Case No: B4/2012/1030 
Neutral Citation Number: [2012] EWCA Civ 1307
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HIS HONOUR JUDGE MARSTON)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 24th July 2012

Before:

LORD JUSTICE WARD
LORD JUSTICE AIKENS
and
LADY JUSTICE BLACK
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	In the matter of W (children) 	

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Ms Sarah Earley (instructed by Larcomes LLP Solicitors) appeared on behalf of the Appellant Mother

Mr Ian Newport (instructed by Biscoes Solicitors) appeared on behalf of the Respondent Father.
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Judgment
Lord Justice Ward:

1.	This is an appeal brought by the mother of two children, a boy now aged 12 and a girl soon to be ten years old.  It is an appeal against the order made by HHJ Marston in the Portsmouth County Court on 3 April 2012.  The order as drawn is, I regret to say, defective in that what it orders is: 1) Judgment is handed down; and 2) More understandably, time running on the appeal is suspended until Monday 16 April.  In fact what the judge was ordering, as is apparent from the judgment he did hand down, was that he was refusing this mother's application to reopen and in effect set aside and rehear matters that were previously before HHJ Black in the Portsmouth County Court on 25 August 2009.  

2.	Let me sketch in the background leading up to that 2009 hearing.  These parties met in 1989 and married in August 1999.  It was an unhappy marriage and they separated in 2008 and they divorced in 2009.  The proceedings relating to the children seem to have begun with an application by the father for a residence order, and to resist that application the mother made a series of serious complaints about the husband's behaviour, at that stage behaviour towards her.  They were directed to be set out in a Scott schedule, which is before us.  To summarise those allegations they are specifically that on her 18th birthday father forced mother to have anal sex with him but then, more generally, over a period of eight years from 2000 to June 2008 the father raped mother on an average of once a month, both vaginally and anally, including when she was pregnant, as is recited in allegation 6 of that Scott schedule.
3.	There are in additional some allegations of physical violence, one in particular that where the mother alleges that the father shoved her against a bookshelf causing her to split her lip and chip a tooth, leaving her with a permanent scar on her lip, to which the father responds that she fell out of bed and hit her head on a bedside table and bookshelf.  There is another allegation that he gave her a black eye.  There are also other allegations that the father encouraged mother to self-harm, joining in such activities and telling her that he would rather see her dead than with someone else, this at a time when she may have been having an affair with a man with whom she certainly did associate after the separation of the parties.

4.	Those allegations were directed to be tried in a fact-finding hearing over two days and that matter was listed before HHJ Black, who was managing the case at that stage.  On the day, 25 August 2009, counsel for the mother asked to see the judge with counsel then for the father, neither of those members of the Bar appearing before us today.  The transcript of what has happened before the judge has now been produced to this court, although it was not available to HHJ Marston.  I have read that transcript.  The judge was careful to ask whether everyone was happy for counsel to see her directly in the absence of the parties and mother's counsel confirmed that was the position.  In a statement prepared for these proceedings the mother agrees that she was happy for counsel to see the judge.

5.	Trying to summarise the discussion, it seems that mother's counsel, acknowledging the standard of proof that was upon the mother and the allegations over many years on a monthly basis, said to the judge that it would be difficult to see how the court could make a positive finding or indeed a negative finding and the judge may therefore come to the conclusion she could not make a finding one way or the other.  She posed the question one has to ask, namely where that would take the court in the terms of the proceedings then before the court, which seemed to be concentrating on the father's contact.  The judge acknowledged that, and there was therefore some discussion about the allegations set out in the Scott schedule.

6.	Counsel for the mother then indicated to the judge that mother had expanded upon her complaints and was now also complaining about his behaviour to the children, though the only specific matter she could relay to the judge was an allegation that mother had seen father hitting the boy about the head.  She explained that her instructing solicitor was making further inquiries and would detail those further allegations as soon as possible during the course of that day, because the judge made it perfectly plain that she would deal with any further allegations there and then without delaying the case any further.

