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AA v NA and Kab [2010] EWHC 1282

Appeal against a fact finding decision arising in private law residence and contact proceedings. Appeal allowed.

The parents were involved in private law residence and contact proceedings concerning their three children. A fact finding hearing was listed to determine cross allegations of domestic abuse, violence towards and poor care of the children. The court considered 31 allegations made by the father against the mother and 49 allegations made by the mother against the father. Following a 17 day hearing, conducted over nine months, the district judge provided judgment in draft form, followed by an amended draft judgment and then an amended finalised judgment in which he found in the mother's favour on all 89 allegations. He proceeded to make an interim shared residence order, effectively by consent, and listed the matter for a disposal hearing with a time estimate of ten days.

The Father appealed against the findings of fact and sought a re-hearing. On appeal Mostyn J considered the purpose of fact finding hearings within private law proceedings and stated that such a 'hearing should only be ordered if the court considering setting one up can discern a real purpose for such a hearing, If the inquiry would not be purposeful then one should not be ordered.'
The test to be applied on appeal was whether the judge at first instance was plainly wrong.

Mostyn J said that would only be held if:

(i) His conclusion was demonstrably contrary to the weight of the evidence, or
(ii) The decision making process can be identified as being plainly defective so that it can be said that the findings in question are unsafe.

I would include in the second category errors of principle as to, say, the burden or standard or proof, or a failure to take into account well-established principles as to the weight to be given to proven lies or litigation misconduct in reaching the factual findings.'

Mostyn J identified three errors in the judgment which rendered it unsafe:

1)As to the assessment of credibility generally
In assessing the credibility respectively of the mother and father, the district judge placed 'considerable reliance' on an allegation that the father, having procured statements from some witnesses, made a plot to prevent them giving live evidence. Mostyn J questioned whether he was right to attach such reliance to this issue and so far as litigation misconduct is concerned stated:

'If a party has behaved reprehensibly in his conduct of litigation it may well be as a result of a fierce determination to win, no more. It does not follow at all that litigation misconduct inevitably demonstrates intrinsic mendacity on the primary issues for adjudication.'

The district judge had failed to rationalise or analyse why this litigation misconduct by the father informed a general finding of overall mendacity. This 'amounted to a significant defect in the reasoning processes.'

2)As to the judging of the seven serious allegations of assault;
The mother made seven very serious allegations against the father. In each case there were inconsistencies between the mother's pleaded allegation and her oral evidence. The district judge made all findings sought and found the accounts in the Scott Schedule true on the balance of probabilities. Mostyn J found the findings to be untenable and gave guidance that:

'In making factual findings the court must examine carefully any inconsistencies made by the complainant, and where inconsistencies are exposed these must be clearly analysed and rationalised in the verdict. If someone is to be found guilty of domestic violence then fairness demands that it is clearly explained to him why his defence has been rejected and why the case advanced by the complainant accepted'.

3)As to the finding that F mistreated his children by hitting them
Shortly before the fact finding hearing the mother had expanded her list of allegations. These included a general allegation that the father ill-treated the children by hitting them and a specific allegation of belt hitting. In the initial draft judgment the district judge found that 'M has been assaulted by the F in front of K and K but I do not find that F has hit the children with a belt'. Following a request from the mother's counsel to address specifically whether the father had hit the children, the district judge amended the draft judgment and made the additional finding that 'the F has hit the children on their face, back and legs with his hands'. There was no explanation for this amendment. Mostyn J considered that such an important change 'needs to be accompanied by a clear explanation'.

With the benefit of hindsight the case had 'acquired an unstoppable momentum of its own, where the scope and scale of the inquiry, and the investigation of the collateral issues, was wholly disproportionate to the allegations in play'. Consideration should always be given to whether the findings, if made, would make any difference to the applications before the Court.

The appeal was allowed and all findings were set aside. There would not be a re-hearing in light of the interim shared residence order agreeing equal shared care in the medium term. The disposal hearing was vacated and the matter listed for review following a period of twelve months.

Summary by Elise Kinnear of Field Court Chambers

Neutral Citation Number: [2010] EWHC 1282 (Fam)
Case No: FD08F011015

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/06/2010

Before :
- - - - - - - - - - - - - - - - - - - - -
Between :

AA (Appellant)

- and -
NA (1st Respondent)

- and -

Kab, Kar and Qad
(by their Children's Guardian) 
(2nd Respondent)

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Judith Rowe QC and Michael Bailey
instructed by Huggins & Lewis Foskett Solicitors) for the Appellant

William Metaxa
(instructed by McMilan, Hamilton & McCarthy Solicitors) for the 1st Respondent

The Guardian did not appear and was not represented

Hearing dates: 24 – 26 May 2010
- - - - - - - - - - - - - - - - - - - - -

This judgment is being handed down in private on 10 June 2010. It consists of 33 pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mr Justice Mostyn :

1. This is an appeal by AA against the fact finding decision of District Judge Malik which is incorporated in his final judgment dated 20 January 2010. It arises out of private law residence and contact proceedings relating to three children Kab, born 21 October 2003 (6 years 7 months); Kar, born 5 September 2004 (5 years 4 months); and Qad, born 22 October 2006 (3 years 7 months).

2. The appellant is the father of the children; the respondent, NA is their mother. I shall refer to the Appellant as F; and to the Respondent as M.

3. The finding of fact hearing was originally listed for 5 days. In fact it took no less than 17 days in four tranches over 9 months. The hearing spanned 5 days in April 2009, 4 days in July 2009, 5 days in October 2009, and the evidence finished after a further 3 days in November 2009. In addition to the parents the District Judge heard evidence from no less than 13 other witnesses. He made over 300 pages of handwritten notes of the evidence. The transcript of the evidence runs to over 1600 pages.  In the proceedings the children were separately represented by a guardian, solicitors and counsel. F's costs were over £120,000; they were privately funded. I have not been told the costs of M and the Guardian; I doubt they were much less. They were publicly funded. Judgment was provided in draft on 18 January 2010; an amended draft judgment was provided on 20 January 2010; and a finalised judgment containing yet further amendments was provided on 22 January 2010 (although it is formally dated 20 January 2010).

4. The hearing was fixed by HHJ Coltart on 23 October 2008 to litigate cross allegations contained in competing Scott Schedules of, on M's case, domestic violence on her by F; and, on F's case, aggression by M, violence towards the children and poor care of them. In fact the court considered many more allegations than those in the Scott Schedules.

5. F is aged 38; M aged 28. The parties met in March 2002 in Bangladesh and shortly thereafter contracted an arranged marriage in Syhlet on 2 April 2002. It was F's second marriage and M's first. F returned to England shortly after the marriage and was joined here by M in August 2002. The children were born in 2003, 2004 and 2006 as recorded above. From January 2006 the parties lived together with the children and members of F's wider family at (address). This is a 7 bedroom house.

6. F is one of six children. His wider family comprises his mother Mo; his four sisters Ma (39), Ja (36), Pa (34) and Jo (21); and his brother Da (33). Until the separation Mo, Ja, Da and Jo lived with F, M and the children at (address).

7. F is a GP of 7 years' standing; Ma is a trainee Solicitor; and Ja is a Social Worker. Jo is studying a first degree at UCL.  This is a successful middle-class professional family, described by the District Judge as "intelligent, successful and westernised".

8. M also has family here namely 2 brothers, Bak and Tal, and an aunt Ale.

9. The marriage came to an end on 3 September 2008 when M left (address) in fraught circumstances.

10. I first deal with some matters of legal principle relevant to this appeal.

Appeals against findings of fact
11. The parties are agreed that this appeal is governed by  the statement  of  Lord Fraser of Tullybelton in G v G (Minors: Custody Appeal) [1985] FLR 894:

The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory. It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge's decision was wrong, and unless it can say so, it will leave his decision undisturbed. The limited role of the Court of Appeal in such cases was explained by Cumming-Bruce LJ in Clarke-Hunt v Newcombe (1983) 4 FLR 482, where he said, at p. 486:

'There was not really a right solution; there were two alternative wrong solutions. The problem of the judge was to appreciate the factors pointing in each direction and to decide which of the two bad solutions was the least dangerous, having regard to the long-term interests of the children, and so he decided the matter. Whether I would have decided it the same way if I had been in the position of the trial judge I do not know. I might have taken the same course as the judge and I might not, but I was never in that situation. I am sitting in the Court of Appeal deciding a quite different question: has it been shown that the judge to whom Parliament has confided the exercise of discretion, plainly got the wrong answer? I emphasize the word "Plainly". In spite of the efforts of [counsel] the answer to that question clearly must be that the judge has not been shown plainly to have got it wrong.'

