IN CONFIDENCE

Case No: RM11P0232 & RM11F02333
IN THE FAMILY COURT AT EAST LONDON

11 Westferry Circus,
London
E14 4HD

Date: 02/07/2015

Before :

HER HONOUR JUDGE CAROL ATKINSON
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Between :

	DN	Appellant	
	- and -		
	RN
R, TJ & M	1st Respondent
2nd, 3rd & 4th Respondents	

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Mr Stuart for the Appellant
Mr Dudley for the Respondent
Mr Munro for the 2nd, 3rd and 4th Respondents (through their Guardian)

Hearing dates: 2nd July 2015
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JUDGMENT
HER HONOUR JUDGE CAROL ATKINSON: 
1.	R is a boy (born 13.06.04) and now aged 11. TJ is his brother (born 06.06.06) and now aged 9 and M, the youngest of this sibling group is a girl (born 31.05.09) and now aged 6.  The children live with their mother, (“mother”), DN. Their father (“father”) is RN. 

2.	The parties met when the mother was 15 and the father was 17.  They married in 2007 and lived in the Dagenham area until they separated around October 2011.  The children have not seen their father since then.  

3.	 Proceedings commenced a month later when the mother applied for a non molestation order and prohibited steps order against the father.  Her allegations at that point were of physical assaults against her throughout their marriage from December 2007 until just after their separation in November 2011.  No specific allegation of sexual violence was made and only fleeting reference to a physical assault on TJ.  The father denied these allegations seeking contact to his children. The decision was made that the factual matters needed to be resolved. The matter was listed for a fact finding hearing.  

4.	A schedule of allegations was directed to be filed by the mother and a response from the father.  The case finally came before DJ Timothy Bowles for that fact finding hearing but not until October 2014.  It would appear that part of the reason for that delay was the decision to allow the criminal trials in respect of some of these allegations to proceed to a conclusion.  They did and they all ended in acquittals.  So four years after the allegations were made the mother pursued her allegations before the family court.  

5.	For reasons that I am still struggling to understand this fact finding hearing unfolded before DJ Bowles over a total of 9 days – 6th, 7th, 10th, 22nd and 24th October; 5th, 17th, 27th and 28th November and 5th and 22nd December 2014 – very few of which were even consecutive.

6.	To be fair to DJ Bowles, the case was dogged by changes in the mother’s case.  For example, the application to file an amended schedule of findings on the morning of the hearing which added allegations of rape, the last minute appearance of evidence and witnesses.  It is worth observing that the District Judge decided on each occasion that it was in the interests of these children that he should allow all arguments (virtually) to be run.  The papers in the case must have been voluminous.  It would appear that a decision was made to permit parts of the evidence given in the crown court to be transcribed. In my assessment, DJ Bowles left no stone unturned.  

7.	At the conclusion of the hearing, on 22nd December, DJ Bowles delivered his Judgment.  In summary, he found only one of the allegations made against the father proven and to a lesser degree than asserted in the schedule.  Significantly, he did not find the domestic violence or rape allegations or the major allegations regarding the abuse of the children proven.  He did not make the finding sought by the father that the children were coached but did conclude that mother’s relocations had been borne out of a desire to frustrate her contact between him and the children rather than any genuine fear.  He then timetabled the hearing to 19th January 2015 at which hearing he intended to consider the next steps in the father’s attempts to re-instate his contact.

8.	On 19th January 2015 the mother filed a notice of appeal against the decision made on 22nd December 2014.  The notice was presented to DJ Bowles at the hearing on the same date.  The proceedings were effectively stayed awaiting the outcome of this appeal. The District Judge gave permission to the mother to secure a transcript of the evidence heard at the hearing before him – the costs of which were to be borne by the mother’s public finding certificate.  I pause to observe, though it has no bearing upon the appeal, that I am at a loss to understand why transcripts of the whole of the evidence was necessary, or indeed even of parts of the evidence, given the fact that there seems to be agreement regarding what was and what was not said in evidence. 

9.	I am told that there was an application for permission to appeal made to DJ Bowles and that it was refused but the order does not record that decision and I have no note of the reasons.  The case was transferred to this court to be dealt with by a Circuit Judge.

10.	The appeal was first considered on paper by HHJ Purkiss on 2nd February.  On a number of the points raised she noted the failure of the Appellant to seek further clarification from the District Judge and so she remitted the case back to him to provide additional explanation on the points that she highlighted.  District Judge Bowles provided those additions to his Judgment in a short note dated 5th February.  The matter was put back before HHJ Purkiss.

