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A (A Child) [2011] EWCA Civ 1037

Application for permission to appeal against interim care order and against findings of fact that the appellant had been violent and bullying. Applications dismissed.

The father (F) of a 12 year old girl (A) sought permission, acting in person, to appeal two decisions of HHJ Cryan in care proceedings, the first placing her in the interim care of West Sussex CC and providing that all contact between the child and her paternal family be supervised, and the second relating to findings made in a fact-finding hearing.

On the date that the applications were set down for oral hearing, F was too ill to attend court, and one of his adult sons (GE) attended court in his place explaining that it was also highly improbable that he would be able to attend an adjourned hearing. It was decided that F would have an opportunity to make any further submissions in writing to the court after which time judgment would be given.

Facts had been found against F following allegations made by A's mother, the daughter of F's now ex-wife. These were allegations of serious domestic abuse and inappropriate sexual activity spanning some 20 years. HHJ Cryan found, amongst other facts, that F was bullying and violent, but did not find the more serious physical allegations, including rape, made out. The judge found F's presentation in court to be aggressive, loud, domineering, and without respect for the truth. He also found GE, who gave evidence, to be articulate and confident, but wholly partisan in his father's favour and capable of brazen dishonesty. GE, with his partner, had been the proposed carer for A, put forward by the paternal family.

F's grounds of appeal criticised the weight given to various matters by the judge, asserted that matters in the schedule originating from individuals who were not parties to the proceedings should not have been allowed, and submitted that there was a discrimination towards F on the grounds of his Greek origin and disability.

McFarlane LJ, sitting in the Court of Appeal, noted that an appellate court will require very strong material challenging the judge's approach before it may feel sufficiently confident to hold that the trial judge has come to a determination which is outside the conclusions that were reasonably open to him on the evidence.  He considered that, even having looked in detail at F's extensive written submissions which were provided prior to judgment, there was no reasonable prospect of successfully appealing the findings of the judge. He also noted that there could be no reasonable criticism of the schedule, which was no more or less than a convenient case management tool, and that the allegations of discrimination were in no way made out. F was refused permission to appeal in relation to the findings.

In relation to the appeal against the interim care order, McFarlane LJ noted that the judge was in the relatively unusual position, when considering whether to make the order, of knowing a great deal about the family by virtue of the extensive fact-finding hearing that had taken place. He also commented that the judge's adverse findings made about GE and the potential for A to be exposed either directly, or via GE, to F's dominant personality at a time when F was clearly exercised about the fact-finding judgment were appropriate reasons for being concerned that A would suffer emotional harm.

The application for permission to appeal the making of the interim care order was, therefore, also dismissed.

Summary by Gillon Cameron, barrister, 14 Gray's Inn Square


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Neutral Citation Number: [2011] EWCA Civ 1037
Case No: B4/2011/1510 & 1585
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
His Honour Judge Cryan

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/08/2011
Before :

LORD JUSTICE MCFARLANE

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Re A (A Child)
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Judgment

Lord Justice McFarlane:
1. A, a girl born on [a date] 1999 and therefore now aged 12, is the subject of ongoing care proceedings in the Principal Registry of the Family Division.  In the current application Mr E, A's father, seeks permission to appeal against two separate decisions of the trial judge, His Honour Judge Cryan, sitting as a judge of the High Court.  The first application for permission relates to an interim care order made on 25th May 2011 placing A in the interim care of West Sussex County Council and providing that all contact between the child and her paternal family must be supervised.  An exclusion order was also made preventing Mr E and three other family members from going within 200 yards of A's school.  The second application for permission to appeal relates to a comprehensive fact-finding judgment handed down by Judge Cryan on the 26th May 2011.  

2. Mr E currently acts as a litigant in person.  In accordance with the practice of this Court his application for permission to appeal was therefore set down for an oral hearing.  However, at the oral hearing Mr E was prevented on health grounds from attending court.  Instead attendance was made by one of  Mr E's adult sons (Mr GE), and Mrs JH, who claimed to act as a "litigation friend".  At that hearing, I explained that neither of those two individuals was in a position formally to represent Mr E.  In particular, Mr E does not lack the capacity to conduct this litigation on his own behalf, and therefore would not qualify for "a litigation friend".  He might, if he wished, be assisted by a McKenzie friend, but neither of the individuals in court was able to act in that capacity on that day given the absence of Mr E to present the case himself and in the absence of his instructions.  After discussion with Mr GE and Mrs JH, who understood the position, and sought to take a constructive approach, it was agreed that Mr E's chronic health condition rendered it highly improbable that he could attend an adjourned oral hearing.  In the circumstances it was agreed that if Mr E wished to make any further submissions in writing to the Court I would take those into account.  I would then deliver this written judgment as if given at an oral permission hearing. The effect of this process is that this judgment marks the conclusion of Mr E's application for permission to appeal, which, whilst dealt with on paper, will not be subject to further oral renewal.

