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Re S (A Child) [2017] EWCA Civ 44

A mother’s appeal, in private law proceedings, against the determination that ten allegations she had made were not proved.

Findings of fact had been made in respect to 14 allegations made by the mother against the father. His Honour Judge Bromilow found three of those allegations proved and a further allegation was accepted by the father. The mother appealed the determination as to the remaining ten allegations. Of those unproven allegations, the judge had found that nine allegations had been made up by the mother to obtain a better outcome in the parties' contact dispute.

Nine of the allegations which were the subject of the appeal were sexual allegations for which there was no corroborative evidence and the judge noted that it was difficult to establish which party was telling the truth. The parties had appeared before the judge on numerous occasions. The judge had put together a chronology from police, health visitor and social services records. Having considered all the mother's written and oral evidence, the judge had 'grave reservations about the accuracy and reliability' of what she had said about the father's sexual conduct. He also noted that the mother had fled to Ireland in 2015 and had deceived the court and family members about how this had come about.

Briefly, the four grounds of appeal were that: the judge had erred in excluding 'similar fact evidence' of the father's previous behaviour; the judge had dismissed the alleged assault shortly; the judge was inconsistent in considering the parties' respective credibility and the genesis of the rape complaint; and the trial had been unfair as: full cross-examination of the father in respect to an ex-partner was not permitted; and full submissions on the admissibility and relevance of that ex-partner's evidence was not heard.

The appeal was allowed only in respect to the judge's treatment of the allegation of assault by the father; this issue was remitted for rehearing by a new circuit judge. The judge had not demonstrated sufficiently 'that he had taken the relevant matters into account and to explain what he made of them.' The appeal was not allowed in relation to the sexual allegations.

Summary by Sara Hunton, barrister, Field Court Chambers
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Neutral Citation Number: [2017] EWCA Civ 44
Case No: B4/2016/2131

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON DISTRICT REGISTRY
HIS HONOUR JUDGE BROMILOW(Sitting as a Deputy High Court Judge)
TA13P00134


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 02/02/2017


Before :

LADY JUSTICE GLOSTER
VICE-PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION
LADY JUSTICE BLACK
LORD JUSTICE CHRISTOPHER CLARKE

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RE S (A CHILD)
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Ms Janet Bazley QC & Ms Sarah Pope (instructed by Watkins solicitors) for the Appellant
Ms Sarah Morgan QC & Ms Marlene Cayoun
(instructed by Porter Dodson LLP) for the Respondent

Hearing dates: 1st December 2016
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Judgment Approved
Lady Justice Black:

1. The appellant in this case is the mother of a boy, A, who was born in 2008 and is therefore 8 years old. The respondent is the child's father, with whom the mother had a relatively short relationship which ended in August 2010. The appeal is in connection with findings of fact made by His Honour Judge Bromilow in respect of the conduct of the parents, in the context of private law proceedings between them in relation to A.

2. The judge was presented with a schedule of 14 allegations made by the mother against the father. At the conclusion of the hearing, on 7 March 2016, he found three of the allegations proved. The first two of these allegations were general, namely that the father had behaved in a controlling way towards the mother throughout their relationship and that he was violent towards her, this being exacerbated by his intake of alcohol. The third proved allegation related to a specific event when the father assaulted the mother, grabbing her around the neck and throwing her to the floor. The judge said of the third event that it was "a serious incident of violence because it took place in the presence of A." The last item on the schedule was a recital of cautions and convictions of the father, which the father accepted was accurate and the judge treated as a matter of record.

3. The judge did not find the balance of the allegations (allegations 4 to 13) proved and the mother appealed against his determination in this respect. Allegations 4 to 12 on the schedule were of serious sexual violence, including rape, between 2008 and 2010. The judge not only did not find them proved, he found that "they had been made up by [the mother] in an effort to secure a more favourable outcome for her in this contact dispute" (§30). Allegation 13 was of an assault on A, said to have taken place "prior to July 2013", when the father was alleged to have forcefully grabbed A's forearms and hurt him.

4. The proceedings in relation to A have been on foot for a very long time. The initial step in the litigation was an application by the father for contact, issued in the family proceedings court in November 2010. It is not necessary to go into all the detail of what followed. The judge commented in his judgment (§3) that the case provided "a classic example of how not to proceed". It may give an idea of how tortuous the litigation was, if I say that we had to abandon our attempt to establish a chronology of procedural events during the appeal hearing, because the process was proving exceptionally time consuming and progress was regularly hindered by uncertainty as to what had taken place. In so saying, I make no criticism of counsel, who did their utmost to assist us but who, like everyone else in the case, were struggling with the long and convoluted procedural history. Matters were not assisted by the fact that at times during the litigation, the mother was acting in person. At our request, we were supplied with a written procedural chronology after the hearing, but it appears that that was not at all easy to put together either. There seems to be continuing disagreement as to some of the details, including when certain material became available to the participants in the hearing.

5. The case proceeded in the family proceedings court for at least two years. The mother was not opposing contact in principle but wanted to ensure that it was safe for A in the light of what she alleged had been the father's conduct towards her. Contact orders were made at various points and contact did take place, the mother's allegations remaining unresolved in the background. In January 2014, the paternal grandparents made their own separate application to enforce the terms of the contact order but I need say no more about that because the focus of the present appeal is upon matters between the mother and the father.

