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Home > Judgments > 2005 archive

Hunter v Hughes [2005] EWCA Civ 830

Application by a mother for permission to appeal the conclusions reached at the end of a fact finding inquiry into allegations of domestic violence. Application refused.

B4/05/0266

Neutral Citation Number: [2005] EWCA Civ 830

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE LIVERPOOL COUNTY COURT

(HER HONOUR JUDGE STEEL DL)

Royal Courts of Justice

Strand

London, WC2

Wednesday, 25 May 2005

B E F O R E:

LORD JUSTICE WARD

LADY JUSTICE SMITH

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CLARE HUNTER

Claimant/Applicant

-v-

DAVID PETER HUGHES

Defendant/Respondent

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(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

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

(Official Shorthand Writers to the Court)

- - - - - - -

MR GARETH JONES (instructed by Messrs Nyland & Beatie, Cheshire, WA8 6JS) appeared on behalf of the Applicant

MISS MICHELLE DAVEY (instructed by Messrs Gregory Abrams Davidson, Liverpool, L19 2JX) appeared on behalf of the Respondent

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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 WARD: This is an application by a mother for permission to appeal, not so much the order made by Her Honour Judge Elizabeth Steel in the Liverpool County Court on 26 January, but rather the conclusions she reached at the end of a fact finding inquiry into allegations of domestic violence.

2. Riding my hobby horse for a moment, this is another case where the Family Courts have conducted a fact finding inquiry. There is nothing wrong with that. The court did ask for a Scott Schedule of the allegations that were being pursued, which was appropriate and helpful. But when the order comes to be drawn, there is nothing in the order that I can see that deals in any way with those findings of fact. In the old-fashioned way an appeal lies against the order of the court, not so much against the judgment. It would be preferable to have had an order reciting that none of the matters raised in the Scott schedule were established and then the appeal could properly be brought against that order. If the Family Courts were a little more alive to the procedure in the civil courts of having a preliminary issue and answers to the questions raised on preliminary issue, then this problem would not arise. But now I have ridden my hobby horse, I will turn to the merits.

3. This couple lived together without ever marrying. They have two children, a girl who is 7 and their son who is now 4. A tragedy befell them when the father was violently assaulted in October 1997. He suffered severe injuries and was left with an impairment to his abilities and a fractured skull so that he suffered blackouts, headaches and depression and, undoubtedly, suffered a personality change as a result. It was no doubt to investigate that that psychiatric reports were prepared by Dr O'Halloran and Dr Mallucci and were placed before the court for consideration as part of the background to the allegation of violence in this case.

4. The Scott schedule set out six specific incidents of violence from November 1997 to December 2003 and four generalised allegations of threats and general violent propensity. The judge correctly addressed herself as to the burden and standard of proof. She stated in paragraph 4 of her judgment that:

"I have taken into account the oral evidence I have heard and the contents in the agreed bundle of documents. In particular I have noted the two medical reports on the Father from Dr Aideen O'Halloran (Consultant Psychiatrist) and Dr Mallucci (Consultant Neurosurgeon) and the medical records." (My emphasis)

5. Reviewing the evidence that was given by the only witnesses called before her in this hearing, which lasted a day, she said of the mother in paragraph 15:

"She was not an impressive witness. She was discursive, adding to the list of allegations further and general allegations. She tended to become excited and to exaggerate. Although there was little external evidence to substantiate or to repudiate her evidence on the particular allegations, where there was it tended to support the Father's account of what happened."

6. In dealing with the father, she took a account of the fact that in past he had had a drink problem, but recent liver tests revealed no evidence of excess alcohol at the present time. She referred to Dr Mallucci's report and was satisfied that the brain injury probably did affect him in relation to mood, temperament, short term memory and concentration, though now improved.

7. The judge then went on to deal with the specific allegations. The first was the event in November 1997 when the father punched the mother with his good hand, his broken hand still being encased in plaster after the criminal assault upon him. She took account of the medical records and a note that he was anxious and angry about what had happened to him, but she concluded in paragraph 23:

"Given the proximity to the accident, the entry as to no alcohol in the records shortly before this incident, the physical state the Father would be in at the time and the ambiguity of the Mother's evidence, I prefer the Father's evidence. I find that there was an incident in which the Mother was caught by the splint/case (not a punch with the good hand). This was purely accidental and thus this allegation is not proved."

