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C (A Child) [2005] EWCA Civ 1330

Appeal by father relating to contact. Appeal dismissed.

B4/2005/0865

Neutral Citation Number: [2005] EWCA Civ 1330

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BOURNEMOUTH

(HIS HONOUR JUDGE METSON QC)

Royal Courts of Justice

Strand

London, WC2

Tuesday, 11 October 2005

B E F O R E:

LORD JUSTICE THORPE

LORD JUSTICE DYSON

LORD JUSTICE WALL

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IN THE MATTER OF C (A CHILD)

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(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

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Tel No: 020 7404 1400 Fax No: 020 7831 8838

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MR COBB QC APPEARED ON BEHALF OF THE APPELLANT FATHER

MR COHEN QC APPEARED ON BEHALF OF THE RESPONDENT MOTHER

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J U D G M E N T

(As Approved by the Court)

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Crown copyright©

1. LORD JUSTICE THORPE: HHJ Meston, sitting in the Bournemouth County Court, had a particularly difficult case to try. The application before him was for contact brought by a father of a little boy, H, born on 23rd June 2000. He was the only child of his parents who had married in November 1988 and separated in October 2001. After the separation, there had been agreed contact for a period of approximately a year, or perhaps rather more. The pattern of contact was for the father to collect H from his mother's home in the West Country and have him for a staying weekend in Buckinghamshire split between his own home and the home of his parents.

2. As far as the father was concerned, all went well until the beginning of the year 2004. There had been some episode in early November 2003 when the mother was thoroughly alarmed by H reporting that whilst with his paternal grandparents he had hurt his bottom, on one occasion saying that he had fallen over a toy, and that his father had put cream on his bottom.

3. The mother's reaction to this relatively trivial event in the daily care of her son was certainly indicative of an anxious state and perhaps a tendency to see danger where none was truly signalled.

4. But it was the much more serious development of 29th January 2004 which destroyed the agreed pattern of alternate weekend contact. On that day during a conversation in the early morning H reported to his mother that whilst having contact with his father he had seen his father's erect penis and, in his own words, the grown penis "popped" On one account that had been downstairs and on another account that had been upstairs in the bedroom. Essentially, there was an account of a sharing between father and young child of the experience of the erect penis. Although it was not said that father had touched the child's penis, it was said that child had touched father's penis.

5. Not unnaturally, this caused the mother the greatest possible alarm and she perfectly appropriately immediately involved the local authority through the channel of the health visitor. On the following day there was a joint interview conducted by a specialist police officer and a social worker during the course of which, in essence, H repeated to these two strangers much of what he had said to his mother on the previous day.

6. The report filed on police records was brief and to the effect that no further police action was likely to be taken and that H was too young and too imprecise to justify a video interview. Two reports were filed by the social worker: one in her running log; the other on a prescribed Report of Interview form. On both of these, the social worker, in manuscript, recorded the visit and the essence of the conversation, the critical words of the child being, in many instances, in inverted commas and presumably verbatim.

7. It seems that on the 29th at some stage the mother had made a manuscript note of the event, presumably indicative of the seriousness of the concern that it raised. The local authority made it perfectly plain that the issue of future contact was one to be either agreed between the parents or determined by the court. Their recommendation to the mother was that any future contact should be supervised.

8. The mother made a full statement to the police on 18th February and to that report she annexed her note of 29th January.

9. The father, when informed of developments and of the mother's determination to end contact, went of his own accord to see the police on 26th February and on 1st March he wrote a letter to the assigned social worker. In both communications, the father underlined his love for the child, his attachment to the child and his complete inability to understand how such allegations had come to be made when he had done nothing at any stage which could possibly have triggered the development.

10. The case was referred by the local police to the Crown Prosecution Service who indicated on 9th March that they intended to take no action. But on the following day a friend of the mother, a friend of long standing, mentioned again her experiences of some degree of sexual harassment by the father in the summer of 2003.

11. That apparently prompted the mother to visit and discuss this her own mother. The visit was on the 11th and on that day the grandmother conveyed to her daughter the extraordinary story that she herself had been sexually harassed by her former son-in-law and on several occasions assaulted sexually by him.