7.	So those further inquiries were made and they are now set out on a further schedule, which recites with regard to the children that the father would hit the boy about the head almost on a daily basis and call him stupid; that he would punish the boy; that he did not treat the children equally; and fourthly that the father would touch the daughter inappropriately, not in a father-daughter manner but more intimately than expected by a father. As I read the transcript, of the proceedings I am not sure that the judge was made aware of that fourth allegation.

8.	The judge, that is to say HHJ Black -- pragmatically and sensibly in my view --- enquired what the true nature of the dispute was going to be.  And if and insofar as it was a matter of contact, it was important, she considered, to understand the mother's case.  She said: 

"Now if that was her case so she was saying ‘No contact ever because I emotionally will never be able to deal with this’ which I would have a great deal of sympathy with, I think probably all of us would have a great deal of sympathy with and be on her side.  So this was a complete no contact case, I can understand that ...

But I cannot understand...Even with the new allegations, what I will always want to know as a start point is...she is the mother of these children...  If she is coming in to say, notwithstanding all of this, ‘This is what I think is the way safe contact for my children can continue’ short term, long term et cetera, et cetera, that is how I would be informed.  And I would like you firstly to find out, whatever happens, there will be contact starting as soon as it can be sorted out.  There is no reason why it shouldn’t be.” 

9.	So the judge was asking instructions to be taken about whether the mother was saying no contact at all or whether she was accepting that there should be contact, which would progress if it was shown to be successful and the case was therefore adjourned for mother to be advised.

10.	Counsel then took instructions and returned to the judge and, in a long passage which I need not read in full, counsel for the mother made it plain as follows: 

"My client's position is this.  That notwithstanding any of the allegations that she still generally believes are true that she would like the children to see their father in a controlled environment and if he is able to behave appropriately and have a father, child relationship with them she would wish contact to progress."

And she then set out how that would happen. Counsel told the judge:

"She understands that that would mean drawing a line in the sand in respect of her allegations both the ones she has detailed in her statements to the court and those she has raised today in respect of dad's conduct towards the children specifically."

And I omit further words: 

"She is very clear she wants the children to enjoy their relationship with their father."

I omit more passages: 

"Your Honour, as I say, my client does understand that this will be drawing a line under her allegations.  She is not withdrawing them in the sense that she does not accept they are fabricated and if I could say that does not strike us as a situation where this woman genuinely believes what she is saying. Whether that is objectively how events have occurred is a different matter and I know that it is a point that troubles my learned friend."

11.	So, in the light of that discussion, the judge was being asked not to proceed with the hearing before her and left it to counsel to prepare a draft order, which had recitals giving full effect to the understanding they had reached.  The matter was therefore further adjourned for that process to take place and the parties then finally came back before the judge, this time with their clients present and an order was made, and it is necessary to emphasise the fact, by consent.  The order was simply that the mother would make the children available for contact in accordance with a schedule that was attached to that order, but importantly the recitals to the order of 25 August 2009 read as follows:

"UPON HEARING COUNSEL for each of the parties.  

AND UPON the Respondent Mother not seeking to pursue positive findings in respect of the allegations raised by her in the Scott Schedule and in the list here attached.  It being noted by the court that the allegations made on the list were first made at Court today.  

AND UPON the Respondent Mother understanding that notwithstanding that fact that she is not withdrawing her allegations, she will not be able to put forward specific allegations as reason(s) for a bar against contact or future progression of contact between the children and the Applicant Father or in relation to residence and the Mother understanding that matters will proceed on the basis that [I think it should be] no negative findings have been made against the Father.  

AND UPON the Court recording that no findings of fact have been made against the Applicant Father and that the Applicant Father continues to deny all allegations made against him by the Respondent Mother. 

AND UPON the Court recording that as no allegations have been proved against the Applicant Father, no professional assessment of him should be on the basis of the concerns against him by the Mother in the Scott Schedule and list attached herewith, and any assessment should proceed on the basis of events as described by the Mother as having not occurred."

12.	That was the order put before the judge, though in the discussion that followed it is relevant to observe that when the judge saw that draft it was she who said: 

"There is a residence application as well so it would follow in relation to residence... I was about to write that in but I thought I had best not, not until I actually say to you that I think it should go there as well as an understanding."