12. The sanctity of the role of the trial judge was emphasised in Re J (Child Returned Abroad: Convention Rights) [2005] 2 FLR 802, where at Paragraph 12  Baroness Hale of Richmond observed:

If there is indeed a discretion in which various factors are relevant, the evaluation and balancing of those factors is also a matter for the trial judge. Only if his decision is so plainly wrong that he must have given far too much weight to a particular factor is the appellate court entitled to interfere: see G v G [1985] 1 WLR 647, [1985] FLR 894. Too ready an interference by the appellate court, particularly if it always seems to be in the direction of one result rather than the other, risks robbing the trial judge of the discretion entrusted to him by the law. In short, if trial judges are led to believe that, even if they direct themselves impeccably on the law, make findings of fact which are open to them on the evidence, and are careful, as this judge undoubtedly was, in their evaluation and weighing of the relevant factors, their decisions are liable to be overturned unless they reach a particular conclusion, they will come to believe that they do not in fact have any choice or discretion in the matter. On that ground alone, and even assuming that the principles applied by the judge were indeed correct, I would allow this appeal.

13. Where the decision is a finding of facts then the ascent faced by the appellant is particularly steep. Thus in Re S (Abduction: Custody Rights) Ward LL said:

Although it is possible to appeal against a finding of fact, it is notoriously difficult to succeed in so doing. Where findings of fact are made based on the demeanour of a witness, the appeal court will seldom interfere because the trial judge has the special advantage over the appellate judge.

14. That said, such appeals are not impossible. A well-known example is Sherrington v Sherrington [2005] 3 FCR 538. It was a probate action where it was alleged that a will had not been duly executed. In overturning the factual findings of Lightman J, Peter Gibson LJ stated at para 33:

Before we go to the three issues, we must say a few words about the appropriate approach of the court to the issues so far as they are appeals on fact. As Mrs Talbot Rice rightly reminded us, an appellate court is severely handicapped in judging the credibility of oral evidence, even though transcripts are provided, because it has not heard and seen the witnesses giving evidence nor observed their demeanour. She has referred us to statements in Benmax v Austin Motor Co Ltd [1955] 1 All ER 326, [1955] AC 370 which made it clear how very difficult it is for an appellate court to interfere with a finding of primary fact founded on the credibility of a witness. Although that case suggests that it may be easier for an appellate court to interfere with an inference drawn from primary facts, that must now be read subject to the cautionary words of Lord Hoffmann in Biogen Inc v Medeva plc (1997) 38 BMLR 149 that specific findings of fact are inherently an incomplete statement of the impression made on the trial judge by the primary evidence and that such findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. It is accordingly necessary for this court to treat the judge's findings with appropriate respect. It must be very slow indeed to interfere with any such findings. That, however, does not mean that an appeal on fact can never succeed. If this court is convinced that the judge was plainly wrong, then it is its duty to interfere.

15. In my opinion an appellate court would only be able to say that a fact-finder has plainly got the wrong answer if:

i) His conclusion was demonstrably contrary to the weight of the evidence, or
ii) The decision making process can be identified as being plainly defective so that it can be said that the findings in question are unsafe.

I would include in the second category errors of principle as to, say, the burden or standard of proof, or a failure to take into account well-established principles as to the weight to be given to proven lies or litigation misconduct in reaching the factual findings.

Fact-finding hearings in private law proceedings under the Children Act 1989
16. The hearing below was governed from first to last by the Practice Direction: Residence and Contact Orders: Domestic Violence and Harm [2008] 2 FLR 103, although, mysteriously, this is not cited in the judgment. Para 11 of the Practice Direction states:

The court must ascertain at the earliest opportunity whether domestic violence is raised as an issue and must consider the likely impact of that issue on the conduct and outcome of the proceedings. In particular, the court should consider whether the nature and effect of the domestic violence alleged is such that, if proved, the decision of the court is likely to be affected.

17. In Re Z (Unsupervised Contact: Allegations of Domestic Violence) [2009] 2 FLR 877 Wall LJ (as he then was) stated:

[29]     The importance of the Practice Direction cannot be overemphasised and, however experienced the judge, its terms are simply not to be ignored. I repeat: the judge must hear all the evidence. It is simply not good enough for a judge to say he has heard one side, does not think much of it, therefore he is not going to permit cross-examination of the other side of the issues involved, particularly where the safety and welfare of children are concerned. There is no equivalent of the concept of 'no case to answer' in proceedings relating to children: see Re R (Family Proceedings: No Case to Answer) [2009] EWHC Civ 1619, [2009] 2 FLR 83.

[30]     Furthermore, in the instant case, I repeat, that both District Judge White and His Honour Judge Sleeman had taken the view that a finding of fact hearing was necessary, and, in my judgment, looking at the allegations made by the mother, they were right to come to that conclusion. Of course, the ultimate result is a matter for the judge, but the judge can only reach that ultimate result, in my view, if he hears both sides and gives both sides a full and proper opportunity to cross-examine.

18. Thus a fact-finding hearing should only be ordered if the court considering setting one up can discern a real purpose for such a hearing. If the inquiry would not be purposeful then one should not be ordered. The finite resources of the court do not exist simply to provide a free-standing medium for one party to obtain, for no reason other than vindication, findings of matrimonial misconduct against the other. There is a parallel with allegations of conduct in ancillary relief proceedings. Even though there is a statutory imperative to take into account conduct where it would be inequitable to disregard it, the court will strike out allegations of conduct where it can be satisfied that even if proved it would make no material difference to the result: see McCartney v Mills-McCartney [2008] 1 FLR 1508.

19. Generally speaking, every breakdown of a marriage will have been preceded and attended by unkindness, bitterness and rancour. I would have thought this a truism as, generally speaking, happy marriages do not break down. The varieties of unhappiness that attend a marital breakdown are almost infinite. It was once famously stated that "happy families are all alike; every unhappy family is unhappy in its own way".  The court process does not exist to explore facets of unhappiness in a dystopic family unless there is an ulterior purpose. This is the case whether the inquiry is directed to residence, contact or money. 

20. An interesting question that arises on this appeal is whether it is legitimate for an appellate court to conclude, admittedly with the benefit of hindsight, having regard to the disposition actually made or agreed, that there was in fact no purpose to the inquiry at all.
Burden and standard of proof

21. In Re B (Minors) [2008] UKHL 35, [2008] 3 WLR 1, HL Lord Hoffmann stated at para 2:

If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.

22. Lord Hoffmann is alluding here to the binomial theory of probability. This can be further elaborated.  If you have a double headed penny then the probability (P) of tossing a head is absolute certainty. This is expressed as P = 1. The probability of not tossing a head is zero. This is expressed as P = 0 or  Q = 1. For a normal penny the probability is tossing a head is P = 0.5, and the probability of not tossing a head is Q = 0.5. The probability of rolling a six on a die is one in 6: P = 0.1666 and Q = 0.8333.

23. In civil proceedings the standard of proof is stated to be "on the balance of probabilities".  Expressed mathematically this is P > 0.5. If a court were to find on the evidence that P = 0.5 (i.e. that the occurrence of the event was as likely as not) then the standard would not be met, as the respondent to the allegation that is sought to be proved is always entitled to the benefit of the doubt.

24. Thus, it is clear that in all civil proceedings P cannot be set higher than a scintilla above 0.5. The various judicial statements that a more serious charge requires more clear evidence is not an elevation of P > 0.5. The requirement of evidential clarity is quite distinct from an elevation of the probability standard. Were it otherwise, and, say, an allegation of rape or murder of a child made in civil proceedings required P to be set at > 0.6 then one could end up in the position where a court considered that P in such a case was, say 0.51 but still had to find that it did not happen; when, as a matter of probability, is was more likely that not that it did. This would be absurd and perverse. P must always be set at > 0.5 in civil proceedings, but subject to the proviso that the more serious the allegation so the evidence must be clearer.

