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B (Children) [2014] EWCA Civ 1623

Appeal by father against findings of fact potentially relevant in proceedings concerning two children and arising from applications for shared residence, contact and a prohibited steps order not to move the children from the local area.

Case No: B4/2014/1093/CCFMF

Neutral Citation Number: [2014] EWCA Civ 1623

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PORTSMOUTH FAMILY COURT
HIS HONOUR JUDGE LEVEY
Case No: AF12P00004

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/12/2014

Before :

LORD JUSTICE ELIAS
LADY JUSTICE BLACK
and
MR JUSTICE MITTING

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Between :

 B (CHILDREN) 
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Mr Marcus Fletcher instructed by the Appellant Father
Ms Anita Ges
er (instructed by way of public/direct access) for the Respondent Mother
Ms Tonia Clark
(instructed by Dutton Gregory LLP) for the Guardian

Hearing date : 9 December 2014
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Judgment

Lord Justice Elias :
1. This is an appeal from the judgment of His Honour Judge Levey sitting in the Portsmouth County Court, in which he made certain findings of fact potentially relevant to certain applications before him.

2. The findings were made in the context of family proceedings relating to two children. The first, O, was born on 20 April 2006 and the second, J, on 12 April 2009. Their parents, who never married, had commenced their relationship in 2004 and they stayed together until the end of 2011 when the relationship ended following an allegation of sexual assault made by the mother's daughter, M, then aged 17. She was the mother's child from an earlier relationship. The father was a teacher in a local secondary school.

3. Criminal proceedings were taken against the father but the prosecution offered no evidence against him and the jury returned not guilty verdicts on the direction of the judge. That was in November 2012. This led to renewed contact between the father and his two children, initially on a supervised basis at a centre.

4. Subsequently the contact was supervised by the father's sister but that arrangement unfortunately broke down and direct contact (as opposed to telephone contact) came to an end because the father declined the opportunity of resuming contact at the centre.

5. Renewed arrangements were made to ensure proper contact but following the intervention of the local authority, the guardian suggested that any contact should be suspended as a result of certain concerns expressed by the local authority.

6. The applications before the court relates to shared residence, contact, and an application by the father for a prohibited steps order to prevent the mother from taking the children away from the area of Basingstoke. (In fact she has now moved with them to Bristol.) The judge considered that these matters could not be resolved until the fact finding exercise in relation to disputed factual matters had been determined. The guardian properly adopted a neutral role in the proceedings before the judge although she was represented, as was the mother. I confess I find it a matter of no small concern that the father was not represented despite the potential implications of the findings for his future relationship with his children. He was, however, assisted by a Mackenzie friend.

7. There were various allegations which were the subject of the fact finding inquiry. They fell into a number of categories. First, and potentially most importantly, there were allegations of sexual impropriety with M. There were also allegations of improper behaviour of a sexual nature in relation to other parties. These were relied upon to support the allegations of M. I return to the details of these matters later in this judgment.

8. Second, there was an incident when it was alleged that the father had inappropriately used some physical force against M early one morning on the 7 November 2011 ("the 7 November incident").

9. Third, it was alleged that when the father was required to leave the couple's home as a consequence of a court order enabling the mother and children to live there, he left it in an uninhabitable state.

10. Finally, it was said that in various ways the father had sought to harass the mother in what had become an extremely acrimonious break up. Indeed, as far as those allegations are concerned, he has since the judgment below been found guilty of harassment in criminal proceedings.

11. The judge made certain findings about the witnesses. He considered that M was a "compelling witness" and he believed totally her account of the incidents in which she was involved. The mother he also considered to be essentially reliable although prone sometimes to over-sensitivity. He was not impressed by the father as a witness and expressed the view that the father had lied to him on a number of occasions.

12. In broad terms the judge found that the incidents relied upon against the father by the mother and M had in fact occurred as they alleged. He summarised his findings in a schedule attached to his order. This helpfully set out not only what facts he had found but also certain alleged facts which were not established. In particular, there was an allegation that there had been abuse of the school computer by the father accessing inappropriate pornographic websites but the judge concluded that he could not resolve that dispute.