12. Her most graphic contribution was a description of a day in, I think, March 2001 when she described her son-in-law having masturbated when visiting her flat. She and H were the only people present. H, although adjacent, had not witnessed the event.

13. These were fundamentally important developments to the case and were revealed to the father when statements were filed in June 2004.

14. The statements of the two ladies, the grandmother and the friend, were considered by the police but their decision was that there was insufficient evidence to justify further investigation.

15. The case in the county court commenced in March 2004 and with commendable speed was listed for trial on 20th or 23rd August. On the first day, the case was opened by Mr Steven Cobb QC for the father. On the second day evidence was given by the jointly instructed expert, Mrs Violet, a specialist registrar in child psychiatry, who had carried out an investigation on joint instructions together with a colleague, a consultant psychologist, a Dr Willemsen.

16. The evidence that Dr Violet gave was strongly supportive of the mother's convictions that H had been abused by his father. Accordingly, on the following day, Mr Cobb advanced an application for adjournment. He was highly critical of the manner in which the jointly instructed experts had conducted their investigations and he sought an opportunity to instruct a further expert on behalf of the father.

17. The judge granted that application and there was necessarily a long adjournment, the trial resuming for five days of oral evidence on 14th February. The judge then reserved his decision and handed down, on 8th March, when solicitors only were present. A further hearing was arranged for 8th April and at that hearing Mr Cobb sought amplification from the judge on the basis that there were omissions in the judgment which called for expansion in accordance with the practice that was established in family appeals by the decision of this court in re: T. He also sought permission to appeal.

18. The first application was granted in part in that the judge made an acceptance of error in one passage in which he had directed himself as to the law and in particular as to authority of re: E, a decision of Scott Baker J at first instance. The application for permission was refused. It was renewed on paper on 22nd April. On the 20th May my Lord Wall LJ ordered an oral hearing without notice. That hearing took place on 12th July when permission was granted. The appeal has been listed before us today.

19. The appeal has been argued forcefully and skilfully by Mr Cobb. He has founded himself on his grounds of appeal which contain seven separate points but he has conveniently distilled them into three themes.

20. His first theme, comprehensive of grounds one to three, is that the judge fell into fundamental error in having failed to make any evaluation or any sufficient evaluation of the father's evidence and thus insufficient explanation for his rejection of the father's evidence.

21. His second theme is that the judge failed to treat the expert evidence in a proper manner. Having found the investigations and report of Dr Violet and Dr Willemsen flawed, and having commended Dr Weir, the expert instructed following the adjournment on 23rd August, he ultimately rejected Dr Weir's opinion without sufficient explanation.

22. His third theme, comprehensive of grounds five to seven, was that the judge he had failed to apply the cogency test. There were contradicting and uncorroborated allegations and that, giving proper attention to the classic guidance from the House of Lords in re: H, he could not have reached the conclusions adverse to the father which he did.

23. In elaborating on the first theme, Mr Cobb also made a trenchant attack on the judge's rather uncritical acceptance of the mother as a credible and accurate witness. At the very least, said Mr Cobb, the judge had to bring into the assessment a number of very obvious negative factors indicative of flaws in the mother's management or communication over the vital nine-month period between the commencement of the investigations and her final statement in the case. He contended that had the judge brought in those negative factors he would have revised his acceptance of the mother's account and accordingly would have elevated the father's account, which had nothing to set against it other than and beyond the judge's preference for the mother's evidence.

24. Although the case has been presented by Mr Cobb in that skilful way, the reality is, for me, very simple to grasp and to record. All these cases are of course unique but the significant characteristic of the present case is that the judge had to evaluate three discrete episodes. The primary was of course the episodes involving H, described by him on 29th and 30th January, and then subsequently in June when interviewed by Dr Violet.

25. But the other discrete episodes did not involve H directly in any way. They involved only two separate adults: the grandmother and the friend. In relation to each, there was simply a fundamental conflict of evidence between the complainant and the respondent. In relation to each, the judge had to make up his mind which was to be believed and which rejected. In relation to those two episodes, there was simply no middle way.

