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S (Children) [2007] EWCA Civ 694

Application for permission to appeal, with appeal to follow, findings of fact in a disputed contact case where the mother accused the paternal grandparents of domestic violence and so contact with the paternal family had lapsed. Application granted but appeal dismissed.

Counsel for the appellants had sought to appeal principally on the grounds that the psychologist's report had not been sufficiently considered during the hearing. However The Court of Appeal agreed with the trial judge's conclusion and in particular his refusal to grant leave to appeal which stated "Arguably it might be possible to overturn one minor finding but not as a whole, these are subjective findings based on reasoned conclusions of the evidence – leave refused."

In a supplement to the main judgment Wall LJ emphasises the appeal point and reiterates the position as set out in Rayden & Jackson that "It is unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds of an application for appeal if the matter has not been brought to the judge's attention when there was a ready opportunity to do so."


Case No: 1) B4/2007/1067 2) B4/2007/1161

Neutral Citation Number: [2007] EWCA Civ 694


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 14th June 2007


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(DAR Transcript of
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Mrs D Marson (instructed by Messrs Wilkinson Woodward) appeared on behalf of the First Appellant Father.

Mr D Cadman (instructed by Messrs Chambers) appeared on behalf of the Second Appellant Grandparents.

Mr S Jameson (instructed by Harehills and Chapeltown Law Centre) appeared on behalf of the Respondent Mother.

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(As Approved by the Court)

Mr Justice Hedley:
1. This is an application for permission to appeal with appeal to follow if granted against the judgment of HHJ Bartfield given on 2 May 2007 at the Bradford County Court. The learned judge had between 26 March and 2 February heard evidence in what was described as a fact-finding hearing. He had indicated the nature of his findings and the reasons for them at the end of the submissions but was asked to provide a fully reasoned judgment which he did on 2 May 2007.

2. These proceedings essentially concern two children: S, born on 21 February 2002, and H, born on 22 April 2004. Their mother is TS; their father SR. Mr R, the father, who suffers from moderate to severe learning disabilities, is incapable of independent living and is heavily dependent upon his own parents, Mr MR and Mrs PA, as to support in terms of daily living. The mother and father married on 13 December 1998 in Pakistan. The mother came to the United Kingdom on 29 February 2000 and they set up home with the paternal grandparents in Halifax in a large Victorian house subdivided into flats. The mother left home on one occasion at the end of September 2004 and finally left home on 2 December 2004. Since that date there has been no contact between the children and the paternal family.

3. In due course an application for contact was made and no great suspicion is to be read into the delays because it took some time before the paternal family say they discovered where the mother was. In the course of the contact proceedings it became apparent that whilst the mother was not opposed to contact between the children and the father -- and indeed we are told now actively supports it -- she was unable to contemplate contact involving the paternal grandparents because, she said, of the long history of domestic violence to which she had been subjected whilst a member of their household. The particular problem that arose in this case was that it was thought to be most unlikely that the father could sustain contact without support and most unlikely that he could accommodate contact without specifically support from his parents; hence the impasse.

4. The learned judge when confronted with that was addressed with argument based on the decision of this court in Re L and others (Contact: Domestic Violence) [2002] FLR 334. The learned judge concluded that this case required a fact-finding hearing preliminary to the consideration of the merits and mechanics of contact and it was in those circumstances that this hearing came about. These hearings undoubtedly pose difficulties for trial judges, partly because it is often quite difficult to investigate what has taken place in the privacy of homes but also because a judge is required to approach these cases very much on a fact-finding basis and without regard for welfare, and yet having in the back of his or her mind the implications that these hearings may actually have on the welfare hearing in the fullness of time.

5. The learned judge in this case heard evidence over a period of five days. That evidence included the evidence of family members and the evidence of carers that were employed by the family, for this was not the only son with severe learning difficulties; so had his older brother, in fact he had probably more severe ones. There was also before the judge the evidence of Professor Nigel Beail, who was a consultant psychologist with a speciality in learning difficulties, and his advice was very properly sought in a case of this nature and it is said, and this is part of the dispute in the case before us, that his advice went to issues of fact as well as to the merits and mechanics of the welfare considerations in relation to contact.

6. The learned judge's task was made more difficult because of course he had to hear much of the familial evidence through translation and in the course of his judgment he has carefully reminded himself of the difficulties that can arise when one listens to evidence through translation. He had the additional difficulty of engaging with a culture with which the learned judge may in fact be familiar but only very much at second hand as he himself explained in his judgment.