Counsel for the mother responded:

"Your Honour, that is purely an oversight on my behalf."

And so that draft order was made and HHJ Black concluded that hearing by saying this to the parties:

"...I am glad that at least this part of the case has now been, as far as I am concerned, put to bed. There is a line in the sand and I am simply going to be considering this case on what is in the best interests of these children looking at the case moving forward from here.  Which parent is going to be in the best position to offer long term care to these children and how it is best that the other parent has a good lasting and fulfilling relationship with their children.  Okay?  That is it in a nutshell.  That is the only thing I am concerned about."

13.	And so the matter went off for the court to manage this progressive contact and that resulted in a number of further hearings taking place before HHJ Black.  They resulted in orders being made again by consent on 24 September that contact should take place as directed.  There was a final hearing of the matter on 24 September 2010 where again counsel was instructed.  I understand, I hope correctly, that although counsel that had represented the mother on the occasion I have dealt with at length on 25 August appeared for the mother on one of those occasions, other counsel appeared for her thereafter, and Ms Earley who appears before us today appeared for her on 24 September when the final order was made by consent.  It is significant that that order for contact was that there should be staying contact alternate weekends, that the parties would agree holiday contact no later than two months before the holiday commenced.  The importance of those hearings is that they were an implementation of the plan envisaged by HHJ Black for progressive contact leading to the mother being satisfied that the children stay overnight and for holidays with this father. 

14.	She is undoubtedly a troubled young woman.  She alleges that she was abused as a child and that it has affected her mental health.  There are psychiatric reports documenting that fragility.  It is sadly demonstrated by the events that happened in March of 2011 she reported that in some consensual sexual activity with the man she was living with, she sustained cuts to her genitalia.  Very little detail is given about this.  Subsequently she may have said that it was self-inflicted.  She had, as is apparent from the recitation of the facts made, a number of attempts at self-harm and sadly matters came to a head on 8 December 2011 when the children woke as usual went up to her bedroom and found her having taken an overdose, distressingly for them finding, as it is said, blood coming from her nose. As a result of that and the intervention of the school and the social services department, the children were placed in father's care.  He had issued an application for residence of the children on 8 August 2011, and on 22 December 2011 an order was made without notice to the mother, who was apparently in hospital, that the children should reside with the father.  Thereafter the court gave sundry directions for the resolution of what had become a disputed residence application.

15.	Mother sought then to resurrect the allegations she had abandoned before HHJ Black, and at a directions hearing in February 2012 the court agreed that the matter should be determined as a preliminary issue.  It is a pity that there is no formal application or no order directing exactly what that preliminary issue should be, but the effect of it undoubtedly was that the mother was seeking to set aside the order made by HHJ Black in August 2009 and was wishing to have tried all of the issues which had been abandoned on that occasion.  

16.	In support of that application, mother filed a witness statement of 9 March 2012 in which she set out her dealings with counsel who then represented her and I make it plain again, if it need be made plain, that it was not Ms Earley.  On the contrary she explained that she had a good relationship with Ms Earley but found that new counsel gave her "a very hard time" when they met in conference, testing her evidence.  She explained that she was beginning to feel it was all hopeless and that her resolve to go through with things was starting to crumble.  She said: 

"12.  I know it sounds dramatic but I would use the word tyrannical to describe [counsel’s] approach.  I was very scared and I do not believe she gave me balanced advice. 

13.  [She] suggested that she should go and see what the judge had to say and I agreed.  I recall she came back and indicated that the judge had said that she would have difficulty in making a positive or negative finding but that we could do things by way of recital.  I think at that point that [she] was doing all that she could to dissuade me from testifying and although she did not say it I was left in no doubt she thought I was wasting the court's time.  I felt bullied and I had lost all confidence."

17.	It may be that that allegation should be contrasted with how she had earlier approached the hearing before HHJ Black.  In a witness statement of 22 December 2009, that is to say some four months after the hearing before HHJ Black, she said only this:

"I am aware I am no longer allowed to bring these matters into the Children Proceedings, but can confirm I am still on the waiting list to see a counsellor from the Portsmouth Rape Crisis Team but I will not let the past, in respect of myself, have any weight to my views and the children's views of contact with their father."