26. The father's case was not just that their evidence was invented, but that it was effectively the product of a conspiracy. His case was that their contribution had not emerged fortuitously on 10th March but that it was a deliberate ploy in reaction to the decision of the CPS to take no further action.

27. The judge dealt with this key element in the case very clearly in his judgment. He said:

"I found both [the grandmother] and [the friend] to be wholly credible. Neither of them would conceivably have been party to what would have been a wicked conspiracy to commit perjury to harm the father out of some misguided loyalty. In particular, the grandmother, a somewhat frail and apparently entirely respectable woman, clearly found the evidence which she had to give a great burden, and had been genuinely reluctant to say anything at all about it to her daughter or indeed to anyone else until she saw no alternative to it. Neither of those women would have put themselves through the ordeal of giving evidence as they did, unless they had thought it was necessary and right to do so. They were each properly tested in cross-examination, and I have to say that cross-examination served only to enhance their credibility. I do not consider that either of those ladies concocted or exaggerated their version of events. Each was reliable and truthful. I must be cautious, as I have already emphasised, in attaching too much weight to that particular finding, having regard to what I have already said about propensity. That has, however, to be qualified having regard to the revision by Dr Weir of the paragraph in his report which he volunteered at the start of his evidence, that is to say paragraph 50 on page 9. That finding does, however, have some bearing on my assessment of the father's credibility. I regret I have to say that I do not think he was telling the truth when he denied those allegations by [the grandmother] and [the friend], and it leads me to question his truthfulness overall."

28. That passage seems to me to answer comprehensively Mr Cobb's primary submission that the judge made no proper assessment of his client's credibility. In the two areas that held the key to outcome, the judge has not only made a specific finding that both complainants were wholly credible but also that their testimony was enhanced by their cross-examination. He also went on to find specifically that the applicant was not telling the truth in his denial of those allegations and the judge was fully entitled to say that that led him to question his truthfulness overall.

29. I say that those findings were key because they were not complicated as necessarily was the exercise in relation to H, by the possibility that both parents were telling the truth but that the child's words were the product of his infancy or a tendency to fantasise. The judge was fully entitled to regard the interconnection of the episodes as of significance. That he clearly expresses in the passage which follows immediately from the passage that I have already cited:

"Moreover and more particularly, I do not lose sight of the fact that [the grandmother's] allegations included two allegations which do, in my view, have some bearing upon those made by [H]. [The grandmother] alleged, and I accept her evidence, that on at least one occasion the father tried to get her to touch his erect penis, and that on another occasion he masturbated in her presence and in the near presence of [H], although, happily, [H] was unaware of it. That does suggest a serious lack of appreciation by the father of appropriate sexual boundaries which extends to conduct even in the presence of a child. That does, in my view, add weight to the possibility at the very least that [H], on his own in the father's own home and sharing a bed, did see his father masturbate to ejaculation. [H's] use of the word 'sticky' also suggests that he did indeed see and possibly touch ejaculate."

30. Mr Cobb has suggested that it was simply not open to the judge to draw that connection given that the evidence of Drs Violet and Willemsen had been demonstrated to be so flawed and given that Dr Weir had been complimented by the judge for bringing to the case a rigorous intellectual analysis that had been sadly lacking before his arrival.

31. It seems to me that Mr Cobb simply overstated his case when he said that the judge's criticisms of Dr Violet and Dr Willemsen could only have led him to discount their evidence alltogether. That cannot be right. The judge was fully entitled to adopt their conclusion that the mother had not coached H. The judge's reliance on Dr Willemsen and Dr Violet is put in the most moderate degree. He said only at 78 line 1:

"I take the view that, despite Dr Weir's justified criticisms of what happened in the Tavistock, the evidence gleaned by Dr Willemsen and Dr Violet in particular was not so flawed as to be of no value at all."

32. So there the judge indicates what in my judgment is a perfectly acceptable balance. He was fully alive to the deficiencies in the work that there had been done but nonetheless he was not categorising it as of no value at all.

