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M (Children) [2013] EWCA Civ 388

Appeal against findings of fact in private law children proceedings. Appeal dismissed.

Case No: B4/2012/2851
Neutral Citation Number: [2013] EWCA Civ 388


Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday, 20th March 2013





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Mr William Tyler (instructed by Emery Johnson Solicitors) appeared on behalf of the Appellant.
Mr Gavin Lyon
(instructed by Heer Manak Solicitors) appeared on behalf of the Respondent.
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(As Approved by the Court)

Crown Copyright©

Mr Justice Ryder:
1. This is an appeal against six findings of fact made by HHJ Hilary Watson on 12 October 2012 at a fact-finding hearing in the Coventry County Court in private law children proceedings under the Children Act 1989.  The children concerned are a boy, who I shall refer to as B, who was born on 25 September 2005, so that he is now seven, and a girl who I shall refer to as G, who was born on 13 December 2006; she is now six.  Their parents, Ms M and Mr M, are married, but separated in November 2009, and we are told are obtaining a divorce.  The issue between the parties is the contact to be afforded to father with the children.  The fact-finding hearing has had to wait an inordinate time to be completed.  It first began in January 2012 before a District Judge, was unable to resume part heard before July 2012, and then had to be abandoned and started again before HHJ Watson in October last year.  That was unacceptable.  The hearing took five days, and the judge heard evidence from the mother and the father alone.  She also had the benefit of a transcript of the evidence heard by the District Judge. 

2. The findings complained of are these.  First, that during 2008 father raped the mother.  Second, that on 11 November 2009 father assaulted the mother.  Third, that the father's twice smacked the child, B, with his hand.  Fourth, that father told the mother that the child G, sitting on his knee, would cause him to have an erection.  Fifth, that the sexual allegations made by the mother in respect of the father's interest in child, G, were not maliciously made.  And sixth, that father was responsible for a message sent from the mother's Facebook account in September 2009.

3. Mr Tyler, who appears on behalf of father, has carefully and skilfully analysed the evidence.  His submissions were powerful and attractive.  He says that each finding was demonstrable contrary to the weight of the evidence, and that is plainly wrong.  He further submits that the judge was plainly wrong to assess the mother as being "for the most part a truthful witness", an assessment which he submits is manifestly at odds with the judge's own findings about other aspects of her evidence, which was false.  He submits that the judge failed to analyse appropriately or at all important and significant inconsistencies in the mother's various accounts in relation to her allegations, and failed to analyse appropriately or at all the implications of the fact that other allegations were falsely made.  Finally, he submits that some of the judge's findings were not supported by the evidence.

4. In reply, Mr Lyon has provided us with a careful and detailed skeleton argument, in which he submits that the findings arose out of an entirely proper exercise of weighing the available evidence, and were within the judge's broad discretion.  In particular, although the judge found that mother's evidence contained elements of exaggeration and embellishment, at the core were allegations of evident truth.  In contrast, her assessment of father's absolute denials of violence, rape and other behaviours, and his own inconsistent and contradictory evidence and admitted lies to the court, fully entitled the judge to prefer the evidence of the mother.  He also submits that none of the findings was unsupported by evidence, merely that some allegations were proved in part, or to a lesser degree of gravity or severity than alleged. 

5. It is unnecessary to set out at length the well-known principles upon which this court acts.  It is sufficient to say that an appellate court may only interfere where the decision in question exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong.  The line of authority from G v G (Minors: Custody Appeal) [1985] 1 WLR 647 is clear. Furthermore, the observations of Lord Hoffmann in Piglowska v Piglowski [1995] 2 FLR 765 at 784 remain as strong as ever.  The first instance judge has seen the parties and the other witnesses.  Findings are inherently an incomplete statement of the impression which was made on the judge by the primary evidence:

"His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance . . . of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."

That passage was itself a quotation by Lord Hoffmann from Biogen Inc v Medeva PLC [1997] RPC 1.

6. When any fact-finding court is faced with the evidence of the parties and little or no corroborating or circumstantial material, it is required to make a decision based on its assessment of whose evidence it is going to place greater weight upon.  The evidence either will or will not be sufficient to prove the facts in issue to the appropriate standard.  As has been said many times in one form or another, the judge is uniquely placed to assess credibility, demeanour, themes in evidence, perceived cultural imperatives, family interactions and relationships.  Insofar as complaint is made about the judge's reasoning for so doing, I can do not better than repeat what Munby LJ, as he then was, said in A & L (Children) [2011] EWCA Civ 1611, at paragraphs 34 and 35: 

"34. There are two principles in play here. The first is that explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, 1372. So far as concerns a judge's approach to a case and his reasoning his 'reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account.' An appellate court, Lord Hoffmann continued, 'should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.'

35. The other principle, relating to the adequacy of a judge's expressed reasons, is that explained by Lord Phillips of Matravers MR in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, paras [17]-[21]. For present purposes it suffices to refer to how Thorpe LJ put it in Re B (Appeal: Lack of Reasons) [2003] ECA Civ 881, [2003] 2 FLR 1035, para [11]:

'the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?'