8. Allegations 2 and 3 arose in June/November 1998. The judge found the dates were confusing and the mother was uncertain as to precisely how old the child was at the relevant time. Of the second occasion the mother said she called the police, but the police file did not deal with that incident. They related to allegations of threats with a knife. She had alleged that the police took the father away and beat him up, although they did not charge him with any offence. The father recalled that the mother had come into the house in a bad temper, run past him as he was holding a potato knife and that that was the only incident he could recall. He was taken away by the police on another occasion nothing to do with the knife.

9. The judge's conclusion, in paragraph 28, was that this was a tempestuous relationship. There were a number of rows:

"I am not satisfied that the two incidents alleged by the mother occurred in the way she said and I do not find these allegations proved."

10. Allegations 4 and 5 were separate parts of the same incident. The mother alleged that when she returned from the nursery, the father had her by the throat over the pram. She fled to her mother's house. Later he was outside the back door, allegedly throwing concrete blocks at the back of the house, so she called the police. He denied that. He said that as she left there was a confrontation outside the house when she accused him of being with another woman. As she went past him, he pushed her, but denied having her by the throat or any other violence. He said he was banging on the back door to gain entry because he was locked into the back yard. The judge's conclusion at paragraph 31 stated:

"I find his explanation, coupled with the approach shown by the police, to be the more credible. I find the Mother has exaggerated and that no concrete was thrown, he had no way of getting in to or out of the back garden other than through the house and was reasonable in banging to be let in and I also find there was no assault in the way she described. It follows that I do not find these allegations proved."

11. Finally, at Christmas 2003, it was alleged that he had tried to "snatch" the daughter. The judge's view was that the mother's account was exaggerated and, in general terms, the father's account was more likely, so that allegation failed. As to the allegation that he had threatened to cut the mother's face, she did not find that proved. She considered there was no violence or threat of violence to the mother in the text messages that had been sent; if he was going to kill anyone he would kill himself. The judge was not satisfied that the father had weapons of violence, other than that which form part of his fishing tackle.

12. Mr Gareth Jones, who appears today although he did not appear in the court below, is driven to face the fact that an appeal against findings of fact of that sort involves climbing the north face of the Eiger or something akin to that. Here was a judge who had listened all day to these two protagonists and had clearly preferred the evidence of the father to the evidence of the mother. In such circumstances for an appellate court to interfere and say that the judge was palpably wrong, that she had abused the great advantage which the trial judge enjoys over the appellate court of seeing the witnesses and judging them by their demeanour as opposed to judging the black and white letters of the transcript, all of that presents a high hurdle. Mr Jones is able to point perhaps only to these points to suggest that the judge erred. He submits that she failed fully to take into account a psychiatric report of a locum psychiatrist dated 22 September in which the father reported that 1 pint of beer would make him feel as if he had drunk 10 pints. I am not sure why the inference from that should be that he would go off and beat up his partner.

13. Mr Jones submits that the judge failed fully to take into account the contents of the CAFCASS report, which included a reference by the girl, that she would go to bed and hear him getting angry, that he would hurt her Mum and often when she came down in the morning things would be broken. That is an account from an 8-year old child, not having witnessed any direct assault but an inference of what she heard taking place in the home. The judge dealt with that broadly by saying in paragraph 54 that:

"I had no doubt this was a tempestuous relationship and that within the household there were rows, shouting and things were thrown. I have no doubt that this behaviour was seen by [the girl]."

In my view the judge was alive to the girl's allegations, but did not feel that it was sufficient to tip the balance.

14. A secondary point is that the father's own background is unhappy. He grew up in a house where his father was violent to his mother. It seems to me a far cry from that that he would follow suit. He expressly said that he tried to ensure that he did not behave like his father.

15. Pointers as to the lack of reliability in the father's evidence are that in his statement he stated he was suffering blackouts for 12 months after the attack, but in the letter from the locum psychiatrist he apparently recited the history where those blackouts had been occurring over the past 18 months. He said in his statement that he did not spank the children but he gave evidence, which the judge accepted and referred to, that he would smack the girl when she was particularly naughty but always over clothes and never leaving marks (paragraph 50 of the judgment).

16. The judge was aware of those discrepancies. They are not sufficient, in my judgment, to undermine the essential finding of this judgment that the judge simply did not believe the mother. An appeal against a finding of a lack of credibility is nigh impossible to mount. In my judgment the mother does not come even close to mounting it in this case. I would refuse permission to appeal.

17. LADY JUSTICE SMITH: I agree.

Order: Application for permission to appeal refused. Public funding assessment for both parties.