33. In relation to Dr Weir, he properly explains the extent to which he differed, again in this crucial passage, page 79 commencing at line 26, he said:

"I am conscious that in reaching those conclusions I am not wholly accepting Dr Weir's views, but I remind myself that Dr Weir did to some extent qualify his own report by revising the paragraph to which I have just again referred and also by withdrawing a statement as to implausibility in the course of cross-examination. Moreover, Dr Weir did say that, if the court accepted the mother's version of events on 29th January as true, that would be a cause for concern."

34. That relatively brief passage must be taken in conjunction with what the judge had recorded in reviewing the oral evidence of Dr Weir.

35. He noted in paragraph 33 that Dr Weir had agreed under cross-examination to some revision of paragraph 14 of his report, in which he had described the possibility that abuse occurred for the first time between November 2000 and January 2004 as implausible. Perhaps of greater importance is the prior paragraphs, 30, 31 and 32 in which he recorded the passage in Dr Weir's written report to the effect:

"There is a theoretical risk that men who have poor sexual control and poor sexual boundaries might abuse children, but I am not aware of empirical studies of sexual offenders of this type that demonstrates this to be the case."

36. That passage in his written report was tested in his oral evidence when he made some acceptance that if the judge found against the father in relation to the assaults on the grandmother and the friend then there would be ground for heightened anxiety and therefore the need for greater safeguards.

37. Dr Weir did not, however, in his oral evidence abandon the description of the risk as theoretical. However, the judge did say, and this seems to me an important observation, that it was regrettable that nobody had invited Dr Weir to focus on the crucial point, namely that the grandmother was not just making an allegation of sexual assault but she was specifically describing an incident in which the father had started to masturbate in the near presence of herself and H.

38. It seems to me that if Dr Weir's opinion on the interrelationship between the two episodes of adult assault and the risk of future assault to the child was to weigh gravely in the judge's analysis, Dr Weir had to meet that crucial point.

39. So that in a sense sufficiently explains why I would dismiss this appeal. But I should briefly add that I do see some force in Mr Cobb's criticism that the judge's evaluation of the mother's credibility was not as comprehensive or as balanced as it might have been. On the other hand it is easy to be critical of judgments with hindsight. The judge had a formidable task, having had to conduct an eight-day inquiry with a substantial break in the middle. The case could not have been more highly charged. His judgments, whether it be his first judgment explaining the grant of adjournment, his principal judgment of 8th March or his subsidiary judgment of 8th April, all impress me as being an extremely careful and conscientious discharge of his difficult task. The criticisms made good by Mr Cobb would not begin to deflect me from my overall conclusion that these were essential findings of fact. They are within a very limited compass. All that the judge ultimately found was:

"[H] did see his father's erect penis, probably in bed, that his father did masturbate in his presence, and that [H] probably did in some way touch his father's penis."

40. Now that that finding has been validated by this court, obviously there are major and difficult issues for the judge to grapple with in order to ensure that that finding in itself does not operate to deprive H of his father. The judge imposed a moratorium on direct contact on 8th April. He reviewed the future briefly at the end of July and he directed one period of direct contact on 10th September. He is to revisit the case to devise the future at a one-day hearing on 12th November.

41. There are all sorts of very delicate areas which the judge will have to survey: whether the father's reaction will be to embark on a course of therapy, which has obviously already been considered; the extent to which the mother is capable of robust control of anxieties and of a tendency to overreact and to overinterpret. These are all difficult areas and throughout the judge's guiding star has to be H's wellfare.

42. But the importance to H of growing up with happy experiences of a father who loves him and a father whom he loves, will obviously figure high in the judge's agenda.

43. LORD JUSTICE DYSON: I agree.

44. LORD JUSTICE WALL: I also agree. I add a short judgment of my own out of deference to Mr Cobb's sustained argument.

45. Mr Cobb identified three themes from his notice of appeal. As I wrote them down, they were, firstly, that the judge had made no proper evaluation of the father in the course of his review. That evaluation, said Mr Cobb, was essential to a proper review and his failure to do so left his assessment of the parents unbalanced and distorted.He should have made a self-standing assessment of the father.