In the same witness statement she dealt with the harm that the children could suffer and she said: 

"I am aware this cannot be brought up again in these proceedings."

18.	There are certainly no mention of bullying or of her not fully understanding the nature of the compromise there had been effected.  She put in her own witness statement in January 2012 when she was without legal advice and there she said: 

"When the fact-finding hearing came up I had an alternative barrister, who advised me that the hearing would not achieve anything, as the Judge viewed the evidence and had said that even with testimony from all the parties involved, she would find it very difficult to make a decision either way.  It was not made clear to me at the time that the fact finding hearing it was necessary for the facts of the case to go on record, whichever way the Judge ruled.  I felt, and still feel that some elements are central to the case, and [father's] ability to parent (such as the fact that he abused me and raped me throughout our marriage, and that I was in fact under the age of consent when he first attacked me)"

Again, there is not a complaint of being put under pressure by counsel through bullying nor of a failure fully to understand the compromise she had reached.

19.	So the matter came before HHJ Marston and he refused to allow mother to re-open the fact-finding inquiry.  He gave as his reasons firstly that HHJ Black was perfectly entitled to abandon the hearing.  I agree with him.  Having seen the transcript of the proceedings before HHJ Black, I cannot see that her conduct of the matter can be criticised in any way at all.  Secondly, he considered the possibility that the mother's account was correct and that she was bullied and he dealt with that by saying: 

"The difficulty that she has is that the case has moved on so much since that hearing. The purpose of a fact-finding hearing is to provide terra firma upon which the courts and the professionals called upon to advise them can operate.  The ground needs to be firm as often it has been said but it also needs to be the same ground.  I could see the argument for having the fact find in those circumstances a year and a half ago but now the geography has changed and the Court it seems to me is on some very firm ground indeed which is shared by all of those assessing the case apart from the Mother.  "

20.	The third fact he took into account was the collapse in her mental health and the very firm views expressed by the children, the evidence being that they were doing well in their placement with their father and the evidence that the boy in particular would be disastrously affected by further uncertainty.  Those were new facts he had to contend with.  He said that he did not consider it could be appropriate to have a fact-finding hearing at that stage.  He was of the view that : 

"It seems to me that I would have to have a full hearing with evidence about what took place on 25 August 2009 in the event that I was then convinced that the order as drafted was only agreed to by the Mother being bullied into it.  I would then have to have a full-scale fact-finding hearing and that even if in fact there were findings made those would present now a very small part of a complex picture virtually all of the other components of which support the Father's rather than the Mother's case.  In the meantime the children would be in limbo as is clear from the most recent report from  [the social worker] in this case dated 23 February 2011."

21.	After commenting at page 6 of that report that the children are expressing their desire to live with their father, she goes on to say this : 

"The children are currently experiencing uncertainty and confusion and it is felt that the only way that this can be addressed is by the court making a final decision on the 27th of February 2012 with regards to where the children should reside for the remainder of their childhood. The Local Authority has significant concerns that any further delay will not be in the best interests of the children who need stability and finality. "

Thus he concluded it was wholly wrong to allow the matter to be reopened, that it was disproportionate and inappropriate and, significantly, completely against the children's best interests.

22.	Ms Earley has valiantly attacked the judgment.  Her submission is that these are very serious allegations of misconduct by this husband to his wife and that they would demonstrate, if established, that his personality is such that he would present a risk of emotional harm to the children  were they to be in his care. The allegations, she submitted, in summarising her case in a nutshell: 

"...are so serious that they cannot be ignored.  It is not serving the interests of justice or the children to decide residence without finding the facts.  "

23.	She relied on a judgment of McFarlane J (as he then was) in Re W (Care Proceedings: Litigation Capacity) [2008] EWHC 1188 (Fam), [2010] 1 FLR 1176.  In that case a baby had suffered a fractured leg.  There were criminal proceedings that followed that event and the step-father pleaded guilty to causing grievous bodily harm to the child.  He sought in the family proceedings to withdraw that plea of guilty and he asked that the family court should grapple with whether or not he had in fact injured the baby.  McFarlane J said at paragraph 72 of his judgment:

"...I regard this finding as important.  It is important that the planning in the future of these children, particularly [another child], is based upon as correct a view of what happened to [the baby] as possible.   It is not in the children's interests, or in the interests of justice, or in the interests of the two adults, for a finding to be based on an erroneous basis."