7. Nevertheless, reminding himself of those difficulties, he applied himself to the hearing. The effect at the end of this hearing was to make a considerable number of findings of fact. He had most helpfully been provided by counsel with a schedule of the findings sought by the respondent mother and they are set out over some four pages. He indicated that he made the findings there sought subject to the deletion of three of them and the amendment of two others; the exact details do not matter for these purposes.

8. The learned judge made it clear that he accepted the evidence of the mother, whom of course he had heard over some little time, and rejected in fairly trenchant terms the evidence that had been put forward by the paternal grandfather, Mr MR, noting that the paternal grandmother simply allied herself in totality with the evidence given by the paternal grandfather and therefore her evidence fell to be considered in the same way.

9. It is perhaps important in this case that the court should have in mind the range of evidence that was considered by the learned judge because he was considering events between February 2002 and 2 December 2004. The findings that he made, which cannot sensibly have been the subject of challenge, portray a picture of the institutionalised humiliation of this mother in the home in which she was the outsider. She was threatened; she was sworn at; she was treated like a servant; she was slapped; she was pinched; she had her hair pulled; a whole range of what individually would be regarded as low-grade offensive behaviour but which cumulatively must have had, and the judge so found, a profound impact on this rather timid mother, who in the end plucked up courage and left.

10. I venture to say that is an important context because the attack on the judge's judgment focuses on two specific findings: one which occurred on 14 August 2004 in which effectively there was a major domestic scene, it spilt out onto the road, it then returned to the household, the police were called and various complaints were made. The judge made a number of findings arising out of that, not least that the grandparents took part in and encouraged an assault upon the respondent mother inside the family house and that the children were present when that assault took place. Now the second and perhaps more serious incident relates to early December 2004, and was the incident that precipitated the mother's final departure. According to the findings of the learned judge, the father was instructed by his father to hit the mother, which he then did causing her some injury. When the learned judge had given his judgment he was asked for permission to appeal, and his attention was drawn to the evidence of the psychologist and the fact that he had made no reference to it in his judgment, as in fact was the case. The learned judge declined -- as almost inevitably he would have to -- to give permission to appeal on the straight issue of fact, and that is where the matter rested.

11. The case comes to this court and has been listed as I indicated at the outset of this judgment. The attack is really confined to the two incidents to which I have made reference. Although the judge has made it clear in the course of his judgment as to what happened, he made it clear that he did not attach culpability to the father himself, indeed it is implicit in his judgment that he would not have believed the father capable of this violence unless put up to it by someone else and that the only person by whom he might effectively have been put up would be his own parents.

12. These allegations are of course serious especially to the grandparents because they amount to carers inflicting violence on the one for whom they care and encouraging that carer also to inflict violence on the mother. The reality is that on this occasion the father did suffer an injury, which it is said either was caused by the mother or was caused by an unascertainable person, but which the judge found was caused by the grandfather, and one understands their anxiety about those findings.

13. Now again it is important that one appreciates the context in which the learned judge was making these findings. He acknowledged that caring for these disabled young men would have been a very demanding experience. He made it clear that the grandparents were not only devoted carers to their children but were devoted grandparents, and that no one had ever suggested they had misbehaved in relation to their grandchildren. The object of their hostility, according to the learned judge, was simply the mother. Now complaint is made effectively that the learned judge failed to give the weight that he should have done to the evidence of the consultant psychologist and that he has failed to explain why it is that he has not followed up or why he has rejected, if he has rejected, what the psychologist has said.

14. It is not profitable to go in detail through the psychologist's evidence but the points that are sought to be made really are that the father had never assaulted anyone, and therefore the judge should have explained why on this occasion he found that the father did when there was no history of it. The psychologist had indicated that the father, although capable of being manipulated, would know the difference between right and wrong and was not likely to respond automatically to any instruction, and the psychologist was able to draw attention not only to the father's immediate compliance with day-to-day things when asked by his parents but also to examples in which the father had stood his own ground and pursued his own route, notwithstanding that it was contrary to what his parents had wanted.

