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M (Children) [2009] EWCA Civ 1573

Renewed application by father for permission to appeal finding that he had stabbed his children's mother. Application allowed.

Care proceedings had been initiated after an incident at the family home, attended by emergency services, where the mother had suffered a knife wound to her wrist. The father claimed that the wound was self-inflicted and the mother contended that he had attempted to wound her while she was asleep.  The father was acquitted of attempted murder, within 25 minutes of the jury sitting, primarily as a result of the judge's direction in the criminal proceedings that the wife's evidence was unreliable: she had a history of depression and dishonesty. In a subsequent hearing in the care proceedings the family judge found that the s31 threshold had not been crossed but that the wife's account of events was accurate. The case reverted to private law and he gave the mother residence but with contact.

In this application Ward LJ notes that the court will

"not lightly grant permission to appeal findings of fact which had been made by an experienced judge after five days of hearing when a great deal of his finding depended upon the credibility assessments he made of various witnesses."

However he then reviews the submissions and the evidence within them, which revealed "obvious discrepancies" which were "worrying enough" to consider that there may be a real risk of injustice. In particular, there was new evidence to suggest that the father's admissions of guilt relied on at the hearing could not have been made as described. He therefore granted permission to appeal two refusals to allow permission to appeal, the fact finding itself and the residence order as it was possible that the judge had not sufficiently considered the mother's possible personality disorder. Waller LJ adds comments agreeing with Ward LJ and emphasising the unusual nature of the permission.
Case No: B4/2009/1462
Neutral Citation Number: [2009] EWCA Civ 1573
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 21st August 2009

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(DAR Transcript of
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Mr R Tyson and Ms C Elford (instructed by Wards Solicitors) appeared on behalf of the Applicant father.

Mr C Hyde QC and Ms A Midgley (instructed by Messrs Bobbetts Mackan) appeared on behalf of the Respondent mother.

Mr R Tyson and Ms E Hudson (instructed by South Gloucestershire Council) appeared on behalf of the local authority.

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(As Approved)
Crown Copyright©

Lord Justice Ward:
1. This is a highly unusual story and an unusual application for permission to appeal.  The story essentially centres around an incident on 19 October 2007, now quite a long time ago.  In the early hours of the morning the father of the children with whom we are concerned heard noises upstairs, went into the mother's bedroom (they at the time living separate lives but in the same household).  He found – this is his story – that the mother had taken a knife and cut her own right wrist, even though she is right-handed.  His story is that he flicked the knife away and later budged the bed to make the presence of the knife more obvious to the paramedics and the police who were then called to the scene.  Her story is that he inflicted the wound on her.  So that was the central dispute of that, which HHJ Bromilow had decided in the Bristol County Court on 10 December 2008.  He held that this was an assault by the father on the mother.  It was not self inflicted.  Application was immediately made to appeal that order but it was not until very recently that Hughes LJ refused permission.  This is the renewed application for permission to appeal that order.

2. On 4 March 2009 HHJ Bromilow refused an application by the father to reopen those findings of fact on the basis of fresh evidence that had been acquired, and that is the second application for permission to appeal which is before us.  Delays having taken place -- and it is deeply unfortunate that they did take place -- meant that the final hearing of the care proceedings which had been begun by the local authority were delayed until 5 August.  Meanwhile there had been a second application to reopen the findings of fact on 15 July, again refused by the judge.   So we have a combined application for permission to appeal that refusal on 15 July, coupled with the judge's eventual disposal of the case on 5 August when he found that the threshold had not been crossed.  Care proceedings therefore fell away and he made a residence order in favour of the mother. 