6. In due course, management of the case moved to a district judge in the family court. When the mother did not attend court in April 2015 for a planned hearing, it transpired that she had moved to Ireland with A and her husband, Mr S. A was made a ward of court and, in August 2015, the mother was ordered to return him to this country. She and A have been living here since then, whilst her husband and their young child remain in Ireland. She is seeking permission to relocate with A to Ireland, which the father opposes and, as things stand at present, there is a contest between the parents as to which of them will look after A and also as to contact. 

7. A particular problem in the litigation has been obtaining information relevant to the mother's allegations from various sources. Information was sought from the police, the CPS, and the local authority, and also from care proceedings in relation to certain other children. Considerable difficulty was experienced in obtaining disclosure of the material required and more was still appearing even during the fact finding hearing, as will become apparent later.

The judgment

8. The judge's reasoning for his findings is contained in his judgment of 7 March 2016, his response of 31 March 2016 to the request made by the mother's counsel for clarification of aspects of that judgment, and his short judgment refusing permission to appeal.  I will need to draw upon these documents at times but I do not intend to rehearse the entirety of the material here. This case turns upon its facts and the relevant features are well known to the participants already.

9. In approaching the judge's decisions, it is important to bear in mind that, as he pointed out in his response to the request for clarification, the parties had appeared before him on many previous occasions, including at another contested hearing before Christmas 2015.

10. In relation to allegations 1 – 3 (the allegations of non-sexual abuse against the mother), which he found proved, the judge considered (§§23 and 24 of the main judgment) that the mother's descriptions, in the police interview, of the underlying events were "notably animated, descriptive, contextual and spontaneous" He commented that her evidence in connection with this aspect of the case "had the obvious ring of truth" and that her recollections were clear, and to be preferred to the father's denials. He recorded that the mother had mentioned physical abuse to the health visitor in September 2010. In relation to allegation 3, which concerned a specific incident, the judge recorded that the mother conceded she was confused about when it happened, but he nonetheless accepted her version of events in preference to the father's. One of the features that he bore in mind in connection with this particular incident was that others had seen marks on the mother's neck.

11. As to the sexual allegations (allegations 4 – 12), the judge noted that "unsurprisingly" there is no corroboration of the allegations and that it was very difficult to ascertain who is telling the truth (§25).

12. The father's account was that all the sexual activity between him and the mother was consensual. He maintained that the mother had made up her account of sexual violence because of the dispute about contact. Reviewing the father's evidence, at §28, the judge reminded himself that he had not believed what the father said about the first three allegations on the schedule and had found him to be controlling and physically abusive. He set down his impression of the father as at times "cocky and over-confident". 

13. As to the mother, the judge said (§25):

"It is agreed that [the mother] did not complain to anyone at the time. She did not do so when she separated from [the father] in August 2010 and her first complaint of sexual violence was made to the police on 27 June 2013. The context of the timing of this complaint cannot be ignored. Four days earlier, A told his mother about [the father] hurting him and the dispute about contact arrangements was assuming prominence within [the mother's] household. The contemporaneous observations note considerable family anxiety."

The judge's reference to the mother's "first complaint" being made to the police on 27 June 2013 forms the basis of one of the mother's grounds of appeal and I will need to deal with it later. I should therefore set it in context here by noting that the judge had referred earlier in the judgment, at §6, to the mother having made a statement on 25 October 2011 "which included for the first time allegations of sexual violence against [the father]", going on to quote from the account of sexual abuse given by the mother in that statement.

14. At §26, the judge went on to say that the mother had provided "a careful explanation for why she did not complain earlier", referring to her statement signed in November 2015 and commenting that it was an explanation of a kind often provided by those who allege historic sexual abuse and violence. He said that the question was whether it was "a truthful explanation". Dealing with how the mother had come across when giving evidence on the subject of the sexual assaults, the judge observed that throughout a lengthy cross-examination, she was impassive and showed little emotion and he thought her answers at times were almost automatic or repeated without thinking. He compared her demeanour in court with her demeanour in her ABE interview where he said that at times she was emotional and distressed. He also referred to the mother's oral evidence as to why she had separated from the father, which had not included any reference to sexually abusive conduct. He considered that if the father had behaved as she now said, it would have been at the forefront of her mind.

15. Having considered all of her written and oral evidence, the judge had "grave reservations about the accuracy and reliability of what the mother has said about [the father's] sexual conduct". He picked out, in §27, a number of elements which appear to have contributed to that view. These included the mother's acceptance that there was, at times, consensual sexual activity of one of the types that featured in her allegations, and the fact that the judge regarded certain aspects of her account as improbable, such as her not having sought medical advice despite bleeding and the unlikelihood of the rape she described as having taken place in the family kitchen. He asked himself whether it would be inconsistent or perverse to find the father's evidence about the first three allegations unreliable but nonetheless to find the mother's essential assertion, namely that the sexual activity was non-consensual, untrue. He concluded that it was not, because, he said (§29):

"The context and continuity of the contact dispute helps me to explain this, and I cannot ignore [the mother's] flight to Ireland in April 2015 and her untruthful account about how such a dramatic change in her life came about. She lied about the degree of planning and she tried to deceive family members as well as this court."