25. In this case the District Judge stated at para 46:

The burden of proof is upon the party who makes the allegations. It is not reversed, that is it is not for the other party to establish the allegations are not made out. It is open to the court to make the following findings:

1. That an allegation is true on the balance of probability
2. That an allegation is false

26. I believe that the District Judge has misplaced the phrase "on the balance of probability" in this formulation. Surely the correct formulation is:

The burden of proof is upon the party who makes the allegations. It is not reversed, that is it is not for the other party to establish the allegations are not made out. It is open to the court to make the following findings on the balance of probability:

1. That an allegation is true
2. That an allegation is false

The allegations
27. They ranged over almost the entire period of this marriage i.e. 2002 – 2008. As mentioned above they were set forth in Scott Schedules. In the Scott Schedule prepared on F's behalf, he made 31 separate allegations against M. In addition a total of 49 allegations were made against M by members of F's wider family and other third parties. In her Scott schedule M raised 9 allegations against F.  Thus there were a total of 89 allegations in issue. The District Judge found in favour of M on all 89 allegations. In F's favour he found none at all.  Many of the allegations are of an extremely trivial nature; some less so; and some do amount to serious allegations of domestic violence capable of constituting crimes.

28. The judgment  is a monumental work in keeping with the extremely prolonged and exhaustive character of the hearing. It runs to 241 paragraphs over 66 pages and is supplemented by a further 18 pages of findings on the allegations in the Scott Schedule.  According to the judgment it took more than three days to write.  On first reading the judgment my impression was of a case that had acquired an unstoppable momentum of its own, where the scope and scale of the inquiry, and the investigation of collateral issues, was wholly disproportionate to the allegations in play. Above all, there does not seem to have been any process of pausing for thought as the case ground on throughout 2009 and of asking whether in fact the exercise had any ulterior purpose. If M won on all 89 allegations (as she did) was this going to make any difference to issues of residence and contact? If she won on only half of them would the result be different?   

29. On 23 February 2010, a month after delivery of the judgment, the District Judge made an interim shared residence order effectively by consent which provided for an actual equal sharing of the time of the children. This will endure until the disposal hearing which has been set down for 14 June 2010 with a time estimate of 10 days.

30. On reading the papers the interim order struck me as not only a sensible and modern order but one which, on the facts of this case, was a highly likely final outcome whatever decision was had been made on the 89 allegations or, a fortiori, if the allegations had not been raised  at all.  I am at a loss to comprehend what is going to be argued about over the 10 days or how the factual findings are going to assist in informing a materially different outcome to that which has been agreed for the interim. I inquired of Mr Metaxa whether M would be seeking at final disposal unequal shared care in her favour. He replied affirmatively and explained that the reason for doing so was twofold namely to coerce F into (a) cooperating more fully with professionals and (b) presenting a more positive image of her to the children. I wondered how an unequal shared care of say 60/40 as opposed to 50/50 would in fact achieve those objectives. Later, I was told that M would agree equal shared care provided that F provided her by way of ancillary relief with an unencumbered home.   

31. It thus seems to me that there is a strong case for arguing, admittedly with the benefit of hindsight, that the whole exercise was completely futile. All that has been achieved is that M now has in her hands a damning series of findings against F which I suspect may well come to haunt their future dealings as co-parents of these children. Mr Metaxa would argue that the exercise has not been futile; that the protracted and highly adversarial forensic process has been instrumental in making F behave reasonably towards her, to stop demonising her in the eyes of the children and to engage in responsible co-parenting. There may be some truth in this but as I remarked, if accurate, it represents a prodigious expenditure of public resources simply to give F a stern reality check about his responsibilities.

32. That said, it would not be open to me, using the benefit of hindsight, simply to discharge these findings of fact for utilitarian reasons. A fact finding hearing having been ordered and held the judgment must stand however pointless and potentially damaging it might be, unless plain error (as defined above) can be shown.

33. In her skeleton Ms Rowe QC did not ask me to reverse the DJ's findings and to make positive findings in F's favour. Rather, she sought a rehearing. She wrote:

77. The whole management of the case led to a lengthy, fragmented and unsatisfactory hearing in which the findings made were plainly wrong in the light of all of the relevant evidence.

78. Such are the errors (and F could cite many more in the savage findings made against him) that the only fair outcome is for the court to direct that there be a rehearing of the case, ideally (and subject to the issue of listing) before a High Court Judge.

34. With respect to Ms Rowe QC, if I am with her as to demonstration of plain error and I set aside the findings, I will have to consider very carefully whether there should be a rehearing having regard to the purposefulness of any such hearing and the availability of the court's resources to determine them. I have no doubt that the overriding objective in Part 1.1 of the CPR should loom large in determining that question. This provides:

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

While it is true that, strictly speaking, the overriding objective does not apply to family proceedings, I am quite sure that their spirit, if not their letter, should be borne firmly in mind when deciding whether or not to order a rehearing.

The District Judge's findings
35. In my analysis of the District Judge's findings I propose to do the following:

i) First, I will set out a survey of the structure of the judgment below.
ii) Second, I will examine the findings of credibility generally.
iii) Third, I will focus on the seven serious allegations of assault made by M.
iv) Fourth, I will examine the cross-allegations of ill-treatment of the children.
v) Finally, I will examine the balance of M's allegations against F, made both within the Scott Schedule and the later ones, together with the 80 allegations made by or on behalf of F against M. 

The structure of the judgment below
36. On 18 January 2010 the District Judge provided his judgment in draft, and asked the parties to supply suggested corrections. It is highly significant that at that stage the District Judge did not append his findings on the individual 89 allegations contained in the Scott Schedule. The text of the draft judgment was overwhelmingly favourable to M and conversely unfavourable to F; and so F could probably infer that he would receive an unfavourable verdict on the majority of the allegations at large. That said, it is a remarkable and highly unsatisfactory state of affairs that F was not able to know from the terms of the draft judgment whether, for example, it had been found proven that he did beat his then pregnant wife within a few months of her arrival here.

37. As I will explain below, the process of contribution from counsel resulted in at least one very serious further adverse finding against F being inserted into the judgment as finalised.

38. The judgment in its final form is structured as follows. After charting the background and some details of the litigation history, and after setting out the law on the burden and standard of proof, the District Judge embarked on a lengthy account of the oral evidence. This account, which occupied paras 49 - 195, does not form part of the court's findings but is intended to be a neutral summary of the relevant evidence necessary for the judgmental phase to follow.

39. In para 196 – 239 the District Judge sets out his assessment of the parties, their witnesses and his findings. It is a damning indictment of F and all members of his family. They are all found to have given false testimony. F is found to have been guilty of gross litigation misconduct, including making unwarranted allegations of perjury against the independent social worker Ms Khan, and in preventing important third party witnesses (his own) from coming to court to face the music. Although some specific factual finding were made in the body of the judgment (see paras 219, 225, and 234) the great majority of the 89 allegations featuring in the Scott Schedules are not dealt with. To discover those findings one has to turn to the District Judge's indorsements on the Scott schedules. These only arrived at the aborted hearing on 20 January 2009 when a second draft judgment was provided. Here we find what I described in argument as "jury verdicts". For each of M's nine allegations the verdict was simply "Allegation is true on a balance of probability". For the overwhelming majority of F's 80 allegations the verdict was merely "Allegation is false". There was no expressed rationalisation for each verdict. The reader is not to know why M's case has been preferred to F's in each instance.

Credibility generally
40. In judgment the District Judge held at para 208:

My overall assessment of the M was that she was an open, honest and truthful witness who lived a very controlled life at the hands of the F and his family. 

And at para 234(5):

The M's evidence was accurate and truthful and where it was not scrupulously consistent this was not the result of any deliberate desire to mislead the court.

Of F, he held at para 201:

My overall assessment of the F is that he is a clever, intelligent and shrewd man who is prepared to go to any length to preserve the status and well being of his mother and siblings before his relationship with the M and children. I find he has not assisted the court in its proper enquiry and that he has been unhelpful.

And at para 234(1):

The F has deliberately set out to mislead the court through a series of lies and underhand strategies
F's mother was held to be "an unreliable witness"(para 202); Da was not "entirely truthful" (ibid); Ma was "not entirely a truthful witness either" (ibid); Ja's evidence was described as "wholly unsatisfactory, unconvincing, untruthful and designed to mislead the court" (para 204); Jo was described as "an unreliable witness" (para 202).

41. In his skeleton argument Mr Metaxa wrote:

24. The District Judge correctly observed how often in cases of this type there is a lack of independent objective testimony. It is therefore submitted that the District Judge paid proper regard to those issues in the case where the potential existed for it to be proved to the court's satisfaction that the Father had deliberately sought to mislead the court through the provision of untrue evidence. The court was able to make these findings as set out above.