3. Mr E has exercised the option of supplementing the material before the court by submitting the following further documents:

a) Final Submissions, dated 6th August 2011;
b) Addendum Skeleton Argument (prepared by Mrs JH as his McKenzie Friend);
c) A medical report on Mr E's health from Dr Simon Crawley;
d) A letter from A addressed 'To The Judge' and dated 24th June;
e) A psychiatric report by Dr Jan Falkowski, dated 24th February 2011.

4. The documents prepared by and on behalf of Mr E are of a high quality in terms of fluency and clarity. Whilst the court has not had the benefit of encountering Mr E in person, having read all of the material that he has submitted I consider that the court is able to understand the arguments and submissions that he seeks to make.

5. Whilst the fact-finding judgment was formerly handed down a day after the interim care order was made, it is convenient to consider the proposed appeal in relation to the finding of fact exercise first as that provides the context within which the interim care order fell to be considered.        

Application for permission to appeal fact-finding judgment
6. The factual material considered by the Judge is complicated and spans a period measured in decades.  Ms MM is A's mother.  A primary complicating feature of the case is that, in addition to being Ms MM's partner, Mr E is also her step-father as a result of his marriage to her mother. 

7. It is both inappropriate and unnecessary in this permission judgment to descend to significant detail as to the allegations and findings.  It is sufficient to record that the Judge made findings that Mr E behaved in a dominant, violent and sexually aberrant way in relation to Miss MM's mother when they were married.  In relation to Miss MM the Judge found, on the balance of probabilities, that Mr E was likely to be the father of a child that Miss MM aborted when she was 15 years old.  The family had been known to social services for many years before Mr E, his wife and their children moved to Greece for a number of years.  Whilst in Greece Miss MM underwent a second abortion at the age of 18 and the Judge was satisfied that Mr E was also the father on that occasion.  The family returned to London and Mr E's wife petitioned for divorce in 1990.  Mr E, however, continued to live with Miss MM.  A was conceived in 1998 when Miss MM was 21.  Between 1999 and 2001, when A was a baby, Miss MM was involved in a series of frauds which lead to her conviction and a lengthy prison sentence in August 2003.  In the course of her trial she put forward an elaborate defence for which separately she was prosecuted for attempting to pervert the course of justice and sentenced to a further term of imprisonment.  Miss MM told Judge Cryan that her elaborate defence was concocted by Mr E and that he had taught her how to commit the offences.  Judge Cryan accepted that Mr E dominated Miss MM at this time and in particular assaulted her in the court precincts at the time of her trial. 

8. One theme of the evidence related to inappropriate sexual activity, or interest in indecent images of children, involving Mr E and both of his now grown-up sons.  Judge Cryan considered that evidence from witnesses regarding group sex occurring at the house involving G-E, Mr E's son, with an underage colleague and child pornography being found at the house was too much of a coincidence for the complaints to be entirely discounted. 

9. It was on the 9th June 2009 that the relationship between Mr E and Miss MM abruptly ended after she had contacted the domestic abuse service and subsequently the police and made serious allegations of abuse at the hands of Mr E over the course of the previous 20 or more years.  There then followed a period characterised by allegation and counter-allegation flowing between the father and the mother which involved a fairly extensive police investigation.  In the course of the investigation a computer was seized from Mr E's home in August 2010.  Paedophilic pornography, some involving animals, was found on the computer.  His Honour Judge Cryan made findings that this indecent material had to belong to one of the males in the home (Mr E and his two sons) and that it was too much of a coincidence to ignore that this was the second time such material had been found in the family home. 