Thorpe LJ had previously observed that one should not ignore the 'seniority and experience' of the particular judge, the 'huge virtue in brevity of judgment', and that the 'more experienced the judge the more likely it is that he may display the virtue of brevity.' I should add that there is no obligation for a judge to go on and give, as it were, reasons for his reasons."

It is not necessary to give a reason for every reason.  Insofar as that is sometimes required, it is when there would otherwise be a logically fatal inconsistency which would render the judge's acceptance of evidence plainly wrong.  In cases of this kind, there is often little more that a judge can say on a particular issue than that he believes X or disbelieves Y.

7. There is one other matter of law which may be of assistance.  I raise it with some hesitation, but it may be thought to be helpful.  HHJ Watson did not remind herself of what is colloquially known as a 'Lucas' direction.  She had no need to do so, and there is no complaint about that.  But some fact-finding judges do.  Had she done so, I ask the rhetorical question would she have come to any different conclusions.  I venture to suggest that she would not, and would only have been emboldened in the course she took.  A Lucas direction is a criminal direction derived originally from a case on corroboration, R v Lucas [1981] QB 720.  It is used to alert a fact-finding tribunal, that is a jury in a criminal trial, to the fact that a lie told by a defendant does not of itself necessarily indicate guilt because the defendant may have some other reason for lying; that is, he may lie for innocent reasons.  A witness may lie because she lacks credibility, or because she has an innocent motive for lying.  If she lies about the key fact in issue, that is one thing; if she lies about collateral facts, that may be quite another.  A judge of fact may not be able to separate out every fine distinction, but may nevertheless conclude that an allegation is proved, despite the fact that the witness has lied about other matters. 

8. This is often simplified in the circumstances of emotionally-charged allegations remembered through the fog of distress and relationship breakdown as a core of truth surrounded by sometimes exaggerated and sometimes badly recollected or hazy memory.  There may also be an overlay of deliberate untruth arising out of the anger and distress of the breakdown and/or the nature of the application before the court, and I remind myself this was a strongly disputed application.  It is also too frequently the case that a Family Judge is faced with internally inconsistent or even untruthful witnesses who are locked in a battle in which their energies and antagonism have sadly come to be focused on who should look after the children or have contact with them. 

9. In that context, what did HHJ Watson do?  It is conceded that she set out the correct test in relation to the burden and standard of proof, and that she very clearly set out her findings as to the credibility of both mother and father.  As to mother, she found:

"Her evidence was at times inconsistent, and she did exaggerate and embellish her evidence, but I find that she was for the most part a truthful witness."

As to father, she found among other things:

"He told the court he had lied, and admitted posting untruths on his wife's Facebook account.  He was at times less than frank when giving his evidence and at times he did not tell the whole truth.  I find that he has been deliberately evasive during the criminal proceedings, and I am satisfied that he was being equally evasive in the Children Act proceedings."

10. Turning then to the findings which are the subject of this appeal, I take first the rape of the mother by the father.  Mother delayed reporting this to the police.  It was in her second, but not her first statement.  The judge explicitly sets out mother's inconsistencies, and mother's reason for the delay, her cultural reticence bordering on a conventional bar when sexual matters between spouses are in issue.  The judge accepted the core allegation of rape, which had been consistently made.  The allegation that the child, G, had been assaulted with a belt during the sequence of events on that day is a collateral fact to the rape.  The allegation of rape is not dependent on it.  The assault allegation had not been consistently made; indeed, mother appears to have told the police that her daughter had not been assaulted.  Whether, as is submitted by mother's counsel, that her truthful presentation and demeanour were central to the judge's acceptance of the rape, or as is submitted by father's counsel, that for mother the gravamen of the incident was the untruthful allegation of assault on the child, is a matter entirely for the first instance judge.  This court cannot interfere, unless the two findings cannot stand together.  In my judgment, they can, and the judge carefully described the apparently inconsistent events that fell together.  The timing of the initial presence of the children, their distress at how mother went to be with the children at night, are all circumstantial findings that are supportive of the core allegation, not fatally inconsistent with it.

11. Turning then to the second ground, the finding of the assault of the mother by the father in 2009.  The judge records what mother described as a beating, leaving her with visible injuries.  The judge sets out the inconsistencies as to what injuries were reported, and observed by the police, in particular the injuries which she allegedly sustained to her face.  There is a long and detailed examination of the evidence of both mother and father, including an analysis of what they said in evidence in the criminal trial.  Having analysed the inconsistencies between the various accounts, the judge sets out her findings, relying on the consistencies, and these were eight-fold.  One, there was an argument about male contributors to mother's Facebook account.  Two, there was pushing.  Three, mother asked father why he had hit her.  Four, there was more pushing.  Five, this was a violent incident; father did touch her.  Six, the leg injuries were observed by the police when mother reported the incident.  Seven, mother's account of the police was consistent with this.  And eight, father minimised the incident. 

