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H (A Child) [2008] EWCA Civ 539

Appeal by father to overturn a finding by a Recorder, in the course of contact proceedings, that he had attempted to poison his wife. He had been acquitted of this charge in the criminal courts. Appeal allowed and finding sent for retrial.

The father had issued an application for contact following his acquittal. The mother opposed the application on the basis of the poisoning allegations and the risk of further domestic violence. Accordingly a fact finding hearing was directed. At that hearing the Recorder found that the appellant had attempted to poison his wife with intent to kill her.

Counsel for the father appealed on the grounds that the Recorder had erred in that his finding was i) made on less than cogent evidence; ii) it was inconsistent with other findings made and iii) was d judge based on speculation rather than evidence.

In this judgment Thorpe LJ reviews the Recorder's handling of the evidence and comments that it was unfortunate that the Recorder did not have the full evidence available from the criminal proceedings. He allowed the appeal as it was unsafe but remitted the matter for retrial as, while the Recorder's decision cannot stand, it does not "necessarily mean that it is wrong." Also, the issue is of sufficient importance in the proceedings that it is "necessary for the court to reach a conclusion on it."

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Neutral Citation Number: [2008] EWCA Civ 539
Case No: B4/2008/0293
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR RECORDER ROSE
29th November 2007
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/05/2008
Before :

LORD JUSTICE THORPE
LORD JUSTICE WALL
and
LORD JUSTICE STANLEY BURNTON
- - - - - - - - - - - - - - - - - - - - -

H (A Child)

Between :

TH (Appellant)

- and -

RB (Respondent)

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Clive Heaton QC and Mrs Rosemary Exall (instructed by Messrs Switalskis - Solicitors) for the Appellant
Taryn Lee (instructed by Messrs Stuart Gordons - Solicitors) for the Respondent

Hearing date : 15th May 2008
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Wall :
Introduction
1. This is the judgment of the court.

2. At the conclusion of the argument on this appeal on 15 May 2008, we announced our decision but reserved our reasons. Our decision was; (1) that the appeal would be allowed; (2) that the Recorder's finding on the issue set out at paragraph 8(ii) of his judgment dated 2 December 2007 would be set aside; and (3) that there would be a retrial of the issue identified in (2) above to be conducted by His Honour Judge Peter Hunt QC, the Designated Family Judge for Leeds or by a judge to be nominated by Judge Hunt. Although not formally part of our order, it would plainly be sensible for there to be a directions appointment before Judge Hunt at the earliest opportunity.

3. The finding made by the Recorder and challenged by the appellant appears in paragraph 8(ii) of the Recorder's judgment and is as follows:-
On 10 November 2006 at [address given] the (appellant) administered to the respondent a harmful dose of medication with the intention of killing her or of causing her serious harm.

4. The Recorder also made a finding that on 5 March 2006, at the same address, the appellant assaulted the respondent by pushing, kicking and slapping her thereby causing swelling to her leg and reddening to her face. There is no appeal against this finding.

5. The allegation which the Recorder found proved had been the subject of a criminal trial, at the conclusion of which the appellant had been acquitted by the jury. The consequence, of course, is that the subject matter of this appeal is in the public domain. However, the context in which the Recorder's judgment arises is the appellant's application in private law family proceedings for contact with the parties' child FH, who was born on 6 May 2005, and is thus now three. This judgment is, accordingly, written anonymously, and reporting restrictions apply to it. Nothing must be published which would identify FH by name or location. We will, moreover, henceforth refer to the parties as "the father" and "the mother" respectively.

The background to the application
6. The mother, who is 25, and the father, who is 36, are of Pakistani origin, although the mother was born in England, is a British subject, and has lived here throughout her life. The parents were married in Pakistan in October 2002, and the father, who was born in Pakistan came to this country to join his wife some time afterwards. English is not his first language, and he gave evidence to the Recorder with the assistance of an interpreter.