16. He concluded "with obvious reluctance" (§30) that the mother's sexual allegations had been made up by her "in an effort to secure a more favourable outcome for her in this contact dispute."

17. The request for clarification made on behalf of the mother pressed the judge in relation to his analysis of the mother's demeanour in oral evidence and his finding that she had made up the sexual allegations to secure a more favourable outcome in relation to contact, inviting attention, for example, to the distress shown by the mother when she reported matters to the police and to the fact that earlier in the proceedings, the mother had in fact agreed to a contact order. The judge responded that his findings as to the mother's credibility had taken into account all the evidence and the wider context, and that the lack of complaint about the sexual assaults "must be contrasted with the contemporaneous reports and some material supporting evidence about the incidents of violence and controlling behaviour". He also said:

"During the course of the judgment I considered the chronology of the contact dispute and the manner in which allegations against [the father] emerged. I also considered the opportunities that [the mother] was offered by the court to advance any allegations against him in the context of a dispute about the level/extent of contact. I specifically acknowledged the final order made by consent in February 2013.

Insofar as the genesis of the rape allegation is concerned, this was adequately reflected in the chronology within the judgment and by reference to [the mother's] statement which explained her delay in making a complaint."

18. Returning to the main judgment, the judge dealt with the allegation that the father had assaulted A in one paragraph, §31. It is worth setting that out in full:

"Allegation 13 is a grave allegation. It accuses [the father] of grabbing his son's arm so that it hurt. The chronology and context of this allegation are vital as I have set out in detail earlier. On 24 June 2013 [the mother] spoke to her Health Visitor. On 10 July A was interviewed by Detective Constable McConnell. Throughout that short interview A was distracted and what he says has no probative value. Later in July A when working with Miss Solway [the local authority family support worker] had something further to say. I have read it. The primary evidence comes from A. I am unable to rely upon what he has said and I note from the outset that no mark was observed on his arm. This allegations is not made out; it did not happen."

19. Earlier, the judge had set out, as part of a chronological review of events up to 2015, the health visitor's note of her conversation with the mother on 24 June 2013 which included that the mother had told her that A had said, after returning from weekend contact with his father, that the father got very angry and was shouting and screaming and grabbing him by the arm very roughly. Given that the judge set some store by the "chronology and context" of the allegation about A, it is material to note that what preceded the conversation with the health visitor on 24 June, in the judge's chronology, was an order, made by consent in February 2013, for overnight stays to begin in March 2013 at the paternal grandparents' house. The next event recorded, a few days after the conversation, was the mother's complaint to the police of rape by the father on 27 June 2013.

The grounds of appeal

20. The mother sought to have Judge Bromilow's findings in relation to allegations 4 – 13 on the Schedule set aside and a rehearing ordered in relation to them. She advanced four grounds of appeal.

21. By ground 1, it was contended that the judge had erred in excluding "similar fact evidence in relation to [the father's] rape of two previous partners" and in relation to the father's previous physical chastisement of other children. The former evidence would have assisted in proving the mother's sexual complaints, it was argued, and the latter would have assisted in proving that the father had assaulted A.

22. Ground 2 concerned the judge's treatment of the alleged assault on A, complaining that the judge had dismissed the matter shortly, having (i) wrongly failed to attach weight to the evidence of what A had said about the assault to the mother, to Ms Solway from the local authority, and to a police officer, (ii) failed to consider why A might lie about the assault, (iii) attached weight to questionable evidence about the father's interaction with A, and (iv) failed to take account of the father's caution at approximately the same time for smacking other children, as set out in allegation 14.

23. In ground 3, complaint was made that the judge's approach was inconsistent, including in relation to the respective credibility of the parents and in relation to the genesis of the rape complaint, as to which it was argued that the judgment contradicted itself by giving the date for the complaint first having been made as October 2011 and June 2013, which mistake led the judge, it was argued, into error in his consideration of the circumstances in which the mother reported the rapes and her motivation for doing so.

24. Ground 4 contended that the trial was not fair. It ties in with ground 1 concerning the evidence about the father's rape of other partners, the complaint being that the judge did not permit cross-examination of the father in relation to one of these partners, Ms X, and failed to hear full submissions on the admissibility and relevance of Ms X's evidence.

The judge's treatment of the allegation of assault on A: submissions and discussion
25. The mother's conversation with the health visitor (see §19 above) about what A had said about his father grabbing his arm took place on Monday 24 June 2013. It appears to be referring to what happened following contact on the weekend immediately before that, therefore the weekend of Friday 21 June to Sunday 23 June, A's comment having been made to the mother on the Sunday evening. 

26. The police interview of A took place on 10 July 2013. He said nothing of any incident with the father and the judge was undoubtedly entitled to say in his judgment that what he said in that interview "has no probative value". However, in the mother's submission, there was other material that the judge should have given more weight than he did. In this regard, Ms Bazley QC (who represented the mother only on appeal, leading Ms Pope who had also represented the mother at first instance) concentrated particularly on two matters.

27. The first matter upon which reliance was placed was the evidence of Ms Solway, the local authority family support worker. Ms Solway could have been made available for cross-examination by the father but that was not required. The judge had available to him her written report of what A said to her. In it, Ms Solway explained that she had been working with the family since February 2013, helping to "manage their high levels of anxieties". It seems that the visit during which the material conversation occurred was her third visit and took place around mid-July 2013. There is no suggestion in her report that the visit was in any way a response to A's account of his father's actions during contact. Ms Solway described how, during the visit, she spent some time with A in the kitchen and then in his bedroom. She said that he was enjoying a story book when he asked "unexpectedly" whether she was going to help him to get a particular person to stop hurting him, demonstrating to her how the person had grabbed his arm. He identified the person concerned by his forename only, the forename being the same as the father's. 

