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Re A (A Child) (Error of Fact in Judgment) [2016] EWHC 382 (Fam)

Appeal by father in children proceedings to correct error of fact in judgment. Appeal allowed and judgment corrected.

Following protracted private law proceedings between the parents of child A, the matter came before HHJ Owens for final hearing where final orders were made that there be indirect contact only between A and her father and a s.91(14) bar against either parent making a fresh application within two years without the permission of the court.

In her judgment, and in summarising Cafcass' Safeguarding enquiries, HHJ Owens reported that "[c]hecks in relation to the father revealed that he had convictions for offences of serious violence towards his partner."

The father informed the court that this was in fact incorrect as he had no convictions of serious violence towards his partner. However, the judge declined to amend her judgment and informed the father that he would have to seek leave to appeal which he duly did.

Baker J, on considering the relevant facts, concluded that whilst the father did have convictions in 1988, they were not for serious violence against his partner, and whilst numerous allegations had been raised and charges made, he was never convicted of any such offence.

Accordingly the father's appeal on that discrete point was allowed and the relevant sentence amended to read "Checks in relation to the father reveal that he had a conviction for an offence of assault occasioning actual bodily harm in 1988.  Although he has been the subject of allegations on a number of occasions since then, he has not been convicted of any offence of violence."

Summary by Esther Lieu, barrister, 3PB

No. ZC15P00382
Neutral Citation Number: [2016] EWHC 382 (Fam)

(HHJ Owens)


Royal Courts of Justice
Friday, 16th December 2016


(In Private)
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B E T W E E N :

K Respondent
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MR. BARTLET-JONES appeared on behalf of the Appellant Father, J.
THE RESPONDENT MOTHER, K, appeared in Person.
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1. This is an appeal against a very small point arising out of a judgment delivered by Her Honour Judge Owens in the Reading Family Court on 7th October 2016.  Permission to appeal was granted by me on 25th November, and I listed the matter for a short hearing before me today, 16th December.

2. The appellant father, J, is represented by counsel, Mr. Bartlet-Jones.  The respondent mother, K, appears in person.

3. The proceedings concern the parties' daughter, A, who is now fourteen and a half years old.  She has been the subject of court proceedings over a number of years.  Not all the papers in all those proceedings have been shown to me, but I have seen enough to know that this has been one of those sad cases which have come back and forth to court on a number of occasions.  There have been judgments delivered by a number of judges over the years.

4. A lives with her mother.  The focus of the most recent proceedings has been on whether, and if so on what basis, the father should have contact.

5. Many allegations and cross-allegations have been made by the parties against each other.  There have been rulings on those allegations and cross-allegations by judges over the years.

6. The matter that came before Judge Owens was, as I have said, focused on contact between A, her father, and the paternal family.  The father's hope was that he would be able to achieve direct contact with his daughter.  However, the judge, in a lengthy, detailed, well-considered and well-structured judgment explained her reasons for declining that order.  Instead, she made an order for indirect contact between A and the paternal family. 

7. She made a number of other directions including, and in my view importantly so, an order under s.91(14) providing that neither party should be able to make any further application for an order under s.8 of the Children Act 1989 in respect of A, without the court's permission for a period of two years.  From what I have read – and this is important - I hope that A will now have a period when she is untroubled by further litigation about her. 

8. The issue which comes to me today is not the order the judge made about contact.  I imagine the father is unhappy with that, but he does not seek to appeal it before me today.

9. Instead, the father simply objects to one sentence in the judge's judgment.  Early on the judge said, summarising the safeguarding enquiries that had been carried out by Cafcass, as follows:

"Cafcass also filed a safeguarding letter dated 17th May 2015 which identified that there had been previous Cafcass involvement with proceedings for A in 2007, in the course of which a guardian had been appointed for A.  Checks in relation to the father revealed that he had convictions for offences of serious violence towards his partner.  The father does not accept the information contained within the Cafcass safeguarding, nor does he accept His Honour Judge Mitchell's related findings."

10. By his Notice of Appeal, the father seeks to have the sentence beginning with the words "Checks in relation" deleted on the grounds that he does not have any convictions for offences of serious violence towards his partner.

11. Following the setting out of the draft judgment, he drew this point to the attention of the judge.  However, it seems that the judge decided not to take any action in respect of that, and told the father through the court office or by email that she was not prepared to amend her judgment, and that if he wished to take the matter further his course would be to appeal.

12. The evidence on which this appeal is based is purely derived from the safeguarding letter and it seems to me that on a close reading of the letter, the father's case is unanswerable. 

13. Although the mother, who appears in person, has opposed the appeal in writing, concerned as she is about any possible undermining of the judge's order, as she has fairly conceded in argument to me today there is no answer really at all to the father's complaint about this one sentence.

14. The reality as it emerges from the safeguarding letter is as follows:  that the father has convictions for theft and assault occasioning actual bodily harm in 1988, so now some nearly thirty years ago.  That assault did not involve a partner.  No cautions were recorded. 

15. In addition, however, the police information disclosed occasions when the father has been the subject of a number of criminal investigations.  In chronological order, in 2007 he was found not guilty of causing grievous bodily harm with intent, of common assault on five occasions, harassment or false imprisonment.  Those allegations involved the mother.

16. In November 2007 he was found not guilty of threatening to kill the mother.  In November 2012 he was found not guilty of an offence of battery and intimidating a witness.  In February 2013 he was found not guilty of two offences of battery from when he was alleged to have assaulted his wife.  In February 2014 he was acquitted of another matter not related to allegations of violence.  In November 2014 no further action was taken following an allegation of sexual assault by a young woman.  Arising from the same incident, no action was taken on an allegation of battery which was also said to have involved an incident within his family, not involving the mother.

17. The position therefore is that although the safeguarding record disclosed that there were a number of allegations against the father, and in some cases proceedings, he has not been convicted of any offence of violence involving a partner, and no offence of violence of any sort since 1988.

18. To that extent therefore the judge's judgment was mistaken and the father invites me to set that single sentence aside.  His reason for doing so is that he wants the record to be accurate.  He says in particular he is concerned that if in due course A were to read the judgment, she would get an untrue picture of his background.

19. Although this is a point which may be thought to be of only marginal importance, nonetheless it seems to me right that the record should be correct.  Accordingly, on this point alone I allow the appeal against the judgment and record that the sentence to which I have referred should be amended so as to read that:

"Checks in relation to the father reveal that he had a conviction for an offence of assault occasioning actual bodily harm in 1988.  Although he has been the subject of allegations on a number of occasions since then, he has not been convicted of any offence of violence.

20. This minor amendment, though important to the father, and one which I think appropriate to record, does not affect in any way the essential findings of the judge and her decision in respect of contact. That decision remains intact.  However, to the extent that I have indicated I will allow this appeal.