10. Judge Cryan heard evidence from a range of family members and concluded that almost all of the witnesses were "incredible" and prone to lying.  This was, he concluded, particularly the case with both Miss MM and Mr E.  At the conclusion of his judgment, Judge Cryan considered a list of allegations set out in a Scott Schedule.  In very broad terms he made the following findings:

a. although Mr E is a bully and a selfishly demanding partner, there was insufficient evidence to conclude that his sexual conduct towards Miss MM amounted to rape;

b. Mr E is a violent, controlling bully and no doubt used violence from time to time, but there is no police or medical evidence which is directly supportive of the level and nature of the physical violence alleged against him by Miss MM;

c. The evidence is not sufficiently compelling to make a finding that Mr E forced Miss MM to have sex with other men;

d. Mr E harassed Miss MM in a mass of different ways but it is not clear whether she left the family home out of fear resulting from any particular danger or simply based on the cumulative effect of this highly intolerable conduct;

e. Allegations made by Mr E against Miss MM regarding telephone accounts and false benefit claims were not proved

f. Allegations that A was present whilst her mother engaged in inappropriate communications with men over the internet could not be believed.

11. Pausing there it is right to note that, other than the general findings of bullying, violent and selfish behaviour found against Mr E, none of the even more serious allegations made against him were found to be proved by the Judge. 

12. In addition to the detailed findings of fact that were made, the learned judge, who had observed Mr E in the witness box over the course of two days, considered that his presentation in court, which was aggressive, loud, domineering and without respect for the truth, was such that it corroborated the case of Miss MM and her mother to the effect that he was a domineering and controlling person. When evaluating the strength of any appeal, the appellate court will pay a great deal of respect to the findings of a judge who has had the benefit of observing a witness over the course of an extended period such as this.

13. Further, and with an eye to the issues in relation to the interim care order, the judge found Mr GE, Mr E's son, to be impressively articulate and confident, but also wholly partisan in his father's favour and 'capable of brazen dishonesty'.

14. The grounds of appeal relied upon by Mr E in relation to the fact-finding judgment go to matters of weight and the interpretation chosen by the trial judge.  In addition, Mr E complains that the Judge allowed multiple applicants to be included in the Scott Schedule and that this was unfair as each applicant made fresh allegations.  He alleges that at times the Judge contradicted himself by setting out matters as fact and then concluding to the contrary.  Finally, Mr E alleges that the Judge was biased in his findings by giving more weight to the mother's position whenever it was possible to do so.  Mr E claims that the Judge discriminated against him both because of his Greek origin and because of his disability.

15. In the course of his skeleton argument dated 14th June Mr E enlarges upon those grounds of appeal.  He records that the fact-finding hearing was lengthy and involved consideration of some 17 evidential bundles.  These submissions are enlarged upon in a document headed "Extended grounds of appeal" which runs to some 21 closely argued pages.  In addition, following the abortive oral hearing, Mr E has submitted a nine page document setting out his "final submissions" on the fact-finding process. 

16. I have read both the fact-finding judgment and Mr E's detailed critique of it in full now on two occasions.  For the purpose of this permission hearing Mr E has to satisfy the Court that he has a reasonable prospect of successfully prosecuting his proposed appeal.  Whilst I have, as best I am able, tracked each of the micro points made by Mr E in relation to the Judge's findings at the end of the day they would each seem to be tied into Mr E's perspective on the factual issues and supported by him on paper by reference to his perception of the evidence available.  One example of this approach may suffice to demonstrate the line that is taken in relation to many of the allegations.  The Judge found that Miss MM became pregnant and underwent an abortion when aged 15 at a time when she was living with her grandparents in South Wales. At that time Mr E was living with Miss MM's mother, his wife, in Portsmouth.  The Judge found that Mr E was, on the balance of probabilities, the father of the aborted embryo.  Mr E's case is that because the Judge concluded that Mr E was not living in the same household as Miss MM at that time he could not validly find that Mr E was the father.  It does not seem to me, nor did it obviously seem to His Honour Judge Cryan, that a finding that Mr E and Miss MM were living in geographically distant households and a finding that he was the father are mutually exclusive.  Mr E was by that time married to Miss MM's mother and clearly knew and had encountered Miss MM in the course of his relationship with her mother.  A sexual act leading to conception does not require, as a precondition, the two parties to be resident in the same household. 

17. Having looked both in detail and by standing back to consider the entire picture of the case he seeks to put in relation to the fact-finding, I do not consider that Mr E has a reasonable prospect of successfully appealing the findings of the Judge insofar as he seeks to assert that the Judge was in error in applying too much weight or too little weight to the various countervailing aspects of this complicated evidential jigsaw. The attribution of weight to the detailed evidence before the court is a matter about which a trial judge is in an infinitely better position than an appeal court which will not have the all important opportunity to observe the witnesses and evaluate their evidence over the course of an extended trial. An appellate court will therefore require very strong material challenging the judge's approach before it may feel sufficiently confident to hold that the trial judge has come to a determination which is outside the conclusions which were reasonably open to him on the evidence and is therefore 'plainly wrong'. The burden of providing such strong material is upon the party that seeks to appeal and in my view the case now mounted by Mr E does not establish a reasonable prospect of successfully persuading an appellate court that the judge's determinations (which were limited and measured in so far as they went against Mr E) were plainly wrong.