12. In my judgment, there can be no complaint about this exercise and the careful analysis it entailed.  In consequence upon it, the judge preferred mother's account to father's.  That is, that this was a violent incident, not a minimal argument with mere pushing.  Consistent with that, the judge made further findings based upon mother's evidence of slapping, kicking, dragging by her hair, and assaulting her with a small coffee table, which appears to have been witnessed also by the child, G.  Mother was injured, and was consistent about the coffee table being used, and about the injuries which were not seen.  The location of the assault was either the parties' bedroom or the children's bedroom.  That is an inconsistency, but, bearing in mind the lack of an interpreter when the initial police documentation was prepared, it is an inconsistency which is not significant enough to undermine the reliance placed by the judge on mother's account. 

13. In contrast, father gave a no comment interview to the police, and his statement was found to be misleading.  His evidence developed from no violence to repeated pushing, and a concession that mother was hit by a door.  There was even a dispute about dates which allowed him to truthfully refer to events that had occurred on a different day as if they had occurred on the day of the incident.  The child, G, corroborates the assault in her recollection to the CAFCASS practitioner, and it is perhaps understandable that this is not a finding that father spends too long trying to avoid.

14. The third finding is the smacking of child B, to discipline him, on two occasions.  With the exception of this one finding, the judge rejected mother's allegations of significant physical violence upon the children.  The rejected allegations included an assertion by father that he wanted to make his son a man, and that the children had been kept away from the nursery because of bruising.  None of that was accepted by the judge, who gave a clear reason, namely mother's vagueness and inconsistency in the face of such important allegations.  The judge was clear that if this had happened, mother would have a clear and vivid recollection.  Did the judge hear evidence consistent with the findings she made?  To the extent that mother said she had only mentioned the more severe beatings to the police, that is that there was less severe violence, then the answer is yes.  And consistent with that was father's own evidence of smacking his son, albeit in play, but not his daughter.  He said that the smacking was in play, but there is no doubt that he gave ample evidence of what he had done.  In my judgment, there was material on which to base this finding, which cannot sensibly be undermined, despite the wholesale rejection of the more serious allegations made by mother. 

15. The fourth finding is that father told mother that sitting his daughter on his knee would cause him to have an erection.  Father made a bare denial of this allegation, and accepted that for entirely innocent reasons, a leg injury, he removed his daughter from sitting on his knee on occasions.  Mother did not make this allegation to the police, nor initially to the CAFCASS Officer, nor in four statements, numerous meetings with professionals, and at more than one court hearing.  Mother's evidence as to what was said was patently embellished over time, something mother did not accept when the matter was put to her in cross-examination.  Was the judge entitled in that context to rely on what mother first said to the CAFCASS practitioner in 2011?  I have concluded she was.  She explicitly sets out the cross-examination of mother's responses to the question that she in effect invented this allegation to adversely affect contact, and she then took that into account in coming to her conclusion.  It is not the case that an allegation is either genuinely made or maliciously made.  One finding does not follow on from a rejection of the other.  I reject that submission.

16. The sixth matter is the finding that the Facebook message was sent to mother's brother.  Father did alter, that is manipulate, mother's Facebook account.  For example, he changed mother's picture to a death mask, and posted that she had committed suicide.  No other person had access to her Facebook account.  Unlike mother, father well understood Arabic, and challenged the interpretation of it in court.  The fact that there may be no reason for doing what is alleged to have been done does not mean that it was not done.  Nothing other than credibility turns on this allegation, and it was within the broad ambit left to a judge to conclude credibility as she did. 

17. Finally, and outside the grounds of appeal, is the allegation that father was forcing his son to watch Jihadist DVDs in order to radicalise him.  The judge rejected the allegation; hence, no appeal is brought upon the same.  But counsel for father asserts that the judge should have gone further, and declared the allegation to be false, thereby allowing the credibility issue arising to be taken into account in respect of all other matters.  It is worth remembering that an alleged fact not proven is not a fact in English law.  That is the effect of the binary system of proof: if a negative is to be proved, that has to be proved with cogent evidence, just as if the positive is to be proved.  It is not a correct proposition of law that a rejection of evidence mandates a judge to find that something is false; that is misconceived.  The judge made no error of law in the way she dealt with this allegation, and it is not asserted on any other basis that she was plainly wrong. 

18. The central plank of Mr Tyler's submissions is that the judge failed to take an overall view of mother's credibility, which reflected her conclusions on each allegation, and that had she done so, her conclusions on the allegations would have changed and been materially more favourable to the father.  I cannot accept that the judge fell into this error.  She analysed the evidence relating to each allegation separately and with care.  She looked at the allegations in the overall context of her view of credibility of both mother and father, and gave very careful reasons for her decisions. 

19. I would allow the judge's findings to stand, and accordingly I would dismiss this appeal.

Lady Justice Rafferty:
20. I agree.

Lord Justice Sullivan:
21. I also agree, so it follows that the appeal is dismissed.

Order:  Appeal dismissed.