25. As the District Judge also correctly observed in cases of this nature it is important to assess a witness' evidence as a whole in determining the truth of the allegations. Therefore, having made the specific findings of deceit against the Father and the paternal family above, it is submitted that the court was well within the legitimate ambit of reasonable decision-making in taking the view that, with a small number of significant qualifications, the mother and her family's case was to be essentially believed and the Father and his family's case essentially was not.

42. A significant factor in the assessment of credibility was the "Glowania/Donnelly issue". This issue acquired a life of its own and appears to have got completely out of control. It occupied a wholly disproportionate amount of the court's time.  Swathes of the judgment (14 pages) are devoted to it.  Essentially the issue boiled down to an allegation that F, having procured statements from these witnesses, made a plot with members of his family to prevent them coming to give live evidence. Quite why F would want to do this, given that the consequence would be the attribution of negligible weight to the statements, eludes me. At all events the findings were as follows (para 225):

1.  The F has deliberately conspired with Ja to prevent Ms Donnelly from giving evidence to the court and seriously to mislead the court by allowing Ms Donnelly's unsigned statement to remain as current evidence in the case in the full knowledge that that statement was unsigned and would not be signed.

2.  That Ja knew the statement would not be signed in December and that F knew this because Ja told him.

3.  The F asked Ja to see if she could re-establish relations with Ms Donnelly before the July hearing because the Mother was pushing for her attendance.

4.  The F and Ja conspired together to prevent Suzanne Donnelly's evidence being tested in court when they knew she would not stand by her draft statement.

5.  The F and Ja conspired to mislead the court in the production of the original letter/draft statement. The Mother submits that F and Ja together conspired to persuade Ms Donnelly into writing a fundamentally misleading letter. Ja and Ms Donnelly did not have significant conversations over the years about the Mother's inadequate and dangerous parenting.

6.  Ja was lying when she confirmed on 26/10/09 that Ms Donnelly would have carefully gone through the details of her letter as a professional social worker putting a document before the court and aware of the seriousness of the issues being discussed.

7.  Ms Donnelly's version of the circumstances of the letter being written being correct and that it would have been very obvious to Ja that Ms Donnelly was relying on her for all the relevant detail.

8.  Due to her grief Ms Donnelly put her signature to a letter which she knows now she did not know to be substantively true at the time.

The finding in relation to Mr Glowania was, per para 226: 

Mr Glowania did not attend court to give live evidence and in the circumstances I attach no weight to the written statement from him.  In any event the F evidence in respect of Mr Glowania was very unsatisfactory. I found him to be very uncomfortable with the questions put to him and he was what I would describe as very slippery in his evidence "ducking and diving"

43. In his skeleton Mr Metaxa wrote at para 37:

Father's skeleton argument describes the "Glowania and Donnelly" issue as "smoke and mirrors" "diverting" the judge. The main issue for the District Judge was, as it should have been, the parties' credibility in the light of all the available evidence. Having been able to make clear adverse findings about the Father's credibility on a number of matters – all of the greatest relevance to the case – and having also assessed the Mother's credibility, and that of other relevant witnesses, he was then able to make the findings he did. It is accepted by the Mother that the findings made against the Father on these matters were indeed "extremely serious and damaging". The District Judge had little option on what had had transpired before him on these issues but to make the findings he did and place considerable reliance on them when assessing the overall credibility of the parents and when making all the determinations he was asked to make. To describe this as "smoke and mirrors" appears to suggest that Father does not think the adverse findings as to his credibility were of relevance to the court's overall determination on contested matters. Doubtless the Father would have liked the court to consider his allegations against the Mother in the absence of these "extremely damaging" findings: his own misconduct made this impossible.

44. I agree that the District Judge placed "considerable reliance" on the "Glowania/Donnelly issue" when assessing the overall credibility of the parents. The question is whether he was right to do so. After all, at its highest, it was a misguided piece of litigation misconduct designed to prevent two witnesses who F thought might not come up to proof attending to give live evidence. Why this should inform the credibility of the parties as to what happened during their marriage between 2002 and 2008 is hard to fathom.

45. When it comes to the treatment of litigation misconduct or, indeed, demonstrated lies on collateral matters, in the assessment of core credibility in a fact finding inquiry it would be as well for the court to give itself the famous direction in R v Lucas [1981] 1 QB 720 where it was stated by Lord Lane CJ:

To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family.

46. If a party has behaved reprehensibly in his conduct of the litigation it may well be as a result of a fierce determination to win, no more. It does not follow at all that litigation misconduct inevitably demonstrates intrinsic mendacity on the primary issues for adjudication.

47. Therefore the absence of rationalisation or analysis by the District Judge as to why the litigation misconduct informed a general finding of overall mendacity amounted to a significant defect in the reasoning process.

48. I have remarked that the findings on credibility were all one way. But in two quite important aspects it is plain that M's evidence must have been rejected by the District Judge. The first relates to the "belt issue"; the second to the "tissue issue".

49. The belt issue was not in M's original Scott Schedule dated 16 October 2009. It emerged as a result of a host of further allegations (around 100) made by M against F which found expression for the first time in the report of the Independent Social Worker Pervin Khan dated 7 April 2009, a mere 13 days before the start of the hearing. I shall have something to say later about the fairness of allowing such a throng of late entries to invade the case at such an advanced stage. To Ms Kahn M had stated "She saw her husband smacking the children and using his belts a few times to discipline them". In oral evidence she repeated this although she changed "his belt" to "Kar's belt". When asked why this very serious allegation did not feature in her Scott Schedule M's response was "Just I didn't".

50. In his findings the District Judge held at para 234(16) that "I do not find the F has hit the children with a belt."  It therefore follows that in this important instance the otherwise uncritical acceptance of everything M had alleged was not followed. Why? We are not told. There must be a reason why in this instance the District Judge found that M had not discharged the standard of proof. 

51. The tissue incident was raised in F's Scott Schedule. It was said by him and others on his behalf that M had stuffed tissues in Kar's mouth to stop him crying. There was a degree of corroboration for this allegation for M had stated to her GP, as recorded in the Notes in February 2006 , that
On that day the baby was crying a lot and she put her hand over its mouth to quieten it and happened to have a tissue in it.   

Equally at about the same time local authority social worker to whom F had reported the tissue incident recorded "[M] admitted putting her hand over her son's mouth when he was crying"

52. In her oral evidence M flatly denied that she had ever put a tissue in or on her son's mouth to stop him crying. She stated "He was crying. I am saying the same thing again and again. I did not have a tissue". It therefore must follow that her case was that there had been some kind of an error amounting to a misreporting in the GP's notes.

53. In his finding the District Judge roundly rejected the evidence of F and his family. He stated at para 234(7):

I find that the allegation by the family the M stuffed something into Kar's mouth is itself a knowingly false allegation designed to undermine M's relationship with the children and her case generally.

However in this instance the District Judge did not uncritically accept M's evidence as set out above. Rather, he held at para 234(6):

The M's case is that she did not confess what is recorded to the doctor. I am asked by Mr Metaxa to bear in mind the difficulties, as experienced in the trial, of interpretation, to ask itself why the M, knowing a fuss was being made of a tissue not admit anything to do with the tissue to the social worker and then two months later admit having a tissue in her hand and why should the M vigorously deny putting a tissue in the child's mouth but been happy to admit putting her hand over his mouth? Whilst I consider the M is more likely than not to have said what is recorded by the GP [Regarding tissue incident – said that she covered the younger child's mouth with a tissue to try and calm him down as she was getting blamed for this. Categorically denies wanting to harm the children or herself] on balance I am not satisfied on the evidence before me that the M deliberately placed any tissue in Kar's mouth as alleged by the F and his family. Further I do not find that her conduct to Kar was in any way genuinely dangerous nor do I find that anything done by her represents any ongoing and significant risk to the children.

It follows that in this second instance also the District Judge was not satisfied that M's version of events was proved on the balance of probabilities. The effective rejection of M's evidence in these two important instances does not co-exist comfortably with the otherwise almost Orwellian tone of the judgment: "mother good, father bad".

Seven allegations of assault
54. In her Scott Schedule M made seven very serious allegations of assault by F or members of his family on M. Domestic Violence is nowadays rightly regarded as the great taboo, so when it is alleged in a private law case there is an immediate instinct that it should be the subject of a preliminary fact finding hearing. The seriousness of the allegations for the alleged perpetrator must mean that the allegations are carefully pleaded and are the subject of clear evidence. In making factual findings the court must examine carefully any inconsistencies made by the complainant, and where inconsistencies are exposed these must be clearly analysed and rationalised in the verdict. If someone is to be found guilty of domestic violence then fairness demands that it is clearly explained to him why his defence has been rejected and why the case advanced by the complainant accepted.

