 2006 Judge Bond had conducted a number of interim hearings of the mother's application; and it had been intended that the hearing beginning on 27 February should be the final hearing of her application.  But in January 2006, when it became clear that the final hearing would have to be adjourned, the judge decided that the dates already fixed, namely one -and -a -half days in the afternoon of 27 February and in the whole of 28 February, should be used for a fact -finding hearing at which should be determined the truth of the numerous disputed allegations raised in the proceedings by the mother against the father, principally of violence both towards her and to a limited extent towards the children, but also in relation to other historical matters.

5.  It is certainly unusual in an application of this sort to sever the determination of factual issues from the overall enquiry into its optimum despatch in the interests of the children.  In care proceedings the situation is different in that section 31 of the Act of 1989 identifies a preliminary threshold which, by reference to proven facts, has to be crossed before a court is even empowered to make a care order.  I have also had experience of preliminary fact -finding hearings in contact cases of the sort in which a mother with the care of a chid is contending that, because of past violence to her or to the child on the part of the father, she cannot contemplate acceptance of any order for his future contact with the child.  To be frank, I have no knowledge of prior fact -finding hearings in a context such as the present.  But the expertise of Judge Bond, both at the Bar and on the Bench, has always principally resided in the area of disputes relating to children; and I am quite content to assume that it was sensible for him to hold the preliminary hearing which he did.  
6.  During her life the mother, who is aged 34, has suffered profound misfortune.  As a child, prior to being taken into care, she was regularly abused, sexually, physically and emotionally, by her step -father and also indeed by her mother.  Following her reception into care, she was subject to further abuse, including rape, and had as many as eight or nine short -term foster placements.  As an adult, she entered into further abusive relationships, of which she claims her relationship with the father to be one.  In April 2005 a consultant psychiatrist considered that she was suffering a complex post -traumatic stress disorder, with behavioural difficulties, a tendency to drug abuse and a host of other symptoms.  He suggested that she had a strong tendency towards somatisation, which is a psychiatric condition characterised by multiple changing physical symptoms which have no organic explanation.  His view was that treatment for her would be complex and difficult; that the prognosis was probably poor; and that she was likely to have long -term psychiatric symptomatology.  Indeed, by a report dated 25 January 2006, ie only a month prior to the hearing, Mrs Gaskins, a chartered psychologist instructed by all parties to make a report upon the mother, wrote, following interview with her, that in her opinion the mother's abusive, traumatic and disruptive childhood had resulted in her having an Insecure Disorganised Attachment style; that she exhibited Obsessive Compulsive Personality traits, Narcissistic Personality features and, perhaps most relevantly to the judge's enquiry, Histrionic Personality features.  Mrs Gaskins also gave oral evidence to the judge and it seems from his judgment that she accepted that the mother would be liable to give exaggerated accounts of events.  The judge reports Mrs Gaskins as suggesting to him that, insofar as the mother might give inaccurate evidence to him, it would be not because she was lying to him but because, as a result of her condition, she viewed the same situation in different ways at different times; that whatever she said she would be likely to believe to be true at the time when she said it; but that her disorganised personality gave rise to a lack of "joined -up thinking".

7.  Thus the judge was confronted by a singular difficulty relevant to the nature of the enquiry which he was undertaking, namely that, through no fault of her own, the person making the allegations, and very largely the only witness in relation to them, was professionally appraised as an unreliable historian.  That, however, was not the extent of the judge's problems.  His judgment shows that, having heard the father's evidence, he also had substantial reservations about his overall credibility.  The judge flatly rejected his evidence in various respects; suggested that, in that the father, who happens to be Tunisian, does not speak English as his main language, he was prone to use that deficit to his advantage when it suited him; and concluded that the father's demeanour revealed that he was prepared to lie if it suited him so to do. 

8.  Yet further difficulties were placed in the judge's way by the manner in which the issues were presented to him.  Two large bundles of allegedly relevant documents, whether or not filed earlier in the Bournemouth County Court, found their way into his chambers only one -and -a -half hours prior to the start of the case at 2pm on 27 February.  So that afternoon, instead of being used for the receipt of oral evidence, had instead to be devoted to his reading the principal documents.  The result was that the hearing was not completed, as scheduled, on 28 February and that the remainder of the oral hearing had to be squeezed into the judge's list at 2pm on 2 March.  Even then there was no time for the delivery of oral concluding submissions; and so instead, by consent, they were submitted later in writing.