7. The mother and the father separated after the incident on 5 March 2006 identified in paragraph 4 above, and 10 March 2006, the mother obtained a without notice non molestation order against the father, to which a power of arrest was attached. She also obtained a without notice order restraining the father from removing FH from her care and control and from the jurisdiction. On 15 March 2006, at an on notice hearing at which the father was represented, occupation and non-molestation orders were made, expressed to last until 11 September 2006, and the district judge made a residence order in the mother's favour relation to FH.

8. Despite the orders made on 15 March 2006, the parties were able to reach agreement about the father's contact with FH, and in about October 2006 they were reconciled to the extent that they resumed living under the same roof. They separated again, however, after the events of 10 November 2006. The father's application for contact with FH was made on 7 June 2007, after his acquittal in the Crown Court. That application was opposed by the mother on the basis of the father's alleged violence during the marriage, and on the basis of the events of 10 November 2006, which the mother described as an attempt by the father to poison her. Directions were, according, given for a finding of fact hearing which took place in the county court before Recorder Rose on 29 November 2007.

9. Having heard evidence and argument, the Recorder reserved his judgment, which is dated 2 December 2007. On 22 January 2008, having seen a draft of the skeleton argument prepared by Mr. Clive Heaton QC and Mrs Rosemary Exall, he gave the father permission to appeal.

10. The Recorder identified the principal issue which he had to resolve in the following terms: -

On 10th November 2006, the (mother) was admitted to hospital following her collapsing at home. There is no dispute but that she was diagnosed as suffering from an overdose, almost certainly of paracetamol. She alleged that she had been poisoned by (the father) in that he had made her a milkshake in which an excessive dose of paracetamol had been dissolved. Her allegation resulted in the arrest of the (father) who, when interviewed by the police and from then onwards denied that he had anything to do with the overdose and suggested that the (mother) had taken a voluntary overdose and was blaming it on him.

Other relevant background material
11. The mother had been previously married, and on 7 March 2002 had been admitted to hospital. No notes or other documentary material from the hospital in question were before the Recorder. However, in answer to questions posed by her solicitors, the mother's general practitioner wrote, in a letter dated 23 October 2007:

"1. Yes, there is a previous history of taking overdose on 7th March 2002. She was seen at the time by the Rescue Management team and declined offers of input from psychiatric services, stating that she did not feel this would help her social problems.
2. Other than the above statement there is no record of her seeking or being subject to any psychiatric treatment.
3. There is no reference in her medical notes to her suffering from any form of mental illness, including depression."

12. The mother's evidence to the Recorder was that she did not remember taking an overdose. In her evidence in chief, she added: -

"There was an incident that has just come to my knowledge now when I have seen the doctor's letter back to the letter from my solicitor wrote to her that on that incident I was admitted to hospital. I was not aware of anything what has been said to them when I was admitted because I didn't speak to the doctor at first, I was unconscious, when I woke up they asked me if I needed any psychiatric treatment and what I had eaten and what I drank that day. I told them. I was on that occasion locked up in a room by my husband."

After an intervention by the Recorder, the mother added: -

"Yeah, I was a bit shocked then why they asking me that because they didn't go into full detail as to what has happened, so I said no, I've got a bit of social problems but psychiatric treatment is hardly gong to help sort social problems. So I didn't have any psychiatric treatment for it then. The reason why I did end up in hospital then was I was locked up by my previous husband in the bedroom for two days and I was starved during that time so I passed out. As far as I am aware that is all what has happened to me and I have not done anything other than that. What has been said in the hospital when I have been admitted is something I can't comment on because I've never known that. I've never had any reason to ask for it until this has come to light."

13. Asked by her counsel whether she had taken any medication on this occasion, the mother replied: "I had a headache from starving. I had a headache and I was stressed out, so I had taken two paracetamol". She repeated that the first time she became aware that there was an issue of an overdose on this occasion was when she saw the letter from her general practitioner set out in paragraph 11 above.

14. This exchange led to an intervention from Mrs Exall, who stated that she had not been previously aware that the mother was disputing the suggestion that she had taken an overdose in 2002. Mrs Exall made the point that "there may be hospital records which might be able to clear up the matter ", and the Recorder commented that he would have to deal with the case on the evidence he had.