55. The seven allegations are:

i) The letter incident (January 2003)
ii) The food in the bin incident (February 2003)
iii) The shaving foam incident (November 2003)
iv) The dinner place laying incident (undated)
v) The Spain incident (2005)
vi) The coat hanger incident (2007)
vii) The expulsion incident (3 September 2008) 

The letter incident
56. The allegation in the Scott Schedule is in these terms:

The Applicant had written a letter to her mother which she had not posted.  The Applicant accepts that in the letter she had set out to her mother how unhappy she was and the extent to which her mother-in-law was making complaint about her and complaint about her to the Respondent.  The Applicant felt very isolated.  The Applicant did not post the letter however the letter was discovered by the Applicant's sister-in-law.  The letter was written in Bengali and the Respondent was unable to read it however he had his mother read the content.  The Respondent became angry as to the matters referred to by the Applicant to her own mother of the Respondent's mother.  The Respondent hit the Applicant about her face about 6 or 7 times.  After the incident of violence the Applicant was then cursed by the Respondent's mother and by her sister-in-law and brother-in-law.

57. In his findings the District Judge recounted the evidence about the letter incident in para 76-77 thus:

Under cross examination the M told me she had a diary in which she wrote a Bengali song. The M confirmed she had written letters to her own mother in the past which had been posted by the F but there was one particular letter the M said she had written to her mother which she had not asked the F to post. It was contained within her diary as a loose letter. Jo told her brother that she saw the M writing something which she hid. She and Da then searched in all the drawers and found a diary and a letter. The F gave the letter to his mother to read as it was written in Bengali. The M told me in the letter she had referred to her mother in law as "betty" which I am told translates to mean "lady" and is taken to be disrespectful in the context in which it was written when referring to someone as such. The M said she had written the letter some 2 or 3 weeks before it was found and her reason for writing was to get her "inner feelings" out to her own mother.

The M told me the F asked the M if she still wanted to post it and at the same time he slapped her. She was not going to post it but to rip it up. However the F did not believe her and she said he continued to slap her. She told me she knows her mother in law still has the letter because she had shown her the same on many occasions. In any event neither the letter nor the M diary has been produced. The F denied the events as described by the M in this allegation as ever happening and said there is no diary. The paternal grandmother told me this incident never happened in her house and therefore asked how she could remember it. Further if the incident never happened she did not curse any one.

58. As this account of the evidence demonstrates the account given by M under cross-examination was rather different to that which appeared in the Scott Schedule. To the Guardian M described the incident as occurring when she wrote things in her diary. In this account her mother-in-law finds the diary and F slapped her on the cheek and punches her on the shoulder. Obviously there are significant inconsistencies namely as to where M wrote down her concerns; who found the document; and how F assaulted her. When these inconsistencies were put to M in cross examination, she changed her story yet again and said for the first time that the letter had been placed in the diary, and the diary had contained love songs written by her.

59. Even though M had changed her story twice since the original Scott Schedule the District Judge found the original version to be true on the balance of probabilities in his indorsement upon the Scott Schedule. In my opinion this is simply untenable.

The food in the bin incident
60. In the Scott Schedule the allegation is formulated thus:

The Applicant was pregnant with the parties' first child (though not aware at the time).  The Applicant was having difficulty eating.  The Applicant put one piece of meat and one piece of potato in the rubbish as she had been unable to eat it.  The Respondent's mother immediately complained that the Applicant had thrown all the food in the bin.  The Respondent came downstairs.  The Applicant explained that she had only thrown out one small piece of meat and a piece of potato.  The Respondent's mother immediately told the Respondent that his wife was saying that she (i.e. the mother-in-law) was a liar.  The Respondent spoke to the Applicant saying "you're calling my mother a liar?"   The Applicant was not given an opportunity to reply and was immediately slapped by the Respondent and punched.

61. The District Judge recorded the evidence about this issue thus at para 80:

The M cried when she explained under cross examination by Mr Bailey how she was criticised by her mother in law for throwing food in the bin. When her mother in law complained to the F she told him she only put 1 piece of meat and a potato in the bin had and the F then said "is my M a liar?" He then slapped and punched her. The F said this allegation is not true and his mother told me it is not unusual for food to be thrown in the bin but there was never any argument about it. 

62. What is worrying about this allegation is not what M told the Guardian at her interview December 2008, but what she did not. M did not mention this incident in relation to food at all to the Guardian, or anywhere else other than in the Scott Schedule. She did, however, tell the Guardian that she was hit all the time in her pregnancy (para 90 F/125).  

63. Again, I consider the finding to be untenable. There is no attempt by the District Judge to explain this glaring omission. M did not hold back in her expression to the Guardian and her failure to mention this incident is highly significant.

The shaving foam incident
64. In the Scott Schedule this allegation is expressed thus:

Three of the Respondent's family members to include himself were sitting together laughing about something.  The Applicant joined in the laugh albeit she did not really know what they were laughing about.  The Respondent's sister-in-law (Ja) was holding a tin of shaving foam.  Immediately the family turned on the Applicant asking her "Why are you laughing?"  The Respondent's sister-in-law hit the Applicant 3 - 4 times with the shaving foam tin.  The Applicant stumbled and fell to the floor.  The Respondent said nothing; he got and left for work.

65. The District Judge recounted the evidence thus:

The M stood by her allegation that she was hit with a tin of shaving foam by Ja [also known as Sh] only. When Mr Bailey asked the M to explain why she had told the Guardian it was "they" [referring to the F, her mother in law and Ja: see F126 paragraph 95] she had no explanation for the same but was clear in her oral evidence it was only Ja who threw the tin of shaving foam at her. The M was again emotional in the witness box crying when she explained she did not know why Ja hit her with the tin causing her to fall on to the floor. The paternal grandmother again told me this incident never happened and she would never have allowed it to happen in her house. Ja denied hitting the M as alleged or at all saying "I am not a violent person, if everyone is laughing or joking it makes no sense as to why I would hit her"

66. As this account shows M had given a rather different story to the Guardian in December 2008. In this version her mother-in-law and sister-in-law were having fun and making her do the housework and laughing and when she joined in "they took a stick of shaving foam and hit her until she fell to the floor". In this account, F is not present at all. In her oral evidence M reverted to her original version namely that it was Ja alone who beat her, but she adjusted the number of blows from 3 – 4 to "two or three".

67. In his indorsement on the Scott Schedule the District Judge found the allegation to be true on the balance of probabilities. This is, again, untenable, given that M gave a very different account to the Guardian and in her oral evidence departed from the allegation in the Scott Schedule in one material particular.

The dinner place laying incident
68. In the Scott Schedule this allegation is expressed thus:

The Respondent's brother asked the Applicant to set the dinner table.  The Applicant rarely ate with the family as this was not permitted.  The Applicant put out four place settings as there were four people in and four people who would be eating.  The Respondent's brother asked the Applicant why she had set only four places.  He told her to get more places set.  The Applicant set another place.  He jested with her and told her to get another; then another; eventually the Applicant said there was no point as there were not that many people in the house to eat.  The Respondent's brother replied by saying "If you don't do as I said I will hit you".  The Respondent's mother actually stepped in and stopped the Respondent's brother.  The Applicant went upstairs crying.  She complained to the Respondent concerning his brother's behaviour.  The Respondent replied to the Applicant saying words to the effect that she either did as his family members asked or she could expect to get beaten up.

69.  The District Judge recounted the evidence thus:

The M described an occasion when in the presence of her mother in law she was setting the dinner table for 4 places and she was then told by Da to set more places when there was no need to do so. She said Da kept on saying to set another place and when she refused he threatened to hit her grabbing her hand and forcing her to set another place. The M became upset and went upstairs telling her husband of what had happened to which he replied "what do you expect if you don't do as you are asked, you can expect to be beaten up". The F and his family denied this incident took place as alleged or at all.

Da was very anxious in his oral evidence to refute the allegations against him of violence towards the M by saying on 24/4/09 that "nobody shouts at my sister-in-law - in fact it was the other way round. Everyone was walking on eggshells really". When the accusations against him of violence against Mother were put to him he said: "That is just don't even sound right.... I wouldn't even threaten her. I am careful with people's feelings".