18. Insofar as Mr E criticises the Judge for bringing in matters into the Schedule that originated from individuals who were not parties to the proceedings, I consider that his argument is without merit.  The Schedule is no more and no less than a convenient case management tool to establish the agenda for the hearing.  The individuals whose names appear on the Schedule were undoubtedly to be called as witnesses in the hearing as they were key family members or others close to the relationship of this couple which was the focus of the hearing.  Mr E makes no criticism that the witnesses were called or that their evidence was heard.  It was therefore a pragmatic and sensible step for the content of that evidence insofar as it established an allegation to be recorded in the Schedule and thereby go onto the "agenda" for the hearing. 

19. There is no evidence, other than the fact that the Judge made some findings against Mr E, to substantiate the general complaint of judicial bias and/or discrimination.  Indeed, as I have already recorded, many of the more serious findings sought against Mr E were determined in his favour rather than the contrary. Mr E questions whether a judge should express such a strong and vehement opinion about a party. The position is that a judge has a duty to express his opinion on the evidence before him and, if such is relevant, to describe his conclusion as to the behaviour and presentation of a party. Judge Cryan's appraisal of Mr E, to which I have already made reference, was plainly a relevant and necessary part of the fact finding process. The judge had had ample opportunity to reach a conclusion on the issue. Having done so he expressed himself in plain terms and referred to the evidence upon which his conclusion was based. His approach and his use of language are, in my view, unimpeachable and entirely appropriate.

20. For those reasons I am plain that there is no merit in Mr E's proposed appeal against the fact-finding decision and I therefore refuse permission to appeal.

Permission to appeal: interim care order
21. In relation to the challenge to the interim care order Mr E puts forward 12 grounds of appeal in his "extended grounds of appeal" dated 2 June 2011.  I can deal with some of these grounds shortly as they are either irrelevant to the Court's role in considering an interim care order and/or wrong in law.  They are:

(2) No Judgment or Order to assess if the process is correct;
(3) Excessive use of force with police presence at my home on Tuesday 24 May 2011….

(6) No listing of a prior directions hearing.

22. I also attach no regard to ground 11 which alleges that the Judge should have judicially disqualified himself on the basis of bias.  This is a self serving ground as it is based upon Mr E's perception that the Judge would have reacted adversely to a letter that he had written to Judge Cryan following the fact-finding judgment setting out his view of the process in "no uncertain terms".  There is no indication in the judgment that Judge Cryan was in any manner affected by that letter.  Judge Cryan as an experienced family Judge will, sadly, be well used to immediate parental reaction following an adverse decision.  His very detailed judgment on the interim care application, given late in the day, shows that this was in no manner a "knee jerk" decision generated by negative opinion of Mr E as a result of that recent communication. 

23. Of the remaining 8 grounds, 3 relate to process or procedure.  In ground 4 complaint is made that the child's wishes and feelings were not taken into account.  On the contrary, the judgment shows that the Judge was fully aware that A had always had her home with her father and that she would not favour removal. 

24. Ground 7 complains of no opportunity to call expert witnesses.  This was a hearing at which the Judge was being pressed to make a decision.  By the time the decision came to be made Mr E had himself withdrawn as a potential carer and the issue to be decided by the Judge was between placement with GE, A's uncle, and his partner or under an interim care order to a foster home.  It is not clear how expert evidence which would have required time measured in weeks and months for instruction and preparation, could have been available to the Judge in making that determination.  As it happens the Judge had a great deal of information himself about the individuals in this family consequent to the extensive fact-finding process he had so recently undertaken.  I do not therefore consider that there is any reasonable prospect of that ground of appeal succeeding. 

25. Finally, in this regard in ground 10 it is alleged that no contact has been taken into account and thus ordered.  Conversely the Judge expressly deals with contact and makes a contact order, albeit limited to supervised contact at this stage.  Again, consequently, there seems to be no merit in that ground.