His fifth reason was that there had never been a full hearing of the issue in the sense of a detailed evaluation.  But, finally, to conduct a reopened hearing on the fracture would not cause any delay.  

24.	I, of course, entirely agree that it is in the interests of justice and in the interests of the children that the truth be known where the truth can be established, but in all of these cases the court is required by Section 1 of the Act to have regard, among other matters, to delay which is inimical to the well-being of the children.  In this case there is nearly three years of delay or two-and-a-half years of delay and, as HHJ Marston rightly observed, matters had moved on considerably since that hearing.  Matters had moved on because mother had suffered a further breakdown in her mental health.  She was unable to care for the children.  They were placed with father.  They were subject to supervision by the social services department, who were well aware of the fact that these allegations had never been tried out one way or the other, but being alive to that fact nonetheless came to the very firm conclusion, as I have recited from the report of the social worker, that the best interests of the children lay with their remaining with their father.

25.	The appeal has to be, in my judgment, an appeal against, in effect, a case management decision by HHJ Marston as to whether or not this matter should be re-opened.  It may be a matter of debate as to whether the more appropriate course would have been to have appealed.  This is not a case where the court is being asked to consider fresh evidence or different evidence from that which had been presented to the court which had undertaken the exercise.  Here, in effect, the gist of the application is to set aside HHJ Black's order and to have a rehearing. That, one may think, was better a matter for appeal rather than to go back to the same or a different county court judge, but I need not express a concluded view on technical issues of that sort. 

26.	Treating this as an exercise of discretion, Ms Earley attacks it as being plainly wrong.  In my judgment it was plainly right. The judge was fully entitled to look at delay, to look at the way of the mother's allegations of bullying had gradually grown as the case progressed, and to have regard to the fact that the mother was perfectly happy to leave these children in the father's care unsupervised and unsupported for weekends and over holiday periods.  She consented to all of those orders.  She was aware of the effect of the compromise in August when she agreed those orders.  She did not then complain.  She complained only when the case had changed and she was now the one seeking residence from father, who had the backing of the social services in retaining the children in his care.  

27.	To re-open the matter would undoubtedly cause further delay; the effect on the boy who suffers sadly from a problem of his ill health would be severe; and the judge, taking all of those matters into account, was fully entitled to say that it was far too late to re-open matters.  He was correct, moreover, to take the view that it would have been disproportionate, because one has to ask what prospect was there on the face of the papers before the court of mother succeeding in establishing the vague allegations she was relying on, allegations over many years with no corroboration apart from a broken tooth, which could have been explained as easily on the father's account as on her account.  There was little medical evidence, it seems, to corroborate her account.  She was on her own admission inconsistent in her explanations of misconduct, in her reports to the psychiatric team who were advising her.  She was inconsistent about the events of March 2011 when she suffered an injury, as she at first put it, in the course of sexual activity, which was to say the least unusual.

28.	Taking a view as to the prospects of her success, they could not be put as anything like reasonable.  On the contrary, they appear, as the judge concluded, to be weak.  What was the benefit to the children?  In my judgment not a great deal.  The allegations against the mother do not appear to have impacted upon his treatment of the children, who as I have repeatedly said are thriving in his care.  

29.	For all those reasons, I conclude the judge was right to draw the line where he did.  I would therefore dismiss this appeal.

Lord Justice Aikens: 

30.	This is an attempt at appealing a case management decision of HHJ Marston.  The exercise of his discretion in reaching his case management decision was not in my view plainly wrong.  On the contrary, it was in my view plainly right for the reasons which have been given by my Lord. I agree with those reasons.  I too would therefore dismiss this appeal.

Lady Justice Black: 

31.	I agree with both judgments. 

Order: Appeal dismissed