70. M's account to the Guardian was different to that given in the Scott Schedule. There is no reference to Da jesting with her. In this version the mother-in-law steps in and stops Da as he was going to hit her. In her oral evidence a yet further version was supplied. Now, she said that Da had grabbed her hand and forced her to put the plate on the table.

71. In his indorsement on the Scott Schedule the District Judge found the original allegation to be true on the balance of probabilities. Given that M had changed her story twice this finding is in my opinion untenable.

The Spain incident
72. In the Scott Schedule this allegation is expressed thus:

The family had gone to Spain and stayed in a hotel while the villa was being completed.  The Respondent, his mother, his brother and sister-in-law went out from the hotel early each morning returning very late at night and leaving the Applicant alone with the care of the two children Kab and Kar.  After four days the family moved from the hotel into the new villa.  The Applicant and the two children had to sleep downstairs on the floor.  Again the Applicant remained with the children all day.  Towards the end of the holiday the Applicant asked whether it would be possible for the Respondent to spend a day with her and the children and to take them to the seaside.  The Respondent became very angry and shouted at the Applicant as to her position within the family.  Later that evening the Respondent became very, very angry with the Applicant shouting, cursing and swearing.  The Applicant was feeding Kab.  A further argument ensued, the Applicant accepts that she became very upset and was crying.  The Respondent dragged the Applicant physically to the bedroom and held a hand over her face.  The Respondent then slapped the Applicant across the face.  The Applicant accepts she slapped the Respondent back.  Immediately the Respondent's mother said "Did you see that?  She raised her hand to her husband?"  The Respondent stood in front of the Applicant and tried to slap the Applicant right and left across her face, the Respondent's mother picked up used nappies from the bathroom and threw them at the Applicant and spat at her.

73. The District Judge recounted the evidence thus:

The M described to me from the witness box how during a 2 week holiday in Spain with the F and his mother and brother she was not taken out other than on 1 occasion when they went to McDonalds. She was left with Kab and Kar at the family home which had recently been constructed whilst the rest of the family went out buying things for the property, furniture etc. She told me she felt bad because she was left alone with the children and even worse when they returned because they would go upstairs talking together making her feel left out. The M told me on the day before the return flight the F asked her if she wanted to go to the seaside but she did not wish to do so because it was left right to the end and also her mother in law said to take her. An argument ensued whereby the M said she started to cry.

The M said Da told the F to tell her to shut her up whereupon he went over to hit her but her mother in law stopped him from doing so. The F she said held his hand over her mouth and she pushed the F back. Her mother in law said "did you see what she has done, she raised her hands to her husband" and she went to the bathroom, picked up some used nappies and threw them at her. The F told me there were never any arguments when they were in Spain though there was an incident when Kar aged 9 months fell off the bed and he asked the M why she had left him on the bed alone. He remembered the M pushing but not slapping him. He said he did not provoke her to do so or respond to her pushing him. He said his mother did not throw any nappies which she also denied as did Da.

74. As before, M had given a significantly different account to the Guardian and a yet further account in her oral evidence. In her account to the Guardian, M had said that "they said they would take her but she did not want to go" (para 96 F/126). M told the Guardian that she then asked for help in feeding the baby and to kill a mosquito that entered the house, and she was changing the baby's nappy. M started to cry and Da stated that if she did not stop "he would strangle her and put his hand on her mouth so that she could not breathe".  She stated that Da "came to hit her". Thus in this version the principal aggressor is Da, when he does not feature at all in the Scott Schedule.

75. In her oral evidence the story changed further. Here, M stated that her Scott Schedule allegation was wrong: F had not become angry later on the evening, her mother in law had. She did not slap F, she pushed him. F did not try to slap her, he did slap her. Da did not threaten to strangle her, he threatened to hit her.

76. In his indorsement on the Scott Schedule the District Judge found the original allegation to be true on the balance of probabilities. Given that M had changed that story twice this finding is in my opinion also untenable.

The coat hanger incident
77. In the Scott Schedule this allegation is expressed thus:

The Applicant's mother was visiting from Bangladesh.  An argument ensued and the Respondent was physically violent to the Applicant.  The Respondent used a coat hanger to beat the Applicant.  This caused the Applicant to sustain injuries to her face, her arms and her back.

78. The District Judge recounted the evidence thus:

The M cried excessively when she told me she never hit her children with a coat hanger as alleged or at all. Whenever the children were crying family members she said would ask them if she had hit them which in the end resulted in it becoming a routine for Kar to say she had. Under cross examination she told me it was the F who hit her with a coat hanger causing injuries to her arm and not to her face and back as set out in her schedule of allegations [number 8]. The M had no explanation as to why her Scott Schedule stated "…to sustain injuries to her face, arms and her back"

Apparently the M had placed a dress/sari her own mother had bought for her in the F the wardrobe against the F wishes whereupon she says he became angry and threw it on the floor. She then took her own clothes out of the wardrobe and throw them on the floor as she was upset with the F. She would not put the clothes back into the wardrobe when he told her to do so and it was then he hit her with a coat hanger. The maternal grandmother was visiting at the time and the M says she told her of the assault and showed her the bruising she sustained to her arms. The F said the incident as described by the M did not happen. He told me his mother in law [the maternal grandmother] had arguments with her daughter and she apologised to him and to members of his family for the M behaviour.

He said Kab told him his mother had hit him with a coat hanger which he saw on the bed and when he went to speak to the M about this she was in anger and started to throw her clothes in to the middle of the floor. He went onto say the M "went off her head shouting and screaming" and that the M has "a split personality". He said she had hit him, pushed him, scratched his arm and stopped him from getting out of the bedroom and that it "sounds silly but I use to make a run for the bedroom door because I did not want to get into any confrontation with her". The maternal grandmother told me she heard her daughter crying and was told by her the F had hit her with a coat hanger on her head and arm and because her shoulder was black and put some Vicks on it. She confirmed the accuracy of what is recorded by Pervin Khan at section 7.8 at F74 and F75 of the bundle save that she did not tell her the M sustained several bruises [paragraph 7.8.2] but that she had 1 bruise at the top of the arm/shoulder and another on the head.

79. In her statement M's mother, PN, refers to a bruised swollen arm. In her Family Law Act statement M states she suffered a bruising to her arm but also across her face. She also states that F assaulted her at the same time with his hands (this is not stated elsewhere). There is no mention of the incident to the police. In the account to the Guardian there is no mention of any injury whatsoever, rather "she put cold water on her arm and it was fine". PN told the Guardian that mother had a bruise and they put Vicks on it. In oral evidence she said she had seen a dark area on the top of M's arm. M told Dr Whittle she had a bruise on her shoulder.

80. In his indorsement on the Scott Schedule the District Judge found the original allegation to be true on the balance of probabilities. The manifold inconsistencies between the various accounts advanced by M and her own mother render this finding wholly untenable.

The expulsion incident
81. In the Scott Schedule this allegation is expressed thus:

The Applicant mentioned to the Respondent the fact that there was no cereal for the children.  An argument ensued.  The Respondent's sister sprayed water in the Applicant's face.  The Applicant asked the Respondent's sister why she had done this who responded by saying "If I had fire I would put fire in your face" (Zo).  The Applicant's sister-in-law then goaded her and wanted her to come near to her so that she could hit the Applicant.  The Applicant's mother-in-law grabbed hold of the Applicant, the Respondent's sister then threw a shoe at the Applicant (Zo) and at this point the Respondent came into the area (the Respondent having been upstairs), the Respondent got angry with the Applicant for having talked back to his family.  The Respondent's mother told the Applicant to get out of the house.  The Applicant said that she would go and went upstairs.  The Applicant called the police, the Respondent snatched the phone from the Applicant.  The Respondent's mother spoke to the Applicant saying "What makes you think you are allowed to use the phone, nothing in this house belongs to you".  The police wanted to speak to the Applicant and she spoke to them.  Subsequently police officers attended.  Later that day the Respondent's sister, Ma, spoke to the Applicant saying "Why did you not go to the dads". The Applicant took this to mean the police but this actual expression is very insulting in the Bengali language.  The Respondent's sister then began pushing and prodding the Applicant in her shoulder (Ma).  The Respondent came in to the room and spoke to the Applicant saying "You are a shameless person, why are you still in my house?  He went on to say "You see I'll kick you out in a while".  The Applicant came downstairs to get some food for the children.  Comments were made by other family members "Is that shameless thing still in our house".  The Applicant was feeding Qad, the Respondent came in and told the Applicant to get out of the property.  The Respondent's sister started shoving and pushing the Applicant again.  The Respondent's sister simply asked the Applicant "Why not just go?"  The Respondent's sister suggested the Applicant go to her aunt's home.  The Applicant was pushed and shoved by various members of the Respondent's family.  The Respondent then punched the Applicant and one of the Respondent's sisters also did.  Once pushed out of the house the Applicant was restrained by the Respondent's sisters from getting in and was pulled back by her hair the whole incident being witnessed by the parties' children.