13. There was also a social services report which greatly exaggerated the alleged failings of the father. It said, for example, that he had made over 200 phone calls to the mother, that he was abusing alcohol and drugs, and that he was violent. There was no evidential basis for these allegations. The mother denied making them to the local authority.  I find it a matter of real concern that an inaccurate report of this kind should have seen the light of day and was possibly the reason why the guardian was unhappy for contact to be continued. It suggests that either the mother had misrepresented matters to the local authority, contrary to her evidence to the judge, or that the social workers were exaggerating for some inexplicable reason or were profoundly mistaken. The judge made it clear that these matters were not established and said as much in the schedule. Plainly these matters must be entirely ignored in any determination of the father's rights in the future.

14. Permission to appeal was given by MacFarlane LJ on two grounds only. They are both related to the allegations made by M and accepted by the judge. The other findings of the judge concerning the state of the premises and the acts of harassment are not now challenged.

15. M said that she had not had a particularly good relationship with the father. She alleged, and the judge accepted, that the father had sought to kiss her with a degree of frequency that caused her concern, including kissing her on the lips, although she said that the kisses were not passionate. He would also hug her and touch her bottom. He had asked her to show her breasts (whether intended seriously or whether made in jest was not made clear) and had made inappropriate and upsetting comments in front of her and sometimes to her about her breasts. Allegations in the social services report asserting that he touched her breasts and that the kisses were passionate were not sustained. That was not the evidence as the judge again helpfully made clear and noted in the schedule.

16. The judge found that the 7 November incident involved inappropriate physical handling of M when the father was trying to hurry her out of the house in order to stop her from being late for school. M accepted that she had probably said something to the father which angered him. On her account, which the judge accepted, she was grabbed by the father and pushed against a wall with such force that the wall was dented and the kitchen blind fell down. She had a backpack on and this stopped her from being injured.  

17. In the context of M's allegations, evidence was adduced of other allegedly inappropriate behaviour with female members of staff and students. Again, for the most part the judge found that these incidents had occurred – indeed, the appellant conceded with respect to some of them that they had – and corroborated M's account.

18. The findings in relation to the appellant's conduct with respect of M and his inappropriate sexual conduct with other parties was summarised by the judge in the first two paragraphs of the schedule as follows:

"1.  The Court accepted M's evidence that Father had repeatedly kissed Mf and made repeated requests for her to kiss him.

Lengthy hugs ending with touching her bottom.

Father did push M on the 7.11.2011.

No finding of passionate kissing (not sought by mother).

No finding of touching M's breasts (not sought by mother)

F did make inappropriate comments to M about her breasts (sometimes in front of O) and did ask to see her breasts.

F also made inappropriate comments about sex to M.

2.   The evidence relating to the babysitter, members of school staff, pupils all corroborate M's evidence. All the evidence gives rise to concerns as to the Respondent's attitudes about teenagers and women.

The first ground of appeal
19. The first of the two grounds of appeal is that the judge failed properly to appreciate or take into consideration the fact that M had certain psychological and/or mental health difficulties which meant that her testimony was potentially unreliable. It was not and could not be suggested that the judge was not entitled to find that M was a reliable witness.  The submission is that the judge did not properly engage with or give appropriate weight to, some disturbing character traits and as a consequence had too readily accepted her as a compelling witness of truth.

20. The father relies upon the fact that there was evidence before the judge of concerns expressed by Dr Gemma Adamson that M might suffer from an autism spectrum disorder (ASD). She had referred M to the Child and Adolescent Mental Health Service in 2008 and again in 2011. Following the 2008 referral M was apparently assessed for mental health problems and found to have none. It is not clear from the records before the court whether there was an ASD assessment at that time.

21. The doctor's concerns were largely based on certain observations from the mother, contained in a detailed five page statement, who identified many worries she had about M. She considered that M was manipulative and that she twisted whatever the mother said. There was to have been an assessment of M for ASD in 2011 but she did not attend on enough occasions to enable the assessment to be carried out. 