9.  In the event belated concessions on the part of the father led to a few uncontroversial findings by the judge; and other of his findings, notwithstanding that they had remained in controversy before him, are not the subject of attempted appeal.  Thus, for example, the father accepted that in about 1996 in Tunisia he had been convicted in his absence of drug -taking and indeed of drug -dealing; and the judge found that it had been the prospect of the trial which, at least in part, had motivated the father to leave Tunisia and to join the mother in Europe before it took place.  The judge noted the allegation of the father, without accepting it, that, notwithstanding the conviction, he had not in fact been dealing in drugs.  The judge accepted the father's concession that, until the breakdown of the marriage in June 2005, he had smoked cannabis; but he rejected the mother's denial that she had done likewise.  The judge noted the fact that in England in 1999 the father had been convicted of shoplifting and he rejected the father's assertion that, notwithstanding the conviction, he had not been guilty of the offence.  The judge found, in accordance with the mother's evidence, that in September 2005, following the separation, in the course of a visit on her part to the matrimonial home in which by then he was caring alone for the children, the father lost his temper with her, albeit perhaps understandably, and that thereupon, inexcusably, he had assaulted her.  The judge, however, rejected an allegation by the mother that on 2 December 2005 the father had assaulted the oldest child.

10.  The first and second of the five grounds of proposed appeal relate to what was accepted before the judge to be the principal specific allegation made by the mother against the father.  It was that in May 1995, when the couple were living in Germany with the father's brother, the father over a period of two to three days seriously assaulted the mother, at the end of which he and his brother left her at the airport in order that she could make her way home to England.  It was the mother's case that, as a result of this protracted and vicious assault, she had suffered a permanent brain injury.

11.  Although the evidence before him in relation thereto could well have been clearer, the judge was prepared to accept that the mother had at some stage sustained, and continued to suffer from, a significant brain injury.  So the remaining issues before him were whether the father had assaulted the mother in Germany in May 1995 and, if so, whether it had been by reason of the assault that she had sustained the brain injury.  Having heard the parents give oral evidence and considered some significant documentary evidence to which I will refer, the judge's conclusions were that in May 1995 there had been an argument between the parents in Germany; that in the course of the argument the mother had thrown things at the father and the father had hit the mother; that, however, it had not been established that such was the occasion in which the mother had suffered the brain injury; that he, the judge, was unable to make findings as to the circumstances in which she had sustained that injury; but that the father had not been entirely frank about the incident in Germany and had minimised his role in it.

12.  We must not forget that, were this appeal to go forward on the first and second grounds, Mr Egleton, counsel for the mother, would have to establish to this court that it had not been open to the judge, notwithstanding the professionally confirmed uncertainties about the mother's credibility, to decline to find that it had been during the assault that she had sustained the brain injury.  

13.  So how would Mr Egleton attempt to jump that hurdle?  First he argues that the father's untrue denial of having perpetrated any assault at all upon the mother is likely to render his denial of having caused the mother's brain injury also to be untrue.  In my view such is a thin point.  His main argument is founded upon a statement signed by the father in October 2001 in support of an application for compensation which the mother was then making to the Criminal Injuries Compensation Board for compensation, I believe, referable to injuries sustained during a much earlier period of her life, prior to her relationship with the father.  Above the father's signature on that statement, which is basically typed, there is a handwritten addition as follows, namely:

		"I have told Dr Burn, the consultant for head injury, that I kicked and hit my wife and I am aware that as a result this has caused permanent frontal lobe brain damage.  This assault occurred in Germany, May 1995."

In his oral evidence the father asserted that the handwritten amendments had been made after he had applied his signature to the statement.  By mistake, as Mr Egleton now concedes, the grounds of appeal and skeleton arguments suggest that the judge did not record that assertion.  It is clear that he did record the father's assertion; and indeed he noted that it was an entirely new assertion.  It is also clear that he rejected the assertion.  The main thrust of these grounds of appeal is, however, that, in the light of the father's statement dated October 2001, it was not open to the judge to find otherwise than that the mother's brain injury had been sustained in the course of the assault in Germany.  I do not regard this allegation as arguable.  It is in principle for the trial judge to determine the truth of a retracted admission.  In three separate paragraphs of his judgment the judge considered the weight to be attached to the father's written statement in 2001.  In the light of the obvious difficulty which he had in reposing trust in the veracity of each of the parents, the judge was in my view well entitled to conclude that the father's statement had been created in 2001 by both of them at a time during the marriage when it had suited them to say what had been said in it; and that it did not follow that the injury had been sustained during the assault in Germany.

14.  In the first ground the mother goes on to argue that, in that, as she contends, the judge accepted that she had suffered a brain injury in May 1995, it was perverse for him to consider that it might have arisen otherwise than during the assault which took place in that month.  However, in the course of oral argument this morning, I put to Mr Egleton that the judge had not found that the injury had been sustained in May 1995.  Indeed the medical evidence was such that it seems only to have been diagnosed as a brain injury a year later.  In the end Mr Egleton was constrained to concede that the judge had not specifically found that the injury had been sustained in May 1995, although he appended a complaint that, if the judge was declining to find that it had then been sustained, he might have made his position clearer.  In any event it seems to me that, in the light of the fact that the judge did not make that finding, that particular argument referable to that month falls away.