15. In the light of the way in which the case developed, we think it unfortunate that the Recorder did not have the hospital records relating to the 2002 incident. This was not, however, the only material which the Recorder lacked, He did not, for example, have a transcript of the father's criminal trial.

The forensic evidence from the father's trial
16. The judge did have all the statements made in the criminal proceedings, including the witness statement made by a forensic scientist, Mr. Brian Johnson, and a statement from police constable Rachel Wilson, who found in the parents' accommodation a bottle which contains a small amount of paracetamol solution, together with an unspecified number of co-codamol and paracetamol tablets. Also found was a glass which contained traces of paracetamol, and a pestle and mortar which contained no recoverable residues. No traces of paracetamol were detected in any of the other items. In particular, the milkshake and "Multipower muscle formula" powders found on the premises contained no obvious adulterants.

17. A blood sample taken from the mother, however, showed that she had ingested a large and potentially fatal overdose of paracetamol and a much smaller quantity of codeine. The latter was within the range associated with its use in therapeutic quantities, and it was possible, in Mr Johnson's opinion, that the drugs were ingested together in the compounded preparation co-codamol.

The Recorder's findings
18. The Recorder made a number of findings which are criticised by Mr. Heaton and Mrs. Exall. Plainly, the question of the parents' credibility was central to the issues the Recorder had to decide, and it is mainly in relation to his findings in this area that their criticisms are directed.

19. The Recorder began his judgment by setting out the background. During the course of so doing, he stated that although he had heard a great deal of evidence about the family's finances, he did not feel the need to resolve the factual disputes which arose.

20. The first important area of the judgment for our purposes relates to the events of March 2002. The Recorder rejected the mother's account of that incident. He concluded that she had taken a deliberate overdose of paracetamol in 2002 . Common sense, he held, dictated that she was "terribly unhappy at the time, probably because of her ill treatment at the hands of her then husband". It was not, however, clear to the Recorder "whether she intended to take her own life or merely to draw attention to herself".

21. The mere fact she had taken an overdose in 2002 did not, the Recorder found, prove that she had done the same in 2006. Crucial considerations in this regard were her greater maturity, her strength of character and the fact that she had a small child. The Recorder acknowledged, however, that his findings went to the mother's credibility.

22. The Recorder then considered the incident on 5 March 2006, with which we are not concerned in this appeal. Having done so, he turned to the incident in November 2006. In introducing it, he found that the relationship between the parties after the "reconciliation" was "cordial but not affectionate". He was also satisfied that "there were problems 'bubbling under' the relationship, in particular the issue of (the father's) application for leave to remain in the United Kingdom and the ongoing problem of money", both of which were of great importance to the father, although "not pressing matters" for the mother.

23. The Recorder placed weight on what he described as "the neutral nature of the relationship" between the mother and the father. He was satisfied that the mother was "in good health, both physical and mental". This, he clearly felt, was a factor which contra-indicated the suggestion that she was minded to take an overdose.

24. The Recorder then dealt with the events of 10 November 2006. In this regard, the question arose as to why the mother had drunk the whole or most of the milkshake she said had been given to her by the father, if she had immediately noticed, on tasting it, that it had a strange and unpleasant taste. Her explanation was that "it was part of her Muslim faith that one should not waste food or turn it down when offered". She produced two books intended to provide a "much simplified account of some of the essential teachings of Islam", which the Recorder was invited to read and take away with him, and from which he cites in his judgment.

25. The Recorder, in short, rejected the mother's account of why she had finished or nearly finished the drink, and did so – in part at least - by reference to the content of the books themselves. Here, accordingly, was a second important area in relation to which the Recorder rejected the mother's evidence. He cited a passage from the statement she had made in the criminal proceedings, in which she had said that the father had stood in front of her and told her to drink it all, but that she had been unable to drink more than two mouthfuls and had spilt the rest into the kitchen sink. The Recorder commented:-

"It is quite clear from this passage that (the mother) was being less than honest with the court when she claimed to have drunk the whole of the milkshake, and that she had done so because her husband had made her do so. I am further of the view that the (mother) sought to mislead the court in her effort to persuade me that her religious observance made it mandatory for her to consume all of the milkshake and throw none of it away."