15. The psychologist was exercising great care in recognising that there were cultural issues involved in this case which he may not fully have grasped and wanted to be cautious about. It is of course a pity that the learned judge did not make specific reference to the evidence of Professor Beail when he gave judgment in this case, and no doubt the counsel of perfection would have been that he should do so, but that is a very long way from saying that he failed to take it into account or that he reached findings that were inconsistent with that evidence and failed to explain why they were. The plain matter is this: the learned judge, who is an experienced judge, in terms of fact-finding has reached a very clear view about the credibility of the mother and although various attempts were made to suggest that he should not have reached that view, the plain fact is he did and it is inconceivable for this court to say that he was not entitled to do that. He also reached clear adverse views about the grandparents. It is not open to anyone to challenge those, and in fact the challenge has been more on the lines that he should not have named a perpetrator rather than that he should have named another one other than the grandfather. One bears in mind that this is a case in which the learned judge has spent six days immersed in the affairs of this family and in the personalities that comprise it.

16. The learned judge has clearly formed a very high view about the capacity of these grandparents, both to provide care for their disabled sons and to have at their heart the interests of their grandchildren. He has as it were reminded himself that these are in all ordinary circumstances upright members of society making a serious contribution to society. The learned judge knows as well as anybody else does that nobody is perfect. The learned judge reminded himself of the pressures that would be present on these parents and the difficulties that would arise. Anyone is liable to behave out of character if the surrounding circumstances are such as it were to lower their level of self control, and there is nothing like family confrontation for having that effect. The learned judge must simply be taken to have known those matters and to have had them in mind, given his extensive involvement with this family.

17. In all the circumstances it seems to me that the learned judge has approached this matter with considerable care. He has set the context correctly, he has reminded himself of the difficulties, he has reached clear views about credibility and has translated those into specific findings on the basis of evidence canvassed in front of him. It may be that nobody could have complained had the learned judge said that the father hit the mother "but I do not know why he did", but this judge, considering the whole background and the culture no doubt of humiliation which was around, reached the view that it was the grandfather who put the father up to it and it seems, with the greatest of respect, extremely difficult to say in that context that the judge was not entitled to draw that inference if he thought it right to do so. As I have indicated, it might have been better if he had drawn into his judgment what the consultant psychologist had to say, but there is absolutely nothing in the judgment which suggests to me that he has deliberately ignored or rejected any part of the psychologist's evidence. It is, I suspect, simply that he has concluded that it did not have very considerable weight in the context of this part of the case, bearing in mind the totality of the evidence which he heard.

18. In my view this is a judgment to which the learned judge was entitled to come. These were findings that he was entitled to make. He might have made other findings, of course he might, but these findings were open to him on the evidence and he has made them. In the circumstances, whilst it may well be that the court having considered this matter with the care that it has will grant permission to appeal, in my judgment this appeal should be dismissed.

Lord Justice Wall:
19. I entirely agree with the judgment my Lord, Mr Justice Hedley, has just given. I add a short judgment of my own on one discrete point of practice which strikes as being of some importance. In his able skeleton argument on behalf of the grandparents, Mr Cadman advances as the first ground of appeal this:

"The judge failed to address or analyse the expert evidence of Professor Beail (supported by the evidence of the respite care) and failed to given any reason for departing from it, rejecting it, or determining that the case could be decided without reference to it".

That submission also formed the basis of Mrs Marson's submission on behalf of the father.

20. What happened at the hearing, we were told, was that having heard substantial evidence over a number of days the judge gave an indication of what his findings were likely to be but agreed that he would at a later date provide full reasons for the findings which he had made. That he duly did. Unfortunately, we do not have a transcript of the judgment which he gave on 2 May. We only have a note, but it appears that at the end of the judgment counsel for both the father and the grandparents made an application for permission to appeal, which the judge refused. He did so on the basis that having heard submissions on the proposed grounds it was:

"Arguably it might be possible to overturn one minor finding but not as a whole, these are subjective findings based on reasoned conclusions of the evidence – leave refused."

21. We were told by Mrs Marson, and I am of course perfectly prepared to accept it, that she did raise with the judge in the context of her application for permission to appeal the fact that he had not dealt with the evidence of Professor Beail. The judge nonetheless refused permission.