15.  A second ground of appeal, linked to the first, is a general complaint that, in that in several parts of his judgment the judge made adverse comments about the credibility of the father, he should have been more sceptical of the father's retraction of his acceptance of responsibility for the injury.  But it was for the mother to establish that the injury had been caused during the father's assault.  The judge would have been subject to severe criticism in this court  had he not reminded himself of the high cogency of evidence required within any enquiry into the balance of probabilities before a very serious allegation of this type can be found to be established.  In my view grounds 1 and 2 have no arguable merit.

16.  Ground 3, which Mr Egleton has not pressed in the course of his oral submissions, but still, I assume, wishes us to consider briefly, is, frankly, extraordinary.  The mother made a general allegation that she had "been the victim of domestic violence throughout the course of her marriage".  The judge declined to find this established.  By ground 3 the mother would wish to appeal to this court upon the basis that it was not open to the judge so to decline.  How would she argue her case?  I can do no better than to quote in full the expansion of the third ground in Mr Egleton's skeleton argument:

		"5.1 The learned judge accepted that the incident of September 2005 occurred.  He also accepted that there was some violence in May 1995.  The appellant's case was that this was an abusive relationship and that there was violence throughout the marriage.  The learned judge failed to take into account the evidence on this point of Sandy Gaskin .... that [the mother], if assaulted, would not remember the details and would disassociate from the event.  

		5.2 Further there were again many references in the medical evidence to an abusive relationship....  Having regard to [the mother's] personality it was highly likely she would be in such a relationship."

So Mr Egleton wishes to contend that the stance of the judge in this regard is demonstrably wrong because: 

	(a) had she been the victim of regular assaults, the mother would not remember the details of them;

	(b) there were many references in the medical evidence to an abusive relationship between the parents; and

	(c) the mother has the type of personality which made it highly likely that she would be subject to an abusive relationship.

It cannot seriously be maintained that these points compel a finding of regular domestic violence against the father.

17.  The fourth ground of proposed appeal (also not the subject of oral articulation) is extraordinary in a different way.  It relates to the mother's ingestion of morphine.  In January 2004 she had been admitted to hospital after having taken an overdose of morphine;, and in the months thereafter she alleged that the father was deliberately over -medicating her with morphine in order to control and dominate her.  It seems that in June 2005 she ceased to take morphine.  Thereafter, however, in the proceedings she continued for a long time to maintain that in 2004/5 the father had in effect drugged her with morphine.  When, however, pursuant to directions given by the judge, the mother's lawyers drafted the schedule of allegations to be raised at the fact -finding hearing, they did not include the allegation that the father had thus so drugged the mother.  Miss Davies, counsel for the father, pointed out to the judge at the outset of the fact -finding hearing that apparently the mother was not proceeding with this allegation.  There was some discussion in relation to the father's alleged fear that, notwithstanding that she was apparently electing not then to persist in the allegation, she might attempt to revive it at a future hearing.  In those circumstances the judge permitted limited cross -examination of the mother on the part of Miss Davies on that point and a very limited examination in -chief of the father in relation to it, in which the father denied the allegation which had previously been made.  In his judgment the judge said:

		"12. Another issue in the case revolves around her taking morphine which was prescribed in June 2005 for pain relief.  It is suggested that she  tried to take more than prescribed.  She denies that but has asserted that the father deliberately caused her to take more in order to control her.  In the event she ceased taking morphine in June 2005.  On the evidence I am unable to find that the father supplied the mother with morphine in the manner that she suggests."

18.  Mr Egleton's complaint to this court would apparently be that, in that the mother was no longer seeking a finding in relation to the over -medication of morphine, it was out of order for the judge to refer, albeit as something which the mother "has asserted", to her allegation that he had thus over -medicated her; and equally out of order for the judge to declare himself unable to find the assertion to be true.  The argument would be that, in that it had been no part of Mr Egleton's brief at the hearing to pursue the allegation, the negative finding of fact was unfair to his client.  In my view, in the light of the tragic unreliability of the mother, it was entirely appropriate for the judge to note her past assertion and, having noted that she no longer wished to pursue it and that the father denied it, for him to find that it was not established.  Indeed in my view it was relevant to the mother's credibility on other issues that in the past she should have made an extremely serious assertion; that she chose not to put it before the court at the hearing designed to receive her allegations against the father; and that accordingly it had not been established.

19.  The fifth and final ground of proposed appeal relates to the observation made by the judge in the penultimate paragraph of his judgment as follows:

		"As far as the future of the children is concerned, it is clear that the mother, both because of her own difficulties and because of the concerns that remain about [her cohabitant], is not able to care for the children."