26. How then, had she come to ingest the large quantity of paracetamol? It is at this point that Mr. Heaton and Mrs Exall submit that the Recorder indulged in an impermissible speculation unwarranted by the evidence. Having identified parts of the forensic evidence (including the removal of the pestle and mortar) the Recorder made the following findings:-

"Had (the mother) taken paracetamol tablets in the usual manner, washed down with water, there would be no reason for there to be traces of the drug in the glass from which she drank. There would be no reason for (the mother) to perform the task of crushing the tablets and ensuring that they had dissolved in the liquid of the milkshake before ingesting them. It seems to me that the only circumstances in which there would be traces of paracetamol in a glass would be if paracetamol tablets had been crushed and their powder placed into the glass, in solution, and the solution then drunk. Therefore the forensic findings in my view are consistent only with the paracetamol tablets being crushed into a solution which was then drunk."

27. The Recorder then listed a series of factors which he found militated against the mother attempting to commit suicide, and contrasted these with the finding that the father had a great deal more to gain from the death of the mother, namely the care of FH and the consequential right to remain in the United Kingdom. The Recorder thus found that the father "had a very good motive" for killing the mother, and stood to gain from her death.

28. Despite his findings as to the mother's dishonesty, the Recorder found that what had occurred was as follows: -

"I find that (the father) had crushed paracetamol tablets using the mortar and pestle but had then been able to wash these items thoroughly, removing any trace of the drug. The glass from which the (mother) had drunk was not washed as thoroughly, and the traces of residue demonstrate that there had indeed been paracetamol; in solution in the drink in that glass. The (father) had done this intending to kill his wife, to give him care of (FH) and to ensure that he would be allowed to remain in the United Kingdom, indefinitely, once the authorities understood he was the widowed father of this young child."

The grounds of appeal
29. These are very short, and read as follows: -

"That the court was in error in finding the allegation made out by reason of: -

1. Making the finding on less than cogent evidence
2. Making the finding that being inconsistent with other findings made by the learned judge
3. Making findings on the basis of speculation rather than evidence."

The development of the grounds of appeal in written and oral argument
30. As to the first ground, Mr Heaton and Mrs. Exall submitted that the judge's findings as to the mother's credibility, and his rejection of her evidence on critical parts of the case were sufficiently serious to make it impossible for the Recorder properly to be satisfied to the Re H standard that events had occurred as she had related them.

31. Mr Heaton in oral argument identified important areas in which the Recorder had disbelieved the mother. He had not believed her about the overdose in March 2002; he had disbelieved her evidence on the question of religious observance when it came to ingesting the whole of the drink; she had given inconsistent accounts of whether or not she had drunk the whole glass, and she had, the Recorder found, exaggerated the foul taste. These findings should, it was argued, have caused the judge to be very cautious before accepting her account.

32. In relation to inconsistent findings, Mr. Heaton and Mrs. Exall concentrated on the Recorder's treatment of the father's motivation to rid himself of the mother. The Recorder had thus found in paragraph 22 of the judgment:

"Although the appellant's right to remain had been an issue since January 2006 there was nothing happening to cause him to believe that he was in imminent danger of being refused leave much less of being deported. Thus it played on his mind but without any sense of urgency." (counsel's emphasis)

However, the Recorder had found in paragraphs 39 of this judgment that the father decided to try to kill his wife because

"the (father) wished to be rid of her to ensure that he could obtain permanent leave to remain in the United Kingdom as the sole parent of FH".