82.  The District Judge recounted the evidence thus:

The M told me in her oral evidence on the morning of 3rd Sep having fed the children she asked the F to get some cereal for Kab as it had finished. He then went into the kitchen to ask his mother if the cereal was indeed finished which upset her because it seemed as if he did not believe her. She told me the paternal grandmother [denied by her] verbally abused her and said that as she always had a problem with the F she should get out of the house. Words were exchanged. With the commotion Jo came in to the kitchen and without saying anything started spraying water at her face and in her mouth. The M then told me Jo said "if I had fire I would put fire in your mouth" and then picked up 1 of the M shoes from the passage and threw it at her. Both then swore at each other, Jo went upstairs and the F then asked the M why she swore at his sister to which she responded that Jo swore so why shouldn't she.

Jo told me prior to the incident on 3rd Sep she had never had an argument with the M whilst she was unaware of the cereal incident she saw the M was in a bad mood but that "it was never my intention to piss her off further". She denied she was furious at the M, argued with her or had sworn at her. She said "when I lightly sprayed a little bit of water in the M face" she took it the wrong way. Although the M was swearing, snarling and goading at her she denied saying she would spray her with fire and denied throwing a shoe at her. Jo told me that social services never spoke to her. The paternal grandmother denies telling the M to leave the house. The M told me Kab was next to her and asked him to get ready. The paternal grandmother asked where she would go with the kids too which she replied she would call the police and was about to when the F grabbed the phone from her and called the police himself.

Two police officers arrived, an English officer who spoke to the F and his family and a Bengali speaking officer who spoke to the M in her bedroom. The M told me she was asked by the police officer if she wished to leave the property to which she said no because she had nowhere to go, her aunt's home in Whitechapel being too small and because it was Ramadan. The officer said he would give the family a warning. The M told me after the police officers left Ma verbally abused her and also punched her on her shoulder. The F came in to her bedroom and Kab she said was nearby. When the M told the F to tell his sister not to hit her she [Ma] denied she had done so and told the F to leave. Kab she said told his F that she had been hit by Ma and she was shown a text she had sent to Naveen a boy she had known in Bangladesh. The paternal grandmother then started accusing her of having "many men" which the M said she denied.

The M told me she was told by the family to get out and the F said if she does not go he would kick her out. Qad had fallen asleep and a little while later the M said she went downstairs where she made noodles to feed the children. The rest of the family were in the living room and she told me she could hear them talking about her. She believes the family were planning how to get her out of the house. The M told me when she subsequently came down the stairs the paternal grandmother and Jo said to her "haven't you gone yet" again denied by them. Ja arrived home around 6.00/6.30 pm. The paternal grandmother told me she saw the M had a suitcase and asked her where she was going with it.

The F says at E9: "my sister Ja and my wife had gone outside with the suitcase with my youngest son Qad. I then called Qad back whilst the other two were kissing my family goodbye. When my youngest son came inside, I made a split second decision and instinctively shut the door on her; I was petrified that she would take my children to Bangladesh and that I would never see them again" Ja and Ma refer to the M having a bag or bags in their police statements but nothing is said about what happened to either the suitcase, the bag or the bags or the contents. The F told me it suddenly dawned upon him as the M had a suitcase and the children's passports he decided to keep the children because of his fear the M would take the children to Bangladesh.

The M told me Qad was in her arms when he was taken from her and she was pushed out of the house. The F having taken hold of Qad from Ja shut the door and the F put the chain on. She was then hit by Ja and held her by one of her hands. With the other hand the M said she was banging on the door to be let in and then called to Kab through the letter box. She told me Ja pulled her from her hair away from the door saying at the same time if she continued banging on the door the police would be called and they would make a case against her. The M said she was punched by Ja in the shoulder, pushed into her car and then driven to her aunt's in Whitechapel. The M denied she had any suitcase with her. When giving her evidence on this incident I observed the F to be emotionless whereas upon recalling the same was clearly very painful for the M who cried throughout.

Da told me he was outside for the whole time the police attended (address) and only after they left did he ask what had happened. He told me he saw the M come down stairs with a big suitcase and asked his sister to take her to her aunt's. I observed Da to struggle to tell me what happened next and he appeared to be more concerned with the front door as he told me "whenever that door shuts I get stressed, it has antique lead lights, I'm very worried of the door closing". I was left with the impression Da was more concerned about the damage to the door than the welfare of his nephews.

In her statement to the police dated 09.10.08 at page 6 section H of the bundle Ja spoke of the M having a bag with her whereas in her statement to this court she says it was a suitcase. Asked by Mr Metaxa to explain the inconsistency Ja said "those are just small details. If I had known how important it is to be accurate I would have been so". In any event she was unable to explain what happened to the 3 pieces of luggage when the M was taken to her aunt's without the children. She denied manhandling the M out of the house or shouting or abusing the M as suggested by her. She told me she was simply trying to calm the M down. She also denied assisting Ma in putting the M in to her car reiterating she was not a violent person.

Ja went on to say under cross examination by Mr Metaxa "I don't think there was ever an opportunity to ask my brother why he shut the door to the M". She accepted on being asked questions by counsel for the Guardian that the situation for the children when the M left would have been very difficult for them, they would have been bewildered, confused and unsure of what was going on. She recalled the boys were upset and were crying. She said "I was very honest with the boys and told Kab and Kar their M had gone to live with their aunty, she is okay and safe". She said the children did not speak about their M but accepted the children would have heard much more of the family conversations than they believed though they would try to shield them from them because of their professionalism.

83. This event marks the separation of the parties. From this point M has been housed as a homeless person at public expense. Even now, where she is sharing the care of her sons equally, she has to do so in a state-funded one-bedroom flat. Given that her husband is an affluent GP this is an extraordinary state of affairs.  I will have more to say about this when I chart the way ahead below.

84. It is to be noted that the water–spraying element of the episode is admitted. This was a shameful act of bullying.

85. M has given an account of this episode in a number of different places. There are very striking variations and inconsistencies between them. These were set out before the District Judge by Mr Bailey in his final written submissions as follows: 

The last incident concerns mother's leaving of the FMH on the 3rd September 2008. In her Scott Schedule the mother refers to an argument with F during which Jo sprays water at her and states:  "if I had fire I would put it in your face". This is in complete contrast with what she told the Contact Supervisor on the 29.9.08 that Jo has said she was spraying mother to cool her down. Both accounts cannot be right. Again it is suggested that the mother is deliberately setting out to exaggerate and mislead in her account to the Court.  The Scott Schedule continues that Jo was goading the mother to hit her. The mother in law then grabbed the mother and Jo threw a shoe at her. This account of grabbing and throwing a shoe is not in the mother's FLA statement at para 7 pE16. Neither is it in the account given to Matthew Pilkington by the mother. In the Scott Schedule F now comes downstairs and drags the mother into the kitchen. No mention is made of this to Dr Whittle (internal page 5 at F44). The Scott Schedule then records that the mother in law told the mother to leave the house. The mother said she would go. However, to Matthew Pilkington the mother stated that she decided she wanted to leave the house and take Kab with her (para 32 F7). To Dr Whittle the mother said that she said she would leave and told Kab to get his things (internal p5 F44). Her mother in law said she could leave but without the children. Mother then called the police and F is alleged to have  snatched the phone from her. This is not referred to in the mother FLA statement. The police then attended and offered to escort the mother from the premises but she refused. The Scott Schedule then alleges that Ma asked her why not go to her "dad's" and then assaulted her by pushing and prodding her in the shoulder. In her FLA statement the mother simply states that her sister in law (unspecified) was "pushing her". In her Contact of the 27.09.08 the mother tells the supervisor that her sister in law took her phone from her and hit her with it. The mother in oral evidence denied telling the supervisor this. In her police statement at H54 the mother states that Ma punched her on the right shoulder as soon as the police left. In oral evidence, the mother stated that she makes no distinction between a push and a punch, which is nonsensical. To Mathew Pilkington the mother stated that after the policed left the situation had calmed (para 34 F7). No mention is made of an assault by Ma. In the Scott Schedule the mother was threatened by F to kick her out, but to Mathew Pilkington, the mother stated that F had had a calming influence, trying to diffuse the argument (para 31 F7). Mother told Mr Pilkington that it was her mother in law and Ja who were complaining and suggesting that she leave. The Scott Schedule alleges that a sister in law started shoving and pushing her and asked he why not go to her aunt's home. She was then pushed and shoved by various members of the family, whereupon she was punched by F and one of his sisters. M was then pushed out of the house and restrained by Ma and Ja from getting back into the house, her hair was pulled and this was witnessed by the children. This account is very different to that given by the mother in her police statement at H54 where having taken Qad from her, F then proceeds to punch her on the back, shoulder and hand near the wrist. In her police statement, once outside the property, Ja grabbed the mother and pushed her into the car.  In this account, the mother is assaulted downstairs by F alone, not as stated in the Scott Schedule. In her FLA statement, at paragraph 9, the mother is assaulted by F and a sister in law (in oral evidence she stated this was Ja. The mother's FLA statement contained a number of amendments in relation to the role's of the sister-in-laws, notably at paragraph 10, when one sister in law becomes two. In oral evidence the mother said she was punched by Ja outside of the house but neither her Scott Schedule not her FLA or police statements make that assertion. The mother's account to Dr Whittle, at internal page 6 F45 gives a completely different account as to any force used upon her. Here, her sister in law pulled her by the hand out of the house. Her other sister in law pulled her into the car. It is strongly suggested that in the light of the mother's injuries observed by the police, consistent with smashing the window of the front door, and her inconsistent and contradictory accounts of the use of force against her, her evidence is unreliable.