3. I want to emphasise a point made by Mr Hyde QC on behalf of the mother, the obvious point that this court will not lightly grant permission to appeal findings of fact which had been made by an experienced judge after five days of hearing when a great deal of his finding depended upon the credibility assessments he made of various witnesses, in this case in particular the supporting witnesses to the event.  Notwithstanding that obvious difficulty, I am persuaded unusually that there is a case for this court to consider the matter further.  It is exemplified in a sense by the fact that the judge heard the case for these five days in December 2008.  Eventually in the Bristol Crown Court Cox J with a jury heard the case for 14 days with as one understands a good deal more evidence than was available to the judge.  The jury returned their verdict of not guilty in only 25 minutes, which on the face of it does not ordinarily suggest to anyone with any knowledge of the way juries work that they were wrestling with anxious doubt and that doubt was the reason for their acquittal.  But that may not of itself be sufficient to grant permission to appeal.  It does however leave me with a nagging feeling that an injustice may have been done to this husband, and for that reason the court should investigate the matter further.

4. Mr Tyson QC who appears for the father puts the case broadly in this way.  Looking at the big picture, he submits, there is an inherent improbability that this father, said by the psychiatrist to be a man of calm temperament, of no history of aggression, inflicting this serious wound on the wife whatever the provocation of her flagrant adultery may have been.  Against that the mother is on any account a lady of a most fragile mental disposition with a long history of depression, a questionable personality disorder about which I shall say more in a moment, and a history of dishonesty; moreover, a history of laying false accusations against a variety of people, not just, it is said, this father, her husband.  Given that portrait of the mother's personality, it is not a surprise that the judge treated her evidence with great caution, and Mr Hyde is perfectly right to emphasis that that was his entirely proper approach.  Nonetheless the fact remains that she is a flawed personality and one cannot put entirely out of mind that Cox J directed the jury that her evidence was wholly unreliable.  What, then, were the central facts which drove the judge to his conclusion?

5. They seem to me to be principally two aspects of the father's evidence which he found incredible, each of which is given emphasis by Mr Hyde this afternoon.  Firstly, the husband flicking the knife way.  The judge found that incredible.  Mr Tyson said it is the automatic reaction of a man who comes upon his wife in the circumstances which he described.  Budging the bed: was it to conceal the knife or make it more visible to the authorities?  And why, asks Mr Hyde, did he not immediately tell either the paramedics or the police where the knife was, knowing full well that a search was underway for it?  So those two aspects are not of themselves enough to persuade me. 

6. What was more essential and more worrying was the judge's reliance on admissions said to have been made by the father.  These admissions were made, and I must bear this in mind against the background that none of the professionals dealing with the mother -- at that stage paramedics, hospital nurses and so forth -- nor the police believed her; but that may be because she had made a phone call, dialling 999, in which she asserted that she had inflicted the wound on herself.  Her case is that she was forced to say that by the father.  So that may have poisoned the various people in their view of her.  The admissions seem to me to be central.  One was made to a nurse; the judge discounted that.  He rejected that because the nurse hearing or saying she overheard a conversation was giving evidence inconsistent with the other people who were present at the same phone call.  But the important question is: how did the nurse come to make that assertion?  And the suggestion by Mr Tyson is because this manipulative woman put her up to it.

7. Crucially, Mr D -- he is the boyfriend or was the boyfriend of the mother at the material time -- he gave evidence of two admissions.  The challenge as to the first is only that it is surprising that it was never made to the police.  That was a matter for the judge to rule upon.  But the second admission is shown by fresh evidence to have been plainly wrong.  The phone call could not have happened as was described.  That fresh evidence seems to me to call deeply in question to a troubling enough extent the evidence of Mr D, which was pretty central to the judge's findings of fact.  A third admission was made to Mrs W.  There are criticisms of it but it may be said that the judge was entitled to accept her evidence even though it took months before she reported the admission to the authorities.  There are other worrying factors.  This mother alleged, and the judge dismissed very peremptorily, an allegation that she had been drugged; at one stage by Mr D, and that may have changed to being drugged by the father.  It now emerges from fresh evidence put before the court that she had also said to the police that she had been drugged over a period of some three and half years.  She is a lady who it is said has a propensity to accuse others of wrongdoing, for example Mr D of threatening to attack her with a knife, a floor tiler whom she reported for theft and a neighbour against whom she took umbrage also being reported to the police, so all of these casting doubt upon her evidence altogether.