33. Counsel submitted that these two findings were contradictory. They also argued that there was no evidence before the court to support the proposition that in the event that the mother died the father's application to remain would be strengthened, nor was there any evidence that the father himself held such a view beyond the speculation by the mother as to father's motive for poisoning her. In addition, they relied on the judge's statement that he was not going to make findings about the parties' financial differences, whilst later finding that there were "bubbling under" the relationship.

34. In addition, Mr. Heaton pointed out that there was no critical examination by the Recorder of the father's evidence, and no assessment of his credibility. It was clear from the outcome that the Recorder had not believed the father. However, given the seriousness of the finding, the absence of a judicial assessment of the father was a serous blemish.

35. Thirdly, in relation to the forensic evidence, Mr. Heaton and Mrs Exall submitted that this was, at best, neutral. The evidence was that, in addition to the paracetamol, the mother had ingested a quantity of codeine consistent with a therapeutic amount. There was a drug in the house, co-codamol, which explained the codeine. There was, however, no direct forensic evidence as how the paracetamol had entered the mother's system. There was unchallenged forensic evidence that there were traces of paracetemol in a glass recovered from the kitchen drainer at the property, but no forensic evidence that this glass had contained a milky drink.

36. Mr Heaton and Mrs. Exall reserved their strongest criticisms, however, for the Recorder's findings in relation to the mortar and pestle. There was, they argued, no evidence in the case that the paracetemol in the glass had been in crushed tablet form, and so to find was simply speculation on the Recorder's part. There was no evidence in the case that the mortar and pestle had ever been used to crush paracetemol: indeed, they submitted, that proposition was never even put to the father. That is was not part of the mother's case, Mr. Heaton submitted, was further demonstrated by a passage from the final submissions made by counsel instructed by the mother in which counsel floated the possibility that "the drug could have been ground up at an earlier stage. The mortar and pestle could have been washed up. We simply do not know". Mr Heaton argued that the use of the mortar and pestle was simply not being advanced on the mother's behalf as an explanation for the presence of the paracetamol and that the Recorder had been plainly wrong to elevate a speculation into a firm finding.

37. There was, accordingly, Mr Heaton submitted simply no evidence that the "only circumstances" (the phrase used by the Recorder) in which paracetemol residue could have got into the glass was by it having had crushed tablets put in it, and no evidence that there had been a milky drink in the glass containing the residue of paracetemol.

The case for the mother
38. For the mother, Miss Lee had the disadvantage of not having represented the mother in the court below. She was also, we think, minded to accept that there were contradictions inherent in the judgment Her essential submission was that the Recorder had taken all relevant factors into account, had weighed them, and reached a conclusion which was plainly open to him. However, if this court took a different view, she submitted that the case would have to be reheard.

Conclusion
39. We take the view that there is considerable force in the submissions made on the father's behalf, and that cumulatively they render the Recorder's finding unsafe. His finding on the events of 10 November 2006 cannot we think, be sustained, and must be set aside.

40. We have given anxious consideration to the consequences of our decision, but have come to the clear view that there must be a retrial. We reach that conclusion for a number of reasons. Firstly, of course, the fact that the Recorder's decision cannot stand does not necessarily mean that it is wrong. Secondly, whilst we have considered carefully whether or not a re-trial is a proportionate response given the issues raised and the costs involved, we are firmly of the view that the issue is of sufficient importance to the parties and to FH to make it necessary for the court to reach a conclusion on it. Whether one thinks of the point in the context of the father's contact with FH or in terms of any dispute between the parties in relation to matrimonial finance, an allegation that one parent poisoned the other is of the utmost seriousness, and is plainly highly relevant to the outcome of the issues between them.

41. The matter must, accordingly be retried. We have come to the clear view that there is no reason why the case should not remain in the county court, and that the appropriate disposal is for it to be allocated to Judge Hunt, for him either to hear or to delegate as he thinks fit.

42. For the avoidance of all doubt we re-iterate (1) that nothing in this judgment should be read by either party as seeking to influence or determine in any way what the ultimate outcome of the case should be; and (2) that the precise form and subject matter of the re-hearing are matters for Judge Hunt or the judge to whom he allocates the case.