28. The second matter upon which Ms Bazley relied was the father's police caution for assaulting two other children. The information obtained by CAFASS about this is to be found in a document entitled "CAFCASS Level 1 Disclosure of Information", which is said to be a summary of relevant information held on the police national computer. The information that appears there is that the father received a conditional caution on 23 July 2013 for "Battery x 2 on 27.06.13" (so, apparently, the weekend after the alleged assault on A). The entry is puzzlingly repetitive and I will not therefore attempt to summarise it. It reads:

"Whilst supervising his girlfriend's children, smacked their bottoms whilst he sat on the edge of a metal framed bed and in doing so caused bruising to their thighs as they resisted being smacked. Whilst supervising his girlfriend's children, sat on the edge of a metal framed bed, put them across his knee and smacked their bottoms and in doing so bruised their thighs as they struggled against the bed frame."

29. This conditional caution was one of three matters recorded as allegation 14 on the schedule. The response to it entered on the schedule on the father's behalf was that he accepted that he had the caution. For a caution to be imposed, there must be an admission by the suspect. It follows that the established position before the judge was therefore that the father had been responsible for two incidents of battery on his girlfriend's children on 27 June 2013. For the father, Ms Morgan QC, leading Ms Cayoun (neither having appeared below), accepted that the existence of the caution was relevant to the judge's decision as to whether it was established that the father had assaulted A. She submitted, however, that it was for the judge to give it whatever weight he thought fit in the light of all the evidence before him, and that he did that appropriately. In Ms Morgan's submission, the judge's conclusion that the assault on A did not happen was reached by a proper weighing of the whole of the evidence on the subject.

30. I would allow the appeal in relation to this aspect of the judge's decision. He himself commented that the allegation was a grave one. It required to be determined in the light of a full consideration of all of the material that touched upon it. Ms Morgan is quite right, of course, that it was for the judge to attribute weight to the material, but he did need, in my view, to demonstrate that he had taken the relevant matters into account and to explain what he made of them. The timing and context of the allegation, which plainly influenced the judge, were certainly material. True it is, also, that the judge did refer to Ms Solway's evidence and said that he had read it, and that he said in his response to the request for clarification that he had based his decision "upon consideration of all the material evidence". However, it seems to me that his handling of the issue fell short in a number of ways. It was incumbent upon him, I think, to deal more fully with what was quite a graphic description by Ms Solway of A's apparently spontaneous demonstration of events to her. The judge stated baldly that he was unable to rely upon what A had said and gave very little explanation as to why he took that view, except perhaps that there was no mark on A. As for the caution, he said in responding to the request for clarification that he "took no account of [the father's] previous physical chastisement of children" (my emphasis). He might ultimately have concluded that the father's actions in relation to the other children did not assist him particularly in his decision about what happened to A, but he did need, in my view, to consider the evidence about those actions specifically and to explain expressly how he dealt with it in making his decision. Furthermore, the judge should also, in my view, have given consideration to whether the findings that he had made about the father's violence towards the mother contributed anything to the issue in relation to A.

31. I would therefore set aside the judge's finding that the assault on A did not take place and remit the issue of whether the father assaulted A for rehearing. For reasons that I will explain below, I would not allow the appeal in relation to the sexual allegations, so the allegation in relation to A is the only one which requires rehearing. The issue should, if possible, be re-determined as part of the welfare hearing so as not to prolong these proceedings any further. It seems to me that it would be preferable for the matter now to come before a judge other than Judge Bromilow. I acknowledge that this means a loss of the knowledge acquired by him in the course of his considerable dealings with the case, but his findings in relation to other aspects of the case, and his judgment and his response to the request for clarification, will be available to whoever tries the matter from now on. It would seem appropriate for the new judge to be a Circuit judge. I do not consider it necessary to elevate this case to High Court judge level.

The alleged inconsistency in the judge's treatment of the mother's rape complaint: submissions and discussion

32. The mother argued that the judge had been inconsistent in accepting her evidence about the violence but rejecting her evidence about the rape as a lie (or putting it another way, in accepting the father's evidence about the rape and rejecting his evidence about the violence) and that he had failed to explain how he reconciled this contrasting approach.

33. It obviously occurred to the judge that it might be said that he was reaching a perverse or inconsistent conclusion for the reasons that the mother has advanced on appeal. He addressed this expressly, albeit shortly, at the conclusion of his consideration of the evidence in relation to the sexual allegations. He decided that his conclusion was not inconsistent or perverse, going on (in the passage I have quoted at §15 above from §29 of the judgment) to talk about the "context and continuity" of the contact dispute.