20.  Although, in listing this application for oral hearing, Wall LJ suggested on paper that it might perhaps be arguable that the reasoning behind the judge's refusal to conclude that the father had caused the mother's brain injury was too vague, being a preliminary reaction on his part with which, with respect and on examination, I cannot associate myself, his other reason for remitting the application for oral hearing was concern about the judge's penultimate paragraph.  The judge was conducting only a preliminary fact -finding hearing.  He knew that he would be giving directions for the further assembly of evidence referable to the mother's application for residence and/or contact.  Indeed we know that the final hearing of the application is listed to take place before him on 28 and 29 September 2006.  Was it not odd (so Wall LJ must have asked himself, and indeed I have asked myself) for the judge, without any specific evidence in relation to their future placement, to state that it was clear that the mother was unable to care for the children?  Was he perhaps thereby deciding the substantive application rather than the matter which he had chosen to sever for preliminary consideration?

21.  Let me say at once that, as no doubt Wall LJ would have said, I would not have expressed myself quite as the judge did at the end of a fact -finding hearing.  But does that make his paragraph fit for appeal and in particular for a possible direction by this court that a judge other than he should conduct the forthcoming hearing?  I am convinced that it does not do so.  This was an indication on the judge's part.  Judges nowadays, perhaps particularly in children cases, are encouraged to give indications, including, if appropriate, in forthright terms.  But, in that they are professionals, they know that they must be prepared to be persuaded to depart from indications previously given at any time up until formal judgment.  The concerns about the mother's cohabitant, to which the judge referred, are concerns that, early in his life, he committed offences which now cause him to be labelled as a Schedule 1 offender.  It was that which rightly led the judge, at a later directions hearing, to direct the NSPCC to prepare a risk assessment in relation to him.  I must be careful not to prejudge the outcome of that assessment, which may of course prove negative, about the safety, even today, of any child who might be resident with him.  But, putting the history of the cohabitant apart, it was to my mind reasonable for the judge to consider, even at the preliminary stage at which the case was when he delivered this judgment, that it might be helpful for him to indicate that, as the evidence then stood, the mother was unable to care for the children.  Although the local authority's opinion is never decisive, it was clearly of relevance that they were already then of the view that the mother was unable to care for the children.  By contrast, they considered that the father had been satisfactorily caring for them for the previous seven months.  But what in particular justified a firm indication  - - and perhaps recommended it  - - was the very recent report of Mrs Gaskins.  In it she said as follows:

		"While [the mother] has stability in her life and minimal stresses she is able to provide good parenting and keep her children safe.  However when she is under pressure and feeling vulnerable, her behaviour becomes disorganised and she will experience conflict between her own needs and those of her children.  

		This is a sad situation because [the mother] does not intend to be a poor parent.  This response is purely a result of her own childhood experiences.  She genuinely wants to overcome the trauma of her past and give her own children a better experience than her own.  But this is very difficult when she does not have a clear model of good parenting that she can hold onto under stress.

		....

		In this current climate, [the mother] is in too much emotional chaos to be able to focus on any therapeutic intervention.  The same emotional upheaval results in her disorganised and often unhelpful responses.  In short the results of my assessments and interviews with [the mother] are in agreement with Dr Veasey.  An early completion of this case will benefit her psychological well -being and thereby her relationship with her children."

22.  We must give this judge credit for his particular sensitivity in the despatch of children cases.  I am convinced that, perceiving the present evidence to be so antithetical to a change of the children's residence to the mother, and in particular perceiving the professional appraisal that early completion of the case would benefit her psychological wellbeing and therefore her relationship with the children, the judge considered that a firm indication at that stage that, on the evidence as it stood, a transfer of residence was inappropriate and that the ambit of the case might wisely be reduced to issues in relation to contact, would be helpful above all for the children, but also, as it happened, for the mother.  

23.  What has been happening in court today in terms of the mother's deep distress, demonstrated at an earlier stage and now again as I attempt to complete my judgment, only serves to underline the stress which the continuation of this litigation is placing upon this unfortunate woman.

24.  I consider that this is a judge who, like all other good judges, can put early indications, however firmly expressed, out of his mind and can be entrusted with the conduct of the forthcoming hearing.

25.  I would refuse permission to appeal on all grounds.

26.  LORD JUSTICE MUMMERY:  I agree.  Is there anything else?

27.  MR EGLETON:  I would ask for public funding assessment of the applicant's costs?

28.  LORD JUSTICE MUMMERY:  Yes, detailed assessment for public funding.  Miss Davies?

29.  MISS DAVIES:  My Lord, May I have the same order?

30.  LORD JUSTICE MUMMERY:  Detailed assessment for public funding and permission to appeal refused for the reasons that have been given.