22. The point which arises here it seems to me, and which is one of some importance, is that if counsel at the end of a judgment by a judge take the view that the judge has not dealt with a material part of the case or in the particular instance has failed to make findings of fact or has not dealt with the evidence of a particular witness, the responsibility of counsel at that point in my judgment is to point the alleged deficiency out to the judge and invite him to give a supplemental judgment dealing with the point raised. It is not, in my judgment, appropriate immediately to ask for permission to appeal on the ground that the judge has not dealt with the issues in question. As my Lord, Lord Justice Thorpe, pointed out in the course of argument these are two quite distinct applications, and inevitably in my view the judge was bound to refuse permission to appeal on the ground that he had made essential findings of fact based on credibility. Speaking for myself, I entirely agree with my Lord, Mr Justice Hedley, that the judge was indeed entitled to deal with the matter without a detailed analysis of the evidence of Professor Beail.

23. The point I am making is a different one. It is emphasised in the well known case of English v Emery Reimbold which we have in our papers. In the family jurisdiction it has been re-emphasised by the case of Re B (A child) [2003] EWCA Civ 881 and the passage in Rayden and Jackson on Divorce and Family Matters (18th edition, volume 2.1 para 51.67) to which I would draw the Bar's attention reads as follows:

"It is unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds of an application for appeal if the matter has not been brought to the judge's attention when there was a ready opportunity to do so."

24. In my judgment that passage needs a slight amplification because, as I have already said, it is not in my view satisfactory to draw the deficiency to the judge's attention in the context of an application for permission to appeal. In my view, some of these cases probably would not reach this court if the Bar took the elementary precaution of inviting the judge to deal with the point on the spot and then if they felt the way he had dealt with it was not satisfactory, to seek permission to appeal on the basis of the decision as fully explained by the judge.

25. The remedy in English v Emery Reimbold, which is no doubt appropriate in commercial cases, is to send the matter back to the judge to ask him to deal with the point under contention. That in children's cases plainly is not usually a practical course, and it is certainly not one I would wish to undertake here where progress needs to be made to a hearing on the merits. But in the majority of cases it does seem to me appropriate for the court to follow the English v Emery Reimbold, Re B approach and for the Bar at the conclusion of the judgment to invite the judge to deal with the points which are allegedly not dealt with and then a rounded decision can be made as to whether or not an appeal should be sought. This court will then have the full views of the judge on the points under discussion.

26. I make this point because (although, in the event, not essential) it would have been helpful in this case if the judge had been invited to deal with Professor Beail's evidence. It may well have been that he would have said it was irrelevant to the issue that he had to try, and indeed looking at the very careful reports written by Dr Beail, particularly his second report, it is plain in my view that Professor Beail's evidence goes more to the question of the contact being introduced and how that is to be done than to any issue of credibility. Indeed in the division of responsibility between expert and judge it is common ground, and accepted readily of course by Mr Cadman, that issues of credibility are for the judge and not for the witness.

27. I would therefore see this case as another example where a different practice should have been followed. If that message can go out so much the better. Therefore, like my Lord, and because this point arises in my judgment as a point of some importance for the profession I would give permission to appeal. However, having given permission, I have no hesitation in agreeing that the appeal should be dismissed.

Lord Justice Thorpe:
28. I too agree that permission should be granted and that the consequent appeal should be dismissed, and I agree with both judgments that precede mine. The case for the applicant has been argued extremely ably and persistently in the face of fire from the court by both Mr Cadman and Mrs Marson, who could not have said more in their respective causes.

29. There is one submission that Mr Cadman advanced that I would wish to deal with specifically. It was to the effect that this was very difficult territory for the judge and accordingly he should have adopted a more cautious approach to the assessment of the credibility of father and grandparents.

30. It is to be emphasised that five and a half, and ultimately six, days of court time were devoted to investigate the happenings within this family; not just the specific incidents but the relationships within the family. I suspect that all that was at public expense. At the end of it if the judge ducks out of clear, forthright expression of what he has gleaned and what he has accordingly concluded, the whole process is partially in vain and I would specifically commend HHJ Bartfield for having carried out a profound investigation of what was really going on in the family and for having expressed himself so unambiguously at its conclusion. It renders the task of the judge at the disposal hearing much the easier and it is also valuable to this court. Commonly we receive challenges to findings at the conclusion of the preliminary hearing as to whether or not children have been abused where the judge has dealt with the positive case of the applicant local authority with some care and at some length but has then shrunk from expressing any very clear conclusions about the response, and particularly the reliability and veracity of the evidence of the respondents. The value of the hearing is thus diluted and I not only do not accept the submission of Mr Cadman, I wish to go to these lengths to express my rejection of it.


1) Application granted. Appeal dismissed.
2) Application granted. Appeal dismissed.