34. Like the judge, I do not see any irreconcilable inconsistency in his approach. It is not at all uncommon in fact finding exercises for the judge to pick his or her way through the evidence, finding some things that a witness says to be reliable and others unreliable or even deliberate lies. This sort of sifting of the evidence is a standard part of the judicial job. What matters is that the results of the sifting are tenable results and that the judge's overall reasoning for his conclusions is cogent. It can be seen from what Judge Bromilow said in his §29 that he approached his evaluation of the sexual allegations having well in mind the fact that he had found the mother credible and the father incredible on other matters. Obviously he had to explain what it was about the evidence that led him to reject the mother's account of the sexual allegations. He considered he had done this in the paragraphs preceding §29, and I will turn in a moment to consider the mother's more detailed criticisms directed at his reasoning process. But I do not consider that the fact that the judge accepted some of the evidence of each of the parents demonstrates that there was any systemic flaw in his approach, and nor do I consider that the fact that he had found the reliability of each parent as a witness to be patchy was sufficiently unusual to call for any more justification than he gave.

35. I move therefore to the mother's arguments about some of the detail of the judge's approach to his finding about the sexual allegations. She complained that, in evaluating her credibility in respect of these allegations, commencing at §25 of his judgment, the judge proceeded upon the basis that she had made her first complaint of rape in June 2013 whereas she had, in fact, spoken of it in her statement of 21 October 2011 for the family proceedings court. In the mother's submission, this failure to acknowledge her earlier complaints about sexual conduct, when evaluating allegations 4 - 12, critically undermined the judge's reasoning.

36. The father's response to this was that the judge was plainly aware of the relevant dates. Ms Morgan pointed out that, as the mother acknowledged, the judge referred to her October 2011 statement, and quoted quite an extensive passage from it, at §6 of his judgment. Furthermore, the mother's 2011 allegation of sexual assault had been discussed during the hearing with the judge (see the transcript at A140-142). In addition, the speaking note prepared by counsel then acting for the father for her closing submissions, in discussing the "lateness" of the mother's complaints, set out the sequence of them including the allegations in the October 2011 statement. In the father's submission, what the judge was talking about, when he referred to June 2013 in §25, was the fact that that was the first time that the mother made a complaint to the police; it should not be taken as an indication that the judge had overlooked the earlier complaint in the mother's statement.

37. Reading the judgment as a whole, I would accept the father's submission that the judge was aware of the proper chronology and was indeed referring, when he said in §25 that the mother's "first complaint of any sexual violence was made to the police on 27 June 2013", to the first time she complained to the police, not to the first time she complained at all. It occurred to me on re-reading the judgment that what the judge says in §§16 and 17 of the judgment may be of assistance here. In §16, the judge was dealing with the sexual allegations and said that he had had regard to guidance available for Crown Court trials where similar issues arise. He then went on to say the following in §17:

"Given the passage of time and the fact that she did not set out the full extent of her allegations against [the father] until October 2011 it has been instructive to consider what, if any, recordings were made earlier."   

It seems to me that this observation of the judge's contains an acknowledgment that the full extent of the mother's allegations against the father was set out in October 2011. Accordingly, as in §6, so also in §17, he had in mind that she had made sexual allegations in her October 2011 statement. However, even without this reference, I would not accept that, in evaluating the sexual allegations, the judge had overlooked what he had taken the trouble expressly to set out as part of the chronology of events.

38. The judge was interested in contemporaneous complaints or notes about the events which later featured in the mother's allegations; such contemporaneous material, he noted at §22, assists in assessing credibility and reliability. It can be seen that he set store by complaints made to others outside the context of the proceedings. Dealing with the mother's complaints of physical abuse in §23 of his judgment, he placed weight on the fact that the mother mentioned the matter to her health visitor in September 2010. In his response to the request for clarification, he commented that the "lack of complaint about sexual assault" contrasted with the "contemporaneous reports and some material supporting evidence about the incidents of violence and controlling behaviour". It is no surprise, therefore, to find the judge looking, in §25, at when the mother first complained to the police about the sexual allegations and then considering, in §26, what she had said in her November 2015 statement as to why she did not complain to the police any earlier. In my view, it does not indicate that he had overlooked what she said in her October 2011 statement but that, at this point in the judgment, his focus was not on when the mother first made the allegations in question but on when she first reported them outside the context of the proceedings. 

39. As I am not persuaded that the judge overlooked the true chronology of the mother's allegations, attention turns to other aspects of the judge's reasoning about the sexual issues. Two aspects of the mother's argument in this respect merit specific mention.

40. First, the mother argued that the judge failed to put her complaint to the police in its proper context, attaching misplaced significance to her having made it to them then. Ms Bazley stressed that the mother initially went to the police about the alleged assault on A, saying nothing initially about the sexual matters. She was referred to social care by the police and then referred back to the police by social care. It was only on this second occasion, apparently on being asked if there were any other aspects of the father's behaviour that gave her concern, that she spoke about the rape. The point being made was, I think, that the mother did not volunteer the allegation to the police and it was therefore inappropriate to infer that her complaint to them was made to improve her position in the litigation with the father.

41. Secondly, the mother was critical of the judge's treatment of her account of what occurred in the kitchen. As to this, he said:

"The likelihood of such an event occurring makes me conclude that [the mother's] account is untrue." (§27 of the judgment).

Ms Bazley submitted, correctly, that the standard of proof is not affected by the likelihood of the events described. She argued that this sentence from the judgment showed that the judge had fallen foul of this established principle.