22. This evidence was before the judge and he clearly had it firmly in mind because he expressly adverted to it: (paras. 25-26):

"[The father] also referred to treatment that M had. There had been concerns about her behaviour. There are in the bundle some letters from M's G.P. Dr Adamson, which refer to her difficult behaviour at home: defiant behaviour from time to time; oppositional behaviour. It is unclear whether this goes beyond what is normal for a teenage girl in any event.

There is also evidence from the father in a witness statement where he specifically states that M is receiving treatment for Asperger's Syndrome when in fact she was not. She had some little involvement with the Child Adolescent Mental Health Service (CAMHS), but not to any significant degree …"

23. I should add that M herself was cross examined on part of her mother's statement and in particular about the description of her as manipulative.

24. The judge was therefore aware that she could be a truculent teenager, and that concerns had been expressed about her behaviour.  He will have factored that in to his assessment of her evidence.  He had the advantage of seeing her and hearing her give evidence and be tested upon it. In those circumstances I do not see that we can possibly go behind his assessment of M as a witness.  Moreover, he gave reasons for not finding the father to be a reliable witness, which is also material to his assessment of the disputed incidents. There is no material fresh evidence which would suggest that M's psychological state was more serious than had been identified in the papers before the judge. Accordingly, I reject this ground of appeal.

The second ground of appeal
25. The second ground concerns the treatment by the judge of those matters which he relied upon as corroborating the allegations made by M. These initially stemmed from allegations made in an anonymous letter that was sent to the headmaster of the school. This alleged that the appellant was having inappropriate relations with students and was regularly accessing on line pornographic material and online chat rooms to communicate with young women.

26. The headmaster followed this up with the appellant who denied the truth of these allegations. In the course of the interview he did, however, admit making improper comments of a sexual nature on three occasions to female members of staff.  He denied to the headmaster that he had accessed pornographic  or online sites but later admitted doing so on one occasion; which was itself inconsistent with an admission that he and his ex partner frequently did so as a pastime.

27. He has also accepted in these proceedings that in 2004 he had inappropriately lent money to a female student and behaved in an over-familiar manner, including asking her for her telephone number, which caused her to feel uncomfortable.

28. There were three other matters relating to young persons which were specifically referred to by the judge but which the appellant denied. The first was an allegation of pulling a student's thong.  The judge noted that he had been exonerated from this following an investigation; it seems that it was a joke that got out of hand.  At paragraph 43 of his judgment the judge said that "all of these factors" which he had identified earlier in the text corroborated M's evidence. However, I do not believe that the judge could have intended to refer to this allegation as one of the corroborating matters or as one of the matters giving rise to concerns as to his attitude which are also referred to in paragraph 2 of the schedule. If he did, that would in my view plainly be unjustified.  Secondly, it was noted that the appellant had taken home and shown to his partner a letter of a personal nature from a student. The judge pointed out that this should have been referred to the school administration. However, the failure to comply with the school rules does not amount to any kind of improper behaviour with respect to the children, and I doubt whether the judge intended this to be treated as either a corroborating matter or one giving rise to concerns of the kind referred to in paragraph 2 of the schedule. Again, in my view if he did that would be unjustified and the paragraph ought not in my view to be read as including this incident.

29. The third matter identified by the judge was a witness statement to the police from a teenage baby sitter who reported that she was uncomfortable with certain remarks made to her by the appellant, who had also asked for her telephone number. She had informed her mother about it.

30. In relation to all of these matters the appellant contends that the source was hearsay evidence which was contested and not properly tested.  Hearsay evidence is admissible in family proceedings of this nature: see the Children (Admissibility of Hearsay Evidence) Order 1993, but the father contends that it should only be admitted after a careful consideration of its provenance and the appropriate weight to give to it. He prays in aid by way of analogy section 4 of the Civil Evidence Act 1995 which, for example, requires a court to consider a number of matters when assessing the weight of any hearsay evidence, including whether the maker of the statement may have a motive to misrepresent matters.

31. The first difficulty with this argument is that as I have indicated the appellant accepted that many of these incidents had occurred. He said that the comments were mere banter and that he had not intended to make the recipient feel uncomfortable; but he did not deny making them. As an admission against interest the evidence is plainly admissible on that basis. Similarly so is the evidence relating to giving a student £10.