26. The remaining grounds relate to the judgment call that the Judge was required to make in relation to the grant of an interim care order.  In part this required the Judge deciding whether or not the threshold for an interim care order was met under Section 38 Children Act 1989.  Whilst in ground 1 Mr E asserts that there was no threshold for taking A into care, it is plain that the Judge relied upon the following factors in holding that the interim threshold was met:

a) the basis of the fact-finding conclusions to which he had come;
b) the potential for current emotional harm arising both from:

i) the father's reaction to the fact finding judgment;
ii) the father's withdrawal from a position of co-operation with the local authority, and;
iii) the impact from the process of assessment that was then being set in train. 

There is no potential, therefore, in my view to criticise the Judge's finding that the interim threshold criteria were proved. 

27. The remaining grounds relate to the "welfare" decision that the Judge was required to make by choosing between a placement with GE or an interim care order.  In the course of his judgment the Judge correctly summarised the current state of the law and, in particular, identified the high hurdle that must be surmounted before a child may be removed compulsorily from home at an interim stage. 

28. In considering this aspect of the case I have been assisted by Mr E's recent "addendum skeleton argument" prepared by Mrs J H, acting as his McKenzie friend. 

29. One discreet matter raised in that document is that at paragraph 6 of the judgment His Honour Judge Cryan refers to making a "full" interim care order and the submission is made that the Judge was in error in treating this as effectively the final determination in the whole proceedings.  Apart from the introduction of this one word "full" in that paragraph nothing in the remainder of this extensive judgment indicates that the Judge was in any error at all in that regard.  HHJ Cryan is an extremely experienced family lawyer and Judge.  The terms of the judgment indicate that he knew correctly and precisely what issue it was that fell for determination. 

30. In considering whether or not the Judge fell into error, it is important to bear in mind an aspect of these proceedings which remove them from the ordinary run of care cases.  In a conventional case the first the Court will know of the application is when the local authority issue it and any early request for an interim care order has to be made by a Judge who has little knowledge of the factual background or of the parties.  The current case is the mirror image of that conventional model.  By the time he came to consider the interim care order application this Judge had a very thorough knowledge of the family within which A was being brought up.  He had recently made adverse findings about each of the key family members and it was in no small part as a result of those findings that the local authority issued the application.  Consequently, it is not necessarily appropriate to measure the structure of the current case against the paradigm model upon which most of the decided case law as to the Court's cautious approach to fact-finding at an interim stage is based. 

31. Two further matters are of note.  Firstly, the father's reaction to the fact-finding judgment was a matter which had properly to be taken into account and which moved the case on, in a manner adverse to the father, from the position reached even as recently as the conclusion of the fact-finding hearing.  At paragraph 29 Judge Cryan records the father's position in these terms "Mr E refers or has referred during the course of his written and oral criticisms to some sort of conspiracy.  Of course, any litigant is entitled to disagree with the judgment of the Court.  But the tone and tenor of this disagreement is unbalanced, vitriolic, obsessive and entirely characteristic of Mr E's tactics when accused".  Further, at paragraph 34 the Judge records G E, Mr E's son, as describing "his father as being obsessed by the judgment of this Court and unbalanced in that effect".  Two further matters are also of note.  Firstly, Mr E's reaction to the judgment and the content of his meeting with the social worker led the local authority to conclude that at that point in time Mr E's level of co-operation with the social workers had radically reduced and could not be relied upon.  Secondly, Mr E himself accepted that it was not appropriate for A to remain in his care at that stage; a position with which his son, G E, apparently concurred. 

32. It is, therefore, against that background, shortly sketched out by me but more thoroughly traversed in the judgment, that the interim care order decision fell to be made.  It was a choice between placement with G E and his partner or an interim care order and placement in foster care.  The Judge identified two core detriments in terms of placement with G E at that stage.  Firstly the adverse findings made in relation to G E, as a member of the household, in the fact-finding judgment.  Secondly, the potential for A still to be exposed either directly, or via G E, to her father's very dominant personality at the time when he was highly exercised by the turn of events and the finding of fact which would remain as a potential for emotional harm if there were placement with G E. 

33. Having reviewed this matter in detail, and appreciating that the sensitive issue of the removal of a 12 year old child from her home and her primary carer was necessarily balanced by countervailing factors pulling in opposing directions, I consider that there is no reasonable prospect of the Judge's decision being successfully challenged on appeal. Where a decision is finely balanced, it becomes less possible to challenge it on appeal as the fineness of the balance indicates that either of the two options were 'open' to the judge and within the scope of the exercise of his discretion.  I therefore dismiss the application for permission to appeal.