86. On any view M's evidence about this event was all over the place, as this analysis, which I accept, demonstrates. Yet the District Judge in his indorsement simply finds the original Scott Schedule version in all its detail to be true on the balance of probabilities. In my view this is quite untenable and my view as to its untenability is reinforced by my equivalent 6 similar conclusions set out above.

87. Plainly, there was an ugly incident which led to M being expelled from her home without her children. Since then M has had to struggle to re-establish a normal relationship with her children. Initially she was restricted to supervised visiting contact, partly in a contact centre, which must have been overwhelmingly distressing to her.

88. However my sympathy for M in relation to this episode and the sad events which then unfolded must not deter me from reaching my clear conclusion which is that on the evidence before the court it was simply untenable for the District Judge to conclude, applying correctly the burden and standard of proof, that it was more likely than not that the version of events set out in the original Scott Schedule actually happened in the terms recited therein.

The cross-allegations of ill-treatment of the children.  
89. Each party alleged that the other had mistreated the children. In this part of my judgment I will only consider M's allegations against F, as the finding against him reveals a serious procedural irregularity that renders it most unfair, and plainly unsafe.

90. As mentioned above, a mere 13 days before the commencement of the hearing M expanded her list of allegations by a throng of further allegations via the medium of Ms Khan's report.   Among these was the belt allegation (see above) coupled with a more general allegation that F ill-treated the children by hitting them.

91. On 18 January 2010 the draft judgment was made available. In para 279(17) thereof the District Judge found:

I find the M has been assaulted by the F in front of Kab and Kar but I do not find the F has hit the children with a belt.

There was no finding in relation to the more general allegation. Implicitly the District Judge acquitted F of hitting his children.

92. Immediately following receipt of the draft judgment Mr Metaxa wrote to the District Judge a letter which included the following:

Could the court deal specifically with whether the father has hit the children (not with a belt, which is dealt with in subpara 14 on page 64)? This was also included in the original list of what the children said happened but is not now in the list.

93. When the parties re-convened at Court on 22 January 2010 they were given a finalised version of the judgment which reflected the corrections that had been submitted. Para 279(17) became para 234(16) and now read:

I find the M has been assaulted by the F in front of Kab and Kar and I also find that the F has hit the children on their face, back and legs with his hands but I do not find the F has hit the children with a belt.   (emphasis added)  

94. It is well-established that a judge may revise his draft judgment at any time up to hand-down. Within reason he can change it any way he wants. But I would have thought that a change as important as this needed to be accompanied by a clear explanation. The judgment has moved from a tacit acquittal of F of mistreating the children to an explicit finding that F has mistreated them by striking them, not only on their backs and legs but on their faces.

95. When the parties attended before the District Judge on 22 January 2010 this matter was raised and the District Judge apparently stated that this addition was not a serious criticism as he was satisfied that any such treatment of the children amounted to reasonable chastisement. But no alteration to the judgment was made. The District Judge certainly gave the benefit of such an exoneration to M in para 221, where he said "Whilst I do not find the chastisement by the M of the children has been anything other than reasonable chastisement….". If he felt the same about F why was an equivalent exoneration not specified for him?

96. This aspect has caused me the gravest concern. This judgment may be read in years to come by the children. In its present expression it convicts F of serious mistreatment of his children. The means by which such a finding were obtained are insupportable.

97. It is my opinion that the errors I have identified thus far:

i) as to assessment of credibility generally;
ii) as to the judging of the seven serious allegations of assault; and
iii) as to the finding that F mistreated his children by hitting them

are of such a scale and degree that the whole judgment is rendered unsafe and should be set aside.  Mr Metaxa submits that these erroneous aspects can safely be severed from the rest of the findings and that the findings as to (a) M's very late entrants and (b) F's 80 allegations are basically sound and can be left intact. He even submitted that the subject matter of these findings was the really important stuff, and that the seven allegations of assault were basically peripheral and unimportant. I do not see it that way at all. To accuse someone of Domestic Violence is an allegation of the utmost seriousness. M saw it that way too. They dominate her Scott Schedule. The late entrants seem to be little more than an afterthought.

98. I agree with Ms Rowe QC that the errors I have identified and explained are such as to "undermine fatally the integrity of the whole judgment".

The rest of the allegations 
99. In the light of my conclusion as to the non-severability of the rest of the allegations I do not need to undertake a further evidential analysis of them.  There are two points that I need to make, however. The order setting up the fact-finding inquiry required the parties to set out their cases in Scott Schedules. M duly did so, and, as I have said, her case against F was dominated by her allegations of domestic violence. A mere 13 days before the hearing a throng of further allegations was made via the medium of Ms Khan's report. No application was made to amend the Scott Schedule. In fact, no attempt was made to reduce the allegations to a list until Mr Metaxa did so in his final written submissions. These were exchanged and there were no oral submissions.  So neither F nor the court ever had a clear list of the further charges presented during the hearing. How this was managed forensically is beyond me. I am clear that if Scott Schedules have been ordered and that if a party wishes to allege further acts then the Schedule should be formally amended. A fair trial surely requires no less.

100. The second point relates to the 80 allegations made by, or on behalf of, F against M. Many of these were wholly trivial, unkind and unnecessary and were designed to destabilise her. They were all found to be false, by which the District Judge surely meant that they had not been proved to the requisite standard.  For none of these was P > 0.5. It might be said that there is no difference between setting them aside and leaving the findings intact as in each case the charges simply remain unproven. But given the binary system of fact-finding explained by Lord Hoffmann the effect of the judgment is to return for each of these allegations a value of zero, and a finding that they did not happen. That would amount to res judicata for the future. Given the errors in the judgment that would not be appropriate.

101. Therefore the appeal is allowed and all of the findings are set aside. 

The way ahead
102. I am clear in my mind (at least provisionally) that there should not be a further fact-finding hearing. The parties have in effect agreed equal shared care at least for the medium term. Therefore under para 11 of the Practice Direction there is no purpose to such a hearing. I shudder at the prospect of the parties going through an equivalent forensic ordeal to that which they have endured.

103. By the same token I am clear, subject to anything the Guardian (who has not participated in this appeal) may have to say, that there should not be a 10 day disposal hearing on 14 June before District Judge Malik. That hearing will be vacated. I propose to direct that the equal shared care order of 23 February 2010 should run for a further 12 months with a review before a High Court Judge at the end of that period with a time estimate of 2 hours. With a fair wind it should be possible to discharge the Guardian at that time. By running the present order for a further 12 months it should be possible to test the good faith of F both vis-à-vis M and his co-operation with professionals.   

104. It is obviously very important that M recovers her just award for ancillary relief at the soonest opportunity so that she can (obviously subject to affordability on the part of F) be accommodated in a home fit for her and her children. Therefore I will direct that a one hour directions appointment in the ancillary relief be fixed before me in the early part of next term.