46. The second theme was that the judge failed to treat the expert evidence appropriately. Mr Cobb submitted that Dr Weir's evidence was to be preferred. He had been a compelling witness who had brought intellectual rigour to the case, and the judge had failed to rationalise why he had not followed Dr Weir's views. Whilst accepting that judges can reject the evidence of experts- and that issues were for the court to decide not the expert-, the assessment of the jointly instructed experts had been flawed and the judge had to find significant grounds for departing from Dr Weir.

47. Thirdly, although the judge had the unique opportunity to see the third parties and made a detailed reference to Re: H+R he failed to apply the strict cogency test. With the internally contradictory material with which the judge had to deal, the court needed to be satisfied according to the cogency test. Allegations as serious as these had to be affirmatively established.

48. Were it not for one vitally important factor, I think I myself would have found those arguments compelling had this been a dispute simply between mother and father in relation to what had or had not happened to H. I entirely agree with my Lord that these cases are extraordinarily difficult for the judge to try. The evidence is rarely firm. What the child says and is reported to have said have to be assessed, the credibility of the person to whom the child makes the observations has also to be taken into account and great care has to be taken by experts brought into the case to conduct an inquiry which is unassailable.

49. What in my judgment makes this case highly unusual is that the critical issue in the case did not in fact involve a determination of the credibility of either the mother or the father but was a clear issue of fact which arose between the father and the two adult witnesses, the grandmother and the friend. That was highly relevant because the father's behaviour, as described by those ladies but in particular by the grandmother, was, as the judge found, relevant to the allegation of what had happened in relation to H.

50. I entirely agree with my Lord that in the passage which he has cited the judge carefully and conscientiously describes and analyses why he accepts the evidence of the two ladies and it inevitably follows that he rejects the evidence of the father. Once he has made that perfectly legitimate finding he was, in my judgment, entitled to go on, as he did, to make a finding that the father, as my Lord has indicated, did masturbate in the presence of the child and that H had probably in some way touched the father's penis. That was the issue at the heart of the case. It did not depend upon the mother's credibility; it depended on the credibility of the two adults.

51. In fairness to the judge, had that not been the critical feature of the case it may well be that he would have devoted more time and more energy to the assessment of parental credibility, because in those circumstances he would indeed have had to decide whether or not this was one of those cases where allegations had been made in perfectly good faith by the mother but that the father was equally truthful in denying them. That task, in the event, he did not have to undertake, and in those circumstances, in my judgment, Mr Cobb's criticisms, although well structured in the normal situation, are misplaced in so far as they relate to this judgment.

52. It is therefore on that basis, and essentially very much on that basis alone, that I, like my Lord, would dismiss this appeal.

53. I take notice that when the judge had the matter back on 8th April and had to deal with contact in the interim, he gave a long and very careful analysis of how the future might well pan out and he gave permission for the judgment and any relevant papers to be disclosed to a well-known organisation, now I think known as Ray Wyre Associates.

54. I say only this: like my Lord, it would in my view be tragic if these events led to the cessation of contact between this father and this child when the child plainly has a love for his father and that love is reciprocated. But the judge's view that safeguards were required is plainly the right one and in my judgment the burden is now very centrally on the father to demonstrate to the mother that contact in the future with H will be safe for H and that the father has addressed the finding which the judge has made and has sought advice and help in relation to it. If he does that and if the outcome is positive then I would expect the mother to be happier in her mind for the contact which should be taking place then to resume between H and his father.

55. These, however, are all matters very much in the hands of the judge. The judgment, when read as a whole, was sensitive and not unsympathetic and the judge in my view now has the task of moving the case forward and attempting to ensure that contact can be maintained provided it is safe for the child. But I repeat: in my judgment, in that equation, the greater onus is on the father to ensure that he can guarantee that future contact will be entirely beneficial and safe for H.

56. So for that principal reason and with that addendum I too, like my Lord, would dismiss that appeal.

Order: Appeal dismissed.