42. I will deal with the second point first. When Ms Morgan took us to the section of the cross-examination of the mother which it seems probable formed part of the foundation for this passage in the judgment, it became apparent that all that the judge was doing was evaluating the evidence to see whether what the mother alleged was established on the normal balance of probability. The incident in question was alleged to have occurred in daytime, in a place in the kitchen visible through the window to passers-by in the street, with the blind only half drawn. Counsel put to the mother that it would, therefore, be an extraordinary place for somebody to choose to carry out a sexual assault, going on also to explore with the mother the fact that, although the mother said she was upset and shouting and the neighbour would have heard, he did not come to see if she was alright. The judge was entitled to bear such matters in mind in determining whether the mother's case was more probable than not and I do not consider that there is any substance in this particular criticism of the judge.

43. I return to the first point which, it seems to me, is covered by Ms Morgan's general response to the mother's various criticisms of the judge's treatment of the sexual allegations. Ms Morgan submitted that, subject to the question of the father's previous partners with which I will deal separately below, it was entirely a matter for the judge to assess the evidence and place weight on aspects of it as he thought important. She relied upon the reminder in Re T-B-N [2016] EWCA Civ 1098 (at §8) that the Court of Appeal will only rarely even contemplate reversing a trial judge's findings of primary fact. It had not been demonstrated, in her submission, that the judge had reached conclusions that were not open to him.

44. I accept Ms Morgan's submission in this respect. The evaluation and weighing of the various pieces of evidence available to the judge was very much a matter for him. Necessarily, the process is a sophisticated exercise, dependent on a mix of impressions gained from various sources, including importantly the evidence of the parents themselves, together with such other more concrete material as is available, such as the sequence of events, the presence or absence of contemporaneous complaints and so on. In my view, despite the careful arguments advanced by counsel for the mother about various detailed aspects of the evidence, including the circumstances in which the complaint to the police came to be made, it has not been demonstrated that the judge's approach was flawed in a way which undermines the conclusions he reached in carrying out this process.

The judge's approach to the alleged sexual assaults by the father on former partners: the circumstances and the judge's ruling

45. The evidence before the judge disclosed that two former partners of the father had made complaints in relation to his sexual conduct towards them.

46. In 1997, the father was arrested for rape of a 14 year old. He was charged with indecent assault but no further action was taken at the time. When the mother complained to the police of sexual assault by the father in June 2013, the police started to investigate this matter again. It is not clear when the mother/her counsel learned of this. There was mention of the name of the young woman concerned in the police officer's notebook, which counsel for the mother told the judge she had on the first day of the hearing, 27 January 2016 (see the transcript at A9). There was more detail in children's services' case records which were produced at court on the first day of the hearing by counsel representing the child. A copy was provided to the father that day and to the mother's counsel the following day, the second day of the hearing. I think Ms Pope's recollection was, possibly, that this was the first copy that she had of the document. However, both the solicitor for the father and the solicitor for the child are under the impression that the mother was in possession of the document earlier in the proceedings, and the solicitor for the child has produced a copy of the index for the bundle prepared for a hearing on 19 November 2014, on which the item appears to be listed. The child's representative has a recollection of Ms Pope indicating at the end of the first day of the hearing that she had a copy of the document and agreeing, therefore, to the one copy that was available being given to the father's counsel. The issue was also dealt with in a handwritten statement, produced at court on the second day of the hearing, 28 January 2016, which set out the substance of the evidence that the police officer who had been investigating the case would be able to give.

47. It was on the third day of the hearing, 29 January 2016, that the father was cross-examined by Ms Pope. In her cross-examination, she covered the subject of the alleged assault in 1997, without intervention from the judge. The father accepted the basic facts about his arrest and charge, but it was not put to him that he had, in fact, assaulted the young woman concerned.

48. The second set of complaints about the father's sexual conduct came from Ms X, a previous partner of the father's who was associating with him between 2011 and September 2014 and is the mother of his younger son. Ms X alleged to the police in November 2014 that the father had been violent to her and had raped her in various ways during their relationship. The papers include a transcript of an 82 page ABE interview with her on 21 November 2014. The mother submitted that there were particular similarities between what Ms X said happened to her and her own allegations against the father.

49. From the procedural chronology compiled by the parties following the appeal hearing, it appears that the mother's solicitors were aware of the existence of a transcript of Ms X's ABE interview and were in possession of the bulk of it by 5 January 2016 at the latest. On that day, they wrote to the father's solicitors to say that they had added the interview transcript to the court bundle, save for the first 20 pages which they were missing and which they requested the father's solicitors to forward if they had the full document. The guardian's solicitor thinks that the full ABE interview had in fact been served on the mother in August 2015. Although counsel for the mother seems to have received a copy of the full transcript only on the first day of the fact finding hearing, 27 January 2016, that has to be considered in the light of the fuller picture of disclosure of this material. It is relevant also to note that no application was made to Judge Bromilow for an adjournment, whether because of late provision of the transcript or to arrange for Ms X to be called to give evidence or for any other reason.