11.	On 12th February 2015 HHJ Purkiss refused permission to appeal on all 9 grounds setting out full written reasons in a document running to 4 pages in length.  In accordance with the appellant’s right to request an oral hearing on her permission application, the mother’s solicitors filed a lengthy document entitled “Statement” dated 19th February setting out why she felt the learned Judge should reconsider the application for permission to appeal at an oral hearing.  I am not sure when that document arrived at this court but before the case could be listed for an oral hearing of the application further events intervened.

12.	On 17th March 2015 District Judge Bowles was removed from judicial office following an investigation into an allegation that he had viewed pornographic material on judicial IT equipment in his office.  The material did not include images of children or any other illegal content.  However, this was considered to be an inexcusable misuse of his judicial IT account and “wholly unacceptable conduct for a judicial office holder”.  

13.	On 18th March, together with an enquiry as to the progress of their application for an oral hearing, solicitors acting for the mother wrote to the court lodging a fresh ground of appeal based on the fact of DJ Bowles’s dismissal and its apparent association with sexual matters.  Ground 10 argued his lack of judgment, as demonstrated by his dismissal, and argued that the pornography added a sexual element to that lack of judgment directly relevant to the issues that he had tried in this case.  

14.	The matter was put before me because the solicitors acting for the mother indicated that the matter should be transferred by the DFJ to be heard by a High Court Judge as an “important point of principle” was raised by Ground 10.  I disagreed and no-one has sought to argue that issue further.  I nevertheless listed the matter before myself for an oral hearing on the permission, to be followed by the substantive appeal, if successful.

15.	The hearing of this application has been delayed whilst we awaited the transcripts of evidence.  When they were not available at the first hearing I was prepared to go ahead without them as I did not see they were necessary.  However, mother’s Counsel was not here and I was persuaded to adjourn because if I was to go ahead without transcripts it seemed to me, out of fairness to the mother, I needed the lawyer here with equivalent knowledge of the first instance hearing to the father’s representative.  I took the opportunity to limit the transcripts to those already actioned and warned that if they were not ready for the next hearing we would proceed without them.  We then suffered problems with identifying dates that Counsel could make and I was ill on one occasion.

16.	  So it was that on 11th June 2015, 6 months on from the decision made by DJ Bowles that there was no evidential basis for the assertion that this father has been the perpetrator of violence or sexual abuse against the mother or violence against the children, the mother’s appeal was listed before me to hear.  On the day before the hearing the mother’s representatives contacted the court and the father’s representatives stating that she intended to withdraw her application for permission.  They asked for the case to be vacated and directions made to enable the matter to proceed as directed by DJ Bowles.  The father’s team, shocked by the sudden turn of events refused to agree the vacation of the hearing and the parties nevertheless appeared before me.

17.	I note that the mother does not retract these allegations.  Nor does she state that she is accepting of the findings made.  Her main motivation in withdrawing from the appeal is cost – not that she will be saddled with a bill of costs but rather, she risks not having enough left in her publicly funded pot to continue to be represented after the appeal has been concluded.  A secondary consideration was, it would seem, the “welfare of the children” and the impact upon them of this continuing litigation.  Unsurprisingly, the father expressed his concern that if given simple permission to withdraw her appeal then these allegations would almost certainly surface to be litigated again in some form or other.

18.	Accordingly, although I have decided to give permission for the mother to withdraw her application for an oral hearing in relation to Grounds 1-9, I have decided to do so only after I have made a decision on Ground 10 effectively as I would have done on the papers.  By this means there will have been a merits based decision recorded on each of the Grounds.

The Judgment
19.	I have read the Judgment of DJ Bowles in preparation for hearing this appeal.  At paragraph 7 of the Judgment the District Judge accurately recites the burden and standard of proof.  He then divides the allegations into three distinct and logical categories – domestic abuse, marital rape and child cruelty.  

20.	Starting with the domestic abuse he rightly observes that the major part of the evidence in support of these allegations comes from the mother, supported to a lesser extent, by the maternal grandmother and so “much turns on the reliability and credibility of the evidence given by the mother”

21.	The Judge sets out verbatim the inconsistencies relied upon by the father’s Counsel and having done so says that “having heard the mother give her evidence” he adopts those concerns as to mother’s credibility.  He then sets out further matters in her evidence which separately and additionally caused him concern regarding her credibility.  