32. The one exception is in relation to the baby sitter allegation derived from a police report.  I agree that with respect to that evidence, the judge would need to be satisfied why he thought it safe to rely upon what is in effect double hearsay evidence.  But it seems to me clear why he did so in this case. There was no apparent motive for the babysitter to make up the allegation unless she had believed that the appellant over-stepped the boundaries; and her experience is all of a piece with his behaviour on other occasions. 

33. In any event, nothing of real substance turns on this.  It is merely another piece of the jigsaw supporting M's evidence that the appellant was the kind of person who would make inappropriate remarks to females or otherwise act in an inappropriate manner with them on occasions.

34. In fact, therefore, the judge was entitled to treat much of the evidence as corroborating M's evidence and also to treat it as independent evidence raising concerns about his attitudes to teenagers and women.  I should add that even if I had concluded that this was not properly admissible evidence, it would not in my view have cast doubt on M's own testimony because it is clear from the judgment that the judge was convinced of the reliability of her testimony for reasons wholly independent of any corroborating evidence. He says in paragraph 20 of his judgment that he was impressed by the fact that she did not exaggerate, that she displayed some sympathy towards the father and, in the judge's view, generally underplayed her evidence.

35. Accordingly, I would reject this ground of appeal, whilst making it plain that the reference in paragraph 2 of the schedule to the evidence which gives cause for concern about the father's attitudes ought not to be taken to refer either to the thong incident or the incident when he failed to disclose a personal letter to the school.

The 7 November incident
36. There is one further and more specific complaint relating to the 7 November incident.  It was not specifically identified as a ground of appeal but it emerged as a ground in its own right in the course of the argument, and in the circumstances I think we should engage with it.

37. The father has always denied that the incident occurred in the manner described by M. He accepted that he grabbed her by the arm in response to a provocative comment, which she concedes she might have made, and in response she threw her arms in a struggle to get away and caused the damage to the wall and the kitchen blind.

38. As the judge recognised, M was not sure about how the incident had occurred in cross examination. She accepted that she could have been wrong in the account she had given in the witness statement and that the incident could have happened as the appellant suggested.  Nevertheless the judge accepted the account she had given in her written statement because he said it was consistent with her written and oral statements to the police.

39. It is of course open to a judge to make such a finding and to conclude that a witness may not be able to as sure of what happened with the passage of time and that earlier accounts are likely to be more reliable. The difficulty with the analysis in this case, however, is that the police record does not bear out her account; there is not the consistency referred to by the judge. The report of the incident from the Hampshire Constabulary recounts the incident as involving "the child tried to walk away (disrespectfully) and was pulled back by her arm by suspect. No injuries."  That is more consistent with the father's account than with her later description of the incident.

40. We do not have the written police statement and cannot compare that with her witness statement. But we also have a comment in her medical record when she is alleged to have said that "the appellant pushed the door onto her and then held her against the wall." This is closer to her later account but does not reflect it. 

41. The judge did also rely upon the fact that her evidence that it was the backpack which prevented her from being hurt was a detail which it would have been difficult to make up if the incident had not happened as she had claimed. I do not understand that; even if the incident had occurred as the appellant submitted and her momentum caused her to fall against the wall, the backpack could have had precisely the same insulating effect.

42. In the circumstances I respectfully do not accept that the judge was entitled to conclude that the incident had occurred as M had described in her witness statement. It is not in my judgment a safe conclusion. Accordingly, I would strike out from paragraph 1 of the schedule the observation that: "Father did push M on 7.11.2011."

43. It is true that the judge also commented that even on the appellant's own account his behaviour was inappropriate.  Perhaps; but it would then have been a less significant incident than that found by the Judge to have occurred. What weight it may have when placed in the scales against the applicant – whether, indeed, it should have any weight at all – will be a matter for the judge at the welfare hearing.

Conclusion
44. Save for the modification of paragraph 1 of the schedule in the manner indicated in paragraph 36 above,  and the clarification in paragraph 30 of certain matters which should not be taken as falling within the scope of paragraph 2 of the schedule, I would dismiss this appeal.

Lady Justice Black:
45. I agree.

Mr Justice Mitting:
46. I also agree.