50. There is no transcript of the first day of the hearing, 27 January 2016, as the day was largely taken up with watching various recorded interviews and no oral evidence was heard. It seems that the question of Ms X's ABE interview came up in the course of that first day, but the judge said that he would not comment on it until he had read it overnight. Early on 28 January, counsel for the mother reminded the judge that he was "going to make a determination" in respect of it and he responded that he would come to that as he would need to hear quite a bit of argument about it.  It was on the following day, 29 January, that the question of Ms X's interview arose again (A100). The judge said that he had read the transcript of the ABE interview and asked Ms Pope what she wanted him to do with it and whether she wished to ask any questions on the subject. She said that she wished to ask the father some limited questions on it in cross-examination, acknowledging that it would be a matter for the judge what weight, if any, he attached to the answers she received. The judge established with Ms Pope that she was not calling Ms X and that Ms X's evidence was not agreed. He then adjourned for five minutes, indicating that he would hear Ms Pope's argument on the point thereafter.

51. As one of the grounds of appeal was that the judge refused to hear full submissions on the admissibility and relevance of Ms X's evidence and how it should be treated in the trial, it may be of assistance to set out relatively fully what occurred when the court reconvened, particularly as no judgment, as such, was given on the issue.

52.  Counsel for the father addressed the judge first, saying that the father denied what Ms X alleged, that no findings had been made in relation to her allegations in the proceedings in relation to the X family, and that there were no outstanding criminal proceedings in relation to the allegations. She observed that it was probably a question of the judge putting such weight on the Ms X material as was appropriate. When it was Ms Pope's turn, she was asked by the judge why the material was relevant and responded that it was "part of the wider canvas" that the judge could "consider at the end of the trial" as Ms X was another partner of the father's who was making a complaint of a very similar nature to the mother's. The judge spent a short time exploring possible parallels with criminal proceedings in which the prosecution sought to call evidence of bad character or propensity but then continued:

"Now I entirely accept we are not in a criminal court. The rules in respect of receipt of evidence are very much more relaxed. Nevertheless, what you are asking me to do here is to take account of what somebody else has said about [the father]. [The father] denies that and he is not having a chance to even hear from the person; I am not. It just seems wholly unfair."

53. Ms Pope then conceded that the judge might take the view that no weight could be attached to the material but reiterated that there were "a few brief matters relating to that material" that she wished to put in cross-examination. The judge suggested to Ms Pope that if the father denied what was put to him, he (the judge) would be bound by that evidence, and Ms Pope said again that it would be a matter of weight. The judge responded:

"Let us not waste any more time on this. I am very reluctant to have anything to do with this material. I tell you that now. I will hear your submissions at the end about reliability and credibility, but we are not going any further about this now, thank you."

54. He said that he would not allow Ms Pope to ask either the mother or the father any questions on the material. Ms Pope asked him to look at the Family Court Practice and he intervened to say:

"I am not allowing it, thank you. I do not think it is fair. I do not think it is helping me in determining who is telling the truth in this case."

55. The judge returned to the question of the Ms X material in his clarification document. He dealt with it together with the material concerning the alleged assault in 1997. He said that his recollection was that the material (which he referred to as "the statements" of the two women) had been put before the court very late in the day, either at the start of the fact finding hearing or at the pre-trial review a few days before. He continued:

"Ms Pope invited me to read them; I did so. I asked about the relevance of their evidence and I was told that it went to the issue of propensity or the likelihood of [the father] behaving as alleged towards [the mother].

I asked [counsel for the father] about the contents of the statements. I was told that the evidence was in dispute.

My recollection is that I ruled that in those circumstances it would be unfair for any weight to be attached to this evidence; there was no application to call these witnesses.

Accordingly I attached no weight to the statements of [the 1997 complainant] and [Ms X]."

56. He came back to the matter again when refusing permission to appeal, saying:

"I repeat that my recollection is that this point was raised at the start of the fact finding hearing after a number of pre-hearing reviews and efforts to ensure that this long-delayed fact finding hearing took place. I made my rulings at the time and those rulings are, it seems to me, a combination of rulings of law as to admissibility and case management decision. It was my conclusion that this evidence was challenged and therefore it could not delay the trial."

The judge's approach to the alleged sexual assaults by the father on former partners: submissions and discussion
57. The judge's refusal to countenance any questions with regard to Ms X was a particular focus of the mother's oral submissions before us. Ms Bazley submitted that the judge appeared to have refused Ms Pope's application on the basis that the Ms X material was hearsay. It will be recalled that Ms Pope had wished to refer the judge to the Family Court Practice; Ms Bazley told us that, had she not been cut off, she would have referred the judge to the passage dealing with the Children (Admissibility of Hearsay Evidence) Order 1993. This establishes, of course, that in civil and family proceedings evidence given in connection with the upbringing, maintenance or welfare of a child is admissible notwithstanding any rule of law relating to hearsay.

58. It seems to me very unlikely that referring the judge to the Admissibility of Hearsay Order would have made any difference to his view. It did not seem to have been contended that the material should be excluded on the grounds that it was hearsay; counsel for the father simply submitted that the judge would deal with it by attributing to it what weight he thought appropriate. As an experienced family judge, Judge Bromilow would have been well aware of the admissibility of hearsay evidence. His appreciation of the relaxation of the rules of evidence in family cases can be seen from his own comment to that effect, albeit made in the slightly different context of "similar fact evidence". Furthermore, the judge's refusal to permit the Ms X material to be pursued was not, in any event, based on the mere fact that it was hearsay. Pertinent considerations for him seem to have been that the material had only very recently surfaced as part of the mother's case, that Ms X was not being called, and that it would be unfair to the father to explore it with him on the basis of the paper evidence alone. In the circumstances, I am not persuaded that there was any material unfairness in the way in which the judge curtailed Ms Pope's submissions in support of her application to ask questions about Ms X's ABE interview. What is important is to scrutinise the decision that the judge took on the issue.