22.	The Judge relies upon the evidence of Lisa Doe, a friend of the mother’s who did not give oral evidence but did in the Crown Court. This is one of the witnesses whose evidence was transcribed for the family proceedings.  This witness significantly undermined the mother’s account and supported the suggestion that she was fabricating the allegations to get an injunction against the father.  It is indicative of the care that the Judge took in his Judgment that he reminds himself that this witness’s evidence was before the court in the form of the transcribed evidence from one of the criminal trials and as such that evidence was hearsay.  He properly directs himself that he has to bear that in mind as capable of affecting the weight to be attached.

23.	His essential conclusion on these allegations is that “the court cannot be wholly satisfied by the evidence given by the mother in relation to the allegations of physical abuse.”  He summarises why that is, gives himself a Lucas direction in case he can salvage anything valuable from what he has by this stage determined are lies but ultimately concludes that her evidence was neither compelling nor convincing and as such she has failed to prove her case on these allegations against the father.

24.	The Judge next moves onto the rape allegations and then identifies the difficulties in the mother’s evidence on this issue.  He rightly observes that he is entitled to bear in mind the conclusions that he has reached as to credibility in relation to the domestic abuse allegations and likewise concludes that he cannot be satisfied that the allegations are made out.

25.	On the child cruelty allegations he dismisses the first allegation that the father had given TJ a severe beating on the basis that the extreme account given by the mother was not supported by any medical or other supporting evidence.  He rejects the allegation that the father had physically harmed M on a similar basis that the description given by the grandmother would have resulted in serious damage and yet none was reported to a GP.  In relation to the remaining two allegations on this issue the Judge had the benefit of ABE interviews of the children.  He considers these interviews carefully and accepts that the father did inappropriately “kick” R to get him up off the floor though not in the extreme way described and he rejects the allegation that he caused a scratch to TJ on the basis that the description given by the child is inconsistent with the photograph showing a red mark.

26.	Turning to the father’s allegations he considered that there was insufficient evidence to prove that the children had been coached but was satisfied that there was ample evidence to support the suggestion that the mother was unafraid of the father and had relocated in order to move the children away from their father and not because she was afraid if him.

27.	The additional document provided by the Judge at the request of Judge Purkiss supplements this Judgment.

Ground 1-9
28.	First a brief word about Grounds 1-9.  I do not have to make a decision on these Grounds. I have read the decision made by Judge Purkiss and wholly agree.  It seems to me that these Grounds divide into two essential complaints.  Firstly that the Judge was not entitled to draw the conclusions that he did about the mother’s credibility and secondly he had taken insufficient account of the father’s evidence which was undermining, it is argued, of the father and by that means supportive of the credibility of the mother.

29.	It seems to me that the Judges refusal to make these findings is entirely based upon his assessment of the mother as a witness.  As the fact finder that assessment was entirely his.  Nothing is raised in the grounds which supports any legitimate concern that the assessment was flawed in any way.  It is a reasoned assessment.  Once the Judge had decided that the mother could not be relied upon as a witness of truth her case was at an end; she had failed then to reach the necessary evidential standard.  That situation could not be saved by the father even if he had been a dreadful witness – unless, I suppose, he had confessed – which he did not.  The burden of proof was hers.

30.	For the avoidance of doubt then by permitting the mother to withdraw her application for an oral hearing on her permission application, the written reasons of Judge Purkiss refusing permission stand and the appeal on Grounds 1-9 is thereby dismissed on the merits.  

Ground 10
31.	I turn now to the additional Ground which reads as follows:
“the decision of the DJ in this matter related to various matters of a sexual nature…
 it demonstrates the poor exercise of Judgment in relation to matters of a sexual nature…it demonstrates poor exercise of judgment more generally…justice has to be seen to be done and the public would have no confidence in this DJ dealing with a matter of a sexual nature”

32.	The skeleton argument develops two arguments between paragraphs 88 and 93:
a.	The removal of the District Judge from office demonstrates that he had conducted himself in a manner inconsistent with the high standards of judicial office expected of the judiciary and shows a lack of judgment which is undermining of his decision making generally;
b.	The sexual nature of the behaviour leading to dismissal demonstrates that his judgment in “matters of a sexual nature has been found to be impaired” and the public cannot be expected to have confidence in his decision making as a result.

33.	I give permission to appeal only if I consider that there is a real prospect of success or there is another compelling reason why the appeal should be heard.  To succeed on the substantive appeal the mother will need to show that the DJ was wrong or that the decision is unjust by reason of some other serious procedural or other irregularity in the proceedings.