8. There is a curious matter of the t shirt.  She was certainly wearing a t shirt when first seen by the father, but by the time the paramedics arrived and at the hospital she was flaunting her bare bosoms to the world at large, an indication of her curious personality.  There are question marks over the pathology of the wound.  Was it more or less consistent with self infliction or an assault?  And there was the oddity of the presence of DNA on the handle of the knife for which the mother gave a perhaps curious explanation of having to use it to do certain photography work. 

9. I just feel this case has a real risk of injustice and is worrying enough for me to have those obvious discrepancies looked at by this court.  I would therefore give permission to appeal the fact finding, as well, insofar as it is necessary, to appeal the two rejections by the judge to reopen the matter.  I would add parenthetically, and it is a matter for the father to consider, whether it would be wise in the circumstances formally to make a further application to admit the fresh evidence upon which he relies, even though most of that is included in the applications to vary the order.  One way and another I am sure the Court of Appeal should have before it the fresh evidence said to undermine the December finding.

10. As to the residence order, a crucial point here as significantly identified by the local authority is that the judge failed to grapple, it is said, with the mother's mental condition.  The expert evidence was to the effect that she suffered a serious and long standing depression, but, if events had happened as were said to have happened by various witnesses in the case, then the conclusion of the expert would be that she suffered a serious personality disorder.  He correctly left that for the judge to find whether those events had happened.  The submission is they were proved to have happened but the judge failed properly or at all to find that she really suffered from that personality disorder – see paragraph 74 of his 5 August judgment:

"My finding as to personality disorder is as follows.   I am not prepared to place such a label on [the mother] given the whole of the evidence of Dr Fear, which was couched with caution, and my rejection of the views of doctor McKintey."

11. That, it is said, is a grievous error which undermines his central conclusion that he could rely upon the mother to provide good future care for the children.  The complaint is that in looking to the future risk of harm, the judge concentrated on her depression and the likelihood or otherwise of its recurrence.  He failed to have regard to the question of whether or not she suffered a personality disorder which would permanently have affected her proper ability to care the children.  Against that, this was a husband who had been given a (inaudible). 

12. Again, it is particularly worrying that the local authority, who have attempted to adopt a neutral stance, have in their skeleton argument enumerated a number of criticisms of the judgment, all of which seem to me to have force and once again this leads me to conclude that there is a real prospect of success on that application. 

13. All in all I would grant permission to appeal all of the orders presently under challenge.

Lord Justice Waller:
14. I agree.  But since we are doing something which on any view is unusual in granting permission to appeal a judgment of fact, I just say a word or two of my own.  Obviously one has read as much as one can of the papers and the long judgments in this case, and one has seen how the case developed from the original fact finding through to applications to reopen the findings of fact, then seen that there was a criminal trial as described by my Lord in which the jury were only out a very short space of time, and then finally the judgment dealing with the future of the children in the context of the judge having not reopened the findings of fact and as it were sticking to the findings of fact that he had made.  And one of the problems that must exist at present is that the father will not accept that original finding of fact.  In many cases, one party refusing an adverse finding of fact simply does not lead and cannot lead to a right of appeal against that adverse finding.  Indeed, the Court of Appeal will very rarely grant permission to appeal against findings of fact, particularly in a case which has been heard over a period of time by a judge and in which there has been produced a lengthy judgment prepared with obvious care and conscientiousness.

15. The difference in this case is that there are grounds for serious anxiety as to whether the father may not be right in denying his responsibility for the injuries caused, and my Lord has spelled out the aspects which give rise to that anxiety.  They include the evidence that there now is in relation to the admissions, casting serious doubt on the important admissions relied on by the judge.  There is the verdict of the jury, and there is the fact that other professionals, including, as I would see it, the local authority, having anxiety as to whether the father committed the act.  It is simply not possible on an application for permission to appeal to apply the detailed scrutiny that must be needed in order to unravel a case of this sort, and in my view it is appropriate in the exceptional circumstances of this case for a full Court of Appeal to consider whether the judge's finding of fact was or is now, in the light of the further evidence and the jury's verdict, justified, and to consider the other judgment which has followed.

16. For these reasons and those given by my Lord, I too would agree that permission to appeal should be granted in relation to all the arguments in this case.

Order: All applications granted