59. Ms Bazley submitted that, contrary to the judge's view, it would not have been unfair to the father to permit the matter to be pursued. She pointed out that the father would have had the Ms X material before, because it was part of the care proceedings in relation to the X children in which he was a participant, although Ms X's allegations against him were not pursued in those proceedings for various reasons. He therefore knew the substance of what Ms Pope was seeking to put to him in cross-examination and, Ms Bazley said, he had an answer, namely that Ms X must have made up her allegations having learned what the mother was saying. Ms Bazley also argued that any potential unfairness to the father should have been balanced against the benefit to the welfare of the child in getting to the truth. The judge was swayed too much, in her submission, by the criminal approach to unfairness when he should have been looking at matters with a family court approach. 

60. Ms Bazley submitted that the judge should have approached the matter in accordance with the decision of the House of Lords in O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534. O'Brien is a case about the circumstances in which evidence of "similar facts" can be admitted in civil cases. The House of Lords described a two-stage approach to deciding whether evidence should be admitted. The first stage of the inquiry is whether the evidence in question is potentially probative of an issue in the action; if so, it is admissible. The second stage of the inquiry is whether the material should in fact be admitted. The House of Lords set out the sort of factors that weigh in the balance in deciding on this, including a consideration of whether the potential probative value of the evidence is outweighed by its potential for causing unfair prejudice. Had Judge Bromilow followed this approach, Ms Bazley said, he would have concluded that the material was relevant and that the mother should be allowed to explore it during the hearing. He should particularly have taken this view, in her submission, in light of the marked similarity between the sexual assaults alleged by both women.

61. Ms Bazley also offered some explanation for why no adjournment was sought by Ms Pope so that Ms X could be called. This seemed to be the product of a number of influences, including, in part, the difficulty posed to Ms Pope by the quantity of material that arrived at the last minute, but also because the mother would be in a difficult position if the case were to be adjourned again. I understood this difficulty of the mother's to relate to the fact that she is having to live in this country, separately from her husband and other child, until the court here can decide the issues between her and the father over A, so delay would be unpalatable for her.

62. Responding to the mother's submissions, Ms Morgan accepted that the judge might have been assisted by seeing the father's response to questions about the fact that someone else had made similar allegations, but she invited attention to the limited questions that were actually put to the father about the 1997 incident which the judge did permit to be explored. She submitted that the mother's criticism of the judge for failing to apply the O'Brien approach was unfair, given that the case was not put to him. Furthermore, in her submission, having explored the relevance of the material with Ms Pope, the judge never in fact expressed the view that it was not relevant. In O'Brien terms, in Ms Morgan's submission, he just moved on to the second stage of the inquiry and took a careful, and correct, case management decision not to permit the matter to be pursued.

63. I do not read the judge's remarks as a rejection of the potential relevance of the Ms X material. I think it is right to characterise his decision as a case management decision. Case management decisions are not lightly to be interfered with by the Court of Appeal. It seems to me that this judge was entitled to decide, in the circumstances that appertained here, that the mother should not be allowed to rely upon the material in the way in which she sought to do. He was entitled to place weight upon the fact that the father had no notice until the hearing that the Ms X material was going to form part of the mother's case and also upon the fact that the mother was not seeking to call Ms X. He was also influenced, not surprisingly, by the need to bring the long running proceedings to an end, which would have militated against an adjournment to secure the attendance of Ms X. Furthermore, he knew that if he permitted questions to be asked of the father, the father would deny the truth of Ms X's allegations. This would not, of course, necessarily have robbed the proposed questioning of all of its potential utility, but it was a relevant consideration when weighing up how probative the material might be as against the potential prejudice of allowing reliance to be placed upon it. I would therefore dismiss the appeal in relation to the judge's decision on the Ms X material.

64. I should note, before leaving this subject, that we invited counsel's attention prior to the appeal hearing to the case of R v Mitchell (Northern Ireland) [2016] UKSC 55, a case dealing with evidence of propensity/similar facts in criminal proceedings, and were grateful for their submissions on it. However, given that there was no challenge to the relevance of the Ms X material and that the judge's decision was a case management decision which I would support for the reasons I have just set out, I do not propose to explore R v Mitchell further in this particular case.

Summary
65. I would allow the appeal in relation to the judge's treatment of the allegation of assault on A (ground 2 of the grounds of appeal), for the reasons given above, and remit the issue for determination by another judge (see §31 above). Apart from that, I would dismiss the mother's appeal, because, as I have explained, I have not been persuaded by any of the grounds of appeal relating to the judge's finding in relation to her allegation that she was sexually assaulted by the father.

Lord Justice Christopher Clarke:

66. I agree. As to the submission which my Lady has summarised in paragraph 41, the standard of proof is not affected by the likelihood of the event occurring. But any assessment of whether or not that standard is satisfied is necessarily influenced by how likely it was that the event did in fact occur. Like my Lady I do not consider that the judge either erred in principle or reached a conclusion that was not open to him.

Lady Justice Gloster:
67. I agree with the judgment of Black LJ and the comment made by Clarke LJ.