34.	I have now read all of the papers lodged in what was to be an oral application for permission.  I have not heard oral argument and so the decision which follows is effectively made on the papers but on a considerable body of paper.  I am quite satisfied that the appeal on Ground 10 has no reasonable prospect of success and indeed I consider it to be without merit.  I will explain why.

35.	The lack of judgment arguably demonstrated by the District Judge through misconduct in his office does not necessarily infect all areas in which he has to exercise Judgment.  District Judge Bowles was dismissed because of inappropriate use of judicial IT.  It does not follow that he has thereby demonstrated himself incapable of making a proper judicial decision.  If it did it would mean all of his decisions would be null and void following his dismissal.  That simply is not right.

36.	The argument does not become different or stronger simply because his misuse of judicial IT involved the watching of pornography.  In the first place it is important to note that he was not dismissed for viewing pornography.  In any event, the viewing of pornography does not of itself suggest that he would have disbelieved an allegation of rape.  It does not suggest that his approach to the sexual element in this case would be in any way skewed or biased.  Had he been viewing such material in the privacy of his own home that would not have rendered him unable to make a determination in the case.  

37.	The best way to determine whether District Judge Bowles carried out a proper judicial exercise of discretion is by examining the detail of his Judgment.  I have done just that and the transcript reveals a Judgment that is in my assessment beyond complaint.  It contains all necessary directions on the law.  It gives full and detailed reasons as to why he found the evidence of the mother lacking and why she failed to establish her case to the appropriate standard.  As I have already rehearsed, the mother has been unable on the papers (in spite of the numerous and voluminous skeleton arguments in support of her appeal) to establish any basis for criticism.

38.	Accordingly, I find there is no basis for the granting of permission in relation to Ground 10.

Permission to withdraw 
39.	There is now a decision on permission on paper and on the merits in relation to all Grounds of appeal.  The Appellant has the right to have those decisions reconsidered at an oral hearing.  That was the purpose of listing this matter for a day.  The mother now seeks permission to withdraw her application for an oral hearing.  I am content to give that permission leaving the written decisions standing and the appeals dismissed through that means.

POST SCRIPT:
40.	Pressure of work has meant a delay in the delivery of this ruling.  In the meantime the parties have returned and I have decided that the case must now be transferred to be local to the children, their mother and the Guardian.  I have communicated with the DFJ at Norwich regarding listing and this case will be taken into his or another Circuit Judge’s list (at his discretion).

41.	The father made an application to be released from his undertaking not to enter the county of Norfolk.  That application was opposed by the mother on the ground that it would be distressing for the children even to know that their father might come into contact with him.  It seems to me that the father has little reason to go into Norfolk and assures me that he will not go there but that does not mean I should insist on the continuation of this undertaking.  The basis for this self imposed embargo was the mother’s fear of the father and the risks he might pose if the findings were made.  They have not been made and he poses no risk.  

42.	In order for the children to understand that their father is now free to enter Norfolk they need to have been told that he was previously forbidden.  I question whether it was in the best interests of these children to have been told that.  We are, as they say, where we are.  However, they do not need to be encouraged into the fear that he might now appear round a street corner and I suggest that there should be no further discussion with them on this point.  By insisting that the father continues to agree to be bound by an undertaking in these terms gives the impression, in my view, that there is a risk. The time has come for this to stop.  I release him from that undertaking.

43.	Finally, the mother at this hearing indicated her desire to move on from these matters and look forward.   She expressed a willingness to be guided by professionals.  I was encouraged by that until it became clear that the professionals that she has put her trust in are currently limited to Norfolk County Council, specifically the author of the s.37 report, who has advised against face to face contact between the children and their father with no clear plan as to how this situation can be improved.  
44.	It was made clear at the hearing that the Guardian may not be of the same view.  Disappointingly, it was far from clear that if that be the case this mother will be accepting of the Guardian’s advice.  I felt it necessary to record this position as a post script to this Judgment.  

45.	The court has determined that there is no evidential basis for the allegations made against the father by the mother.  He has been through two Crown Court trials and one trial of the facts in the family court.  Six months have been wasted on an unmeritorious appeal.  Meanwhile these children have not seen their father now since November 2011.  If the mother’s concern is for the welfare of her children as she has insisted then going forward she will have as her aim how she can best assist these children in re-establishing their relationship with their father.

END OF JUDGMENT